The Law of Property: An Introductory Survey
Authors:
Kurtz, Sheldon F. / Gallanis, Thomas P. / Hovenkamp, Herbert
Edition:
7th
Copyright Date:
2018
26 chapters
have results for law of property hornbook
Preface v 2 results
- This volume represents a revision of the previous edition of The Law of Property: An Introductory Survey by Hovenkamp, Kurtz, and Gallanis. The cases and statutory law have been updated, and the material has been organized in a way to conform with the typical law school property curriculum that includes both personal and real property. New material has been added, as appropriate. The book is designed to cover nearly all of the material encountered in the typical law school’s first-year property law curriculum, plus some of the material covered in advanced courses.
- Each chapter opens with a “summary” or brief outline of the law encompassed under the title of that chapter. This outline, which cites relatively few cases, is designed to give the reader an overview of the rules in a particular area of law. Then follows a series of factually-based problems designed to require the property student to think about how these rules ought to be applied in a real situation. Each problem is followed by a short statement of the applicable law, and then by a lengthy analysis of the legal issues raised, likely outcomes, and case citation of various views, as well as to commentators in the treatises and periodicals. The problems are designed to be intensive, in that they require close analysis of the particular legal rules under application. In the aggregate, the problems are also meant to be extensive, in that they cover most of the areas of interest and complexity pertaining to this body of law.
- Open Chapter
Chapter 1 PERSONAL PROPERTY: RIGHTS OF SOME POSSESSORS1 124 results (showing 5 best matches)
Chapter 8 MARITAL AND CONCURRENT ESTATES245 124 results (showing 5 best matches)
- Generally, an elective or forced share equals some percentage (e.g., one-third) of the value of all real and personal property owned by the deceased spouse at the time of death. Thus, unlike common law dower, the spouse’s share also extends to personal property. On the other hand, in many states the share attaches only to property owned at death. This is unlike the common law, where dower attached to real property owned at any time during the marriage. Under these modern statutes, sometimes no measure of protection is provided a surviving spouse against lifetime or nonprobate transfers of property that have the effect of reducing the value of the decedent’s probate estate. Some states, concerned by the inequities that could result to a surviving spouse by such transfers, have by statute or judicial decision adopted rules which permit the surviving spouse to reach such assets in satisfaction of a forced share.
- Applicable Law:
- Applicable Law:
- It was said that under the common law the husband and wife were one, and the husband was the one. The wife’s personality was merged in that of the husband. She was burdened with the common-law disabilities including inability to contract or to use or convey her property. When W, being seised of Blackacre, married H, at that instant she lost—and H gained—control of Blackacre. He could, during their coverture, enjoy the rents and profits of the property and dispose of these for the period of coverture. Furthermore, the property could be levied upon to satisfy his debts. The husband’s coverture estate continued until the marriage was dissolved by death or divorce (an absolute divorce at common law could be obtained only by act of Parliament and so was a rarity), or until issue was born of the marriage at which time his estate was enlarged into a curtesy estate. Thus, during the joint lives of H and W, H had full control of the land
- Applicable Law:
- Open Chapter
Chapter 2 BAILMENTS23 91 results (showing 5 best matches)
- Applicable Law:
- A can only recover $500 from Hotel. Modern statutes generally have modified the “insurer’s” liability created by the common law. Under the common law the guest did not have to disclose the value of the property in order to impose liability on the innkeeper, but this rule has changed. Modern statutes require a guest to use reasonable care and prudence in the protection of the guest’s property. One aspect of this care is the disclosure of the value of the property to the innkeeper in order to hold the inn liable for the excess of that provided for in the statute. Failure to disclose is an act of negligence that precludes recovery beyond $500.
- In order for A to recover, A must first prove that a bailment relationship existed between A and B. Generally, a bailment relationship exists either by express or implied contract, by operation of law, or by statute. (Most bailments arise by express contract). A bailment arises when a bailor transfers possession of the bailor’s personal property to the bailee and gives the bailee primary control over the property for some period of time. The bailee, however, must return the bailor’s property to the bailor or the bailor’s designee when the bailor demands the property’s return or when the bailment otherwise comes to an end. During the bailment—that is, when the bailor’s property is in the bailee’s possession—the bailee has sole custody, control and exclusive possession of the property, subject only to the bailor’s instructions.
- Applicable Law:
- Applicable Law:
- Open Chapter
Chapter 12 LEGISLATIVE CONTROL OVER LAND USE—ZONING, THE TAKINGS CLAUSE, AND HOUSING DISCRIMINATION481 333 results (showing 5 best matches)
- Applicable Law:
- Applicable Law:
- A sues to enjoin the enforcement of any of the provisions of this zoning ordinance contending that to do so would take his property without due process of law and would deny him equal protection of the laws under the 14th Amendment of the U. S. Constitution. A specifically contends that the zoning ordinance prohibits the use of his property for industrial purposes for which it is peculiarly adapted, that it lies squarely in the path of industrial development from the large city nearby, and that the enforcement of the ordinance will depreciate his property from $10,000.00 per acre to $2,500.00 per acre. Should the injunction issue?
- the Supreme Court concluded that even in the absence of any trespass a taking could occur when (1) a government regulation reduces the value of property to nearly zero; and (2) there was insufficient precedent for the challenged regulation in the state’s laws and legal traditions, such that the regulation could be said to be part of the property owner’s reasonable expectations. “Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts . . .
- Applicable Law:
- Open Chapter
Chapter 5 CLASSIFYING POSSESSORY ESTATES107 272 results (showing 5 best matches)
- Applicable Law:
- The precise manner of creating a use which the statute executed into a valid estate is detailed in Kurtz, Moynihan’s Introduction to the Law of Real Property ch. 8 (5th ed. 2011).
- B takes a fee simple absolute. Prior to the statute and at common law, the expression “to B and the heirs of his body” created a fee tail estate in B. This estate was limited to lineal heirs. Many states have statutes which provide that an estate which was at common law a fee
- Our legal system permits ownership to be divided or fragmented. Derived from the English common law, fragmentation of ownership is an ingenious concept. It allows two or more persons to have simultaneous interests in the property.
- At common law, if B died before C, the property was regarded, until C died, as without an owner. Thus, the first person to take possession, called the common occupant, was entitled to the estate. This conclusion resulted from the fact that the estate
- Open Chapter
Chapter 15 THE EVOLUTION OF THE MODERN DEED611 78 results (showing 5 best matches)
- Applicable Law:
- The deed could be a common law “grant.” At common law only incorporeal rights or hereditaments lay in grant, that is, could be transferred by deed. These rights, having no physical existence, could not be delivered over to the grantee. Only physical property was subject to livery of seisin and required delivery of possession by feoffment. If the legislature of State X intended, by prescribing the above form of conveyance, to say that corporeal real property lay in grant as well as in livery, then the deed can operate as a conveyance equivalent to a common law “grant.”
- Each state has the power to prescribe the form which a conveyance of real property shall take and the power to determine the legal effect of a conveyance, subject only to federal law.
- M’s intent seems clear. She wrote, “The property is yours.” These informal letters constituted a compliance with the statutory requirements, and conveyed Blackacre to Sam. The State has the power to prescribe methods of conveying real property. If it prescribes merely a signed and dated writing, then compliance with such statutes will convey land wholly without reference to technical requirements of the common law or former statutes.
- This statutorily prescribed form can operate as a conveyance wholly independently of the past methods of transfer of real property, whether common law, equity or under the Statute of Uses, simply because the legislature of State X has so declared. The local statute gives this form the efficacy of a conveyance, and no reasons are needed beyond the fact that the legislature has power to prescribe forms of conveyance and this is the form so prescribed.
- Open Chapter
Chapter 9 LANDLORD AND TENANT LAW269 394 results (showing 5 best matches)
- Applicable Law:
- A tenant who transfers an interest in the property makes either an assignment or a sublease. At common law an assignment was characterized by a transfer of the entire balance of the term; the sublease by a transfer of less than the entire balance of the terms.
- While the Restatement of Property, Second, is generally in accord with the traditional common-law principle where the entire property is taken by eminent domain, in the case of only a partial taking, the lease also is terminated if “the taking significantly interferes with the use contemplated by the parties.”
- At common law a term for years was a chattel real and personal property; if the owner of the estate died intestate, the estate passed as any other personalty to the deceased tenant’s personal representative. A term of years was not an estate subject to dower.
- Applicable Law:
- Open Chapter
Chapter 10 SERVITUDES: EASEMENTS, COVENANTS, EQUITABLE SERVITUDES343 473 results (showing 5 best matches)
- One item deserves attention. In the preceding Problem the benefit of the covenant ran with the descent of Blackacre. In this Problem the burden runs with the descent of Whiteacre and the easement appurtenant to it. If an assignment is voluntary, the assignee has the power to refuse to receive the property. At common law the heir could not prevent the vesting of the title in him. This is not objectionable when a benefit is conferred. But in this case by the descent of Whiteacre together with the burden end of the covenant. H finds himself personally liable on a covenant he never made and which has come to him without power to prevent it. The common law made no distinction between a voluntary assignment and one by operation of law and at common law there was nothing H could do to escape the personal liability imposed on him by this set of facts. Today, most states have statutes that enable the heir at law to reject title by descent to property if he or she decides that the burdens of...
- Applicable Law:
- Applicable Law:
- Applicable Law:
- Applicable Law:
- Open Chapter
Chapter 11 NUISANCE449 134 results (showing 5 best matches)
- Applicable Law:
- Ordinarily, whether or not B’s use of his property was reasonable or unreasonable would be a fact question. If it were so in this case then the equity court sitting as a trier of fact has, by denying the injunction, found the fact against A. But in this case the facts seem to exist without conflict, and being thus settled, the reasonableness of B’s use of his property is a question of law which the court properly determined in B’s favor.
- If the facts are settled or are such that reasonable people cannot differ about them, then the question of the reasonableness of the use of the property is one of law.
- Applicable Law:
- Applicable Law:
- Open Chapter
Chapter 4 RIGHTS OF POSSESSORS OF LAND, INCLUDING ADVERSE POSSESSION67 240 results (showing 5 best matches)
- due diligence to recover the stolen property at the time it was stolen and thereafter; (2) whether at the time the property was stolen there was an effective method to alert the marketplace that the property had been stolen; (3) whether the lost property was subject to any form of registration that could put the world on notice of ownership claims. Because personal property can be easily concealed, use of the discovery rule rather than the common law rule makes it easier for true owners to protect their rights so long as they use due diligence in seeking to ascertain the whereabouts of the lost property. Under this rule, so long as the search continues the statute does not begin to run.
- In most jurisdictions and under common law, adverse possession cannot be asserted against the government; local, state, or federal. However, a number of states have changed the common law rules, whether by legislation or judge-made law. A few states permit adverse possession against government property on same conditions as against private property; others extend the statutory period required; while others permit it only against government property held in a proprietary (as opposed to a public or governmental) capacity. See, e.g.,
- Applicable Law:
- In the case of re-entry by the true owner, it must be open, hostile, and effective. See 3 American Law of Property § 15.9 (1952).
- Applicable Law:
- Open Chapter
Chapter 6 CLASSIFYING FUTURE INTERESTS151 378 results (showing 5 best matches)
- Applicable Law:
- The class members take by representation. The form of representation may be specified in the terms of the governing instrument creating the class gift or, if the governing instrument is silent, the property “is divided in accordance with the form of representation adopted in the intestacy law of the domicile of the designated ancestor.”
- Applicable Law:
- Of course, if the common-law Rule of Destructibility applied, then in this case the remainder would be destroyed at B’s death because there was then no remaindermen capable of taking possession of the property.
- At common law if an instrument could be construed to create either a vested or a contingent remainder, the construction that resulted in the creation of a vested remainder was preferred. This preference was intended to make the property more alienable since the holder of a contingent estate could not alienate the property. There is some doubt whether this preference should continue. A preference for early vesting could result in subjecting property to a death tax it might not otherwise have been subjected to and this is likely inconsistent with a grantor’s intent.
- Open Chapter
Chapter 7 SPECIAL RULES GOVERNING FUTURE INTERESTS207 225 results (showing 5 best matches)
- At common law the Doctrine applied to dispositions of real property. Today, it can apply to dispositions of all property, outright or in trust. For example, if O transferred property to T to hold in trust to pay the income to A for life, then upon A’s death to distribute the trust corpus to O’s heirs, O’s heirs would have nothing and O would have a reversion.
- As to the common-law rule generally, see Restatement of Property §§ 370–377; Simes, 253–297.
- Applicable Law:
- Historically the Rule applied only to conveyances and devises of real property; it had no application to transfers of personal property and chattels real. Some jurisdictions, however, applied an analogous rule to personal property as a rule of construction.
- In 2010, the American Law Institute, in the Restatement Third of Property, proposed a reformulated Rule Against Perpetuities. The reformulated Rule is no longer a rule against remote vesting. Instead, it is a direct time-of-termination rule. A donative disposition of property is subject to judicial modification if the disposition does not terminate (or ripen into ownership in fee simple absolute) on or before the expiration of the reformulated perpetuity period. The reformulated perpetuity period is limited to the lives of individuals no more than two generations younger than the transferor. If judicial modification is required, the court is instructed to modify the disposition in a manner that most closely approximates the transferor’s manifested plan of distribution and is within the reformulated perpetuity period.
- Open Chapter
Chapter 13 COOPERATIVES, CONDOMINIUMS AND HOMEOWNERS ASSOCIATIONS545 122 results (showing 5 best matches)
- The tenant-owner of a condominium can deduct mortgage interest and property taxes, while a lessee cannot generally deduct any part of the rental payment. Likewise, gains earned on the resale of housing may be long-term capital gains which, at various periods in our tax history have qualified for lower tax rates than ordinary gains. See R. Natelson, Law of Property Owners Associations, Ch. 13 (1989).
- Since the common law recognizes fee ownership and lesser property interests in usable airspace, it is feasible to create a condominium form of ownership at common law. Precedent for this form of ownership goes back to at least the Middle Ages, but condominium regimes were seldom created in the United States prior to statutory enactments in the 1960s.
- Further, the social evils frequently asserted as avoidable by invalidating restraints on alienation are not shown to be perpetrated by a cooperative device such as this. The restraints involved will not tend to keep the property in the same family and concentrate wealth; the member is not prevented from liquidating his interest and consuming the property; creditors are usually not prevented from satisfying their claims; and members are not discouraged from improving their homes. The restrictions on transfer are reasonably necessary to the continued existence of the cooperative association. Of course, cooperative enterprises are just as subject to federal and state antidiscrimination law as any other entity.
- (upholding condominium by-law limiting to two the number of units that could be held by any person);
- “[I]nherent in the condominium concept is the principle that to promote the health, happiness and peace of mind of the majority of unit
- Open Chapter
Chapter 14 SELLER AND BUYER: THE LAND SALE CONTRACT569 256 results (showing 5 best matches)
- Applicable Law:
- At common law, a non-builder seller was liable only for common law fraud,
- Under the common law rule, the buyer, to be protected, either must procure casualty insurance or negotiate a contract provision shifting the risk to the seller. Consequently, some jurisdictions have attempted to ameliorate the possible inequities in the doctrine of equitable conversion by the adoption of the Uniform Vendor and Purchaser Risk Act. This act provides that, unless provided otherwise in the contract of sale, the seller may not enforce the contract if property is destroyed by no fault of the buyer or is taken by eminent domain, if neither legal title nor possession has been transferred to the buyer.
- The traditional doctrines of equitable conversion and mutuality of remedies and the fact that the uniqueness of real property often makes damages an inadequate remedy at law create the basis of permitting both the buyer and seller to seek specific performance against the other for breach of contract. However, the buyer could obtain specific performance against the seller only if the seller was legally capable of performing. If the seller owned a smaller interest than promised in the contract, the buyer could demand specific performance of that part which the seller owned.
- The principles discussed in this problem also apply to sales contracts where the seller is to be paid in full at the closing and prior to the buyer taking possession. For example, Seller contracts to sell Blackacre to Buyer for $300,000 in cash to close 30 days later. Ten days after the contract is signed, Blackacre is totally destroyed by fire. Under the common law and the doctrine of equitable conversion, title to Blackacre is in Buyer. Buyer bears the risk of loss for casualties that wholly or partially destroy the property prior to the closing. Thus, if a fire totally destroys Blackacre prior to the closing, Buyer still owes Seller $300,000. To address this risk, of course, Buyer might purchase casualty insurance on Blackacre commencing with the effective date
- Open Chapter
Chapter 16 CONVEYANCING BY DEED625 199 results (showing 5 best matches)
- Under the common law, a remainder interest was dependent upon a life estate and the refusal of the life tenant to accept the life estate defeated the remainder. However, under the Uniform Disclaimer of Property Interest, if the life tenant disclaims then the remainder is accelerated in favor of the remaindman.
- Applicable Law:
- See generally R. Natelson, Modern Law of Deeds to Real Property § 3.2 (1992).
- In the common law field of exceptions and reservations, history has played an important role and cannot be ignored. In England, a reservation created a right or incorporeal interest which had not existed previously, and which issued out of the land as a feudal service. It was created as a “regrant.” The grantor was considered to have conveyed the entire property to the grantee free from any burden, then the grantee in the same deed “regranted” the interest reserved to the grantor. This was possible in England where both grantor and grantee signed or sealed the deed. But the theory did not seem to work in this country where only the grantor usually signed the deed. How, then, did our courts reach the result given in the answer above? They solved the case given as though it were an exception rather than a reservation. Because exceptions applied only to presently existing interests, the concept could not be applied to an easement or profit which was to be newly created by the deed and...
- At common law, an heir could not prevent title coming to the heir by descent by operation of law, although most states now have statutes permitting such refusal, albeit called a disclaimer. While many states require the disclaimer to be made within nine months of the intestate’s death, under the Uniform Disclaimer of Property Interests Act the disclaimer can be made at any time.
- Open Chapter
Chapter 3 GIFTS, INCLUDING BANK ACCOUNTS41 124 results (showing 5 best matches)
- Under state law, death taxes are payable only on a decedent’s property owned at death. Did O own the 18,000 shares of X Corporation stock and the $16,000 of cash at the time of her death?
- A future interest is an interest in property where the right to the possession of the property is postponed until some future date. For example, if O transfers property to A for life, and upon A’s death directs the property shall pass to B, B has a future interest because B’s right to the possession of the property is postponed until A dies. A, on the other hand, has a present interest, i.e., the right to possess the property for the rest of A’s life. See Chs. 5, 6 &7.
- Applicable Law:
- The requirement of delivery to the extent it entails an actual transfer of the personal property has been considerably diluted over the years. The nature of the delivery requirement depends in a large measure upon the circumstances of each case. Where actual transfer
- The court also rejected the notion that the donee already had possession of the gift property making delivery unnecessary because the gift property was in the family home. Even if delivery is dispensed with where the donee has possession of the property, the court stated that in this case the house was decedent’s property and although the
- Open Chapter
Chapter 17 ASSURANCE OF TITLE667 274 results (showing 5 best matches)
- Applicable Law:
- adverse possession, prescription, or equivalent property interests acquired by operation of law and without a recordable instrument.
- Assuming, however, a jurisdiction that would follow the earlier interpretation and would construe the title covenant most strictly against the grantor and without modification, then we would find that C’s mortgage with its covenant of warranty is a conveyance by A of a larger interest than A had in the property at the time it was given. After B’s foreclosure, A had no interest in the property because it had been completely cut off by B’s foreclosure action. Thereafter, A acquires by purchase the fee simple in the property. At the instant of reacquisition, the benefit inures to C under estoppel by deed. The doctrine is binding both on A, a party to the original second mortgage, and on those who take through him, D in our case. This is true whether or not D is a bona fide purchaser. This was the common law rule and were we to stop at this point the answer to our question would be yes, and C could foreclose C’s mortgage. In other words, if this case were to be determined wholly on the...
- Applicable Law:
- The answer in the previous problem is called the American view and is followed by the great majority of cases. But it is worthwhile looking at the opposite side of that holding. A conveys to B with covenant of seisin which means that A covenants that A is seised of the property at the time A delivers the deed. In fact, he is not seised at all and has no interest in the property. Then B conveys to C and the real owner, X, evicts C. C has paid B full value for the land. C now sues A for breach of the covenant. The purpose of the covenant is to give security to the grantee, immediate or remote. Today, many technicalities have been erased from our real property law and choses in action are readily assignable. This covenant is no good to B after B has conveyed for full value to C. The only one needing the security of the covenant is the last owner who has been evicted by paramount title, or C. Chancellor Kent called the doctrine that the covenant could not run with the land because it...
- Open Chapter
Title Page 5 results
Center Title 1 result
Copyright Page 4 results
- Hornbook Series
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
- Open Chapter
West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Justice Thurgood Marshall Distinguished Professor of LawUniversity of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Open Chapter
Index 741 112 results (showing 5 best matches)
Summary of Contents 38 results (showing 5 best matches)
Table of Cases 721 272 results (showing 5 best matches)
- Publication Date: October 10th, 2018
- ISBN: 9781642420913
- Subject: Property
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This title is a comprehensive, one-volume introduction to the modern law of real property. Each chapter begins with an overview of rules and concepts, followed by a series of problems and exercises designed to demonstrate how the rules and concepts apply in real situations. Each problem is followed by a comprehensive analysis of the legal issues raised, including citations of the relevant cases and statutes. This edition has been fully updated to reflect current developments.