The Law of Property
Authors:
Whitman, Dale A. / Burkhart, Ann M. / Freyermuth, R Wilson / Rule, Troy A.
Edition:
4th
Copyright Date:
2019
21 chapters
have results for law of property whitman
Preface iii 9 results (showing 5 best matches)
- Bill met Dale Whitman, the third original author of this book, when Dale joined the University of Washington faculty in 1978. The two became close friends, carpooled to work together, and talked endlessly of property law issues. Bill was a gifted writer and a brilliant thinker, with an encyclopedic knowledge of property law. The evidences of some of his best work are still apparent in Chapter 6 of this edition dealing with landlord and tenant law. The third edition of the book, prepared by Bill and Dale, was published in 2000, and Bill died in 2012.
- We have divided the work on this edition in the following way. Ann Burkhart of the University of Minnesota prepared the first five chapters, which deal with estates, future interests, and concurrent ownership. Wilson Freyermuth of the University of Missouri was responsible for Chapters 6 and 8, dealing with landlord-tenant law and servitudes. Troy Rule of Arizona State University wrote Chapter 7 on rights incident to possession of land and Chapter 9 on land use controls. Dale Whitman, now an emeritus faculty member at the University of Missouri, prepared Chapters 10 and 11, which deal with conveyancing and titles.
- This book is about the American system of property law, but our law is descended from England. It began shortly after the Norman conquest of 1066, and English history still exerts a surprisingly strong influence on our system. The principles of property law comprise a very large subject. Anyone familiar with the workings of lawyers’ minds and pens must know that nearly a thousand years of development will produce a prodigious body of law! Within one volume of hornbook size, this book surveys the chief areas and more: history and basic concepts; estates in land, present, future, and concurrent; comparable interests in personalty; landlord and tenant law; rights against neighbors and other third persons; easements and profits; running covenants; governmental controls on land use; land contracts; conveyances; titles; and recording systems.
- Most people think of property law as unchanging, so stable as to be downright dull. But by small degrees, and occasionally by large leaps, property does advance, and for the most part in ways that better fit it to society’s needs. In the nineteen years since this book’s previous edition, it is not hard to identify important changes. One might think of the advent in many states of the beneficiary deed (or “transfer on death” deed), of electronic recording, or of statutes requiring notification and time to cure before construction defect litigation can be filed. In the area of land use controls, the Supreme Court has continued to refine the Fifth Amendment “takings” issue. Statutes amending the impact of the Rule Against Perpetuities have continued to proliferate. Many other examples could be cited. Property law turns out to be surprisingly fluid.
- Dale A. Whitman
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Chapter 5 CONCURRENT OWNERSHIP OF REALTY AND PERSONALTY141 321 results (showing 5 best matches)
- Based on the lien theory, the mortgagee does not get title to the mortgaged property. The mortgagee only has a lien on it. G. Nelson, D. Whitman, A. Burkhart & W. Freyermuth,
- Eight states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington—have a marital property system known as community property. It is a substitute for the common law marital property system of the other states. Community property is a European civil law institution. Its ancient wellsprings are among the Visigoths. In modern times, it is principally associated with the legal systems of France and Spain.
- Under the title theory, the mortgage transfers title to the mortgaged property to the mortgagee. Under the intermediate theory, the mortgagee gets title if and when the borrower defaults. G. Nelson, D. Whitman, A. Burkhart & W. Freyermuth,
- Community property is nearly always described by exclusion. In the typical language of the Texas Family Code: “Community property consists of the property, other than separate property, acquired by either spouse during marriage.”
- From an early date, the English common law has recognized that concurrent, as well as several, estates in property can be created. Concurrent estates exist when two or more persons have a concurrent and equal right to possession and use.
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Chapter 6 LANDLORD AND TENANT191 894 results (showing 5 best matches)
- See generally 1 Am. Law of Prop. § 3.9 (1952); Nelson, Whitman, Burkhart & Freyermuth,
- For a detailed discussion of the matters summarized here, see Nelson, Whitman, Burkhart & Freyermuth,
- Under modern contract law, covenants in a bilateral contract are mutually dependent; one party’s material breach excuses the other party’s performance. By the time this principle became established under contract law, however, property law had long characterized the tenant as having a leasehold estate—and thus the landlord-tenant relationship was seen as one deriving from real property law. Property law viewed the essence of the leasehold as an exchange of possession of the land (the tenant’s estate) in return for the obligation to pay rent; all other aspects of the landlord-tenant bargain, including any other covenants of the parties, were secondary and independent. Thus, for example, if the lease obligated the tenant to repair damage to the premises but the tenant failed to do so, this failure did not excuse the landlord’s obligation to respect the tenant’s possession! The landlord would still have a cause of action against the
- The Restatement (Second) of Property
- See 5 Am. Law of Prop. §§ 19.1–19.3 (1952); 5 R. Powell, Real Property §§ 651, 652 (rev. ed.1990); 2 H. Tiffany, Real Property §§ 606–611 (3d ed.1939).
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Chapter 2 Present Estates in Realty and Equivalent Interests in Personalty19 332 results (showing 5 best matches)
- For a comprehensive treatment of due-on-sale clauses, which are not within the scope of this book, see G. Nelson, D. Whitman, A. Burkhart & R. Freyermuth,
- The leading general treatise on personal property law, R. Brown, The Law of Personal Property (W. Raushenbush ed., 3d ed. 1975) includes no discussion of the general legal characteristics of “full ownership” of personalty.
- When the statute of Quia Emptores conclusively established the alienability of possessory estates in fee simple, the most prominent feature of English inheritance law
- In the United States, the common law of inheritance as to real property has been changed by adoption of intestate succession laws in all jurisdictions.
- The Third Restatement of Property rejects the common law distinctions among the three types of defeasible fees as being “unnecessarily complex.”
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Chapter 10 CONTRACTS FOR THE SALE OF LAND595 649 results (showing 5 best matches)
Chapter 11 CONVEYANCES AND TITLES699 850 results (showing 5 best matches)
- As we have already seen, under all recording acts except the pure “race” type, a subsequent purchaser who has notice of the prior conveyance will not be protected by the recording act against it. In the absence of the act’s protection, priority between competing conveyances is ordinarily determined by the dates of their delivery. However, in the case of competing and essentially simultaneous mortgages, one of which is a purchase-money mortgage to a vendor, a common-law principle grants priority to the vendor over mortgages to third parties. See, e.g.,
- See Nelson, Whitman, Burkhart & Freyermuth,
- One might imagine that the running of the statute of limitations on the underlying note or other indebtedness would be a sufficient protection against the enforceability of the mortgage, but in most states the mortgage can be foreclosed even if the debt is barred;
- See generally Nelson, Whitman, Burkhart & Freyermuth,
- Tikhomirov v. Bank of New York Mellon, 223 So. 3d 1112 (Fla. Dist. Ct. App. 2017)
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Chapter 1 Introduction1 133 results (showing 5 best matches)
- An initial distinction in property law is between real and personal property. Real property in the common law corresponds with immoveable property in the civil law. It includes land and the things attached to it, such as buildings. Real property is also called real estate or realty. In contrast, personal property in the common law corresponds with moveable property in the civil law. Personal property includes chattels and intangible things, such as claims represented by bank accounts, promissory notes, corporate and government bonds, shares of corporate stock, life insurance policies, annuities,
- Due to English legal developments before the founding of the United States, American law still has some separate laws based on the law jurisprudence and the equity jurisprudence of England. These distinctions have survived despite the procedural
- The classification of property as real or personal does not affect the law that applies, with some exceptions. For example, a deed transfers title to real property, while a bill of sale transfers title to personal property. The distinction between real and personal property is based on the historical development of legal remedies for the protection of property in England. In the medieval period, property interests in land were protected by the real actions in which a plaintiff could recover possession of the land. In contrast, property interests in chattels were generally protected only by personal actions, such as trespass, case, trover, and detinue. A successful plaintiff got a personal judgment for
- The forms of action mentioned above, along with others designed to protect personal and contract rights, evolved in the English courts of law. The English Court of Chancery also developed distinctive equitable remedies to protect property interests, such as injunctions against interference with those interests, rescission of property transactions, reformation of instruments, and removal of clouds on land titles.
- , at §§ 1.2–.4; R. Megarry & H. Wade, The Law of Real Property 22–36 (8th ed. 2012) (hereinafter Real Property); S. Milsom, Legal Framework of English Feudalism (1976) (hereinafter Feudalism); Historical Foundations, supra note 15 , at 99–103; C. Moynihan & S. Kurtz, Introduction to the Law of Real Property 1–23 (6th ed. 2015) (hereinafter Introduction to Law); Concise History, supra note 15 , at 546–50, 564–74; 1 F. Pollock & F. Maitland, History of English Law 229–406 (2d ed. 1898, reissued 1968) (hereinafter History); A. Simpson, Introduction to the History of the Land Law 1–25, 47–48 (2d ed. 1986) (hereinafter Introduction to History).
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Chapter 7 RIGHTS INCIDENT TO POSSESSION OF LAND327 125 results (showing 5 best matches)
- Many of the matters discussed in this chapter lie along the boundary between property law and tort law. Because this is a treatise on property law, these matters are examined from the perspective of the possessor—the “rights” side. Tort law primarily views them from the perspective of persons who have “duties” not to invade these rights. In treatises on tort law, some of the subjects discussed in this chapter will be found under the headings of trespass, nuisance, and, to some extent, negligence.
- The landowner’s right to exclude has long been considered fundamental to any system of property rights. Sir William Blackstone defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
- Restatement (Second) of Torts §§ 167–215 (1965)
- 6A American Law of Property §§ 28.1, 28.12, 28.17 (A.J. Casner ed. 1954);
- 6A American Law of Property § 28.46 (A.J. Casner ed. 1954);
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Chapter 9 GOVERNMENTAL REGULATION OF LAND USE439 808 results (showing 5 best matches)
- Unlike eminent domain law, “regulatory takings” law governs situations in which a government entity merely imposes a law restricting the use of private property and insists it is not attempting to take any private property interest. In regulatory takings cases, private property owners (usually landowners) assert that a new government regulation is so restrictive that it
- “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
- Eminent domain law, which is not the focus of this chapter, governs situations in which government entities seek to unilaterally acquire property interests from private individuals. The Takings Clause does prohibit governments from taking private property. In fact, the clause has long been interpreted to authorize the Federal Government, state governments, most municipal governments, and some other quasi-governmental entities with delegated eminent domain authority to take private property under certain prescribed conditions described below.
- The Murrs argued in the case that state property law—which delineates between parcels based on lot lines—should govern the definition of the “relevant property” for takings analysis. Under that approach, since Lot E was an entirely separate parcel, the county ordinance provisions prohibiting any separate sale or development of it would seemingly constitute a
- court obliterated all hope for a new, clearer rule for defining the relevant property under takings analysis. Rather than helping to clarify a notoriously uncertain aspect of takings jurisprudence, the Court further muddied the waters. Instead of prescribing reliance on state property law or on some other relatively objective means to define the unit of property that comprises the denominator in these cases, the Murr court embraced an ambiguous and difficult-to
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Chapter 3 Future Estates in Realty and Personalty63 397 results (showing 5 best matches)
- Although the Rule Against Perpetuities is a rule of property law and not a rule of contract law, an option to purchase real or personal property may be specifically enforceable, which creates a contingent equitable future interest in the property.
- “A future interest is an ownership interest in property that does not currently entitle the owner to possession or enjoyment of the property. The owner’s right to possession or enjoyment is postponed until sometime in the future and may be contingent or vested.” Restatement (Third) of Prop.: Wills and Other Donative Transfers § 25.1 (2011) (hereinafter Third Restatement of Property). See generally 3 R. Powell, Powell on Real Property § 20.01 (2018);
- The American Law Institute has stated: “It is the considered opinion of The American Law Institute that the recent statutory movement allowing the creation of perpetual or near-perpetual trusts is ill advised.” Third Restatement of Property, supra note
- The doctrine of estates, including future interests, developed as part of the English land law. But the panoply of future interests developed by the common law courts, with some assistance from Parliament, was adopted with modifications by the English Chancellors for application to equitable interests in land.
- On the family (or marriage) settlement in England, see G. R. Y. Radcliffe, Real Property Law ch. XIV (2d ed. 1938); 7 W. S. Holdsworth, History of English Law 376 (1938).
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Chapter 4 Relations Between Owners of Present and Future Estates and Interests119 164 results (showing 5 best matches)
- in §§ 4.2–4.5. See generally 1 American Law of Property §§ 2.16(e), 4.100–.105, 20.1–.23 (1952) (hereinafter Am. L. Prop.); 4 R. Powell, Powell on Real Property §§ 56.01–.12 (2018); L. Simes & A. Smith, Future Interests §§ 1651–90 (3d ed. Borron ed. 2018); Restatement (Second) of Property: Landlord and Tenant (Am. Law
- In addition to the law of waste, courts have developed a closely related body of law to assist them in determining how certain burdens, such as payment of property taxes and special assessments, and certain benefits, such as rents, should be apportioned among the holders of successive interests in the same property.
- Dividing land ownership into present and future estates can cause substantial hardship. The law of waste restricts the possessor’s use of the property, and the possessor is obligated to pay property taxes and other carrying charges to the extent that they do not exceed the property’s actual rental income or, if the possessor personally occupies the property, its rental value.
- The trust property often includes realty as well, in which case the rules dealing with the rights and duties of the owners of successive equitable interests are also part of the law of trusts. The protection of owners of legal future interests in personalty is briefly considered infra in § 4.11.
- A donor who wishes to create future interests in personalty is well-advised to use a trust, particularly if the personalty consists mainly of cash, stocks, bonds, or similar intangible forms of property. A trustee holds and manages the property for the benefit of both the present and future interest owners. A life beneficiary of a trust has a right only to the net income of the trust property. The remedies that the present and future interest owners have against each other and against the trustee are governed by the law of trusts, which is beyond the scope of this book.
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Chapter 8 SERVITUDES349 586 results (showing 5 best matches)
- Our question in the ensuing sections is whether the burden or the benefit of a covenant has the quality of running with land to burden or benefit successors. The law
- 2 Am. Law of Prop. § 9.24 (1952); 5 R. Powell, Real Property ¶ 670 (1990) (“the great weight of authority”); L. Simes & C. Taylor, The Improvement of Conveyancing by Legislation 219 (1960).
- E.g., 2 Am. Law of Prop. § 8.29 (1952);
- 2 Am. Law of Prop. § 8.84 (1952);
- The time has come to cut the Gordian knot that binds this state’s jurisprudence regarding covenants running with the land. Rigid adherence to the ‘touch and concern’ test as a means of determining the enforceability of a restrictive covenant is not warranted.
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Table of Cases 835 1037 results (showing 5 best matches)
Title Page 6 results (showing 5 best matches)
Center Title 1 result
Index 921 114 results (showing 5 best matches)
Table of Contents 104 results (showing 5 best matches)
- § 1.2Judicial Remedies for Protecting Property and the Relativity of Property Rights at Common Law3
- § 1.1The Concept of Property and the Institution of Private Property1
- § 5.14Community Property—Character of Ownership179
- § 5.15Community Property—Management, Disposition, and Dissolution of Community Property185
- § 6.11Nature of Tenant’s Property Interest202
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- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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- Justice Thurgood Marshall Distinguished Professor of LawUniversity of Virginia School of Law
- Distinguished University Professor Emeritus, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Acknowledgments v 4 results
- Dunham, Possibility of Reverter and Powers of Termination—Fraternal or Identical Twins?, 20 U.Chi.L.Rev. 215, 219 (1953). Copyright © 1953, University of Chicago. Permission granted by University of Chicago Law Review.
- The American Law Institute, Model Land Development Code, Article 4 Commentary at pp. 150, 158. Copyright © 1976 by The American Law Institute. Permission granted by the American Law Institute.
- Stoebuck, Running Covenants: An Analytical Primer, 53 Wash.L.Rev. 861 (1977). Copyright © 1977, Washington Law Review. Permission granted by Washington Law Review and Fred B. Rothman Company.
- A number of authors and publishers have consented to our use of short extracts from their copyrighted materials. Such materials are clearly identified, where they appear in this book, by source and date of publication. Here, we gratefully acknowledge the permissions to reprint those copyrighted materials. In some instances, we were asked to note additional information about a work or to furnish acknowledgment in a particular form, and we are happy to comply with these requests in acknowledging permission to reprint the following materials.
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- 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.
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Summary of Contents 15 results (showing 5 best matches)
- Publication Date: January 22nd, 2019
- ISBN: 9781640202375
- Subject: Property
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Trustworthy and modern source on property laws surveys estates in land—present, future, and concurrent, comparable interests in personalty, landlord and tenant law, and rights against neighbors and other third persons. Also examines easements and profits, running covenants, governmental controls on land use, land contracts, conveyances, titles, and recording systems. Contains footnote citations to leading court decisions for easy location of primary authority.