WordPress.com · Web viewIn order to obtain title, the claimant must mortally wound or exercise such dominion over an animal such that others would know that he has gained possession

Property OutlineProfessor Favre

PropertyGoals of Property Law:

1. Predictability (Rule of Law)2. Fairness (Justice)3. Economic Efficiency Preferred

Wealth Creation Support Capitalism

4. Protection of Social & Environmental Values Wealth Distribution Counter Points to Wealth Creation

Categories of Property:1. Real Property2. Personal/Moveable Property3. Intellectual Property 4. Living Property5. Virtual Property

Possession & Title Possession: Physical act/diminutive control over property (lawful or unlawful) Title: Sole possessor of property has title and all the rights that come with it. A series of documents determine who has title. The only person who can give title is the original owner. Legal ownership.

First AcquisitionDiscovery:

1. Exclusive title goes to the government, person, or subject who made the discovery against all others

Conquest:1. The taking of possession of territory thorugh force, followed by annexation of the

defeated territory (i.e. Americans and Native Americans) Capture:

1. Wild Animals: In order to obtain title, the claimant must mortally wound or exercise such dominion over an animal such that others would know that he has gained possession of it. Mere pursuit is not enough. (Pierson v. Post)

2. Locke’s Theory of Labor: Rewards the possession rights to the laborer Possession=Dominion & Control First possessor has the right of property Rule of Increase : Why does title of puppies belong to the owner of the mother

dog? Owner of mother dog has provided for care and food for the pregnant dog and they cannot prove who the father dog is.

3. Constructive Possession of Wild Animals: When wild animals are on your land, gives first right of taking

Where a person’s trade has been hurt by another taking animals, he can recover

1


for the amount lost, but not the loss of the animals. (Keeble v. Hickeringill)4. Oil & Gas Rules

Natural underground reservoirs are not considered to be owned by anyone until reduced to physical possession

Surface owners own down the imaginary lines of their property5. Water Rules

Riparianism: Ownership rights to the ownership of the land which abuts the watercourse

Prior Appropriation: The first person to appropriate the water and puts it to a reasonable and beneficial use has the superior right to later appropriators

6. Tragedy of the Commons Internalizing Externalities: Bringing the cost of the resources’ use on the use May cause socially undesirable consequences when a commons is divided up,

the people may or may not act to make it long term

Intellectual PropertyCreation: There is a property right to control the product or exact words used, but not he information located within

1. Information which is not contained loses its value2. When resources have been expended to obtain and disseminate information, the

producer is protected against its competitor using it or its benefit A person has a right to protect his image, which is devisable beyond death, and the person does not have to exploit it during his lifetime (White v. Samsung Electronics America, Inc.)Excised materials do not create property rights in the person they were taken from

1. Normally have property rights in your own body2. Public policy rationale to promote research I. Patent: a form of property that must meet the requirements of patentability, novelty,

utility, non-obviousness, & enablement so that the person applying may receive a

2


patent. 1. A limited monopoly on ideas reduced to conditions or quality 2. Patents allow for greater creativity and inventiveness and protects people’s work3. Criteria:

i. Patentability-process, machine, manufacture, or composition of matterii. Novelty-not been processed in an identical formiii. Utility-Offers some benefitiv. Non-obvious (has to have been a large enough of an advance)v. Enablement (describe in sufficient detail so an ordinary person would be able to

use the invention) 4. An organism developed through scientific research that has characteristic different

from any found in nature and has the potential for significant utility is patentable (Diamond v. Chakrabarty)

II. Copyright: a form of property that must meet the requirements of originality, work of authorship, & fixation in tangible form. You can register it, but you don’t have to. 1. Gives creator exclusive rights to the original materials

i. Protection extends for life of the author plus 70 years and is not renewable 2. Prevents Others From:

i. Reproductionii. Derivative Worksiii. Distributing copies of the work to the publiciv. Performing the work in publicv. Displaying publiclyvi.Performing the work by digital audio transmission

3. Licensing allows others to distribute 4. Only the elements of a factual compilation which are original (i.e. selection and

organization) are copyrightable. The facts which they contain are not. (Feist Publications, Inc. v. Rural Telephone Service Co.)

5. To be infringed upon there must bei. Ownership of valid copyright, and ii. Copying of the original elements of the work

6. Fair Use Doctrine balances:i. The purpose and character of the use (commercial v. scholarly);ii. The nature of the work;iii. Substantiality of the portion used in relation to the original (one paragraph v.

10 pages); and iv. The effect on the market for or value of the original work.

III. Trademarks: a form of property that may be protected as long as it meets the standard of distinctiveness, non-functionality, and first use in trade. 1. Used to identify and distinguish a particular product.

i. Cause confusion if competitors used it (In re Cordua Restaurants, Inc.)

Personal Property

3


Chain of Title: When someone has title, the conveyance of that title can move on/ the succession of title ownership to real property from the present owner back to the original owner at some distance time/a recorded transfer of a conveyance of title to real property.

Creation Sale, Gift, or Will Lost, Misplaced, Treasure Trove, or Abandon

Subjective Intent: The mindset of the true owner and how do we know that

I. Finder : A person who discovers an object and is aware and intentionally takes dominion and control over a lost, abandoned, or mislaid personal property.1. Finders do not have complete property rights, but has superior rights against everyone

by the true owner and can recover against others. (Finder is first in time)

1. Lost: property occurs when the owner inadvertently loses possession of the property without knowledge of when and where it happened i. Finder obtains the property rights; the true owner is unlike to retrace to find it

2. Mislaid: property occurs when the owner intentionally places the item in some location and forgets to retrieve it

3. Abandoned: property occurs when the true owner intentionally relinquishes all legal rights to the property and disposes themselves of it i. Subjective intention to abandon titleii. Objective by physically doing something to indicate their subjective intent iii. There must be evidence that it has been abandoned

4. Treasure Trove: treasure (i.e. gold, silver, bullion, or money) which has been concealed in a private place. Most courts treat as lost or mislaid and if buried, goes to owner in locus in quo. (the land to which the person trespassed) Goes to finder unless the original owner reclaims. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to the treasure trove.

II. Bailments : Rightful possession of a good by one who is not the true owner/Intentional act of transferring possession, but not title of a piece of personal property to one who is not the true owner for a particular purpose/Transfer of possession but not title from one party to another where bailee must care for it and return it.

1. Bailments Create:1. A bailee has to return the property on the bailor’s demand2. Delivery is possession of the goods3. Use of reasonable care/ordinary care under the circumstances

2. Bailor intends to transfer possession and keep title and the bailee intends to take possession

3. Strict liability for misgiving 4. No bailment is created if items inside of the bailment without the knowledge of the

bailee5. If the bailee rejects the bailment, no bailment is formed6. Involuntary Bailment:

1. Forced into taking control

4


2. Bailee has the obligation to use reasonable care under the circumstances 3. If the bailee knows that the item is special and needs special care they must do

so; however, if they don’t, they don’t need to 7. If the bailment is for the sole benefit of the bailor, the bailee is liable for gross

negligence8. If the bailment is for the sole benefit of the bailee, the bailee is liable for ordinary

negligence9. If the bailment is for the mutual benefit of the bailor and bailee, then the bailee is

liable for ordinary negligence or failure to observe ordinary care

III. Gifts : Intentional transfer of title from one party to another without consideration. 1. Elements:

i. Donative Intent (must have donative intent to give the gift NOW, not later)ii. Delivery

a. Manual—handing over(must be done when it is possible)

b. Constructive—access (e.g., a key)(allowed where the items were not present or could not be manually delivered)

c. Symbolic—a writing of intent (“Deed of Gift”) (a majority of states accept this as a valid delivery)

iii. Acceptance—presumed unless otherwise shown; made by objective understanding of subjective intent

2. “Wanting” to give a gift is not adequate for donative intent, it must be an intent to presently transfer the item

3. Gratuitous promises to give a gift later are not enforceable, it must be made NOW4. Delivery is more important than the words used5. Delivery can be condition; not title 6. Where there is a present intent to transfer ownership, along with present transfer of

some interest, the gift is effective.

Example: Marriage proposal is a conditional gift and only exception to no conditional gifts to donee. Ring must be returned to donor if the engagement ends.

Two Types of Gifts:1. Gifts inter vivos are given during life and they are irrevocable2. Gift causa mortis are given in anticipation of/in consideration of death and they are

revocablea. Old rule is that it is revoked if the donor livesb. New rule is donor has to opportunity to revoke if he lives, but it does not

automatically transfer c. If you reject your right to revoke causa mortis, it becomes inter vivosd. Signing a will before giving a gift doesn’t affect donative intent because the will

is ineffective while you are alive and only becomes effective at the time of death.Adverse Possession

A defense against ejectment or a cause of action establishing new title for a new owner who occupies real property for required period of time based upon a jurisdictional

5


statute of limitations.

*Whoever steps forward sand asserts adverse possession has the burden of proof *Once the SOL has passed, the new title has been created and, therefore, it doesn’t matter if the new titleholder stops doing what they did before to establish the new title through adverse possession

Elements: (“COAHE”) 1. Continuous and uninterrupted by the true owner for the statutory period; no

ejectment or legal action by the true owner to make the adverse possessor stop Does not need to be used daily, only as a like owner would use it

2. Open and notorious—puts the true owner on notice3. Actual entry without the permission of the owner; adverse to the right of the

owner to make us4. Hostile and adverse—no permission of the true owner, and intention to use the

land as one’s own5. Exclusive possession—cannot be shared with the true owner or the general public

State of Mind: 1. Majority Rule : Adverse possessor’s state of mind is irrelevant

“I thought I owned it”“I thought I didn’t own it, but it intended to make it mine”

2. Minority Rule : Once the possessor recognizes the rights of the titleholder, he cannot claim adverse possession.

Color of Title: The possessor has some instrument that looks to convey a part of the land, therefore, you get all of the land listed in your deed/If a person moves onto the land with a deed, then they have title even if it is a bad deed. Title that may have the appearance of good and valid title to property, but in actuality, there is either no title or a vital defect in the title that makes it ineffective. Thus, color of title fails to establish ownership in land.

Tacking: The addition of another’s adverse possession to satisfy a statute of limitations for a chain of interest that creates a relationship over a piece of land based upon privity of estate.

Privity : judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim or right above the state of the wrongdoer or the trespasser

Ouster Exception : wrongful conduct that defeats privity the parties and which does not allow for tacking of the previous possessor’s time to satisfy the statutory period. Tacking would not be allowed for ouster’s wrongful conduct to previous party.

Disabilities : The statute of limitations for adverse possession will not run against a true owner who is afflicted by a disability (infancy, insanity, imprisonment, coma, etc.) at the inception of the adverse possession. The true owner must be suffering from the disability at the start of the adverse possession to trigger this defense against an adverse possessor.

Adverse Possession of Personal Property: (O’Keefe v. Snyder)

6


Rules for Statute of Limitations for Adverse Possession of Personal Property 1. Conversion Rule2. Discovery Rule3. Demand Rule

Estates-In-LandWords of Purchase: who gets the land (“to A”)Words of Transfer: what is transferred (“and his heirs”)(O to A, and his heirs)

Heirs: spouse, issues/descendants. If neither, then parents/ancestors, sibling/collateral kin. If no heirs, then escheats back to the state. Issue: the surviving children, grandchildren, etc. of the decedent (has to do with fee tails)

1. Fee Simple (“and his heirs”) Best possible estate-in-land; automatically assumed if conveyance is silent

(however at common law, life estates were assumed) No one else has any interest in the land Alienation: ability to convey during life Divisibility: ability to pass on after death

2. Fee Tail (“and the heirs of his/her body”) Transfers right to possess and use through the biological issues (not heirs) Cannot sell a fee tail If there is no issue, it reverts back to original conveyer (O) In MA, fee tail is a credible, functional estate. But if you are the possessor, you

can make it a fee simple In OH, condition exists in fee tail for one general then it becomes a fee simple In MI, same as OH unless there is not future interest (e.g., no issue)

3. Life Estate (“for life”) Conveys possessory rights for life (“APPLE”) Large assets of land but it cannot be utilized to make money Restraints on Alienation:

a. Disabling Restraints : not allowing grantee to transferb. Forfeiture Restraints : not allowing grantee to attempt to transferc. Promissory Restraints : grantee promises not to transfer interest

Life estates pur autre vie: conveying life estate is only good for the life of the conveyer

4. Trusts Create legal title in trustee (e.g., a bank)

a. Takes on a fiduciary duty for someone else’s benefit Creates equitable title in beneficiary

a. Has a right to sue for abuse of dutyb. At its termination, it becomes a fee simple in beneficiary

5. Defeasible Fees1. Fee Simple Determinable (“so long as,” “during”)

7


Ends automatically when a stated event happens Possibility of reverted (assume that it reverts back to grantor once the stated

event occurs) Condition is there from the beginning Conveyable inter vivos or by will

2. Fee Simple Subject to Condition Subsequent (“but if”) Does not automatically end, but can be cut short by divestment O reserves the right to re-enter and take the land If there is ambiguity among defeasible fees, the law favors a presumption of

this 3. Fee Simple Subject to Executory Interest

When grantor transfers a fee simple subject to condition subsequent and in the same instrument creates a future interest in a third party at the occurrence of some specified future event

6. Future Interest 1. Reverter

To O only for fee simple determinable 2. Reversion

Future interest held by grantor in remainder after a conveyance A complete interest in land that is transferrable and divisible

3. Remainder Vested interest in land and are transferrable A future interest in a transferee which is capable of becoming possessory at

the natural termination of the preceding estate and does not divest to anyone’s estate except the transferori. Vested Remainder: specifically states who the future interest is in

and has no condition precedent ii. Contingent Remainder: does not specifically state who (e.g., heirs)

and/or has a condition precedenta. If a condition is not met the interest goes away

Destructibility of Contingent Remainders a. A legal remainder is destroyed if it does not vest at

or before the termination of the preceding freehold estate

b. Merger : Lesser estates merge into the larger in the same person

Rule in Shelley’s Case a. If (1) one instrument (2) creates a life estate in A,

and (3) purports to create a remainder describes as A’s heirs, and (4) the life estate and remainder are both legal and equitable, the remainder becomes a fee simple in A.

Doctrine of Worthier Title a. Title provides inter vivos conveyance of land to a

person with a limitation over to the grantor’s own heirs by remainder or executory interest, no future

8


interest is created Rule Against Perpetuities

a. No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest

4. Executory Interest Divests into third party if some specified event occurs

a. Shifting: become possessory at the termination of the preceding estate b. Springing: does not become possessory at the termination of the

preceding estate and temporarily reverts back to O

Joint Tenants1. Tenants-In-Common

Separate interests in an undivided property Alienable and divisible All have a right to the use all of the properties Can be partitioned:

a. Physical separation b. Sold and proceeds divided

Tenants in common have an equal right to occupy the whole of the land. Unless the tenant in actual possession ousts the co-tenant or has agreed to pay rent, nothing can be claimed if the tenant in possession occupies the whole. a. Ouster requires the other part to go back to land and claim his portion

2. Joint Tenants Need 4 Unities:

1. Time : all joint tenants acquired at the same time 2. Title : all acquire by the same instrument3. Interest : all have equal and undivided shares4. Possession : each has a right to possession of the whole

Can sell, but destroys the joint tenancy Cannot will, shares goes to survivors (*Right of Survivorship) Can be partitioned. Partition by sales can only be used when it is practical and

when it promotes the benefits of all of the owners. Partition in kind is preferred A joint tenancy is not severed when one party execute a mortgage and that

mortgage does not survive the death of the mortgagor

3. Tenancy By The Entirety Two parties Need 4 Unities (see above) in addition to marriage

MI allowed for parties other than husband and wife, such as siblings 4. Relation Among Co-Owners

A partition in kind is preferred where it is not impracticable Parties must share rent and the payment of taxes Cannot force the other party to pay for enhancements. However, the party will get

the balance once the property is sold.

9


Probate: process by which the state takes estates after death to others and the state, depending upon the statutory scheme

Landlord/Tenant1. Leasehold Estates

A lease is not a deed, but it does transfer possessory right Waste concept—if you burn down the building, you are liable Are the promises in a lease dependent or independent?

a. The duty of the tenant to pay rent is independenti. The landlord not showing up to fix the faucet does not mean you can

withhold rent 1. Term of Years

a. An estate the lasts for some fixed period of time ORb. For a period computable by a formula that results in fixing calendar dates for

beginning and ending, once the term is created or become possessory i. No limit of years at common lawii. Some statues limit time

c. No notification of termination because there is a designated termination date 2. The Periodic Tenancy

a. A lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination i. “To A from month to month”

b. If no notice, the lease is automatically extended for another set period c. Half a year notice is required to terminate a year-to-year leased. For leases shorter than a year, notice of termination must be given equal to the

length of the period, but no longer than six months i. Termination occurs at the end of the current lease

3. The Tenancy At Willa. A tenancy of no fixed period that endures so long as both landlord and tenant

desireb. There can be a provision that allows one party to terminatec. Can end at the death of one of the partiesd. If under a tenancy at will, for no fixed period rent is reserved or paid

periodically, this creates a period tenancy (see above) 4. The Tenancy At Sufferance: Holdovers

a. Arises when a tenant remains in possession (holds over) after termination of the tenancy

b. Common law rule gives the landowner two options:i. Eviction plus damagesii. Consent (express or implied) to the creation of a new tenancy

Selection of Tenants: Discrimination 1. Most restraints today imposed by Fair Housing Act2. No discriminatory motive need be proven

a. Proof of discriminatory impact or disparate treatment is sufficient

10


i. Disparate impact claims cannot be based solely on statistical disparities; a plaintiff has to show that a defendant’s policy actually caused that disparity.

Privity of Contract is usually present in the landlord/tenant relationshipPrivity of Estate is about possessory and future interests (full possessory interest as defined by the assignment)

*Assignments?*Subleases?

Landlord/Tenant Tenant’s Security Deposits cannot be more than a month (unduly burdensome) Landlord can retake the property for substantial issues (e.g., illegal activity, unpaid

rent), not merely trivial issues If a lease is up, the landlord can either accept a check or file an action of ejectment Tenant should not have to pay rent if they are evicted because the principal purpose of

landlord/tenant relationship is that the tenant pays for the right of possession.If there are issues with a tenant there are two courses of action:1. Common Law: Self-Help2. New Law: Resort to Summary Eviction Process

Surrender: Tenant prematurely gives up possessionAbandonment: Tenant vacates without the intent to return and forfeits on lease

Landlord does not have a duty to exercise reasonable diligence to mitigate damages when a tenant abandons.

Duty to Deliver Possession: Does the landlord have a duty to provide accessibility to property or does tenant have to deal with trespassers and/or holdover tenants?

English Rule: Landlord (control & accessibility)American Rule: Tenant

Quiet Enjoyment and Constructive Eviction: In the balance of power, tenants get quiet enjoyment at common law in every lease. It is the exception to landlord not having responsibility to maintain the premises.

In order to assert a covenant of quiet enjoyment complaint, tenant must prove:1. Wrongful Conduct2. Substantial Interference3. Timely Vacation

*Tenants also have the duty to notify the landlord of the problem.

Exceptions to Landlord Not Having a Duty to Act/Responsibility1. Furnished-Dwelling Rule: Short-term leases must be habitable 2. Latent Defects: If the landlord knows of a defect that the tenant couldn’t find, they

have a duty to disclose3. Common Areas

11


*Landlords are not guarantors of safety to tenants. However, the new rule (as in Hilder v. St. Peter) states that a Landlord has to deliver over, during the period of tenancy, safe, clean, and fit conditions for human habitability. Tenants must also notify the Landlord of defects and allow reasonable time to repair.

Purchasing Land Why Do People Purchase Land?

Value Demand Rare Commodity Investment “Human Nest” Interest

What Do Buyers Care About? Title and Condition How Does One Transfer Title to Real Property? A Deed

The Land Purchase Dance

Seller & Buyer Want To Get to This(Money & Deed*)

*Won’t Have Information About Condition of Premises: Just Title

12

Seller Buyer Closing Company

Listing Agreement

Broker (Don’t Need

Broker)

Broker Agreement Broker Payment

Sales Contract Sales Contract Seller: Deed

Mortgage Application Buyer: NoteMortgage

Title Search Title Insurance

Inspection of Premises

Seller Disclosure


Statute of Frauds Requirements:1. Signed2. Description 3. Price

Exceptions:1. Equity2. Part Performance3. Estoppel

Marketable Title: Seller promises to convey buyer this by deedAbstract of Title: Physical record of all deeds/conveyances or transfer of title. This is how you can discover issues with the title; people should take them to a Real Estate Lawyer. Seller either gives abstract of title or insurance policy regarding title. (Buyer gets less information if they receive an insurance policy).

Can One Sue For Violation of a Building Covenant? Yes; other homeowners for different in property value or for an injunction to stop them.

What Do Buyers Have to Find (In Regard to Title) to Make Marketable?1. Statutes of Years of History (40 years— “Magic Number”)2. Look at Abstract of Title3. Gets Marketable Title by Adverse Possession

Do Sellers Have A Duty to Disclose Material Issues with the Real Property? If there is a condition that materially alters the value of the property that is known by the seller and not freely discoverable by the buyer, then there is a duty to disclose. However, some things shouldn’t be disclosed (e.g., former owner had AIDS, a murder occurred in the house, etc.)

A majority of states say that if a material issue occurs within a year of the buyer taking possession and title of the real property from the seller, then the buyer should be liable. In addition, a majority of states say if the originally buyer sellers before one year, and that issue happens to a third-party buyer within a year, the original seller does have to pay. (Some states say no the second situation because there is no privity of contract).

What is Title? Whatever rights to legal system awards to owners of property What those awards are can vary in different jurisdictions.

When Contracting/Proof of Title: Abstract of Title Title Insurance You may also protect yourself by recording your deed, because it would put the world

on notice of your ownership *Contract has the implied covenant of merchantability. BUT there is no promise of title in the deed, so deeds have warranties. *Only grantor must sign deed

13


*You receive title upon DELIVERY OF THE DEED!

Warranties of Title1. General Warranty of Deed

a. Covers all defectsb. General warranty is the excepted warranty in USA

2. Special Warranty Deed3. Quitclaim Deed

What Do You Need Notary For? 1. Not for Transfer of Title2. FOR acknowledgement of recording, and you will want to record to protect

yourself in case of litigation

Forgery v. Fraud Forgery : faking someone else’s signature. Forged deed is void. The grantor whose

signature was forged has superior rights over even bona fide purchasers Fraud : Deed procured by fraud is voidable by the grantor in an action against the

grantee, but a subsequent bona fide purchaser for the grantee who is unaware of the fraud prevails over the grantor

Warranties1. Covenant Against Encumbrances

i. Grantor warrants that there is no encumbrances on the property, which includes mortgages, liens, easements, and covenants among other things

ii. Not all debts are liens on land. One if, to collect the debt, a lien is place on the land is an encumbrance

2. Covenant of Quiet Enjoyment i. Grantor warrants that the grantee will not be disturbed in possession and

enjoyment of the property by the assertion of superior title.

Executor Has this “Set” of Obligations With “These Assets” Pay taxes Notify creditors that a notice of claim is due Pay off existing creditors Close the estate

Description of the Deed Must be precise, otherwise liable. Rural Land : Description by Landmarks (e.g., Major Roadways, Waterways, etc.) Subdivision : Lots

Delivery of the Deed Grantor Signature (To Make Legally Enforceable) Delivery of Deed From Grantor to Grantee with PRESENT INTENT TO

TRANSFER! EXPRESSED POSITION OF A FUTURE TRANSFER IS NO

14


TRANSFER OF DEED. (You cannot have a conditional deed to grantee) (Once the deed has been transferred, it can be destroyed, because it has no more significance.)

Three-Steps for Locating Property (Remember: Squares Within Squares Within Squares) 1. State-Wide Grid: Range & Township Lines2. Sections in Township3. Acreage Divisions

Mortgages

90%

10%

8 Years 30 YearsCommon-Law Mortgages30 Year Conventional: Fixed Rate, 6% Loan, 30 Years20 Year Conventional: Lower Rate15 Year Conventional: Lower Rate *Best Deal

Balloon Payment Mortgage (15-20 Years): Pay all of it then get new loan; cheapest rate but after 3 years Reverse Mortgage: rate rises over time as interest on the loan accrues

Recording IssuesWhy Do You Need a Recording Act?

To Determine & Protect Title Conflicts are Between Grantees Competing At Common Law, first in time grantee wins; UNLESS statutory recording act it.

Actual Knowledge: If Grantee Told Another GranteeRecord Notice: From the Courthouse

o Courthouse has copies of mortgages, deeds, etc. Have to Check Back 40 Years Only Look at Grantors Back 40 Years Only Look at Specific Land You are Purchasing

Inquiry Notice: Inquire Who Lives or Has Possesion

Wild Deeds: Don’t provide notice, but in courthosue not in chain of title, won’t help you become a BFP (bona-fide purchaser).

The Golden Search Rule:

15

interest

principal

value of the home (line people want)


Everyone has a start-and-end date on the deeds

Three Types of Indexes: 1. Index by Time2. Grantor-Grantee Index (2 sets, time based) *assume for exam3. Tract Index (By number based on land) *most don’t have this

Recording Statute Jurisdiction Types: (Don’t Forget First In Time Wins at Common Law)

Race: Whoever records their deed first wins

Notice: Subsequent bona-fide purchaser wins if the earlier deed was not recorded and subsequent purchaser did not know of the earlier transfer

Race Notice: Subsequent bona-fida purchaser wins over an earlier purchase if, and only if, the subsequent purchaser did not know of the earlier transfer and the subsequent purchaser’s deed was recorded before the first purchaser’s deed

*If a purchaser does not qualify for a recording statute to take away from former pruchaser, then they lose (e.g., gift since no consideration cannot be protected against prior purchaser, but they can get protected agaisnt subsuquent purchasers)

*Subsequent purchasers can win even if their former does not!

Shelter Rule: Only in a notice jurisdiction, a subsuquent purchaser is sheltered in a prior grantee’s victory based upon BFP status.

*Remember to examine two chains of conveyence!!

Expectation Appraoch: Start with the most subsequent party

O A for $10K

O B for $14K

O C for $5K

$20K-$14K=$6K C only needs $5K, so C get’s $5K$20K-$10K=$10K B needs $14K, so B get’s $10KA get’s remaining $5KMajority Rule: When examining a deed, if there is nothing on it’s face to indicate/give notice that it is not valid, then that satifies looking. Future parties can write on. (Minority Rule: If there is an issue with the deed, even if undetectible, it does not satisfy looking). *No notary=Red Flag

16


Grantor Index

O R R wild deed Not in search pattern (date in, date out)

A O A R

O BR

B C is Looking

O R A R R A BR

B O AR CR

C

D is Looking

Creditor: Doesn’t give you statuts as to recording actQuitclaim Deed: Does it put you on notice if quitclaim deed? NO!Can you be a BFP if you are a donee? No, by definition because you didn’t give consideration to be a BFP

Inquiry Notice: If you have 1) possesion or 2) reference within a chain of title if a document is reffered to in chain of title (a book). If it is a vague reference that does NOT trigger inquiry notice.

Servitudes I. Easements: interest in land, right to go upon another plot of land

1. Positive Easement: allows something2. Negative Easement: prohibits something. Common law has had issues with

these. *Most Common=Easement of Access 1. Pre-Existing2. Notice3. Necessity

When an easement is granted to a parcel, can subsequent purchaser use it? Common law says, no. By statute, in that state, a prive party can demand a way out. Draft a document for easement of land (consideration or not), sign, and notorize. Recorded in courthouse. Next person take subject to it because it is irrevocable.

Methods of Termination of Easements: Release: a document from dominant to servient estate Expiration: time limit within easement End of Necessity: easment of necessity, necessity is gone

17


Merger: dominant & servient in same hands Estoppel: servient reasonably relies Abandonment: objective & subjective components Condmenation: government condemsn easement disappears Prescription: servient wrongfully and physically prevents easement for a period of

time II. Covenants: conditions within deeds that talk about what you can or can’t do on

someone’s land 1. Real Covenant2. Equitable Servitude

Common Law Requirements:1. Intention (writing)

“heirs and assigns”Binding to subsequent parties

2. Privity i. Horizontal: estate successive in relationship (any interest in land)ii. Vertical: benefit or burden (veritcal privity of same estate)

3. “Touch and Concern” 4. Notice for Recording Acts still stands

III. Licenses/Profits: permission to come onto land and do something specific. *Permissive licenses are revocable Irrevocable License Elements:1. Permission by landowner of another’s use of land2. Good-faith reliance on permission by licensee, usually by making

improvements and such 3. Landowner’s knowledge of such reliance or deemed knowledge, based on

the view that she reasonably should have known

ExpressedImplicationPrescription (like adverse possession) License +

Three Types of Issues with Servitues:Issue #1: CreationIssue #2: ScopeIssue #3: Termination

Apportenant v. In Gross (Person or Commercial)

There is always:1. Dominant Estate2. Servient Estate3. Burden

18


4. Benefit

Rules: You cannot create an easement in favor of a third-party in one document (Willard v.

First Church of Christ, Scientist) What is a reservation? Provision in a deed creating some new servitude which did not

exists before as an independent interest What is an exception? Provision in a deed that excludes from the grant some

preexisting servitude on the land. Can you divide an existing estate so there is more of a burden on a servient estate?

Yes, reasonably.

Railroads: 1. Who owned the strips of land invovled, specifically did RR by 1899 transfers acquire

only easements or did it obtain fee simple estates?2. If the RR acquires only easement were the terms of the easement limited to use for RR

purposes, or did they invlude future use as public recreational trails.3. Even if the grants of the RR’s easements were broad enough to encompass recreational

trails, had these easements terminated prior to the alleged taking so that they property owners at that time held fee simples encumbered by the easements.

Police Power Test: 1. Is the subject based on public safety, health, and welfare?2. Is the law rationally related to public safety, health, and welfare?3. Is it consitutional?

19


20

1st Amendment5th Amendment

TakingsExtractions

14th Amendment

Does it violate a consitutional right of landowner?

If yes, is it rationally related?

GenerallyAs AppliedExtractionsNexus Test

If no, set aside

Is it within the police power?

1. Health2. Safety

3. WelfareIf no, set aside.

If The State Seeks To Control Land Use Zoning Nuisance Control

1. Public Use Test 2. Just Compensation Test

State Seeks To Title To Land Eminent Domain

Fee Simple Easement

No, State Wins!

Yes, Set Aside.


When Do You Have A Vested Right Recognized By The State?1. Receipt of Permit2. Detrimental Reliance (spend $) (i.e., foundation)

A lawful, nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain (for a public purpose).

Variances and Special Exceptions Variance : When one asks local government to get exception for land not conforming

to ordinace Avoid undue hardship on landowner Must not substantially impinge upon the public goods Special Exceptions : Use permitted by ordiance (*not normally large areas of land)

Spot Zoning Have an established map and then somebody moves to amend a lot for purpose

(residential, commercial, etc.) Public policy concern that local politicians change Must prove that is good for overarching zoning legislation:

1. Violate standard of zoning ordinance?2. Arbitrary & capricious?

Aesthetic Regulation Substantively, does it diminish the value of the surrounding property? Architectural style control is valid because of protectiosn of price (economic analysis)

Regulations By the State Cannot Be: Overtly Vague Economicly Discriminatory (Can Limit Who Lives in Certain Buildings If It Is A Small, Homogeneous Locality) Specify Who May Live And How Many In A Certain Dwelling

Eminent Domain 5th Amendment says “property” not “real property” Public use is the only thing that can be taken for “without just compensation”

To what degree can the government turn over property to private corporations: Whether the purpose of the government’s actions are rationally . . .

1. Public Welfare?2. Rationally Related?3. Violate Constitution?

Is it a public use or interest?

Police Power & Limitations

21


1. Public Health, Safety, & Welfare2. Nuisance Control3. Economic Values4. Historical Values5. Environemental Vlaues6. Family Values 7. Beauty8. Happiness

Physical InvasionRegulatory Taking

Exactions

No Payment Payment

Exactions:1. Nolan/Dolan Test2. Koontz Test

22

Documents

WordPress.com · Web viewIn order to obtain title, the claimant must mortally wound or exercise such dominion over an animal such that others would know that he has gained possession