Examples & Explanations for Property

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Front Matter Editorial Advisors Title Page Copyright Page About Wolters Kluwer Legal & Regulatory U.S. Summary of Contents Contents Preface Acknowledgments Part I. Possession, Personal Property, and Adverse Possession Chapter 1: The Law of Property Introduction Common Law Cases Case Analysis Chapter 2: Personal Property and First Possession Introduction and Definitions Possession, Relativity of Title, and First-in-Time Actual Possession and the Fox Case Constructive Possession Custom The Doctrine of Custom Giving the Public Access to Beaches and Other Lands Natural Resources and Other Concerns Water Law (a) Surface Water Courses (b) Groundwater Actionable Interference Misappropriation Chapter 3: Law of Finders and Prior Possessors Conversion, Replevin, and Trover Armory v. Delamirie Extensions of the Armory Rule—and a Right of Subrogation Lost Property, Mislaid Property, Abandoned Property, and Treasure Trove Other Considerations Instrumental View Legislation Chapter 4: Bailments Definitions Overview of Negligence and Strict Liability Specialized Bailment Issues (a) Pledges (b) Park-and-Lock Cases (c) Safe Deposit Boxes Misdelivery of Bailed Property (a) Strict Liability and Negligence (b) Burden of Proof When Bailed Property Is Lost or Damaged Chapter 5: Sales and Good Faith Purchasers Void Title, Voidable Title, and Bona Fide Purchasers The UCC and Bona Fide Purchasers Entrustment Chapter 6: Gifts Inter Vivos Gifts (a) Donative Intent (b) Delivery (c) Acceptance Gifts Causa Mortis Chapter 7: Fixtures Chapter 8: Adverse Possession Introduction Elements of Adverse Possession (a) Actual Possession (b) Open and Notorious Possession (c) Exclusive Possession (d) Hostile or Adverse Possession (1) The Majority or Objective View (2) The Minority, Bad-Faith, or Intentional Trespass View (3) Good-Faith View (e) Continuous Possession Privity and Tacking Disabilities and Tolling the Running of the Statute of Limitations Temporal and Physical Severance and Adverse Possession Personal Property and Adverse Possession Part II. Common Law Estates and Interests in Real Property Chapter 9: Common Law Estates and Present Interests Some History Estates and Interests Estates: Fundamental Fragments of Time The Importance of Terms—and Some More Terms (a) Fee Simple Absolute (b) Life Estate (1) Attributes of a Life Estate (2) Marketability Problems (3) Conflicts Between the Life Tenant and the Remainderman (4) Life Estate or Fee Simple (c) Fee Tail and Fee Simple Conditional (d) Term of Years Waste (a) Voluntary, Permissive, and Ameliorating Waste (b) Open Mines Doctrine (c) Economic Waste Defeasible Fee Simple Estates (a) Fee Simple Determinable (b) Fee Simple Subject to a Condition Subsequent (c) Distinguishing a Fee Simple Determinable from a Fee Simple Subject to a Condition Subsequent from a Covenant (d) Fee Simple Subject to an Executory Limitation Classifying Estates in Fee Simple—a Flowchart Chapter 10: Future Interests Introduction Distinguishing Present Interests and Future Interests Future Interests Retained by the Grantor or Transferor Future Interests in Third-Parties (a) Remainders (b) Executory Interests Vested and Contingent Remainders (a) Ascertained Persons (b) No Condition Precedent Why We Distinguish Vested and Contingent Remainders Interpreting Transfers with Conditions Precedent and Conditions Subsequent Alternative Contingent Remainders Variations on Vested Remainders (a) Indefeasibly Vested Remainder (b) Vested Remainder Subject to Divestment (c) Vested Remainder Subject to Open (1) Class Closing Physiologically or Naturally (2) Class Closing by the Rule of Convenience Restatement (Third) of Property Chapter 11: Special Rules of Construction The Rule of Destructibility of Contingent Remainders The Merger Rule Forfeiture The Rule in Shelley’s Case The Doctrine of Worthier Title Chapter 12: The Rule Against Perpetuities Introduction Part I: The Rule Against Perpetuities Explained Preliminary Observations (a) Creation of the Interest (b) Vesting versus Possession (c) Rule Applies to Legal and Equitable Estates (d) Certain Contingent Remainders to Charitable Organizations An Analytical Approach Updated Versions of the Rule Part II: Application of the Rule Against Perpetuities to Specific Situations Interests Dependent on an Event Grantees Identified by Description Rather than Named Vested Remainders Subject to Open (Class Gifts) Intergenerational Family Transfers Effect of Class Closing Rules on Intergenerational Transfers Commercial Options Statutory Reforms of the Rule (a) The Wait-and-See Doctrine (b) The Uniform Statutory Rule Against Perpetuities (c) The Cy Pres Doctrine (d) The Rule and Trust Law (e) Generation-Based Perpetuity Period Chapter 13: Concurrent Ownership Tenancy in Common Joint Tenancy with Right of Survivorship Severance (a) Leases (b) Mortgages (c) Judgment Liens (d) Unilateral and Secret Severances Distinguishing Joint Tenancies from Tenancies in Common Tenancy by the Entirety Rights and Obligations Between Co-Tenants (a) Possession, Ouster, and Payment of Rent (b) Contribution (1) Taxes, Interest, and Insurance (2) Mortgage Principal (3) Repairs and Maintenance (4) Improvements (c) An Accounting (d) Final Settlement on Sale (e) Tax Sales and Foreclosure Sales (f) Adverse Possession Partition (a) Partition in Kind (b) Partition by Sale Chapter 14: Marital Property Common Law Dower Dower Reform The Elements of Dower Dower and Adverse Possession Dower and Waste Release of Dower Barring Dower Forcing an Election Curtesy The Modern Elective Share Calculating the Amount of the Elective Share Homestead Exemptions Separate, Marital, and Community Property Ante-Nuptial Agreements Putative Spouses Part III. The Law of Landlord and Tenant Chapter 15: The Landlord and Tenant Relationship Types of Leases (a) Term of Years (b) Periodic Tenancy (c) Tenancy at Will (d) Tenancy at Sufferance (1) Holdover as Trespasser (2) Holdover as Renewing Lease (3) Holdover in Other Situations The Landlord’s Duty to Deliver Possession Chapter 16: Transfers of the Lease Privity of Contract and Privity of Estate Assignments and Subleases The Traditional Rule Rule of Intent The Effect of Tenant Transfers on Privity Real Covenants Landlord’s Consent to a Sublease or Assignment Landlord Consent Provisions The Rule of Dumpor’s Case Transfers of the Landlord’s Interest Chapter 17: Waste, Duty to Repair, Destruction of Leased Premises, and Security Deposits Waste Remedies and Damages for Waste Fixtures The Duty to Repair The Destruction of the Premises (a) Termination of the Lease (b) Duty to Rebuild Security Deposits Chapter 18: Termination and Abandonment of the Lease Landlord’s Eviction of Tenant in Default Self-Help Ejectment Summary Possession Statutes Tenant’s Abandonment and Surrender Surrender Abandonment (a) Lease Continues—Landlord Does Nothing (b) Landlord Relets on Tenant’s Behalf (c) Landlord Treats Abandonment as Surrender (d) Abandonment as Anticipatory Repudiation Chapter 19: Achieving Habitable Premises Evictions—Actual and Otherwise (a) Actual Eviction (b) Partial Actual Eviction (c) Constructive Eviction (d) Partial Constructive Eviction (e) The Covenant of Quiet Enjoyment (f) The Tenant’s Dilemma The Implied Warranty of Habitability (a) Basis for the Warranty of Habitability (b) A Breach of the Warranty (c) Commercial Tenants and the Warranty of Suitability (d) Enforcement Remedies (e) Damages (f) Withholding Rent (g) Summary Retaliatory Eviction as a Tenant’s Defense to Eviction (a) Modifications to the Retaliatory Eviction Defense Illegal and Frustrated Leases (a) The Illegal Lease (b) Frustration of Purpose Chapter 20: Premises Liability of Landlords Premises Liability (a) Landlord Liable for Injuries in Specific Situations (1) Latent Defects (2) Prior Conditions Dangerous to Persons Off Premises (3) Leases for Public Use (4) Negligence in Maintaining Common Areas (5) Landlord Contracts to Repair Leased Premises (6) Negligent Repairs (b) Landlord Liable Under Negligence Standard (c) Landlord Strictly Liable Landlord Liability for Criminal Acts Exculpatory Clauses Part IV. Transfers of Land Chapter 21: The Sales Contract Introduction Closing Real Estate Brokers and Agents Broker as Seller’s Agent Broker’s Duty to Disclose Latent Defects to Prospective Purchasers The Statute of Frauds Part Performance and Other Exceptions (a) Part Performance (b) Equitable Estoppel (c) Admission of a Contract in Court Chapter 22: Executory Period Issues Introduction Marketable Title (a) Definition of Marketable Title (b) Examples of Unmarketable Title (c) Defective Deed Records (d) Violations of Covenants, Ordinances, Regulations, or Other Laws (e) Adverse Possession (f) Landlocked Property Caveat Emptor and the Duty to Disclose Defects (a) Caveat Emptor (b) The Duty to Disclose Material Latent Defects Time for Performance Remedies for Breach of Sales Contract Equitable Conversion and Risk of Loss Chapter 23: Real Estate Closings The Closing or Settlement Process Delivery Specialized Delivery Problems (a) Escrow Transfers (b) Donative and Testamentary Transfers Mortgages (a) Mechanics of Mortgages (b) Title Theory and Lien Theory (c) Deed of Trust (d) Installment Land Sale Contract (Contract for Deed) (e) Debt Satisfaction and Assumptions (f) Foreclosure Chapter 24: Post-Closing Title Assurances Merger Doctrine Types of Deeds Deed Covenants Present Covenants (a) Seisin (b) Right to Convey (c) Covenant Against Encumbrances Future Covenants (a) Warranty (b) Quiet Enjoyment (c) Further Assurances Damages Attorney’s Fees Remote Grantees Implied Warranty of Quality After Acquired Title (Estoppel by Deed) Chapter 25: Recording Systems, Marketable Title Acts, and Title Insurance Introduction Searching a Chain of Title Using the Grantee Index Searching a Chain of Title Using the Grantor Index Searching a Tract Index Types of Recording Acts Race Statutes Notice Statutes (a) Actual Notice (b) Constructive Notice (c) Inquiry Notice Race-Notice Statute Subsequent Purchasers for Value Chain of Title Problems (a) Restrictions and Easements on Retained Property Not in the Retained Property’s Chain of Title (b) The Wild Deed (c) Documents Recorded Out of Chronological Order (d) Uncertainty Whether Prior Subsequent Purchasers Had Notice (e) The Shelter Rule Marketable Title Acts Title Insurance (a) Informational Use (b) Lender’s Policy and Owner’s Policy (c) No Assignment or Running of Benefits (d) Insurer’s Duty to Disclose Excepted Defects (e) Damages (f) Other Benefits of Title Insurance Part V. Private Land Use Controls Chapter 26: Private Nuisance Introduction Intentional and Unintentional Interferences Substantial Interference Unreasonable Interference Injunctions and Damages Light and Air Lateral Support and Subjacent Support Chapter 27: Creation of Easements Introduction Terminology Other Nonpossessory Interests Easements Expressly Granted or Reserved Easements by Estoppel and Irrevocable Licenses Implied Easements Easements Implied from Prior Use Easements Implied by Necessity Prescriptive Easements Chapter 28: Assignability, Scope, and Termination of Easements Assignability of Easements Divisibility and Apportionment (a) Easements Appurtenant (b) Easements in Gross Scope of Easements (a) Location (b) Intensity of Use (c) No Benefit Allowed to Nondominant Property (d) Improvements, Maintenance, and Repair Termination of Easements Chapter 29: Real Covenants and Equitable Servitudes: Running with the Land Introduction Terminology Identifying Real Covenants and Equitable Servitudes Intent to Bind and Benefit Successors Touch and Concern (a) Burdens That Touch and Concern Land (or Don’t) (b) Benefits That Touch and Concern Land (or Don’t) Real Covenants and Privity of Estate (a) Terminology (1) Original Promisee (2) Original Promisor (3) Subsequent Owners (4) Horizontal Privity (5) Vertical Privity (b) Horizontal Privity (c) Vertical Privity Equitable Servitudes and Notice The Restatement (Third) of Property (Servitudes) Chapter 30: Real Covenants and Equitable Servitudes: Common Schemes and Termination The Common Scheme and Subdivisions The Common Scheme and Standing to Enforce a Servitude The Common Scheme and Notice for Recording Acts and Equitable Servitudes The Common Scheme and the Statute of Frauds What Constitutes a Common Scheme (a) Common Covenants (b) When a Common Scheme Begins (c) Geographic Boundaries of Common Schemes The Restatement (Third) of Property (Servitudes) Termination of Covenants and Servitudes Part VI. Public Land Use Controls Chapter 31: Constitutional and Statutory Constraints on Zoning Introduction An Introduction to Constitutional Law The Standard State Zoning Enabling Act Enacting a Zoning Ordinance Cumulative and Noncumulative Zoning The Constitutional Law in Euclid Unconstitutional On Its Face and As Applied Nonconforming Uses Amortization Chapter 32: Variances, Special Exceptions, and Zoning Amendments Variances Special Exceptions Judicial Review of Variances and Special Exceptions Amending the Zoning Ordinance The Problem of Spot Zoning Initiative and Referendum Contract and Conditional Zoning Floating Zones, Cluster Zones, and PUDs Chapter 33: Zoning Extended and Challenged Household Composition and Single-Family Residences (a) Village of Belle Terre v. Boraas (b) Moore v. City of East Cleveland (c) Fair Housing Act and Group Homes Exclusionary Zoning Aesthetic Regulation (a) Signs and Billboards (b) Architectural Controls (c) Historic Districts (d) Landmarks Two Federally Favored Land Uses (a) Religious Uses (b) Wireless Communication Facilities Adult Entertainment Chapter 34: Takings Conventional Condemnation (a) Public Use (b) Just Compensation Inverse Condemnation Regulatory Takings—The Penn Central Ad Hoc Factors (a) Character of the Government Action (b) The Economic Impact of the Regulation (c) Investment-Backed Expectations Categorical or Per Se Regulatory Takings (a) Physical Invasions (b) No Economically Beneficial Use Conceptual Severance (a) Severing or Merging the Land Surface (b) Airspace, Surface, and Mineral Rights as Separate Interests (c) Temporal Severance (1) Permanent Takings (2) Temporary Takings Judicial Takings Exactions (a) The Essential Nexus (b) Rough Proportionality Remedies and Just Compensation Index