Review Looking back looking forward Final Exam Review 2
Slide 4
In Review: The Four Postulates of Property Law: 1. Property
needs to be seen as a collection of Rights not a collection of
Things; 2. Property Rights are those recognized by Law and the Law
evolved from Property Rights; 3. Our Foundations of Law recognized
that we are endowed with Property Rights; and 4. Property Rights
can be summarized by E-PUT 3
Slide 5
E-PUT Just What are your property rights? They can be
summarized by the initials EPUT. These initials stand for: E-PUT 1.
The Right to Exclude; 2. The Right to Possess; 3. The Right to Use;
and 4. The Right to Transfer. 4
Slide 6
And so, just what is the Law? The Law has been defined by
Blacks Law Dictionary as follows: That which is laid down,
ordained, or established. A rule or method according to which a
phenomena or actions co-exist or follow each other. Law, in its
generic sense, is a body of rules of action or conduct proscribed
by controlling authority, and having binding legal force. Law is a
solemn expression of the will of the supreme power of the state.
Perhaps the simplest description of the Law, however, is that: Law
is the Rules by which civilization is ordered. 5
Slide 7
Rome was an empire based upon trade and its military. The law
helped both these institutions promote civilization across the then
known world by instilling both consumer and merchant confidence and
providing a consistent template for the governance and operation of
conquered lands and peoples. The Law of Rome, often referred to as
the Code due to its written history, helped to make the Empire the
greatest of its time. Rome and Our Law The concept of a body of law
first emerged in Rome. Although Rome developed a quasi legislative
body known as the Senate as well as a system of Courts to arbitrate
disputes, their concept of the Law, put down in Code, was largely
the edicts of the emperor. 6
Slide 8
England and America Bound by Heritage and Law 7
Slide 9
Henry, Eleanor, Richard and John After the reign of Stephen, in
1154 Henry the Second, and his Wife Eleanor of Aquitaine took over
England, Normandy, and Aquitaine (which belonged to Eleanor)
thereby comprising not only England but also half of modern France
as well. When Henry died, he left the throne to his son Richard.
Richard, known popularly as Richard the Lionhearted, was a
handsome, noble and brave. Leading English forces for the 3 rd
Crusade, he left his younger brother John in charge during his
absence. 8
Slide 10
The First Real Battle for Property Rights On June 15, 1215, the
forces of the landed nobles (the freemen) confronted John at
Runnymede, and forced him to sign and put his seal on the Magna
Carta (the Great Charter). It was popularly known then as the
Charter of Liberties 9
Slide 11
The Magna Carta is Signed The Magna Carta was one of the
forerunners of modern British law, the US Constitution and its
Amendments (the Bill of Rights) and the guiding documents of many
other countries that have further expanded the rights and liberties
of the people and limited the power of the government. Containing
63 clauses, this landmark document: - Created a council to the King
(a forerunner to parliament), - Promised all freemen access to
courts and a fair trial, - Specified many property rights from
infringement by the king and his agents, - Eliminated unfair fines
and punishments, - Gave certain legal powers to the Catholic
Church, and - Addressed many lesser issues. One major right the
Magna Carta did not recognize, was that it did not abolish the
condition of involuntary servitude (serfdom), since the freemen who
drafted the document, depended upon this feudal system for their
wealth, power and life. 10
Slide 12
Since the time of the Magna Carta the system of modern
Anglo-American Law evolved to flow from three sources. 1.
Constitutional Law 2. Statutes 3. Case (or Common) Law (Laws made
by Judges). 11
Slide 13
The law of early America was based largely upon the law of
England. We were, of course prior to the Revolution, English
subjects. Our founders initially spoke of redressing their
grievances under a format of the Rights of Englishmen There was
very little statutory law, and even after the US and State
Constitutions, most law was still based upon English Court
precedent. This is best stated under the Doctrine of Stare Decisis
Latin for Let the Decision Stand. Indeed statutes were looked upon
with a skeptical eye. For it should be remembered that the
Quartering Act, Stamp Act and the Townsend Acts were all statutes
that ignited the Revolution to occur in the first place. 12
Slide 14
Sir William Blackstone was an jurist and professor who produced
the historical and analytic treatise on the law known as
Commentaries on the Law of England. First published in four volumes
over 1765 1769. It had an extraordinary success. A baseline Bible
of the law of his time, these famous Commentaries still remain an
important source on classical views of the common law and its
principles. It was used not only through out England but through
out the United States as well. 13
Slide 15
Pierson v. Post Queens NY Case about Possession Remember chase
that fox get nothing! Shoot that fox and carry it away- get the
prize for possession. Mere pursuit is not possession! 14
Slide 16
Types of Property Property can be: Real (Rights in Land); Real
Estate Ownership/Leaseholds/Easements/Life Estates Personal (Rights
in Objects); and/or Chattels Tangible, visible things Intellectual
(Rights in Ideas) Patents Idea for Product or Process Trademarks
Logo, Identification or Distinction Copyrights Written or Performed
Works 15
Slide 17
Tradition in the law The Practice of Livery of Seizen This was
the practice before deeds when land transfers occurred in front of
neighbors, where the seller would cut out a piece of sod of the
property to be sold and physically hand it to the buyer in the
presence and upon witness of others in exchange for gold (or other
consideration). Upon the conclusion of the transaction, a small
male child would be beaten to have him remember the events (their
version of recording). 16
Slide 18
REAL AND PERSONAL PROPERTY DISTINCTIONS Common Law Real
property means land, things fixed to land. and things incidental or
appurtenant to land (basically immovable property). Personal
property is movable property, but includes virtually every kind of
physical property that is not real property. Real property may be
converted to personalty by severance, and personal property may be
converted to real property by an annexation intended to be
permanent. Leases Under the common law, a lease of land for a term
of years constituted personal property. This was because the lease
did not fall within the common law definition of land, tenements,
or hereditaments; a lease was considered an interest in land less
than a freehold and therefore a real chattel. Modern statutes
changed the common law rule for leases, defining them as real
property. 17
Slide 19
REAL AND PERSONAL PROPERTY DISTINCTIONS Crops a. Fructus
Naturales Crops that grow spontaneously on land, e.g., trees,
bushes, and grass, are described as fructus naturales and are
considered to be a part of the land, and therefore real property.
Title to the land includes such crops. b. Fructus Industriales
Crops that are the result of annual planting, labor, and
cultivation, e.g., grains, vegetables, and other crops, are
described as fructus industriales. These crops are, as a general
rule, regarded as personalty. 18
Slide 20
REAL AND PERSONAL PROPERTY DISTINCTIONS Fixtures Under the
concept of fixtures, a chattel that has been annexed to real
property is converted from personalty to realty. The former chattel
becomes an accessory to the land (i.e., a fixture) and passes with
ownership of the land. If a fixture is detached from the real
estate, it once again assumes its designation as personal property.
19
Slide 21
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Rights and title to personal property are acquired or lost by: 1.
Transfer - Sale 2. Occupancy, 3. Adverse possession, 4. Accession,
5. Confusion, 6. Judgment, 7. When the chattel is lost, mislaid, or
abandoned, or 8. Gift 20
Slide 22
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY The
Finder of Lost Property Property with Value Under Twenty Dollars A
finder of lost property of less than $20 in value must make a
reasonable effort to find the owner and restore the property to
them; if unable to do so after a reasonable effort, title vests in
the finder one year after the finding. [N.Y. Pers. Prop. Law 252( I
)] Property with Value of Twenty Dollars or More and Instruments A
finder of lost property with a value of $20 or more, or an
instrument as defined for purposes of the statute, who knows the
property was lost, must within 10 days of finding it either return
it to the owner or report such a finding and deposit the property
with the local police. [N.Y. Pers. Prop. Law 252(l)] 21
Slide 23
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Abandoned Property Abandoned property is that which the owner has
voluntarily relinquished all ownership of without reference to any
particular person or purpose. The owner must intend to give up both
title and possession. Examples: 1) Allowing refrigerators to remain
in a building that the owner of the refrigerators knew was to be
destroyed would be deemed an act of abandonment. 2) A tenant's act
of leaving her apartment for one week and becoming in arrears for
one week's rent is not enough to constitute abandonment of the
property in the apartment. The landlord padlocked the tenant's door
and attempted to charge an extra fee before allowing the tenant to
reenter. It was held that the tenant had not abandoned her property
and so the landlord had converted the property. 22
Slide 24
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Escheat Where abandoned property is held by an intermediary with no
property interest in the property (e.g., unclaimed funds held by
banks or other depositories), the state may assume title to the
property through a process called escheat. Property may be
escheated only by the state in which the property is located.
Intangible property is considered to be located at the domicile of
the property owner. 23
Slide 25
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Accession Accession is the addition of value to property by the
expenditure of labor or the addition of new material. If the added
article can be detached from the principal chattel, this will be
ordered and each party will be put in status quo ante. If the added
expenditure or thing cannot be detached from the principal chattel,
the question arises as to who is the owner of the chattel in its
enhanced state. The answer depends upon whether the trespasser
acted in good faith or is a willful trespasser. 24
Slide 26
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Accession 1) General Rule-Trespasser Cannot Recover The owner of a
chattel does not lose her title merely because a trespasser has
augmented or enhanced the value of that chattel. Generally, the
authorities refuse to recognize any quasi-contractual claim to
compensation by the innocent trespasser. Thus, the trespasser
cannot recoup the value of his labor or materials added to the
chattel. 2) Original Owner's Remedy The owner of the chattel may
elect to sue the trespasser for damages for conversion (value of
the original material plus any consequential damages); or they may
sue for replevin (i.e., sue for the return of the chattel). 3)
Exceptions There are instances where the owner of the chattel will
be restricted to a cause of action for damages (i;e., the value of
the original chattel plus any consequential damages). In these
instances, the former owner, by virtue of the act of accession, is
divested of title and may not elect to sue in replevin. 25
Slide 27
ACQUISITION AND LOSS OF RIGHT OR TITLE TO PERSONAL PROPERTY
Title by Judgment a. Election of Remedies One who destroys,
misuses, misdelivers, or otherwise wrongfully deprives the owner of
chattel of his possessory rights, may be liable to the owner under
various theories of recovery. 1) Replevin - Replevin is an action
to recover the chattel itself. 2) Trespass - The action in trespass
is to recover money damages incurred by reason of the
dispossession. 3) Trover - The action in trover is to recover the
value of the chattel along with damages for dispossession. 26
Slide 28
GIFTS Types of Gifts Gifts Inter Vivos (Gifts During Lifetime)
Gifts Causa Mortis (Gifts in Contemplation of Death) The Three
Factors that make a Gift a. Donor's Intent b. Delivery c.
Acceptance 27
Slide 29
GIFTS When it comes to gifts remember your dear Aunt IDA The
Three Factors that make a valid Gift a. Donor's Intent b. Delivery
c. Acceptance 28
Slide 30
GIFTS Inter Vivos Gifts Gifts in Contemplation of Marriage
Engagement gifts (e.g., a diamond engagement ring) are made in
contemplation of marriage and are conditioned upon the subsequent
ceremonial marriage taking place. If the marriage does not occur,
engagement gifts must be returned regardless of who is at fault for
breaking off the engagement. The donor may recover gift even if
donor is at fault. 29
Slide 31
GIFTS Gifts Causa Mortis a. Gifts of Personal Property Only
Only personal property may be transferred as a gift causa mortis.
b. Delivery and Acceptance Delivery and acceptance must be
sufficient to vest control and dominion in the donee. Delivery to
an agent does not complete the gift, since death is an event that
terminates the agency. c. Connection Between the Gift and the
Donor's Fear of Death At the time of the gift, the donor must have
an immediate and present fear of death. However, the actual cause
of the death need not necessarily be the specific one the donor
feared (i.e. donor hospitalized for cancer, but dies of stroke). A
gift causa mortis is revocable and is automatically revoked by the
donor's recovery or by the donee's death. 30
Slide 32
Liens So just what is a Lien? Well lets go to Blacks Law
Dictionary, and remember we need to think of property as a
collection of Rights and not a collection of Things; Blacks Law
Dictionary defines a LIEN as: 1.A charge or security or encumbrance
upon property 2.A claim or charge on property for payment of some
debt, obligation or duty 3.A right to retain property for payment
of debt or demand 31
Slide 33
Liens Types of Liens A.Common Law Lien A Common Law Lien is a
common law, customary right to possess or retain personal property
which has been improved or enhanced in value by the person who
claims the lien until the person claiming the property pays in full
all charges attaching to the property for such improvement. Every
lien requires that: 1. A debt has arisen from services performed on
the thing; 2. Title to the thing is in the debtor; and 3.
Possession of the thing is in the creditor. B.Statutory Lien A
Statutory Lien is an express right to enforce a lien pursuant to
statute. A lien is a security device to enforce payment 32
Slide 34
Liens A Lien: Gives the Lien holder the right to possess and
retain certain property under certain circumstances Can not be
levied against an item not given by its owner; and Can be deemed
waived by contract, acceptance of other security, or by a demand
for unlawful charges. Classes of Liens A.General Lien A general
lien is the right to retain ALL OF THE PROPERTY of another person
as security for a general balance due from such other person.
Certain creditors and universal agents can have a general lien.
B.Special Lien A special lien is the right to retain SPECIFIC
PROPERTY of another to secure some particular claim or charge which
has attached to the property retained. A common or private carrier,
a warehouser or ordinary bailee, a trustee, attorney, arbitrator,
and a general or special agent may have a special lien. 33
Slide 35
Liens Consequence of Classification The question as to whether
a lien is general or special becomes important only when the
lienholder releases a portion of the chattels held as security.
Where a doubt exists as to whether the lienholder has a general or
special lien, the law presumes the lien to be special rather than
general. General Lien If the lienholder has a general lien and
releases part of the chattels, he releases no portion of the lien
and he may hold the unreleased portion until the entire lien charge
is paid. Special Lien If the lien is a special lienand the
lienholder releases a portion of the chattels held, he thereby
waives the lien to the extent of the chattels released. 34
Slide 36
BAILMENTS A. DEFINITION A bailment is the relationship created
by the transfer of possession of an item of personal property by
one called the bailor to another called the bailee for the
accomplishment of a certain purpose. Blacks defines Bailment as: A
delivery of goods or personal property, by one person to another,
in trust for the execution of a special object upon or in relation
to such goods, beneficial to the bailor or the bailee or both, and
upon a contract, express or implied, to perform the trust and carry
out such object, and thereupon redeliver the goods to the bailor or
otherwise dispose of the same in conformity with the purpose of the
trust. 35
Slide 37
BAILMENTS A. DEFINITION 1. Elements of a Bailment DAPPER *
Delivery * Agreement * Personal Property * Purpose * Entered into
for the Benefit of one or both parties; and * ended with Redelivery
36
Slide 38
BAILMENTS A. Valid Bailments For a Bailment to be Valid, there
must be: A transfer of possession; and A demonstrated intent for
the bailee to take control of the bailed item. B. Care The Legal
Level of the Duty of Care for a Bailee depends on: Sole Benefit of
the Bailor (Gratuitous) - the bailee must exercise only slight care
with respect to the goods bailed and is liable only for gross
negligence with respect to the bailed goods. Mutual Benefit
Bailment (Commercial) where the bailment is for hire and pledges
are for the mutual benefit of the bailor and bailee, in such
instances, the bailee must exercise a duty of ordinary care, and
the bailee will be liable for her ordinary negligence. Sole Benefit
of the Bailee the bailee must exercise the highest level of care
with respect to the bailed goods and is liable for negligence in
the slightest degree. C. Redelivery A Bailee must always redeliver
the bailed item and is only entitled to use it if it must be used
for the items protection (i.e. to milk a cow). 37
Slide 39
The Case of Regulation vs. Statute The order of priority of
laws in the United States is: Constitution Statute Regulation
Executive Order 38
Slide 40
Intellectual Property Copyrights Rights in Writings, Arts or
Expression Patents Rights in Inventions or Discoveries Trademarks
Rights in a Word, Name or Symbol These rights were not widely
recognized in common law Are not enforceable world wide Are
recognized in modern law pursuant to federal statutes 39
Slide 41
Common Law Felonies: Remember - Mr & Mrs Lamb Murder Rape
Manslaughter Robbery Sodomy Larceny Arson Mayhem Burglary 40
Slide 42
Murder A person is guilty of murder when: 1. With intent to
cause the death of another person, he causes the death of such
person or of a third person; 2. Under circumstances evincing a
depraved indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and
thereby causes the death of another person; or 3. Acting either
alone or with one or more other persons, he commits or attempts to
a felony, and, in the course of and in furtherance of such crime or
of immediate flight therefrom, he, or another participant, if there
be any, causes the death of a person other than one of the
participants. 41
Slide 43
Rape A person is guilty of rape when: He or she engages in
sexual intercourse with another person: 1. By forcible compulsion;
or 2. Who is incapable of consent by reason of being physically
helpless; or 3. Who is less than eleven years old; or 4. Who is
less than thirteen years old and the actor is eighteen years old or
more. 42
Slide 44
Manslaughter A person is guilty of manslaughter when: 1. With
intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or 2. With
intent to cause the death of another person, he causes the death of
such person or of a third person under circumstances which do not
constitute murder because he acts under the influence of extreme
emotional disturbance. 43
Slide 45
Robbery Robbery is forcible stealing. A person forcibly steals
property and commits robbery when: In the course of committing a
larceny, he uses or threatens the immediate use of physical force
upon another person for the purpose of: 1. Preventing or overcoming
resistance to the taking of the property or to the retention
thereof immediately after the taking; or 2. Compelling the owner of
such property or another person to deliver up the property or to
engage in other conduct which aids in the commission of the
larceny. 44
Slide 46
Sodomy (No long referred to in New Yorks Penal Law) Under
common law, a person was guilty of Sodomy when: He or she engages
in deviate sexual intercourse with another person: 1. By forcible
compulsion; or 2. Who is incapable of consent by reason of being
physically helpless; or 3. Who is less than eleven years old; or 4.
Who is less than thirteen years old and the actor is eighteen years
old or more. 45
Slide 47
Larceny A person steals property and commits larceny when: With
intent to deprive another of property, or to appropriate the same
to himself or to a third person, he wrongfully takes, obtains or
withholds such property from an owner thereof. Larceny includes a
wrongful taking, obtaining or withholding of another's property,
committed in any of the following ways: (a) By conduct known as
larceny by trespassory taking, larceny by trick, embezzlement, or
by obtaining property by false pretenses; or (b) By acquiring lost
property, when during such acquisition he exercises control over
property of another which he knows to have been lost or mislaid, or
to have been delivered under a mistake as to the identity of the
recipient or the nature or amount of the property, without taking
reasonable measures to return such property to the owner; or (c) By
committing the crime of issuing a bad check; or (d) By false
promise, when, pursuant to a scheme to defraud, he obtains property
of another by means of a representation, express or implied, that
he or a third person will in the future engage in particular
conduct, and when he or the third person does not intend to do so;
or (e) By extortion, when he compels or induces another person to
deliver such property to himself or to a third person by means of
instilling in him a fear that, if the property is not so delivered,
the actor or another will: (i) Cause physical injury to some person
in the future; or (ii) Cause damage to property; or (iii) Engage in
other conduct constituting a crime; or (iv) Accuse some person of a
crime or cause criminal charges to be instituted against him; or
(v) Expose a secret or publicize an asserted fact, whether true or
false, tending to subject some person to hatred, contempt or
ridicule; or (vi) Cause a strike, boycott or other collective labor
group action injurious to some person's business; except that such
a threat shall not be deemed extortion when the property is
demanded or received for the benefit of the group in whose interest
the actor purports to act; or (vii) Testify or provide information
or withhold testimony or information with respect to another's
legal claim or defense; or (viii) Use or abuse his position as a
public servant by performing some act within or related to his
official duties, or by failing or refusing to perform an official
duty, in such manner as to affect some person adversely; or (ix)
Perform any other act which would not in itself materially benefit
the actor but which is calculated to harm another person materially
with respect to his health, safety, business, calling, career,
financial condition, reputation or personal relationships. 46
Slide 48
Arson A person is guilty of arson when: He intentionally
damages a building or motor vehicle by causing an explosion or a
fire; 1. When: A. Such explosion or fire is caused by an incendiary
device propelled, thrown or placed inside or near such building or
motor vehicle; or B. Such explosion or fire is caused by an
explosive; or C. Such explosion or fire either: (i) causes serious
physical injury to another person other than a participant, or (ii)
the explosion or fire was caused with the expectation or receipt of
financial advantage or pecuniary profit by the actor; and 2. When
another person who is not a participant in the crime is present in
such building or motor vehicle at the time; and 3. When the
defendant knows that fact or the circumstances are such as to
render the presence of such person therein a reasonable
possibility. 47
Slide 49
Mayhem (Merged under Crime of First Degree Assault in Present
Day NY Law) At Common Law, Mayhem Was defined as: The intentional
disfigurement of any part of the male body useful in time of war.
48
Slide 50
Burglary A person is guilty of burglary when: 1. He knowingly
enters or remains unlawfully in a dwelling with intent to commit a
crime therein, and 2. In effecting entry or while in the dwelling
or in immediate flight therefrom, he or another participant in the
crime: A. Is armed with explosives or a deadly weapon; or B. Causes
physical injury to any person who is not a participant in the
crime; or C. Uses or threatens the immediate use of a dangerous
instrument; or D. Displays what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm. 49
Slide 51
Review of Real Property Looking Back to See our Way Forward
50
Slide 52
In Review: The Four Postulates of Property Law: 1. Property
needs to be seen as a collection of Rights not a collection of
Things; 2. Property Rights are those recognized by Law and the Law
evolved from Property Rights; 3. Our Foundations of Law recognized
that we are endowed with Property Rights; and 4. Property Rights
can be summarized by E-PUT 51
Slide 53
Real Property Basics Historically, Real Property has meant
wealth, power and life. To truly understand Real Property and its
legal concepts, one must think in terms of possession and time.
Complex legal rules and holdings of Real Property have developed
because of the inherent value and uniqueness of real property.
52
Slide 54
Real Property Taxes There are two types of taxes, and really
only two types of taxes, which tax you on what you own or have, not
upon what you earn or acquire. These two types of taxes are Real
Property Taxes and Estate (or Death) Taxes. In New York State, Real
Property Taxes are used to finance local governments and schools.
The STAR Program in New York Shifts school tax revenue from real
property taxes to State income taxes. The TAX CAP seeks to limit
the growth in real property taxes by requiring a 60% vote before a
local government or school district can raise real property taxes 2
percent above the tax levy Governments us the Real Property Tax, to
generate revenue because its is a more dependable, less
fluctuating, source of revenue. 53
Slide 55
Words of Purchase vs. Words of Limitation To determine what
rights exist in an Interest in Land, there are two factors which
tell the story and they appear in the deed as follows: Words of
purchase: Describe who takes the real property by grant, gift,
inheritance or bequest. Words of limitation: Describe the type and
duration of the estate taken by the transferee. 54
Slide 56
Interests in Land A Two Step Dance: Possession and Time Step
One: Form of Possession Possessory Interests in Land (Either
presently or in the future) Non - Possessory Interests in Land
(Either presently or in the future) Step Two: When the Interest
Vests Present interests (When the RIGHT to possess is NOW) Future
interests (When the RIGHT to possess is in the future) 55
Slide 57
Interests in Land Possessory Interests in Land (Either
presently or in the future) 1. Fee Simple Absolute 2. Defeasible
Estates - Fee Simple Determinable with Possibility of Reverter -
Fee Simple Subject to a Condition Precedent - Fee Simple Subject to
an Executory Interest 3. Fee Tail 4. Life Estate Non possessory
interests in land: (An Interest with a right that can be executed
but is not presently possessed) 1. Easements 2. Profits, 3.
Covenants, and 4. Servitudes 56
Slide 58
Interests in Land Possessory Interests Possessory Interests in
Land (Either presently or in the future) 1. Fee Simple Absolute 2.
Defeasible Estates - Fee Simple Determinable with Possibility of
Reverter - Fee Simple Subject to a Condition Precedent - Fee Simple
Subject to an Executory Interest 3. Fee Tail 4. Life Estate 57
Slide 59
Interests in Land Possessory Interests Present, possessory
interests. Highest Level Estate in Land: FEE SIMPLE ABSOLUTE 1.
Invests the owner with all possible rights (E-PUT) now and in the
future. 2. It is the presumed form of ownership grant, unless a
lesser estate grant was expressly intended. 3. Is of perpetual and
infinite duration (lasts forever). 4. Is the form of ownership from
which all lesser forms are derived. Magic Language: To Grantee and
their heirs 58
Slide 60
Fee Simple Absolute To A and his heirs What are the words of
purchase? What are the words of limitation? To A Words of purchase
and his heirs Words of limitation Infinity 59
Slide 61
What are the critical attributes of Fee Simple Absolute? When a
transfer is made to A and his heirs: Alienable (Able to be
sold/gifted), Reducible (Able to be reduced to a lesser estate)
Devisable (Able to be given by will or intestate), and Lasts for
Perpetuity (Forever No Limitation of Time). 60
Slide 62
Interests in Land Possessory Interests Defeasible Estates These
are possessory fee estates of infinite duration that can be
terminated by the happening of a specified event. These are a
lesser estate than fee simple absolute. FEE SIMPLE DETERMINABLE
(Possibility of Reverter) 1. An Estate that AUTOMATICALLY
terminates upon the happening of a stated event. 2. Stated event
must be for a lawful purpose. Magic Language: To Grantee and their
heirs for so long as or while or during or until (the occurrence of
an event). 61
Slide 63
Fee Simple Determinable To A and his heirs for so long as What
are the words of purchase? What are the words of limitation? To A
Words of purchase and his heirs for so long as Words of limitation
Infinity 62
Slide 64
What are the critical attributes of Fee Simple Determinable?
When a transfer is made to A and his heirs for so long as : All
Subject to the Possibility of Reveter Alienable (Able to be
sold/gifted), Reducible (Able to be reduced to a lesser estate)
Devisable (Able to be given by will or intestate), and Lasts for So
Long As (The Limitation of The Reverter). 63
Slide 65
Interests in Land Possessory Interests Defeasible Estates
Continued These are possessory fee estates of infinite duration
that can be terminated by the happening of a specified event. These
are a lesser estate than fee simple absolute. FEE SIMPLE SUBJECT TO
A CONDITION SUBSEQUENT 1.An Estate that can terminate upon the
happening of a stated event and the taking of an action by the
party granted such rights by the transferring owner. 2.Known as a
RIGHT OF RE-ENTRY, this termination is NOT AUTOMATIC and needs the
grantor to take action Magic Language: To Grantee and their heirs
upon the condition that or provided that or but if or if it happens
that (the occurrence of an event). 64
Slide 66
Interests in Land Possessory Interests Defeasible Estates
Continued FEE SIMPLE SUBJECT TO A CONDITION SUBSEQUENT - A RIGHT of
RE-ENTRY CAN be waived (unlike Fee Simple Determinable which is
automatic) by express agreement or by conduct. - Although inaction
by itself is NOT a waiver, where there is inaction, and detrimental
reliance, courts have held a waiver by the grantor pursuant to the
doctrine of estoppel. - The rights of a Fee Simple Subject to a
Condition Subsequent have been held to be devisable, but NON
TRANSFERABLE. 65
Slide 67
Fee Simple Subject to Condition Subsequent To A and his heirs
upon the condition that What are the words of purchase? What are
the words of limitation? To A Words of purchase and his heirs upon
the condition that Words of limitation Infinity 66
Slide 68
What are the critical attributes of Fee Simple Subject to a
Condition Subsequent ? When a transfer is made to A and his heirs
upon the condition that : All Subject to the Right of Re-entry
Alienable (Able to be sold/gifted), Reducible (Able to be reduced
to a lesser estate) Devisable (Able to be given by will or
intestate), and Lasts until the condition arises AND the Right of
Re-entry is exercised. 67
Slide 69
Interests in Land Possessory Interest s Defeasible Estates FEE
SIMPLE SUBJECT TO AN EXECUTORY INTEREST - A Defeasible Estate that
AUTOMATICALLY divests in favor of a THIRD PERSON upon the happening
of a stated event. - Different from a FEE SIMPLE DETERMINABLE in
that this estate does not revert to the grantor but to a 3 rd
PERSON. - Subject to the Rule Against Perpetuities. - Title passes
to a third party in the event that the Condition is satisfied.
68
Slide 70
Interests in Land Possessory Interests Defeasible Estates
LIMITATIONS Possibility of Reverters and Rights of Re-entry have
been limited by most states to foster the marketability of title. A
free society needs the ability to freely transfer property, and not
impair the title of the same from transactions which occurred years
ago. DIRECT STATUTORY PRECLUSIONS (usually 30 years) RULE AGAINST
PERPETUITIES (21 years plus lives in being) RULE IN SHELLEYS CASE
(Remainder limited to heirs or heirs of the body) DOCTRINE OF
WORTHIER TITLE (Remainder invalid, Grantor retains reversion)
69
Slide 71
Interests in Land Possessory Interests Present, Possessory
Interests. FEE TAIL 1. An Estate limited to the grantee and his or
her family 2. Reverts to grantor if not owned by heir 3. No longer
recognized in almost any state Magic Language: To Grantee and heirs
of their body Now FEE SIMPLE ABSOLUTE 70
Slide 72
Interests in Land Possessory Interests Present, Possessory
interests. LIFE ESTATE 1. By Marital Right (Dower and Curtsey) 2.
For Life of Grantee 3. Pur Autre Vie (Life of Another) Magic
Language: To Grantee for Life or To Grantee for the Life of Tilda
Spain 71
Slide 73
Life Estate To A for Life What are the words of purchase? What
are the words of limitation? To A Words of purchase for life Words
of limitation Infinity 72
Slide 74
Interests in Land Non Possessory Interests Until now we have
discussed Possessory Interests, meaning interests in real property
that either ARE, or WILL BE (pre-vested interests) POSSESSED by the
holder of the property. Just as there are possessory interests in
real property where possession is not effectuated yet because of
time or condition, the law also recognizes interests in real
property where the holder of such interest does NOT EVER actually
POSSESS the property. Such are interests are deemed Non -
Possessory Interests 73
Slide 75
Joint Interests/Concurrent Estates - Tenancy in the Entirety -
By Marital Right only between husband and wife - Right of
Survivorship by operation of law - Severance Limited (Death,
divorce, agreement, joint creditor execution) - Joint Tenancy -
Created by unity of time, title, interest and possession - Right of
Survivorship by operation of law - Severance Less Limited (Inter
vivos conveyance or contract to convey, death, agreement,
foreclosure on lien) - Tenants in Common - No Right of
Survivorship. - Freely alienable. - Joint ownership based upon
percentage. - Share & responsible proportionally in all gains /
liabilities. 74
Slide 76
Future Interests 75
Slide 77
Future Interests - Estates in Time - Life Estates The remainder
is the estate in time. - Possibility of Reverters The reversion is
the estate in time. - Rights of Re-Entry The right of re-entry is
the estate in time. 76
Slide 78
Future Interests Estates in Time Like all property, interests
in land are a collection of rights Interests in Land need to be
seen through the prism of: Possession Time Two Major Questions
Possession Does the interest allow possession of the realty? Time
What time will the interest in the property be executed? This time
factor is the critical question when dealing with Future Interests
77
Slide 79
Future Interests Estates in Time Remember We need to think of
possession & time Blacks Law Dictionary Definition Future
Interests: Interests in land or other things in which the privilege
of possession or of enjoyment is future or non present. The real
property rights that are left over from the granting of an interest
78
Slide 80
As a result Possessory Interests in Land Can be: Present
Possessory Interests or Future Interests 79
Slide 81
Future Interests Estates in Time A Two Step Dance: Posession
and Time Possessory Interests in Land (Either presently or in the
future) 1. Fee Simple Absolute 2. Defeasible Estates - Fee Simple
Determinable with Possibility of Reverter - Fee Simple Subject to a
Condition Precedent - Fee Simple Subject to an Executory Interest
3. Fee Tail 4. Life Estate Present interests (When the RIGHT to
possess is NOW) Future interests (When the RIGHT to possess is in
the future) 80
Slide 82
Types of Future Interests Reversionary Interests Reversions
Possibility of Reverter Right of Re-entry Remainders Indefeasibly
vested remainder Vested remainder subject to open Vested remainder
subject to complete divestment Contingent remainder Executory
Interests (Limitations) Shifting executory interest Springing
executory interest 81
Slide 83
Explanations of Future Interests Reversionary Interests
Reversion The residue (or future interest) of an estate left by
operation of law in the grantor or his heirs. Examples/Explanation:
When any lesser estate is created from the fee simple absolute, the
reversion is legal rights in the estate that the grantor or his
heirs are entitled to after such creation, including remainders or
executory interests, vesting in the grantor of his heirs. The key
is that such legal interest RETURNS to the grantor or his heirs.
82
Slide 84
Explanations of Future Interests Reversionary Interests
Possibility of Reverter A specific type of reversion, pursuant to a
fee simple determinable, whereby the estate AUTOMATICALLY returns
to grantor of his heirs upon the happening of a stated, legal,
event. Examples/Explanation: When a grantor transfers an estate to
the grantee for so long as the property remains an active,
cultivated farm, if the grantee stops using such property for such
legal purpose, the parcel automatically reverts back to the grantor
or his heirs. 83
Slide 85
Explanations of Future Interests Reversionary Interests Right
of Re-entry A specific type of reversion, pursuant to a fee simple
subject to a condition subsequent, whereby the grantor or his heirs
have a right to reclaim the estate upon the happening of a stated,
legal, event. Examples/Explanation: When a grantor transfers an
estate to the grantee upon the condition that the property remains
an active, cultivated farm, if the grantee stops using such
property for such legal purpose, then the grantor or his heirs can
exercise a right to reclaim full title to the parcel. 84
Slide 86
Explanations of Future Interests Remainders Remainder The
remnant (or future interest) of an estate depending upon a
particular prior estate created at the same time and by the same
instrument, and limited to arise immediately on the determination
of that estate, and not in abridgement of it. In other words, a
remainder is a future interest limited in favor of a transferee,
which may become possessory immediately upon the termination (upon
the happening of a limitation) of a prior possessory estate
simultaneously created Examples/Explanation: Those rights in an
estate which are left over (i.e. that remain) from the creation of
a lesser estate. 85
Slide 87
Explanations of Future Interests Remainders Remainders v.
Reversions Reversions are special remainders, whereby the remainder
vests in the grantee or his heirs. As a result, all reversions are
remainders, but NOT all remainders are reversions.
Examples/Explanation: In the case of a reversion, the remainder is
those rights in an estate which are left over (i.e. that remain)
from the creation of a lesser estate and vest in the grantor of his
heirs. In a remainder that is not a reversion, such is where such
rights vest in another person who is NOT the grantor or his heirs.
86
Slide 88
Explanations of Future Interests Remainders Vested Remainder An
indefeasibly vested remainder is a remainder that will, in all
events, become possessory immediately upon the termination of the
prior possessory estate (either in the remainderman or his
successor)-- no ifs, no ands, no buts. Examples/Explanation: A
vested remainder is a definite interest that will become
possessory. 87
Slide 89
Explanations of Future Interests Remainders Vested Remainder
Subject to Open A vested remainder subject to open (also known as a
vested remainder subject to partial divestment) is a vested
remainder limited in favor of a class of persons collectively
described (and typically related to each other though a common
ancestor) of which there is at least one living member.
Examples/Explanation: To Harold for life, then to such of my
grandchildren who have graduated from college. Under this grant,
the number of grantees can expand as more grandchildren are born
and graduate. 88
Slide 90
Explanations of Future Interests Remainders Vested Remainder
Subject to Complete Divestment A vested remainder subject to
complete divestment is a remainder limited in favor either of a
born or ascertained individual or in favor of a class of persons of
which there is one living member which is subject to the happening
of a condition subsequent and not a condition precedent. If the
condition subsequent occurs, the vested remainder could fail; if
the vested remainder becomes possessory as a fee simple estate
before the condition subsequent occurs, the fee simple will
terminate. In both cases, another estate (known as a shifting
executory interest) will either vest in interest or possession.
Examples/Explanation : To Alice for life, then to Bob and his
heirs, but if Bob does not survive Alice, then to Carol and her
heirs. This is subject to a definite condition not a condition that
might happen. Therefore, if the condition occurs then the property
is held in fee simple. 89
Slide 91
Explanations of Future Interests Remainders Contingent
Remainder A contingent remainder is a remainder that is subject to
a condition precedent. It also includes remainders limited in favor
of unborn or unascertained persons for whom the condition precedent
includes either being born or being ascertained.
Examples/Explanation : To Alice for life, then to Bob if he has
graduated from college. This is subject to a condition that might
or might not happen. Upon the satisfaction of the condition its
held in fee simple. If, however, the condition is not satisfied
(i.e. Alice dies before Bob graduates from college) then the
grantor will get a reversion. 90
Slide 92
Explanations of Future Interests Executory Interests Springing
Executory Interest The springing executory interest is a future
interest limited in favor of a transferee which can become
possessory only after some period of time during which there is no
other transferee entitled to a freehold estate, and which, if it
becomes possessory, divests the grantor of a retained interest in
the property Examples/Explanation : Bert conveys his estate to
Alfred for the use of Bert, and upon the marriage of my daughter
Carol to (prospective son in law) David, for the use of Carol. By
providing for this contingent use, Bert can provide an incentive
for his daughter to marry and in such event pass on the property
for his daughters use without inheritance taxes. 91
Slide 93
Explanations of Future Interests Executory Interests Shifting
Executory Interest A shifting executory interest is a future
interest that is limited in favor of a transferee which can become
possessory only by divesting the present possessory interest or a
vested future interest limited in favor of another transferee. A
divesting occurs only upon the happening of a condition. Shifting
executory interests divest other grantees, not grantors. Note: The
one exception to this rule was that a shifting executory interest
is the future interest in a transferee following a fee simple
determinable even though a fee simple determinable ends, if it ends
at all, upon the happening of a limitation rather than a condition.
Examples/Explanation : Bert conveys his estate to Alfred for the
use of his son Clark, but if his son David returns from his
adventure climbing Mt. Everest, for the use of David as well. By
providing for this contingent of Davids return, Bert can provide
for the use by both sons, As such, Bert can again pass on the
property for both his sons use without inheritance taxes. 92
Slide 94
Review - Types of Future Interests Reversionary Interests
Reversions Possibility of Reverter Right of Re-entry Remainders
Vested Vested subject to partial divestment Vested subject to
complete divestment Contingent Executory interests (limitations)
Shifting Springing 93
Slide 95
Title Limitation Rules Rule in Shelleys Case (To A for Life
with remainder in As Heirs: Now to A in Fee Simple Absolute)
Doctrine of Worthier Title (To A for Life with remainder in Os
Heirs: Now to A with reversion in O) Rule Against Perpetuities (No
property interest is good unless it must vest, if at all, not later
than 21 years plus lives in being) Rule Against Restraints on
Alienation (All disabling and absolute restraints are void, some
equitable, promissory, temporary restraints can be upheld) These
Rules All Seek to Promote Marketable Title and Ensure that Real
Property is NOT Controlled for any significant time from Beyond the
Grave 94
Slide 96
Fixtures In General: A fixture is a chattel that has been
affixed to land and as such has ceased being personal property and
has become part of the realty. Common Fixtures: Stoves, affixed
flat screen TVs, curtain rods, door keys. Challenging Items: Flat
Screen TVs, In Room Air Conditioners Electrical Generators, Art
Collections Screened Yard Houses, Satellite Dishes Basketball Units
95
Slide 97
Adverse Possession Generally At the core of adverse possession
is a statute of limitations Statutes of Limitation bar suits after
some period of time after the cause of action accrues Under New
York State Law (Section 212 (a) of the CPLR) the statute of
limitations (time period for adverse possession) for an action to
recover real property is 10 years. 96
Slide 98
Adverse Possession Basic Issues * In context of actions to
recover possession of real property the cause of action accrues at
the time the wrongdoer enters and takes possession of the property.
* A Cause of action for wrongful possession differs from cause of
action for trespass. * In trespass, there is a wrongful entry, not
wrongful possession * If some one is purchases a building on top of
property not owned or leased by them the owner of the land can sue
the building owner for ejectment and make them take the building
off the land. 97
Slide 99
Adverse Possession Underlying Policies Why the Law Recognizes
It To reward productivity with the land To avoid continuing,
unresolved, title disputes To penalize true owners for sitting on
their rights and not protecting their land 98
Slide 100
Adverse Possession Specific Requirements - COACHEN C O A - C H
E N 99
Slide 101
Adverse Possession Specific Requirements - COACHEN Continuous
Open Actual Claim of Right Hostile Exclusive Notorious 100
Slide 102
Adverse Possession Tacking and Tolling Tacking - Under New York
State Law, an adverse possessor may tack (or add to) his time under
the statute of limitations, the adverse possession time of the
previous land owner. Tolling - Under New York State Law, certain
disabilities of the true land owner can toll (or stop the time
running of) the statute of limitations. These include: Minority
(under the age of 18); Mental incompetence; Imprisonment; and
Soldiers and Sailors on active duty. 101
Slide 103
Non Possessory Interests Possessory Interests, are interests in
real property that either are, or will be (pre-vested interests)
possessed by the holder of the property. Non Possessory Interests,
are interests in real property interests where the holder of such
interest does not ever actually possess the property. It is the
right to use land possessed by someone else. 102
Slide 104
Non Possessory Interests Easements Profits Covenants Servitudes
103
Slide 105
Non Possessory Interests: EASEMENTS An Easement is defined as:
The right to use a tract of land for a specific purpose. Types of
Easements: - Affirmative (Allows a non possessor to use land) -
Negative (Prevents possessor from a specific use) - Appurtenant
(Permits adjoining landowner a use) - In Gross (Permits use by non
adjoining landowner) 104
Slide 106
Creation of Easements The basic methods of creating an easement
are: Express grant Express reservation Implication, and
Prescription. 105
Slide 107
Transfer of Real Property Conveyances - C o M man D e R There
are four major factors to a transfer of real property. They are:
Contract Mortgage Deed Recording 106
Slide 108
Transfer of Real Property: Conveyances The Contract: Because of
the Statute of Frauds, all agreements for the sale of real property
must be in writing and signed by the Party to be charged. Because
of Specific Performance Both Parties sign a Contract to purchase
Real Estate Most contracts are provided by non lawyer realtors and
contain a standard attorney approval clause which allows the buyers
to have an attorney examine the same within a specified period of
time and cancel it if it is not in their best interest. 107
Slide 109
Transfer of Real Property: Conveyances The Contract: In the
Contract, there is an implied warranty to transfer: Marketable
Title - Title (ability to pass ownership) is free from doubt - Free
from Encumbrances (Mortgages, liens, easements, covenants,
encroachments) Although most contracts provide for the sale of the
premises as is, a duty to disclose known defects has been upheld by
the courts and is now standard form in nearly all real estate
contracts. Active concealment by a seller is deemed fraud. Sellers
frequently now also add specific disclaimers of liability,
particularly on expensive items like leaky foundations or roofs.
108
Slide 110
Transfer of Real Property: Conveyances The Contract: Most
buyers find real estate through a Real Estate Agent: The Real
Estate Agent is an Agent for the Seller, and the Seller by means of
a written listing agreement is liable for their commission, usually
between 6 to 7 percent of the sale value. Real Estate Agents are
licensed by the State of New York. They are sales people, who make
their income from making sales of real estate. Although they work
for and must represent the Seller, they have a vested interest in
making the buyer happy and enthusiastic about the purchase of the
property. Also because they may represent many buyers, they can
offer one buyer several choices, especially through the multiple
listing service. 109
Slide 111
Transfer of Real Property: Conveyances The Mortgage: The
Mortgage is the Legal Instrument by which Real Estate can be
Financed. A mortgage is both a loan contract and a lien Elements of
a Mortgage: Must be in writing Statute of Frauds Must Describe the
Land and the Parties Like all contracts, they can have different
terms (duration, interest rates and payment structures) but most
clauses are both federally and state regulated, causing them to be
highly uniform so they can be sold on the secondary mortgage market
(Fannie Mae and Freddie Mac Federal National Mortgage Association
and Federal Home Mortgage Corporation). Under Federal and State tax
law, Home Mortgage interest is tax deductible. Mortgage Interest
Rates are front loaded so early payments are much more heavily
interest than principal. As a result a 15 year mortgage is far less
costly due to a shorter term of interest payment than a 30 year
mortgage. Mortgages are an exception to the Homestead exemption and
can foreclose on tenants by the entirety because both owners would
be required to sign mortgage. 110
Slide 112
Transfer of Real Property: Conveyances The Mortgage: Types of
Mortgages: First and Second Mortgages A property may contain more
than one mortgage. The first mortgage is the first in time (and
usually the first in right). The second or secondary mortgage
(often a home equity loan) is financing on whatever amount between
the amount of the first mortgage and the amount of the value of the
home (i.e. the equity). Amortized Mortgage A mortgage for a
specified term of years usually 15 or 30 years where the principal
and interest are amortized over the period of the loan in equal
payments. Balloon Payment Mortgage - A mortgage for a specified
term of years where after a period of equal loan payments, a
single, large balloon payment is due upon the conclusion of the
loan. Assumed Mortgage A mortgage taken by a previous owner of the
property that is assumed (i.e. taken over) by a subsequent owner.
Purchase Money Mortgage A mortgage loan made by the owner of the
property to the purchaser of the property for a portion of the
purchase price. 111
Slide 113
Transfer of Real Property: Conveyances The Mortgage: Types of
Mortgages: Prime Rate Mortgages A mortgage made at market interest
rates. Fixed Rate Mortgage A mortgage made at a rate of interest
consistent and unchanging during the course of the loan. Variable
Rate Mortgage A mortgage made at a rate of interest that fluctuates
during the course of the loan (most often tied to prime rates or
treasury bills plus a fee amount). Convertible Mortgage - A
variable rate mortgage convertible for a time period during the
term to a fixed rate upon the payment of a fee. Sub Prime Mortgage
A mortgage with a variable rate that begins at an interest rate
below the prime rate. Due on Sale Clause Most mortgages require the
mortgage to be paid off in total upon the sale of the property. An
assumable mortgage is not due on sale. Foreclosure The right of the
Mortgagor to repossess and sell the property for the mortgagees
failure to provide payment of the mortgage pursuant to its terms.
Mortgagor is also entitled to collect a deficiency if one exists,
or remit the balance if there is a surplus. 112
Slide 114
Transfer of Real Property: Conveyances The Deed: The Deed is
the Legal Instrument by which the title to the Real Property is
passed. (We no longer do livery of seizen) Form and Content of the
Deed: Must be in writing Statute of Frauds Must Describe the Land
and the Parties Must provide words of intent How the property is
transferred and held i.e. fee simple absolute or any terms of
limitation. Consideration is unnecessary, since the Deed merely
represents the title and not the contract or agreement under which
terms it is passed. Seal and Attestation are also unnecessary, but
can be required for recording. A signature is required from the
grantor. A grantees signature is not required even if it contains
covenants as their acceptance of the deed is deemed acceptance of
the covenants or limitations. 113
Slide 115
Transfer of Real Property: Conveyances The Deed Continued: A
deed must be delivered and accepted to be effective Title to
property passes upon effective delivery, as a result returning it
back to the grantor has no effect, since title has already passed.
Physical or manual (through the mail or courier) delivery is
required Delivery is presumed if handed to grantee, if delivery is
acknowledge before a notary by the person delivering the deed to
the grantee, or if the deed is recorded. 114
Slide 116
Transfer of Real Property: Conveyances The Deed Continued:
There are three types of deeds characteristically used to convey
property interests: To remember these think of Harry Potter
(Gryffindor is Stupendous at Quidditch) 1.The general warranty
deed, 2.The special warranty deed (usually statutory ), and 3.The
quit claim deed. The major difference between these deeds is the
scope of assurances (covenants for title) they give to the grantee
and the grantee's successors regarding the title being conveyed.
The general warranty deed normally contains five covenants for
title as will be seen ahead The special warranty deed contains
fewer and more limited assurances. The quitclaim deed usually
contains no assurances; it releases to the grantee whatever
interest the grantor happens to own. 115
Slide 117
Transfer of Real Property: Conveyances Recording: At common
law, in nearly all cases priority was given to the grantee first in
time. First in Time was considered first in right Thus, if A
conveyed Blackacre to B and then made an identical conveyance to C,
B would prevail over C on the theory that after the first
conveyance A had no interest left to convey. 116
Slide 118
Transfer of Real Property: Conveyances Recording: Statutes
known as "recording acts" require a grantee to make some sort of
recordation so as to give "notice to the world" that title to
certain property has already been conveyed, and thus to put
subsequent purchasers on guard. These statutes are in effect in
some form in every state. Basically, recording acts set up a system
by which any instrument affecting title to property located in a
certain county can be recorded in that county. These acts seek to
protect all subsequent Bona Fide Purchasers (BFP) from secret,
unrecorded interests of others. Purpose of Recordation-Notice -
Recordation is not essential to the validity of a deed, as between
the grantor and grantee. However, if a grantee does not record her
instrument, she may lose out against a subsequent BFP. By
recording, the grantee gives constructive (or "record") notice to
everyone. Hence, as stated earlier, proper recording prevents
anyone from becoming a subsequent BFP. 117
Slide 119
Transfer of Real Property: Conveyances Recording Continued:
Requirements for Recordation 1) What Can Be Recorded-Instrument
Affecting an Interest in Land Practically every kind of deed,
mortgage, contract to convey, or other instrument creating or
affecting an interest in land can be recorded. Note: A judgment or
decree affecting title to property can also be recorded. And, even
before judgment, where a lawsuit is pending that may affect title
to property, any party to the action can record a lispendens
(notice of pending action), which will effectively put third
parties on notice of all claims pending in the lawsuit. 2) Grantor
Must Acknowledge Deed Most recording statutes provide that, in
order to be recorded, a deed must be acknowledged by the grantor
before a notary public. This requirement offers some protection
against forgery. Problems may arise if the recorder records a deed
that has not been acknowledged or has been improperly acknowledged.
Mechanics of Recording 1) Filing Copy The grantee or her agent
normally presents the deed to the county recorder, who photographs
it and files the copy in the official records. These records are
kept chronologically. 2) Indexing The recorder also indexes the
deed to permit title searches. The usual indexes are the grantor-
grantee and grantee-grantor indexes, which are arranged by
reference. 118
Slide 120
The Law of Land Use Nuisance Trespass Zoning and Planning
Governmental Taking (Eminent domain) 119
Slide 121
Nuisance The law has long recognized the concept that one must
not use ones property to injure anothers property. When this type
of conduct occurs it can legally be classified as Nuisance. Private
Nuisance A private nuisance is the substantial interference with
private rights to use and enjoy land, produced by either
intentional and unreasonable conduct, or by unintentional conduct
that is either negligent, reckless, or so inherently dangerous that
strict liability is applied. Public Nuisance A Nuisance that
affects the rights held in common by many landowners, i.e. the
public, rather than the specific rights of an individual, targeted
landowner can be classified as a public nuisance. 120
Slide 122
Nuisance Remedies for nuisance include remedies at law and
equity or both. As a result, a party who has suffered a nuisance
can bring an action for: *Money Damages; *Injunction (to have the
person creating the nuisance cease creating it); or *Both 121
Slide 123
Trespass The law has also long recognized the concept that a
property owner is entitled to use ones property with out
interference from others, and that property owners have an inherent
right to exclude those who may so wish to so interfere. When this
type of physical interference occurs, it can legally be classified
as Trespass. Trespass Defined At common law, any intentional and
unprivileged entry onto land owned or occupied by another
constituted a trespass. Although recent developments in the law
have focused on carving out special exceptions to liability, the
basic liability standards have not changed. Intent - The element of
intent has a special meaning in trespass law. A trespasser is
strictly liable; good faith, knowledge, and fault are irrelevant. A
person commits trespass, even if they merely walk across a property
owners land, mistakenly believing it to be their own. The trespass
doctrine requires only that the trespasser intended to enter onto
the land as a matter of free choice, not that he had a subjective
intent to trespass or even knew he was trespassing. Entry -
Although trespass always involves a physical invasion, a trespass
may occur without any personal entry by the trespasser. For a
trespasser will also be liable in trespass, if they cause a thing
or a third person to enter the property owners land. This doctrine
also applies to entries below the land surface (e.g., through
tunnels or caves) as well as-at least partially to entries in the
air space over the land. Remedies - A trespasser is liable even if
the entry causes no actual damage. A court can hold a trespasser
liable for nominal damages and, upon the property owners request,
can enjoin any further trespass. 122
Slide 124
Trespass General Exceptions to Trespass Liability An entry
under a legally recognized privilege does not constitute a
trespass. A privileged entry is one made with the landowner's
consent. If an owner invites a repairman onto their land to fix a
leaky pipe, then the workmans entry is privileged. Privilege may
also be found of necessity. A firefighter may enter private
property to save an adjacent house from fire. A police officer may
enter to arrest a suspect. Private persons can also be found to
have a privilege to enter another's land in an emergency situation
(e.g., while fleeing from an attacking bear). 123
Slide 125
Trespass Remedies for trespass also include remedies at law and
equity or both. As a result, a party who has suffered a nuisance
can bring an action for: *Money Damages; (can be nominal)
*Injunction (called ejectment, to have the trespasser removed from
the property and/or enjoined from re-entering it); or *Both
124
Slide 126
Zoning Zoning is the use of governmental power to regulate land
use. Zoning laws divide a political jurisdiction into specific
separate geographic areas and impose limits on the permissible uses
of land within each area. Zoning has several legitimate objectives:
(1) To prevent incompatible uses from occurring (thus reducing the
need for nuisance law), (2) to increase property values generally
by minimizing use conflicts (thus increasing the property tax
base). and (3) to channel development into patterns that may serve
larger social goals (e.g., reduce urban sprawl to conserve
resources and reduce air pollution from automobiles). Zoning is the
use of public power to impose uniform results that might otherwise
be accomplished in more piecemeal and selective fashion by private
bargains. 125
Slide 127
Eminent Domain TAKINGS: THE POWER OF EMINENT DOMAIN AND
REGULATORY TAKINGS The power of eminent domain is the power of a
governmental body to take private property for public purposes. The
law places the particular focus upon the regulator. Eminent domain
takings, pursuant to the United States Constitution, requires just
compensation. These constitutional requirements apply to all
governments and protects all forms of property. The public use
requirement is satisfied so long as there is a conceivable public
purpose fur the taking. A taking occurs whenever a regulation
permanently dispossesses an owner or prevents their use and
enjoyment of the property. Compensation for the taking must be the
market value of the property. The amount of compensation is the
current market value not the value that will occur due to the
public improvement. Compensation is required for regulations that
constitute takings, no matter how long or short the regulation may
endure. 126
Slide 128
Eminent Domain The Takings Clause All governments in the United
States have the power to take private property for public purposes,
but that power (the eminent domain power) is limited by the U.S.
Constitution, state constitutions, state statutes and judicial
decisions. The U.S. Constitution's Fifth Amendment specifically
provides that "private property [shall not] be taken for public use
without just compensation. This is called the "takings clause" or
the eminent domain" clause. These requirements protect all property
and applies to all governments. The takings clause serves two
important and related purposes. 1. Prevent forcible redistribution
of property 2. Takings permitted only for public benefit 127
Slide 129
Eminent Domain The meaning of public use A literal reading of
the Constitution's text would limit governmental power to take
private property to instances where the property will actually be
used by the public (e.g., as a park. school. road, or military
base). The question becomes pronounced when seizures are designed
to produce some collateral public benefit. The famous Kelo v. City
of New London case is illustrative of this New London, Connecticut
decided to condemn a number of private residential properties in
the Fort Trumbull area of the city in order to assemble a 90-acre
tract for an integrated redevelopment plan. Significant portions of
the property were to be conveyed to private developers to construct
(1) a "small urban village, consisting of shops, restaurants, and a
waterfront hotel; (2) 80 new residences: (3) office and retail
space; and (4) a marina, parking, and "water-dependent commercial
uses." The Court ruled that the taking was rationally related to a
conceivable public purpose. 128
Slide 130
Leasehold Interests The Law of Landlords and Tenants At common
law a lease was viewed as personal property, but today its viewed
as real property. The nature of a leasehold interest is: A. An
estate in land B. A present possessory interest in the leased
premises by the tenant; and C. A future interest (reversion) in the
leased premises by the landlord/owner The Three Major Types of
Tenancies are represented by the phrase: Pull Your Weight: A.
Periodic Tenancy B. Tenancy for Years C. Tenancy at Will A tenancy
for longer than one year, must by in writing due to the statute of
frauds 129
Slide 131
Leasehold Interests The Law of Landlords and Tenants The
doctrine of Quiet Enjoyment means: A landlord must deliver the
premises to the tenant for the tenants exclusive use and protect
against the entry into the premises. Assignments vs. Subleases: An
Assignment relieves the tenant of liability on the lease whereby a
sublease retains liability and makes the tenant the landlord for
the new tenant. Security Recent cases have held that landlords are
liable to tenants for injuries caused by third party criminals
where the landlord has failed to comply with Housing code
provisions, failed to maintain ordinary security measures (such as
working locks) or failed to maintain extra advertised security
measures. 130