Real Property

All notes from the in class slideshow

Law of real property concerns

ownership, acquisition, and use of land

Real property includes not only land but also things firmly attached to or embedded in land:

• buildings

• trees, crops, and other vegetation

• water and groundwater

• minerals

• airspace above

What is a fixture?

personal property attached to or connected to real property in such a way that it ceases being personal property and becomes part of the real property

What three factors do courts look at when evaluating fixtures?

1.) attachment

2.) adaptation

3.) intent

What is attachment?

can it be removed without damaging the property?

What is adaptation?

how does it benefit the property?

What is intent?

based on circumstances, an intent to not permanently attach is called trade fixtures

• would a reasonable person think this is apart of the property?

What are trade fixtures?

personal property attached to leased premises by a tenant for the purpose of carrying on trade or business

• trade fixtures remain the tenant’s personal property and may be removed at lease end

Personal property may be subject to a lien or security interest at the time it is attached to real property. What is a lien?

A legal document that shows someone else has an interest in the property

ex: household appliances, when selling a house, sell your house with a lien, the buyer will make you satisfied before putting offers down

What is an estate?

used to describe a person’s ownership interest in real property

• classified as either freehold or nonfreehold

What are freehold estates?

are ownership interests of uncertain duration

• indefinite

What are the most common forms of freehold estates?

right to exclusive possession, fee simple absolute, and a life estate

• fee simple absolute is a normal concept of “full ownership” of land

-You own the whole thing

• life estate gives a person the right to possess and use property for as long as the time measured by their or another person’s lifetime

Co-ownership of real property exist when

two or more persons share same ownership interests in property

How many types of co-ownerships are recognized in the united states?

7

1.) Tenancy in Common

undivided interests in same property

• equal rights to do whatever to the property

2.) Joint Tenants with Rights of Survivorship

created when equal interests in real property are conveyed to two or more persons by means of a document clearly specifying that they are to own the property as joint tenants

• Upon the death of a joint tenant, the deceased tenant’s interest automatically passes to the surviving joint tenant(s)

If property cannot be divided without loss to the parties, the court may decree a sale and an equitable divisuion og money arising from the sale

• parties’ dispute contributes, and accrued liabilities are to be considered in determining how much is disbursed

• Overall, what is the solution?

sell and split money if the two people cannot cone to an agreement

What is an easement?

right to make certain use of another person’s property (affirmative easement) or to prevent another from making certain uses of their own property (negative easement)

• express grant of an easement, normally subject to the statute of frauds, must be in writing to be enforceable

• other types of easements are enforceable despite a lack of a writing

• easements may be acquired by grant, reservation, prescription, or implication

What is profit?

a right to enter another’s land and remove some product or part of land

What are licenses?

a temporary right to enter another’s land for a specific purpose

ex: the tenant who planted the cotton crop has a profit, the combine crew has a license to pick cotton

What are restrictive conevants?

Real estate owners may create agreements that restrict the use of real property

• Conveants “run with the land” and bind subsequent owners of the property

• enforceability of covenants depends on the purposes, nature, and scope of restrictions

How to acquire real property?

• has to be in writing, required by the statute of frauds to be enforceable

• 4 different ways to be acquired

• by purchase, gift, will, or inheritance, tax sale

When does adverse possession occur?

when person wrongfully occupies land and acts in open and hostile manner as if they were owner

• true owner must take steps within a statutory time limit to eject possessor from the land or forever lose right to eject possessor

• 1.) occupation 2.) open + hostile (not hiding what you are doing)

Open and notorious requirement of adverse possession can be met by

showing defendant’s actual knowledge of a planitff’’s claim

What are the steps of transfering a sale?

1.) contracting with a real estate broker to locate a buyer

2.) negotiating and signing a contract of sale

3.) arranging for financing of purchase and other requirements

• ex: conduct a survey or acquire title insurance

4.) closing sale, primarily involving payment of purchase price and transfer of deed

5.) recording deed

what is a deed?

a valid conveyance of real property that occurs through execution and delivery

• written instrument that transfers title from one person (grantor) to another (grantee)

• document that evidences real ownership of property

Quitclaim deed

conveys whatever title grantor has at time they execute deed

• contains no warranty of title

• transfer whatever share you have right now

Warranty deed

contains covenants of warranty about title

• two types: general and specific

• guaranteeing you own the property

Deed of bargain and sale (grant deeds)

grantor makes no covenants above title

• no guarantee

Race statute

first grantee who records a deed to a tract of land has superior title

Notice statute

a later grantee of property has a superior title of their interest acquired without notice of the earlier grantee’s claim to the property under an unrecorded deed

Race-Notice statute

grantee with priority is one who both takes their interest without notice of any prior unrecorded claim and records first

Title Opinion

an attorney examines the abstract of title and gives an opinion whether grantor has marketable title

Marketable Title

title free from defects or reasonable doubt about its validity

Abstract of title

history of what public records show about the passage of title to and other interests in a parcel of real property

• not a guarantee of a good title

What is one method of assuring title?

Under the Torrens system of registration, one who owns land in fee simple obtains a certificate of title

What is the second method of assuring title?

Purchasing a title insurance policy is preferred and the most common means of protecting the title to real property

• title insurance obligates the insurer to reimburse the insured for lif the loss if the title proves defective

Premises Liability refers to

negligence cases in which property owners or possessors (business operators leasing commercial real estate) are held liable to persons injured while on the property

Negligence

failure to exercise reasonable care to keep the property reasonably safe

• generally includes a duty to take reasonable security precautions to protect persons on premises form freseeable wrongul (criminal) acts by third parties

Sellers Liability and the ADA

enacted to eliminate long-standing patterns of discrimination against disabled persons in employment, access to public services, and access to business establishments and similar facilities open to the public, ADA’s Title III focuses on places of public accommodation

• requires property owners and possessors to take reasonable steps to make property accessible to disabled persons

Society imposes duties on landowners by:

• nuisance

• zoning

• eminent domain laws

Nuisance refers to

lawsuit that may be filed if a property use unreasonably interferes with another person’s ability to use or enjoy their own property

What is eminent domain?

The Fifth Amendment to the Constitution guarantees private property shall not be taken for public use without “just compensation” (fair market value)

• implies the government’s power of eminent domain to effect the taking

• The key is just compensation

• eminent domain is controversial, perhaps more so given the Kelo decision

Zoning Ordinances

divide a city or town into various districts and specify or limit uses of property in those districts

• single-family or high-density residential uses, or commercial, light industry, or heavy industry uses

• restrictions on building height, building footprint, and distance between buildings must be from lot lines (setback regulations)

A zoning ordinance is

prospective; thus, the ordinance may require the gradual phasing out of nonconforming uses and buildings that do not fit the general zoning plan.

• Property owners may seek a variance, allowing a deviation from zoning laws

Petition for Variance

you must file the petition at least 35 days before the scheduled hearing, no more than 10 new cases will be docketed for a hearing

• all other petitions will be docketed for the next available hearing