Real Property in a Nutshell

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ISBN: 9780314153104 | 0314153101
Cover: Paperback
Copyright: 7/30/2005

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Most of the rules covered in standard real property casebooks are summarized in this concise work. For quick reference the text is divided into three sections. Part One overviews interests in land, such as adverse possession, common-law estates, and concurrent ownership. Part Two covers conveyances through real estate brokers, contract of sale, transfer of title by deed, and mortgages. Part Three concludes with a discussion on miscellaneous property doctrines.

Introduction

Table of Cases

PART ONE. INTERESTS IN LAND

Possession and Ownership

(41)

Possession of Unowned and Owned Personal Property

(10)

Unowned Personal Property

(1)

Rights of Possessors

(1)

Rival Possessors

(1)

What Constitutes Possession

(2)

Owned Goods

(1)

Types of Possessors

(1)

Duty to Return

(1)

Duty of Care

(1)

Exculpatory and Limitation of Liability Clauses

(1)

Possessors' Rights Against Others

(3)

Landowner's Claims

(1)

Status of the Finder

(1)

Status of the Premises

(1)

Status of the Land Based Claim

(1)

Where the Goods are Found

(1)

How the Goods Came to Be There

(1)

Modern Status

(1)

Gifts

(8)

Inter Vivos Gifts

(1)

Intent

(1)

Effect of Conditions on the Transfer

(1)

Circumstances Surrounding the Gift

(1)

Effect of Donor's Retention of Rights

(1)

Delivery

(1)

Types of Delivery

(1)

Actual Delivery

(1)

Constructive and Symbolic Delivery

(1)

Delivery to Third Parties

(2)

Acceptance

(1)

Gifts Causa Mortis

(1)

Elements

(1)

Intent, Delivery, and Acceptance

(1)

Donor Anticipates Imminent Death

(1)

Death as Anticipated

(1)

Donor Does Not Recover

(1)

Absence of Revocation by Donor

(1)

Donee Survives Donor

(1)

Condition Precedent or Subsequent

(1)

Possession of Land Apart From Ownership

(23)

Consequences of Possession Unconnected to Ownership

(1)

Liabilities of a Possessor -- Ejectment

(1)

Rights of a Possessor

(1)

Possession as Both Rightful and Wrongful

(1)

Duration of Possession

Adverse Possession

(1)

Duration and Adverse Possession

(1)

How Long Possession Must Continue

(1)

Tacking

(1)

Privity

(1)

Tacking Without Color of Title

(1)

Acts of Possession Required---Standards

(1)

Payment of Taxes

(1)

When Both Parties Pay Taxes

(1)

Boundary Disputes

(1)

The Required Qualities of Possession

(1)

Open

(1)

Notorious

(1)

Subjacent Possession

(1)

Actual Possession

(1)

Constructive Possession and Color of Title

(1)

Constructive Possession and Prior Possession

(1)

Limits on Constructive Possession

(1)

Conflicting Constructive Possessions

(1)

Continuous and Uninterrupted

(1)

Interruptions by the Owner

(1)

Exclusive

(1)

Hostile

(1)

The Objective Standard

(1)

The Subjective Standard

(1)

The Mentality of Thievery

(1)

The Mentality of Mistake

(1)

Permissive Possession

(1)

Ouster

(1)

What Constitutes an Ouster

(1)

Other Cases of Permissive Possession

(1)

Claim of Right

(1)

Color of Title

(1)

Color of Title as an Absolute Requirement of Adverse Possession

(1)

Color of Title as Affecting the Acts Required

(1)

Color of Title as Affecting the Time Period

(1)

Color of Title and Hostility

(1)

External Factors that Prolong the Statute of Limitations

(1)

Disabilities

(1)

Future Interests

(1)

Effect of Adverse Possession on Nonpossessory Interests

(1)

Consequences of Having Been an Adverse Possessor

(2)

Common Law Estates

(57)

Present (Possessory) Estates in Land

(10)

Kinds of Estates

(1)

Fee Simple

(1)

Fee Tail

(1)

Life Estate

(1)

Estate for Years (also known as Tenancy for a Term)

(1)

Periodic Estate (also known as Tenancy from Period to Period)

(1)

Tenancy at Will and Tenancy at Sufferance

(1)

Freehold v. Nonfreehold Estates -- Seisin

(1)

Creation of Estates (Creating Words)

(1)

Fee Simple -- ``To Bob and His Heirs''

(1)

Fee Tail -- ``To Bob and the Heirs of His Body''

(1)

Special Forms of Fee Tail

(1)

The Earlier Fee Simple Conditional

(1)

Disentailing Conveyances -- The Common Recovery and the Fine

(1)

Life Estate -- ``To Bob for His Life''

(1)

Life Estate Pur Autre Vie -- ``To Bob for the Life of Cathy''

(1)

Legal Life Estate

(1)

Fee Tail Special with Possibility of Issue Extinct

(1)

Marital Estates

(1)

Estate for Years -- ``To Bob for Ten Years''

(1)

Estate from Period to Period -- ``To Bob from Month to Month'' or ``To Bob for $10 per Month''

(1)

The Quality of Estates -- Absolute or Unqualified

(1)

Determinable Estate (also called Estate Subject to Special Limitation)

(1)

Estate Subject to Condition Subsequent

(1)

Estate Subject to Executory Limitation

(1)

Future Interests

(10)

Future Interests Retained by Grantor

(1)

Possibility of Reverter

(1)

Power of Termination (also called Right of Re-entry)

(1)

Reversion

(1)

Future Interests Created in a Grantee

(1)

Remainder v. Executory Interest

(1)

Capable of Becoming Immediately Possessory

(1)

Cannot Divest a Prior Interest

(1)

Types of Remainders

(1)

Indefeasibly Vested Remainder

(1)

Vested Remainder Subject to Open (also known as Vested Remainder Subject to Partial Divestiture)

(1)

Vested Remainder Subject to Condition Subsequent (also known as Vested Remainder Subject to Total Divestiture)

(1)

Contingent Remainder (also known as Remainder Subject to Condition Precedent)

(1)

Types of Executory Interests

(1)

Transferability of Interests

(1)

Inheritability of Interests (Intestate Succession)

(1)

Special Rules Concerning Future Interests

(11)

Rule in Shelley's Case

(1)

Elements of the Rule

(1)

The Grantee's Interest Must be a Freehold Estate

(1)

The Grantee's Heirs Must Have a Remainder

(1)

The Interests of the Grantee and of the Grantee's Heirs Must Have Been Conveyed in the Same Instrument

(1)

The Remainder Must Use Words of Indefinite Succession

(1)

The Grantee's and Grantee's Heirs' Interests Both Must be Legal or Both Must be Equitable

(1)

Real Property

(1)

Doctrine of Worthier Title

(1)

Elements of the Doctrine

(1)

The Grantee's Interest Must be a Freehold

(1)

The Grantor's Heirs can Have a Remainder or an Executory Interest

(1)

The Interests of the Grantee and of the Grantor's Heirs Must be in the Same Instrument

(1)

The Future Interest to the Grantor's Heirs Must use Words of Indefinite Succession

(1)

The Doctrine Applies to Real and Personal Property

(1)

Doctrine of Destructibility of Contingent Remainders

(1)

Contingent Remainder Unable to Vest

(1)

Merger

(1)

Rule Against Perpetuities

(1)

The Rule

(1)

Measuring the Time Period

(1)

Interests That are Subject to the Rule

(1)

Contingent Remainders are Subject to the Rule

(1)

Executory Interests are Subject to the Rule

(1)

Vested Remainders Generally are not Subject to the Rule

(1)

Reversions are not Subject to the Rule

(1)

Powers of Termination and Possibilities of Reverter are not Subject to the Rule

(1)

Other Interests Subject to the Rule

(1)

Consequences of Violating the Rule

(1)

Modern Revisions to the Rule

(1)

Wait-and-See

(1)

Cy Pres

(1)

Waste

(2)

Parties

(1)

Policy

(1)

Types

(1)

Active Waste

(1)

Passive Waste

(1)

Remedies

(1)

Restraints on Alienation

(2)

Disabling Restraints

(1)

Forfeiture Restraints

(1)

Promissory Restraints

(1)

Marital Estates

(8)

Wife's Estate -- Dower

(1)

Conditions for Dower

(1)

Seisin

(1)

Inheritability

(1)

Extent of Dower

(1)

Before Husband's Death

(1)

After Husband's Death

(1)

Husband's Estate

(1)

Upon Marriage and Before the Birth of Issue -- Jure Uxoris

(1)

Upon Birth of Issue Alive -- Curtesy Initiate

(1)

Upon the Wife's Death -- Curtesy Consummate

(1)

Modern Statutory Forced Share

(1)

Community Property

(2)

Characteristics of Community Ownership

(1)

Management and Control

(1)

Severance

(1)

Death Transfers

(1)

Liabilities

(1)

Rules Regulating Early Common Law Estates

(14)

Legal Interests in Land

(1)

Seisin Can Never Be in Abeyance

(1)

Seisin Passes Out of the Grantor Only by Livery

(1)

No Springing Interests (No Freehold to Commence in the Future)

(1)

A Remainder Cannot Spring

(1)

A Remainder Must be Created in the Same Document as the Estate Supporting It

(1)

Application to Nonfreeholds

(1)

No Contingent Remainder After a Term of Years

(1)

No Shifting Interests -- No Condition in a Stranger

(1)

Equitable Interests in Land -- Uses

(1)

Equitable Conveyances

(1)

Conveyance for Use

(1)

Covenant to Stand Seised

(1)

Bargain and Sale Deed

(1)

Resulting Use

(1)

Uses Compared to Common Law Estates

(1)

New Equitable Estates (Executory Interests)

(1)

Springing Use

(1)

Shifting Use

(1)

Indestructibility of Executory Interests

(1)

Statute of Uses (1536)

(1)

Effect of the Statute on Future Interests

(1)

Executory Interests

(1)

Contingent Remainders

(1)

Remainder or Executory Interest?

(1)

Unexecuted Uses

(1)

Active Trust

(1)

Use on a Use

(1)

Uses and Seisin

(1)

Concurrent Ownership

(16)

Forms of Concurrent Ownership

(4)

Characteristics of the Various Types of Concurrent Tenancies

100

(1)

Unity of Time

100

(1)

Unity of Title

101

(1)

Unity of Interest

101

(1)

Unity of Possession

102

(1)

Unity of Person

102

(1)

Preference for One Estate Over the Other

102

(1)

Consequences of Different Types of Ownership

103

(4)

Survivorship

103

(2)

Severance

105

(1)

Severance of a Joint Tenancy

105

(1)

Severance of a Tenancy by the Entirety

106

(1)

Partition

107

(1)

Partition in Kind

107

(1)

Partition by Sale

107

(1)

Possession, Profits, and Expenditures

107

(4)

Rents

108

(1)

Rents from the Possessing Cotenant

108

(1)

Rents and Profits from Third Parties

108

(1)

Expenditures

109

(1)

Payment of the Purchase Price

109

(1)

Necessary Payments

109

(1)

Improvements

110

(1)

Repairs

111

(1)

Condominiums, Time Sharing, and Cooperatives

111

(4)

Condominiums

111

(2)

Time Sharing Arrangements

113

(1)

Cooperatives

113

(2)

Landlord and Tenant

115

(56)

Types and Creation of Tenancies

115

(4)

Tenancy for a Term

116

(1)

Periodic Tenancy

116

(1)

Implied Periodic Tenancies

117

(1)

Length of the Period

117

(1)

Tenancy at Will

117

(1)

Implied Tenancies at Will

118

(1)

Tenancy at Sufferance

118

(1)

The Tenant's Possessory Interest

119

(5)

Tenant's Remedies for Disturbance of Possession

120

(1)

Remedies Against Strangers

120

(1)

Remedies for the Landlord's Interferences

120

(1)

Eviction by Paramount Title

121

(1)

Remedies When a New Tenant is Prevented from Taking Possession

121

(1)

When the Landlord is at Fault

121

(1)

When a Third Party is at Fault

122

(1)

The English Rule

122

(1)

The American Rule

123

(1)

Rights Incidental to Possession

123

(1)

Liabilities as a Possessor

123

(1)

Rent

124

(3)

Payment

124

(1)

Rent Control

125

(1)

Premises and Persons Covered

125

(1)

Rates

126

(1)

Ancillary Restrictions

126

(1)

Problems Arising from Disrepair of the Premises

127

(21)

The Parties' Basic Duties

127

(1)

Duties Owed to Third Persons

128

(1)

Modern Changes in the Basic Duties

128

(1)

Duties Regarding Common Areas

129

(1)

Altering the Basic Duties by Covenant

129

(1)

Enlarging the Scope of the Tenant's Duties by a Covenant to Repair

129

(1)

Diminishing the Scope of the Tenant's Duties by a Landlord's Covenant to Repair

130

(1)

Right to Recover the Cost of Repairs

130

(1)

No Right to Recover When no Duty to Repair Exists

130

(1)

Tenant's Right to Recover When the Landlord has a Duty to Repair

131

(1)

Duty Arising from a Building Code

131

(1)

Duty Arising from a Habitability Law

131

(1)

Duty Arising from a Covenant

132

(1)

Duty Arising in Common Areas

132

(1)

Landlord's Right to Recover When the Tenant has a Duty to Repair

132

(1)

Recovery When the Building Code Applies to the Tenant

133

(1)

Recovery Under Modern Statutes

133

(1)

Effect of Insurance

133

(1)

Right to Terminate the Tenancy

134

(1)

Landlord's Right to Terminate

134

(1)

No Right to Terminate if the Tenant has no Duty

134

(1)

Right to Terminate After Destruction

135

(1)

Tenant's Right to Terminate

135

(1)

When a Building Code Applies to the Landlord

136

(1)

When a Special Statutory Duty Applies to the Landlord

136

(1)

Failure to Repair Common Areas

137

(1)

Failure to Honor a Covenant to Repair -- Constructive Eviction

137

(2)

Right to a Rent Reduction (Abatement)

139

(1)

Landlord's Covenant to Repair

139

(1)

Repair-and-Deduct Statute

140

(1)

Implied Warranty of Habitability

140

(1)

Retaliatory Eviction

141

(1)

Tort Liability for Disrepairs

141

(1)

Early Common Law

141

(1)

Landlord's Liability

141

(1)

Scope of Landlord's Duty

142

(1)

Latent Defect

142

(1)

Unreasonable Risk of Harm to Persons Outside the Premises

142

(1)

Premises Leased for Public Admission

143

(1)

Common Areas

143

(1)

Landlord Covenanted to Make Repairs

143

(1)

Landlord's Negligent Repairs

144

(1)

Privity of Contract Requirement

144

(1)

Amount of Recovery

144

(1)

Tenant's Liability

145

(1)

Modern Law

145

(1)

Scope of Duty and Privity

145

(1)

Landlord's Liability for a Third Party's Criminal Activities

145

(1)

Known Physical Defect

145

(1)

Providing Security

146

(1)

High Crime Area

146

(1)

Amount of Recovery

146

(1)

Exculpatory Clauses

147

(1)

Transfer of the Tenancy

148

(7)

Distinction Between Assigning and Subleasing

148

(1)

Effect of an Assignment

149

(1)

Effect on the Tenant

149

(1)

Effect on the Assignee

150

(1)

Effect on the Landlord

151

(1)

Effect of a Second Assignment

151

(1)

Effect of a Sublease

152

(1)

Restrictions on Tenant's Right to Transfer

153

(1)

Landlord's Right to be Unreasonable

154

(1)

Effect of Consenting to the First Assignment

154

(1)

Termination of Tenancies

155

(16)

Termination According to Type of Tenancy

155

(1)

Tenancy for a Term

155

(1)

Periodic Tenancy

155

(1)

Tenancy at Will

156

(1)

Tenancy at Sufferance

156

(1)

Other Ways of Terminating a Tenancy

157

(1)

Destruction of the Premises

157

(1)

Breach by the Tenant -- Doctrine of Independent Covenants

157

(1)

Breach by the Landlord -- Covenant of Quiet Enjoyment

158

(1)

Mortgages and Leases

159

(1)

Constructive Eviction

160

(1)

By Agreement -- Surrender

160

(1)

Eminent Domain

161

(1)

Landlord's Remedies Against Continued Possession After Termination of the Estate --Holdover Tenants

162

(1)

Double or Treble Damages

162

(1)

Increased Rent

162

(1)

Eviction and Damages

163

(1)

Self-Help

163

(1)

Renewal of Tenancy for an Additional Term

163

(1)

Consequence of a Tenant for a Term Becoming a Periodic Tenant

164

(1)

Increasing the Rent

164

(1)

Consequences of a Tenant Attempting to Surrender the Estate Before the End of the Term --Abandonment and Surrender

165

(1)

Failure to Pay Rent

165

(1)

Failure to Retain Possession and to Pay Rent

165

(1)

Duty to Mitigate

166

(1)

Surrender by Operation of Law

167

(1)

Tenant's Failure to Pay Rent or to Perform Other Lease Covenants

167

(1)

Dispossession Without Termination

168

(1)

Reletting for the Tenant's Account

168

(1)

Difference Value Damages

169

(2)

Easements, Profits, and Licenses

171

(39)

Nature of Easements

171

(3)

Easements Distinguished from Possessory Interests

171

(1)

No Right to Exclude

171

(1)

Easements Distinguished from Other Nonpossessory Interests

172

(1)

Profits

172

(1)

Natural Rights in Land

173

(1)

Licenses

173

(1)

Types of Easements and Profits

174

(3)

Appurtenant v. In Gross

174

(1)

No Dominant Tenement When the Easement is in Gross

175

(1)

Profits

175

(1)

Affirmative, Negative, or Spurious

175

(2)

Creation of Easements, Profits, and Licenses

177

(14)

By Express Words -- Grant and Reservation

177

(1)

Formalities and Failure to Comply with Them -- Licenses

178

(1)

Formal Creation of Licenses

178

(1)

Other Revocable Rights to Use

178

(1)

By Implication

179

(1)

Easement by Necessity

179

(1)

Common Ownership

180

(1)

Need Created by Subdivision

180

(1)

Implied Grant and Implied Reservation

181

(1)

Implied from a Plat

182

(1)

Necessity

182

(1)

Quasi-Easement

183

(1)

Prior Use

183

(1)

Apparent

184

(1)

Continuous

184

(1)

Reasonable Necessity

185

(1)

By Prescription

186

(1)

Prescriptive Use v. Prescriptive Possession

187

(1)

Elements of Prescription

188

(1)

Adverse and Hostile

188

(1)

Payment of Taxes

188

(1)

Exclusive

188

(1)

Uninterrupted

189

(1)

Ineffective Interruptions

189

(1)

Prescriptive Easements as Appurtenant or in Gross

190

(1)

Negative Prescriptive Easements

190

(1)

Transfer of Easements

191

(2)

Transfer of an Easement's Burden

191

(1)

Transfer of an Easement's Benefit

191

(1)

Transfer of an In Gross Easement's Benefit

192

(1)

Transfer of an Appurtenant Easement's Benefit

192

(1)

Transferability Affected by the Creating Language

193

(1)

Subdivision of Easements and Profits

193

(3)

Subdivision of the Burden

193

(1)

Subdivision of the Benefit

194

(1)

Easements

194

(1)

Subdivision of an In Gross Easement's Benefit

194

(1)

Subdivision of an Appurtenant Easement's Benefit

194

(1)

Profits

195

(1)

Scope of Use

196

(5)

Uses by the Dominant Tenant

196

(1)

Standards for Determining Whether the Variation is Allowable

197

(1)

When There is Explicit Language

197

(1)

When There is no Explicit Language

197

(1)

When the Easement is Prescriptive

198

(1)

Changes Caused by Development of the Dominant Estate

199

(1)

Uses by the Servient Tenant

200

(1)

Nature of the Dominant Tenant's Rights

200

(1)

Nature of the Servient Tenant's Rights

201

(1)

Third Parties Rights

201

(1)

Termination of Easements and Profits

201

(7)

Termination by Language In the Grant

201

(1)

Merger

202

(1)

Temporary Merger or Reseparation

202

(1)

Release (Abandonment)

203

(1)

By Words Alone

203

(1)

By Nonuse Alone

204

(1)

By Words and Nonuse

204

(1)

By Words and Inconsistent Acts

204

(1)

By Inconsistent Acts Alone

204

(1)

By Words of the Dominant Tenant and Acts of the Servient Tenant -- Estoppel

205

(1)

Adverse Use

205

(1)

Invalidity

206

(1)

Sale of Servient Estate to a Bona Fide Purchaser

207

(1)

Termination of Necessity for an Implied Easement

207

(1)

Forfeiture by Misuse

207

(1)

Termination of Licenses

208

(2)

Irrevocable License

208

(1)

License Coupled with an Interest

209

(1)

Covenants and Equitable Servitudes

210

(28)

Covenants Compared to Other Interests That Bind Future Owners

211

(3)

Easements

211

(1)

Defeasible Estates

212

(1)

Contract Assignment and Assumption

213

(1)

Requirements for a Covenant to Run with the Land

214

(8)

The Covenant Must be an Enforceable Promise

214

(1)

The Parties Must Have Intended That the Covenant Run

214

(1)

The Promise Must Touch and Concern the Land

215

(1)

Burden v. Benefit

215

(1)

Requirements for the Burden to Run

216

(1)

Requirements for the Benefit to Run

217

(1)

Covenants to Pay Money

218

(1)

Privity of Estate

218

(1)

Mutual Privity

218

(1)

Horizontal Privity

219

(1)

Vertical Privity

220

(1)

Transfer of a Lesser Estate

220

(1)

Burdened Land

220

(1)

Benefited Land

221

(1)

Equitable Servitudes

222

(3)

Policy Underlying Equitable Servitudes

222

(1)

Rules Concerning Equitable Servitudes

223

(1)

Applicability of Rules for Covenants Running at Law

223

(1)

Privity

223

(1)

Touch and Concern

224

(1)

Special Equitable Requirements

225

(1)

Notice

225

(1)

Negative Covenants Only

225

(1)

Enforcement of Neighborhood Restrictions

225

(7)

Enforcement by Later Grantees Against Earlier Grantees -- Running of the Benefit

226

(1)

Enforcement by Earlier Grantees Against Later Grantees -- Alternative Theories

226

(1)

Enforcement of the Common Owner's Covenant to a Prior Grantee -- Running of the Burden

227

(1)

Enforcement of a Subsequent Grantee's Covenant to the Common Owner -- Third Party Beneficiary

227

(1)

When Third Party Beneficiary Theory Applies

228

(1)

Enforcement of a Restriction When a Prior Grantee Covenanted with the Common Owner -- Implied Reciprocal Servitudes

228

(1)

Reliance by the Prior Grantee

229

(1)

Significance of a Common Plan

229

(1)

To Provide Notice

229

(1)

To Apply Third Party Beneficiary Theory

230

(1)

To Imply Reciprocal Servitudes

230

(1)

To Burden Benefited Lots

230

(1)

Enforcement by the Homeowners' Association

231

(1)

Effect of Omission in Later Deeds

232

(1)

Termination of Restrictions

232

(6)

Termination by the Covenanting Parties' Acts

232

(1)

Restricted Duration

232

(1)

Release

233

(1)

Merger

233

(1)

Abandonment

233

(1)

Prescription

234

(1)

Estoppel

234

(1)

Laches

234

(1)

Unclean Hands

234

(1)

Acquiescence

234

(1)

Termination Resulting from External Acts

235

(1)

Changed Conditions

235

(1)

Government Acquisition

235

(1)

Legal Invalidity

236

(2)

Real Estate Brokers

238

(9)

The Broker's Role

238

(3)

Economic Function of Brokers

238

(1)

Who May Act as a Broker

238

(1)

Brokers' Services

239

(1)

Brokers' Other Legal Obligations

240

(1)

Discrimination

240

(1)

Practicing Law

240

(1)

Antitrust

240

(1)

Listing Agreements and Commissions

241

(2)

Types of Listing Agreements

241

(1)

Open (Nonexclusive) Listing

241

(1)

Exclusive Listing

241

(1)

Earning a Commission

242

(1)

Completing the Sale as a Condition Precedent

242

(1)

Closing as a Condition or Mere Calendar Event

242

(1)

Lesser and Contingent Offers

243

(1)

Broker Liability

243

(4)

Contract

244

(1)

Licensing Standards

244

(1)

Negligence and Fraud

244

(1)

Agency

245

(1)

Whose Agent is the Broker

245

(2)

Contractor Sale

247

(20)

Formation of the Relationship -- Statute of Frauds

247

(2)

Discrimination by the Seller

248

(1)

Marketable Title (Merchantable Title)

249

(9)

What Is Marketable Title?

249

(1)

Vendor's Title

250

(1)

Title Free From Encumbrances

251

(1)

Easements

251

(1)

Exception for Visible and Beneficial Easements

251

(1)

Covenants and Servitudes

251

(1)

Exception for Superfluous and Unenforceable Covenants

252

(1)

Leases

252

(1)

Money Obligations

252

(1)

Title Free From Doubt

252

(1)

Circumstances not Affecting Marketability

253

(1)

Effects of an Unmarketable Title

253

(1)

Vendor's Right to Cure Defects

253

(1)

Vendor's Right to Specific Performance with Abatement

254

(1)

Purchaser's Right to Terminate

255

(1)

Purchaser's Right to Damages

255

(1)

Purchaser's Right to Specific Performance

255

(1)

Specific Performance with Abatement

255

(1)

Waiver of the Right to Marketable Title

256

(1)

Complete Waiver of Marketable Title

256

(1)

Waiver of a Particular Defect

256

(1)

Alternative Title Standards -- Insurable and Good

257

(1)

Insurable Title

257

(1)

Good Title

257

(1)

Waiver by Acceptance of the Deed -- Merger

258

(1)

Equitable Conversion

258

(4)

Vendor's or Vendee's Death

259

(1)

Actions for Property Damage

259

(1)

Risk of Loss for Injuries Caused Without Fault

260

(1)

Majority Rule -- Risk on Purchaser

260

(1)

Minority Rule -- Risk on Vendor

260

(1)

Uniform Vendor and Purchaser Risk Act

261

(1)

Contrary Agreements

261

(1)

Insurance Provisions

261

(1)

Creditors

262

(1)

Duties of Disclosure

262

(2)

Disclosure

262

(1)

Implied Warranties in the Sale of New Homes

263

(1)

Statute of Limitations

263

(1)

Plaintiffs

263

(1)

Defendants

263

(1)

Damages

264

(1)

Disclaimers

264

(1)

Performance

264

(1)

Installment Land Contracts (Contracts for Deed)

264

(1)

Nonperformance

265

(2)

By the Vendor

265

(1)

By the Vendee

265

(2)

Transfer of Title by Deed

267

(30)

Deeds

267

(1)

Quitclaim Deed (Deed Without Warranties)

267

(1)

Limited Warranty Deed (Bargain and Sale Deed, Grant Deed, or Special Warranty Deed)

268

(1)

General Warranty Deed

268

(1)

Execution of Deeds

268

(6)

Signature

268

(1)

Consideration

269

(1)

Essential Terms

269

(1)

Parties

269

(1)

Property Description (Legal Description)

270

(1)

Federal Survey (Government Survey or Rectangular System)

270

(1)

Plat Maps

271

(1)

Metes and Bounds

271

(1)

Inconsistent Descriptions

272

(1)

Boundaries with Width

272

(1)

Water Boundaries

273

(1)

Words of Conveyance

273

(1)

Description of the Estate

273

(1)

Acknowledgment

274

(1)

Recording

274

(1)

Delivery of Deeds

274

(11)

What Is Delivery?

274

(2)

Intent that the Deed be Presently Operative

276

(1)

Effect of Future Events When No Intent Exists to Make the Deed Presently Operative

277

(1)

When the Future Event is the Grantor's Death

277

(1)

No Conditional Delivery to a Grantee

278

(1)

Delivery to Someone Other Than the Grantee

279

(1)

Grantee's Agent

279

(1)

Grantor's Agent

279

(1)

Escrow

280

(1)

A Contingency Certain to Occur

281

(1)

An Underlying Contract

282

(1)

Relation Back

283

(1)

Effect of Delivery and Nondelivery

284

(1)

Delivery

284

(1)

Nondelivery

284

(1)

Title Covenants in Deeds

285

(12)

Types of Deeds

285

(1)

General Warranty Deed

285

(1)

Limited Warranty Deed (Bargain and Sale Deed, Grant Deed, or Special Warranty Deed)

286

(1)

Quitclaim Deed (Deed Without Warranties)

286

(1)

Six Common Law Title Covenants

286

(1)

Covenant of Seisin

286

(1)

Covenant of Right to Convey

287

(1)

Covenant Against Encumbrances

287

(1)

Covenants of Warranty and Quiet Enjoyment

287

(1)

Covenant of Further Assurances

288

(1)

Estoppel by Deed (After-Acquired Title)

288

(1)

Breach of a Title Covenant

289

(1)

What Constitutes a Breach

289

(1)

Covenant of Seisin

289

(1)

Covenant of Right to Convey

289

(1)

Covenant Against Encumbrances

289

(1)

Covenants of Warranty and Quiet Enjoyment

290

(1)

Covenant of Further Assurances

290

(1)

When a Covenant is Breached

290

(1)

Present Covenants

290

(1)

Future Covenants

291

(1)

Enforcement of Covenants by a Subsequent Grantee (Running with the Land)

291

(1)

Covenants of Seisin and Right to Convey

291

(1)

Covenant Against Encumbrances

292

(1)

Covenants of Warranty, Quiet Enjoyment, and Further Assurances

293

(1)

Measure of Damages

294

(1)

Covenants of Seisin and Right to Convey

295

(1)

Covenant Against Encumbrances

295

(1)

Covenants of Warranty and Quiet Enjoyment

295

(1)

Covenant of Further Assurances

296

(1)

Priorities: The Recording System

297

(39)

Common Law Priorities

297

(2)

The Recording System -- Recording Statutes

299

(5)

Types of Recording Acts

300

(1)

Notice Acts

300

(1)

Race Acts

301

(2)

Race-Notice Acts (Notice-Race Acts)

303

(1)

Grace Period Acts

304

(1)

Mechanics of Recording and Searching Title

304

(6)

Recording a Document

304

(1)

Filing

304

(1)

Recording

305

(1)

Indexing

305

(2)

Returning the Document

307

(1)

Searching a Title in the Name Indexes

307

(1)

Locating the Present Owner in the Grantee Index

307

(1)

Locating Prior Owners in the Grantee Index

307

(1)

Stopping Short of the Original Source

308

(1)

Dealing with Gaps

308

(1)

Searching for Encumbrances and Other Interests in the Grantor Index

308

(1)

Following the Subsequent History of Encumbrances

309

(1)

Searching a Title in the Tract Index

309

(1)

Record Notice -- Constructive Notice

310

(5)

Documents that Cannot be Located

311

(1)

Misindexed Documents

311

(1)

Wild Documents (Missing Links)

311

(1)

Documents that are Difficult to Locate

312

(1)

Late Recorded Document

312

(1)

Early Recorded Document -- Estoppel by Deed

312

(1)

Deed Affecting More Than One Lot

313

(1)

Documents that can be Located but do not Give Notice

314

(1)

Defective Documents

314

(1)

Unrecordable Documents

315

(1)

Inquiry Notice

315

(8)

Notice Based on Information in the Records

316

(1)

References in Recorded Documents to Unrecorded Documents

316

(1)

References in Recorded but Unread Documents to Other Unrecorded Documents

317

(1)

Indefinite References to Other Documents

317

(1)

Notice Based on Possession of the Property

318

(1)

Information Charged to the Purchaser -- Constructive Notice v. Inquiry Notice

318

(1)

Inquiry Notice when the Statute Requires Actual Notice

319

(2)

When Possession is not Suspicious

321

(1)

Landlord-Tenant Exception

321

(1)

Notice Based on Neighborhood Conditions

322

(1)

Harmless Notice

322

(1)

Persons Protected Against Previous Failures to Record

323

(8)

Persons Protected under the Recording Statutes

323

(1)

Persons Protected in a Race State

323

(1)

Persons Protected in a Notice State

324

(1)

Persons Protected in a Race-Notice State

324

(1)

Purchasers Without Notice

324

(1)

Purchasers for Value

324

(1)

Donees

325

(1)

Cancellation of a Prior Debt

326

(1)

Payment of Less than Full Consideration

326

(1)

Promise to Pay

326

(1)

Payment of Part of the Price -- Alternative Solutions

327

(1)

Encumbrancers

328

(1)

If the Encumbrance is not Taken in Reliance on the Records

328

(1)

Creditors

329

(1)

Unsecured Creditors

329

(1)

Judgment and Attachment Creditors

330

(1)

Execution Purchasers

330

(1)

Recording System Limitations

331

(4)

Interests not Arising out of Written Instruments

332

(1)

Adverse Possession and Prescriptive Easements

332

(1)

Easements by Necessity

332

(1)

Quasi-easements (Easements Implied by Past Use)

333

(1)

Interests Arising from Nonrecordable or Excepted Instruments

334

(1)

Torrens Registration

335

(1)

Title Insurance

336

(7)

Searching Title

336

(1)

Preliminary Title Reports and Title Insurance

337

(1)

Title Risks

338

(3)

Covered Risks

338

(1)

Excluded Risks

339

(1)

Grantee's Knowledge of Defects or Failure to Pay Value

339

(1)

Defects Discoverable by Investigation Outside the Records

339

(1)

Subsequent Defects

340

(1)

Relief under the Policy

341

(2)

Title Company Options

341

(1)

Duration of Coverage

341

(2)

Mortgages

343

(12)

Significance of a Mortgage

343

(5)

Secured and Unsecured Debts

343

(1)

Advantage of Holding a Mortgage

344

(1)

History of Mortgage Law

344

(1)

Fee Simple Subject to Condition Subsequent

344

(1)

Equity of Redemption

345

(1)

Foreclosure

345

(1)

Mortgagor Protection Rules

346

(1)

Deficiency Rules

346

(1)

Waiver Prohibitions

347

(1)

Nondiscrimination in Lending

348

(1)

Title or Lien

348

(1)

Mortgage Instruments

348

(1)

Possession and Rents

349

(1)

Priorities

350

(1)

Transfers by the Parties

Transfers of the Mortgaged Property

351

(1)

Transfers of the Mortgage

352

(3)

Airspace

355

(3)

Lower Airspace

355

(1)

Upper Airspace

356

(2)

Trespass

356

(1)

Nuisance

356

(1)

Taking

357

(1)

Water

358

(8)

Stream and River Water

359

(3)

Preferred Use Privileges

359

(1)

Correlative Use Privileges

360

(1)

Natural Flow Doctrine

360

(1)

Reasonable Use Doctrine

360

(1)

Appropriation Systems

361

(1)

Surface Water

362

(2)

Common Enemy Doctrine

363

(1)

Natural Servitude Doctrine

363

(1)

Reasonable Use Doctrine

363

(1)

Underground Water

364

(2)

Absolute Ownership Doctrine

364

(1)

Reasonable Use Doctrine

364

(1)

Correlative Rights Doctrine

365

(1)

Appropriation

365

(1)

Support

366

(5)

Support of Unimproved Land

366

(2)

Absolute Right to Support

366

(1)

Liable Persons

367

(1)

Support of Improved Land

368

(1)

Extent of the Obligation

368

(1)

Measure of Damages

368

(1)

Statutory Changes

369

(1)

Agreements Regarding Support

369

(2)

Release of Support Rights

369

(1)

Acquisition of Support Rights

370

(1)

Agreed Boundaries

371

(3)

Difficulties in Ascertaining Boundaries

371

(1)

Boundary Agreements

371

(2)

Acquiescence

373

(1)

Effect

373

(1)

Fixtures

374

(4)

Factors in Determining What is a Fixture

374

(1)

When the Annexor owns the Real Property

375

(1)

Property Taxation

375

(1)

Eminent Domain

375

(1)

Mortgages

375

(1)

Conveyances

376

(1)

Death

376

(1)

When the Annexor does not own the Real Property

376

(2)

Tenants

376

(1)

Strangers

377

(1)

Chattel Sellers

377

(1)

Trespass

378

(7)

Protection of Possession

378

(1)

What is a Trespass?

378

(2)

Intrusions Other Than by the Trespasser

379

(1)

Touching the Boundary

379

(1)

Above and Below the Surface

380

(1)

Privileged Entries

380

(2)

Consent

380

(1)

Social Need

381

(1)

Property Rights

381

(1)

Remedies

382

(3)

Nominal Damages

382

(1)

Compensatory Damages

382

(1)

Punitive Damages

383

(1)

Equitable Relief

383

(1)

Relief According to the Plaintiff's Status

384

(1)

Nuisance

385

(5)

Nuisance v. Trespass

385

(1)

Determining Whether a Nuisance has Occurred

386

(1)

Relief

387

(2)

Public Nuisance

389

(1)

Land Use Regulation

390

(53)

Types of Land Use Regulation

390

(28)

Zoning

390

(1)

Typical Zoning Devices

390

(1)

Lot, Building, and Use Regulations

391

(1)

Lot Regulations

391

(1)

Minimum Lot Size

391

(1)

Minimum Frontage

391

(1)

Building Regulations

391

(1)

Height

391

(1)

Bulk

392

(1)

Yards

392

(1)

Open Space

392

(1)

Floor-Area Ratio

393

(1)

Minimum Floor Space

393

(1)

Design and Site Plan Review

394

(1)

Regulations on Activities

395

(1)

Residential

396

(1)

Commercial

397

(1)

Industrial; Performance Standards

398

(1)

Mapping

399

(1)

Size of the Zone; Spot Zoning

399

(1)

Zoning Boundaries

400

(1)

Special Zoning Tools

400

(1)

Special Exceptions (Conditional Uses)

400

(1)

Floating Zones

401

(1)

Cluster Zoning

402

(1)

Planned Unit Development (PUD)

403

(1)

Holding Zones

404

(1)

Zoning Relief

405

(1)

Variance

405

(1)

Rezoning (Amendment)

406

(2)

Contract Zoning (Conditional Zoning)

408

(1)

Subdivision Regulation

409

(1)

What is a Subdivision?

410

(1)

Subdivision Process

410

(1)

Subdivision Exactions

411

(2)

Growth Management

413

(1)

Historic Landmarks and Districts

414

(2)

Environmental Protection

416

(1)

Eminent Domain

417

(1)

Land Use Regulation Process

418

(11)

Who May Regulate Land

418

(1)

Federal Regulation

418

(1)

State Regulation

419

(1)

Regional Regulation

419

(1)

Local Regulation

420

(2)

Citizen Regulation

422

(1)

Planning Process

423

(1)

Comprehensive Plan

423

(2)

Planning Commission

425

(1)

Land Use Ordinances

426

(1)

Interim Ordinances

426

(1)

Enforcement

426

(1)

Nonconforming Uses

427

(2)

Judicial Review

429

(14)

The Judicial Role

429

(1)

Grounds for Invalidation

430

(1)

Arbitrary and Capricious

431

(1)

Due Process

432

(1)

First Amendment and Associational Rights

433

(1)

Speech and Religion

433

(1)

Association

434

(1)

Taking

435

(1)

Categorical Takings

435

(1)

Other Regulatory Takings

436

(1)

Nature of the Government Activity

436

(1)

Nature of the Owner's Property Interest

437

(1)

Extent of the Loss

437

(1)

Public Benefit

438

(1)

Sharing the Loss

439

(1)

Mitigation and Compensation Measures

439

(1)

Relief

440

(1)

Exclusionary Zoning

440

(1)

Federal Courts

441

(1)

Constitutional Protection

441

(1)

Statutory Protection

442

(1)

State Courts

443

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Real Property in a Nutshell

Summary

Table of Contents

Supplemental Materials