Casebriefs » Intro. to Property

Exam Question for Property Section

admin — Thu, 03 Sep 2009 19:10:26 +0000

Seek Corporation invests $2 million in exploring for oil on its property. Oil is discovered and Seek begins extracting and selling the oil. However, the oil is part of a common pool and, noticing the success of Seek=s well, Mooch Corporation begins extracting oil from the same common pool by means of a well located on adjacent land which it owns. Because Mooch=s search costs were essentially zero, Mooch is able to sell its oil at a price much lower than that offered by Seek. Seek sues to restrain Mooch=s activities. You represent Seek, and to your dismay your research reveals that because of an obscure 1812 treaty with a Native American tribe, neither Federal nor State oil extraction statutes/regulations apply to this dispute. The only relevant precedent are judicial decisions that cite and adopt the holdings from prominent historical capture cases B i.e., PIERSON V. POST (fox hunt) and its lineage.

‘Articulate an argument on behalf of Seek as to why Seek should prevail in its suit against Mooch. In doing so, draw upon at least two distinct doctrines, policies and/or theories that support your arguments.

THE LAND TRANSACTION: CONVEYANCING & TITLE ASSURANCE

admin — Thu, 03 Sep 2009 19:09:00 +0000

THIS DEED made this 4th day of July, 2006, by and between BENJAMIN FRANKLIN, GRANTOR, and CP&L CORP., a North Carolina corporation, GRANTEE, whose address is: 1234 Power Blvd, Raleigh, NC (the designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context);
WITNESSETH:
WHEREAS, GRANTOR OWNS THE REAL PROPERTY HEREINAFTER DESCRIBED AND WISHES TO SELL THE SAME TO GRANTEE; AND
WHEREAS, Grantor desires to effect such sale by conveying said real property to Grantee.

NOW, THEREFORE, Grantor, for a valuable consideration paid by the Grantee, the receipt of which is hereby acknowledged, has granted and sold and by the presents does grant, bargain, sell and convey unto the Grantee in fee simple that certain lot or parcel of land situated in Wake County, North Carolina, which is more particularly described on Exhibit A attached hereto and incorporated herein by reference.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances thereto belonging to the Grantee in fee simple.

And the Grantor covenants with the Grantee, that Grantor is seized of the premises in fee simple, has the right to convey the same in fee simple, that title is marketable and free and clear of all encumbrances, and that Grantor will warrant and defend the title against the lawful claims of all persons whomsoever except for the exceptions hereinafter stated.

Title to the property hereinabove described is subject to the following exceptions:

All easements, rights of way, encumbrances and restrictions of record, and ad valorem taxes for the year 2006.

IN WITNESS WHEREOF, the Grantor has hereunto set the Grantor=s hand and seal, the day and year first above written. ______________________(SEAL)

Benjamin Franklin, Grantor

STATE OF NORTH CAROLINA

COUNTY OF WAKE

I, JOHN HANCOCK, a Notary Public of the County and State aforesaid, certify that BENJAMIN FRANKLIN personally appeared before me this day and acknowledged the execution of the foregoing instrument.

WITNESS my hand and official stamp or seal, this 4th day July, 2006.
_____________________________

JOHN HANCOCK

Notary Public

My Commission Expires:
_____________________
[NOTARY SEAL]

LANDLORD TENANT RELATIONS

admin — Thu, 03 Sep 2009 19:06:54 +0000

BLACK’S LAW DICTIONARY (8TH ED. 2004)
“Lease”:
A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usu[ally denominated] rent.

Such a conveyance plus all covenants attached to it.
“Landlord-Tenant Relationship”:
•The familiar legal relationship existing between the lessor and lessee of real estate.

•The relationship is contractual, created by a lease … for a term of years, from year to year, for life, or at will, and exists when one person occupies the premises of another with the lessor’s permission or consent, subordinated to the lessor’s title or rights.

•There must be a landlord’s reversion, a tenant’s estate, transfer of possession and control of the premises, and (generally) an express or implied contract.

LAND USE CONTROLS (PART III), AND GOVERNMENT TAKINGS

admin — Thu, 03 Sep 2009 19:04:35 +0000

THE LAW OF ZONING (a/k/a legislative land use controls)
The idea of zoning relates to the laws of nuisance and servitudes in that all three areas involve some exertion of control over the manner in which land may be used. With zoning, the controls usually originate with a legislative body, and the regulations are intended to be both systematic and comprehensive – as opposed to relating to one or two isolated parcels of land. The regulation typically takes place at the county or local level via authorization from the state – with the ultimate authority to regulate derived from the state’s exercise of its police power.

VILLAGE OF EUCLID, OHIO V. AMBLER REALTY CO.

272 U.S. 365 (1926)
[Background: In 1922 the village of Euclid enacted a comprehensive zoning ordinance that divided the city into various use districts, height districts, and area districts. Ambler Realty Co. owned 68 acres of undeveloped land that was zoned in such a way that industrial use (in particular) was precluded. As a result, Ambler’s land was worth only a fourth of what it would bring could all of it be devoted to industrial uses. Ambler thus claimed that the zoning ordinance was unconstitutional in that it deprived the company of property without due process, and denied it equal protection. Ambler sought an injunction against enforcement of the ordinance on the grounds of unconstitutionality. The following is an excerpt from the Supreme Court’s opinion upholding the constitionality of the ordinance]

… The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city’s territory is allotted to different uses, in order to prevent, or at least to reduce, the congestion, disorder, and dangers which often inhere in unregulated municipal development.

LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT

admin — Thu, 03 Sep 2009 18:58:18 +0000

Introductory Note: As with estates in land and future interests, we once again have an area of law with categories and accompanying variation in rules that govern (or result) from a given category. And like the area of estates in land, the system here is dictated more by historical precedent than function. The umbrella concept here is “servitudes”, which can be broken out into five types: easements, real covenants, equitable servitudes, licenses, and profits – as well as two less. The distinctions are not always clear (Note, for example, that the court in the first paragraph of the case below refers to a “scenic easement” protected by a “restrictive covenant. The modern trend is to harmonize the rules, requirements, etc. relating to servitudes, covenants, and easements, and the Restatement (Third) of Property, Servitudes (2000) goes a long way in that regard. The historical rules and distinctions, however, will remain relevant and fodder for 1L property courses for many decades to come, as judicial adoption of any new Restatement approach to an area of law can be a slow and uncertain process.

Easements: An easement is essentially a nonposessory right to do (or to preclude someone from doing) an act on the property of another. A common example is the rights granted to utility companies to run their lines over, say, the front 10’ of your yard. Another example is a “right of way” granted by one person, allowing her neighbor (or others) to cross her land.

LAND USE CONTROLS (PART 1): BY THE COURTS

admin — Thu, 03 Sep 2009 18:54:17 +0000

The Law of Nuisance (a/k/a Judicial Zoning):

Courts will protect a property owner or occupant where a third party unreasonably interferes with that owner’s use and enjoyment of their land.

The actor’s state of mind need not be one of “intent” in the sense of acting with malice or with a desire to cause the harm. It is sometimes said, however, that the actor must intend to do the act or to bring about the conditions which ultimately cause the harm (or willfully fail to act where action is required). Most nuisances today are “intentional”, thus implicating the Restatement analysis set forth below. Of course, even if this were not the case, the conduct itself might be deemed negligent and thus result in liability under general tort standards (e.g., was the conduct negligent, reckless, or unreasonable). Perhaps the best way to alleviate confusion on this point (and as you read the material below) is to emphasize that nuisance is at its core a condition, and is most dependent upon the danger, interference, indecency, etc. – rather than upon the particular degree of care exhibited by the actor.

A nuisance at law (or a nuisance per se) is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property. Since the greater number of nuisances are nuisances per accidens, whether or not a particular thing or act is a nuisance is generally a question of fact. Some of the relevant concepts and facts are described below.

CONCURRENT OWNERSHIP

admin — Thu, 03 Sep 2009 18:50:10 +0000

As demonstrated by Gruen v. Gruen and the estates/future interest materials above, “ownership” can be divided temporally between present and future rights to possession. Ownership (whether present or future) can also be divided between multiple individuals holding the interest at the same time. Three primary forms of concurrent ownership typically covered in a 1L Property course are (i) tenancy in common; (ii) joint tenancy; and (iii) tenancy by the entireties. The forms are similar in several ways, but each also carries its own set of distinct legal rules and consequences.

A conveyance from “O to A and B as tenants in common” – and in many states, a conveyance simply from “O to A and B” without more – creates a tenancy in common. A and B thereafter each have the right to possess the whole of the property. Similarly, if the property is leased or otherwise produces revenue (e.g., mineral interests), the parties split the proceeds in accordance with their fractional shares. Obviously, this form of ownership depends a great deal upon the parties’ ability to agree over matters relating to the property. Unlike a joint tenancy, rights as a tenant in common are devisable/inheritable.

ESTATES IN LAND & FUTURE INTERESTS

admin — Thu, 03 Sep 2009 18:49:39 +0000

“Students often find this material confusing and bizarre.” Joseph William Singer, Professor of Law, Harvard University. I tend to agree, though it is certainly both teachable and comprehensible. Part of the difficulty lies in the fact that this system has evolved from deep historical roots that still influence the various categories and distinct rules that characterize this area of law. Despite the seeming archaic system and its many complexities, a court will essentially force disputed words of conveyance (i.e., transfer) to fit into one of these historical categories of estates, with particular legal consequences attaching to the label applied.

Present Possessory Estates:

Fee Simple Absolute – “to A” or (historically) “to A and her heirs”
Defeasible Fee Simple:
Fee Simple Determinable – “to A so long as” (or “while” or “during”)
Fee Simple on Condition Subsequent – “to A, but if …” (or “provided that” or “on condition that”)
Fee Tail – “To A and the heirs of her body”
Life Estate – “To A for life”

ACQUISITION OF PROPERTY RIGHTS IN THAT WHIS IS ALREADY OWNED

admin — Thu, 03 Sep 2009 18:43:09 +0000

Finders, Keepersh?
Adverse Possession: Normally, an unauthorized entry onto land owned by another constitutes a trespass. However, where the trespasser possesses anotherfs property for an uninterrupted statutory period and in a certain manner, the doctrine of adverse possession will effect a transfer of title to the owner of the land, to the possessor (formerly known as the gtrespasserh; now known as the gownerh).

Hypothetical: Assume Oren purchased the parcel of land known as gBlackacreh some years ago, and thus acquired title to Blackacre via a deed recorded in the local courthouse records. The property is located in a relatively undeveloped area on the outskirts of town. Oren neither uses nor visits the parcel, but instead he intends to hold it for its future appreciation potential (i.e., as an investment), or perhaps as a location for his retirement hideaway. The adjoining property owner, Alex, needs a shed in which to store some equipment. Lacking suitable space on his own parcel, Alex builds the garage entirely on Blackacre. Years later, Oren visits Blackacre in order to have it appraised, and discovers Alexfs garage on his land. Oren sues Alex in ejectment to recover possession of Blackacre. Assuming Alex has been present on Blackacre for the statutory period and certain other requirements are met, Oren loses; title to Blackacre belongs to Alex.

ACQUISITION OF ORIGINAL PROPERTY RIGHTS – “FIRST IN TIME”

admin — Thu, 03 Sep 2009 18:37:51 +0000

PIERSON V. POST: Mr. Post is hunting on public lands. He “scares up and begins chasing” a fox in full view of Pierson. Pierson, however, steps in and kills the fox, then takes it away. Post sues Pierson, and the court identifies the issue as whether or not Post had “such a right, or property in,” the fox as to make Pierson’s conduct wrongful. The court ultimately held for Pierson, concluding that Post lacked “possession” sufficient to give rise to property rights in the fox. This “rule of capture” case is used to demonstrate the importance and meaning of “possession” in property law, where “first in time” is often the governing principle.

KEEBLE V. HICKERINGILL: Keeble builds a duck decoy pond on his land to attract ducks, which he then captures and sells for profit. Hickeringill is offended by this activity and, without trespassing onto Keeble’s land, fires a shotgun from adjacent land intending to (and succeeding in) scaring off the ducks before Keeble can capture them. Keeble sues Hickeringill for damages. Who should win, and why?