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