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It is whatever interest in a thing the legal system protects against invasion by others. Property is relative – it describes the relationship btw people with respect to things, not the relationship btw persons and things. II. THEORY A. The principal theoretical explanations of property are labor theory, utilitarianism, economic efficiency, and custom 1. Labor theory: John Locke’s theory that by mixing your labor with something unowned (e.g., catching wild fish) you won the resulting mixture labor and object. 2. Utilitarianism: The argument that we protect others’ possession as property bc we desire the same protection for our possessions. 3. Economic efficiency: Property leads to economic efficiency. It causes individuals to internalize cost, so that these individuals make economically efficient decisions as to how the resources on the property are consumed. a) Tragedy of commons: This is contrasted with communal property (everything is unowned), where under conditions of scarcity people will unduly deplete the resources bc the individual gain from depletion outweigh the individual cost. The effect is the creation of externalities, where the aggregate gains is lower than the total cost, which creates externalities (externality – cost are external). (1) Opt out or free rider problem: People generally act in their own self-interest. This reduces the likelihood of collective action, such as in not overusing resources, as the indiv share of the benefit would be small. There is also an incentive to rely on others to take action and become a free rider and opt out. This is the collective action dilemma. b) Anticommons: Whereas communal property entails few rights to exclude others, the anticommons provide multiple rights to exclude (e.g., wild life preserve). Problem here is that resources are underused. 4. Custom: Property has a customary root. People engaged in common activity (e.g., whaling or cattle ranching) often develop customs that govern their relationships btw themselves and toward their objects of acquisition or husbandry (e.g., whales or cattle). III. DOCTRINE 1. Property may be broken up into 3 constituent elements: a) Right to use b) Right to exclusive possession
c) Right to dispose or transfer IV. BACKGROUND A. Types of property: 1. Private (personal) property: chattels, or goods. Personal property is movable property, which includes every kind that is not real property. 2. Real property: land, things fixed to land, and things incidental or appurtenant (belonging; pertaining) to land B. Title: Signifies ownership and is an abstract concept. Title is manifested in land transactions through a deed. 1. Prove title by a) Occupancy – this is one way to manifest title, but courts do not buy this argument (See Johnson v. M’Intosh) b) Written instrument – a deed 2. Relativity of title: Prior possessors’ relativity of title as to an object will be greater than any subsequent possessor C. Doctrine of self-help: The law does not promote self-help, but generally wants individuals to use the judicial process. D. Conversion: The wrongful exercise of ownership rights over the personal property of another. E. Law of accession: If one has property and someone takes the property and adds value
I. TYPES OF POSSESSION A. Constructive possession: Ability to control w/o physical possession. B. Actual possession: corporeal possession II. ACQUISITION OF “UNOWNED” THINGS: Methods of acquiring property rights in unowned things. A. Discovery (first in time) 1. Not much is undiscovered today, but the idea that property could be acquired by discovery has some modern implications a) “First in time” (first/ prior possessors): Notion that being there first somehow justifies ownership rights. b) Constructive possession - There is a recognition that first in time controls. Allow system to function orderly. 2. Discovery vs. Occupancy: a) Discovery can arise through conquest: Discovery of land gives the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy only in the natives – Johnson v. M’Intosh (1) Supports proposition that property is socially contingent
3. Policy a) Entrepreneurial incentive: It promotes entrepreneurship, where if you discover it, then you own it. b) Allows for constructive possession. Constructive possession is important from an econ point of view bc with actual possession, a person has to be on the property at all times. If one is constantly policing his property, he will not be able to focus on other entrepreneurial interest. c) Security: If you find it, it’s yours. You don’t have to worry about someone taking it. B. Capture 1. Rule of capture: Unowned property that is captured (e.g., wild animals, fugitive minerals such as oil and gas) becomes the property of the person effecting the capture 2. Pursuit insufficient: The unowned thing must be actually possessed for it to become property. a) Mere pursuit of an animal does not give one a legal right to it. You have to have corporeal possession – Pierson v. Post b) Animal mortally wounded: However, where an animal has been mortally wounded so that actual possession is practically inevitable, a vested property right in the animal accrues that cannot be divested by another’s act in intervening and killing the animal. 3. Actual possession, policy, and custom: What constitutes actual possession of any given type of unowned thing is largely driven by policy considerations (i.e., will recognition of property rights under these circumstances advance or retard desirable social objectives?), but may sometimes be decided by custom, particularly when those customs embody sound public policies. a) Custom and usage: The court can look to custom and usage within an industry to determine the rule of law regarding the ownership of property (e.g., the party who harpoons the whale is the owner even if it is later discovered on the shore by another) – Ghen v. Rich 4. Constructive possession and capture: Landowners are considered prior possessors (first possessors) of wild animals on their land. The landowner has constructive possession of the animals while they are on his property – Keeble v. Hickeringill a) Malicious interference: A party can recover against another for interfering maliciously with his ability to use his land for pleasure and profit – Keeble v. Hickeringill (where neighbor attempted to scare ducks from landing on Π’s land) b) Animus revertendi: Distinguishes btw animals generally thought to be wild and domesticated animals. If the animals have a tendency to return to the alleged owner, then the owner has a stronger claim of possession. 5. Relativity of title and prior possessors: Prior possessors’ relativity of title as to an object will be greater than any subsequent possessor 6. Oil and gas: Ownership of oil and gas governed by the same rules as capture.
but the social disutility of doing so leads some to call for limits on this right. RIGHT TO DESTROY A. nor possession thereof. in the discretion of the jury. C. right to exclude. an owner may be required to tolerate some unwanted incursions – See State v. artistic works. right to use. are considered unreasonable and hence unlawful. Regents of Univ of CA III. punitive damages may. 3. music. -------------------- . Shack (holding that a landowner could not prevent government representatives from talking with migrant workers) IV.7. c) Trademarks: Words or symbols indicating the source of a product or svc. Protection begins as soon as the work is set down in a tangible medium and usually last until 70 yrs after the death of the author or creator. Right to Exclude 1. Transferability: Both the rights to include (or to permit. you may destroy your own property. Generally. To establish conversion. Intellectual property: Lots of property is acquired by creation 2. he cannot maintain an action for conversion – Moore v. owners of marks are protected against use of similar marks by others when such use would result in confusion. and so forth. be awarded. Water: Majority rule under common law: Most courts adhered to the American rule of reasonable use. RIGHT TO INCLUDE AND EXCLUDE A. to sell to another) and to exclude (or to deny) together are necessary and sufficient conditions of transferability C. Rights in person’s own body and conversion: A person does not retain ownership interest in cells after they have left his body. a rule of capture with the slight addition that wasteful uses of water. Exception: Right to exclude not absolute a) When pressing social necessity requires some modification of this principle. groundwater extraction is commonly governed by legislative and administrative programs. a) Today. Where plaintiff neither has title to the property alleged to have been converted. Creation 1. plaintiff must establish an actual interference with his ownership or right of possession. Law of trespass and conversion protect the right to exclude a) Trespass: A private landowner has the right to exclude others and when nominal damages are awarded for an intentional trespass to land. b) Patents: Protects the application of ideas and the protection last 20yrs from the date of the patent application. Part of the bundle of rights: right to possess. – Jacque v. Manifested by the symbol TM. the right to transfer (83) B. if they actually harmed the neighbors. Steenberg Homes 2. 3 types of intellectual property: a) Copyrights: Protect the expression of ideas in books and articles.
Abandoned property is unowned and the first possessor becomes its owner unless the circumstances of that possession are wrongful (e.SUBSEQUENT POSSESSION I. and then is found by another. as the finder has relative title..g. Abandoned property: The owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. a problem of relative title emerges. ACQUISITION OF PROPERTY BY FIND A. 1. or abandoned. It is necessary to show an intent to give up both title and possession. When property is lost. mislaid. the finder is a trespasser) .
Sharman) B. Delamirie d) Prior finders: Prior finders prevail over later finders 2. which is anywhere from 10 to 30 years depending on the jurisdiction b. Goals of finder’s law: Finders law attempts to restore property to the true owner. and (sometimes) the owner of land where an object is found – See Armory v. C. Brigg and Staffordshire Water v. (1) Test for lost property: The key factor is the place where it is found: judging from the place where found. Finder v. judging from the place where found. the finder loses out to the landowner if the finder is an employee (or agent of the landowner) or invitee of the landowner. Continuous: uninterrupted for the appropriate statutory period. for a statutorily prescribed period of time can. 2. Equitable division: Some say a fairer solution is to divide the value between claimants with equally legitimate claims. ripen into title. the landowner prevails. and discourage trespassers and other wrongdoers. Possession. Encourages the productive use of resources. prior finders/possessors.Lost and mislaid property: a) Mislaid property: Property is “mislaid” when. Can avoid this by giving relative rights. reward honest finders. Landowner rules a) If the object is lost and the finder is not a trespasser. the finder prevails – Hannah v. Peel b) If the object is mislaid. on the theory that the owner of mislaid property is more apt to retrace his steps to locate where it was misplaced – McAvoy v. Medina c) Even with respect to lost property. Open and Notorious: the adverse possessor’s occupation must be visible (cannot be covert or secret)-> this is to afford the true owner notice and the opportunity to assert his paramount ownership . Adverse Possession 1. Definition a. it can reasonably be determined that it was intentionally placed there and thereafter forgotten. a finder’s title is good against the whole world except the true owner. if certain elements are met. Peel (citing Elwes v. would a reasonable person conclude that the owner had accidentally and involuntarily parted with possession of it and does not know where to find it? c) General rule: Generally. Elements: COAH a. or the object is embedded in the soil – See Hannah v. So we can have the reliance of a good faith economy. Why not have finders keepers? It would be inefficient for us to police our own property constantly. b) Lost property: Property is “lost” when the owner has accidentally and involuntarily parted with this possession and does not know where to find it. 1. deliver the reasonable expectations of landowners.
B cannot tack on As time. to start the appropriate statute of limitations. 2. dropping your watch off at the jeweler for repair) or involuntarily (e. imprisonment. d. ii. (a) Does not apply to involuntary bailment: The Winkfield doctrine does not apply to involuntary bailments and the bailor may recover from a 3rd . A belated affliction of a disability will not inure to the benefit of the true owner PERSONAL PROPERTY A. or will) b. The bailor is the owner and the bailee is the legitimate possessor. Hostile: The possessor does not have the true owner’s permission to be there. insanity. and it defeats privity ii. 2000A’s son John takes A’s place.. Bailments 1. Disabilities: infancy. Definition: A legitimate possession of personal property by someone who is not the owner of the property. such as blood. was a mistake.John owns blackacre. contract. and third parties: A bailee has a better claim to the property than any third party and is thus entitled to damages from any third party who wrongfully injuries the property. an adverse possessor assumes possession of blackacre. Parties to a bailment may contractually specify their rights and obligations. Tacking is not allowed when there has been an ouster i. The possessor’s subjective state of mind is irrelevant a. This jurisdiction has a 20-year statute of limitations. Adverse possessor may tack on to his time with the land his predecessor’s time. Permission defeats adverse possession 3. etc. c.g. but must turn over the damage proceeds to the bailor. bailees. 3. (1) Winkfield doctrine: A bailor of a voluntary bailment may not proceed against a 3rd party who has already paid the bailee. Actual: The adverse possessor must make an actual physical entry onto the premises. accidentally leaving your car keys on the counter of a jeweler).c. Bailors. etc. Statute of Limitation will not run against a true owner who is afflicted by a disability at the inception of the adverse possession i. Bailments can be created voluntarily (e. deed. In 2010. when B comes along and says move it or lose it. EX: 1990: A.g. so long as there is privity (satisfied by any non-hostile nexus btwn the possessors. assuming possession of blackacre until 2010. A is almost satisfying the COAH elements.) 4. Elements of bailment: A bailment is created when the bailee has actual control of the property and intends to possess the property. d. a) Recovery of damages: Bailors may recover from a 3rd party for injury to the property if the 3rd party has not already paid the bailee.. Measured objectively b. It is wrongful conduct. the bailor can only go after the bailee. Does not matter what the possessor was actually thinking (thought the land was his. Tacking a.
Discovery rule (Due Diligence rule): In an appropriate case. Policy – This rule encourages owners to report their losses and undertake reasonable investigation.party who has already paid the bailee. Snyder . the statute of limitations begins to run at the time the chattel was stolen. and if he cannot do so. concealment of personal property) – O’Keeffe v. Question of due diligence is a question of fact. 3.e.e. so as to avoid service. B. including the identity of the possessor) – O’Keeffe v. or through reasonable effort should have discovered... Rationale – bailor had no opportunity to chose bailee and should not be bound to a settlement or judgment the bailee obtains. or by exercise of reasonable diligence and intelligence should have discovered . Generally a fewer number of years in which to bring suit against an adverse possessor than with real property (usually a different statute applies) 2. Adverse possession of chattels 1. a cause of action will not accrue until the injured party discovers. Snyder a) The true owner has to show that she used reasonable due diligence in trying to recover the paintings. the statute is tolled until the concealment has ended (i. the cause of action. when the owner first discovers. Tolling and fraudulent concealment: When a potential defendant fraudulently conceals himself after the action accrues. facts which to form the basis of a cause of action (i.
Inter vivos gift: An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership – See Gruen v. it must be – See Newman v. 2. Definition: A voluntary transfer of property for no consideration. Bost.C. Elements: To the accomplish a gift of personal property the (1) donor must intend to make a gift. and (3) donee must accept the property a) Intent: The donor must intend to transfer title. which presumption can be rebutted by the donee’s rejection of the gift. When actual delivery is impossible or impracticable. there is symbolic and constructive delivery. a) Revocability: Inter vivos gifts are irrevocable as they are made with no knowledge or threat of impeding death. this is sometimes impossible or impractical. b) Delivery: The subject of the gift must be delivered to the done. written instrument declaring the gift). Intent is usually shown through circumstantial evidence. Gruen . (2) property must be delivered to the donee (the recipient of the gift). or when present are incapable of manual delivery because of their weight or size . (1) This usually means actual physical possession (actual manual delivery). (a) Symbolic delivery – handing over something symbolic of the property given (e. Symbolic delivery allowed in some jurisdictions when physical delivery impossible or impracticable – See Gruen v.g. Inter vivos and causa mortis: Gifts are commonly divided into gifts inter vivos (during life) and gifts causa mortis (in contemplation of impending death). Courts view causa mortis gifts with skepticism. however. no gift has been accomplished. (2) The traditional rule is that if an object can be handed over.See Newman v. Gifts 1. Gruen (where court held it ok for symbolic delivery where father who was on the west coast left son who was on east coast a painting by way of a letter) (b) Constructive delivery – handing over a key or some object that will open up access to the subject matter of the gift. Constructive delivery may occur when the things intended to be given are not present. Causa mortis gifts are revocable if the donor recovers or if the he dies from another condition that did not prompt the gift. Gruen). 3. If the donor’s intent is to merely transfer possession.. Bost c) Acceptance: Delivery triggers a presumption of a completed gift (acceptance by the donee will be presumed when the gift is of value to the done – See Gruen v. The traditional rule is that gift promises are legally unenforceable for lack of consideration.
Defeasible Fees (3 types) a. the grantor has the right to reenter and re-take iv. Must use clear Durational language ii. taken alone and set off by commas or other punctuation. Fee Tail a. Forfeiture not automatic. Attempted creation becomes a fee simple absolute 3. To A c. To A. To A and the heirs of his body b. Devisable. Devisable. Fee Simple Determinable i. alienable 2. descendible. alienable b. the grantor reserves the right to reenter and retake iii. the condition is a condition subsequent. creating the vested remainder subject to complete defeasance. would create a vested remainder. Fee Simple subject to executory limitation . 4 Present Possessory Freehold Estates: Date back to English system of feudalism 1. Pass directly to grantee’s lineal blood descendants no matter what c. Fee Simple Absolute (The best kind of Present Possessory Estate) a. To A for so long as iii. Virtually Extinct in the United States d.Freehold Estates Devisable = can pass it down by a will Descendible= can pass down if there is no will Alienable= transferable Inter vivos= during the holder’s lifetime Defeasance= runs the risk of forfeiting the estate if a particular condition is violated or becomes actualized Comma Rule: When conditional language in a transfer follows language that. Fee simple subject to condition subsequent i. estate is forfeited and returns to Grantor-> The Possibility of a reverter in O (the grantor) vi. but if X event occurs. descendible. Automatic forfeiture c. Clear durational language and grantor must explicitly state the right to reenter ii. If an event occurs. To A during iv. If the duration condition is broker. To A until v. but the grantor has the right to reenter if the event occurs d. Absolute ownership of potentially infinite duration d. To A and his heirs b.
however the conditional clause that comes thereafter-> if B dies under the age of 25 is an example of a condition subsequent 3. No condition precedent (no prerequisites) b. Follows life estate/term of years b. When A dies. Willful acts of destruction that decrease value ii. B’s remainder has no strings or conditions attached to his taking 2. remainder to B. To A for life. Never follow defeasible fees c. Indefeasibly vested remainder a. i. Created in ascertained person ii. reverts back to O (the grantor-> reversion c. Not subject to condition precedent iii. O conveys to A for life. do not cut short or divest a prior transferee f. creates a vested remainder.4. then to B ii. To A. remainder to B b. Remainder to B if taken alone and set off by commas. to C. Life Estate a. Neglecting iii. Vested Remainder i. Vested remainder subject to complete defeasance a. The remainder can be cut short because of a condition subsequent (comma rule) c. but if X event occurs. Not allowed unless all the future interest holders consent A living person cannot have heirs One's heirs are not ascertainable until the moment of one's death Only life estates have remainders and condition precedents Future Interest in the Transferees 1. Affirmative waste 1. 3 Types-> 1. At least one person is qualified to take possession i. Ameliorative waste 1. Vested remainder subject to open g. Future interest created in a grantee NOT the grantor d. To A for the life of B b. Remainder a. A is alive and B is 20. Always patient and polite. Permissive waste 1. O conveys to A for life. To a for 10 years then to B e. but if B dies under the age of 25. To a for life then B. B has a Shifting (goes to 3rd party) executory interest . transformation that increase the value 2. No waste allowed by life tenant i. The third party (B) takes if the event occurs iii. Renovations.
A has a life estate and O has reversion c. Created in unascertained person. member’s share is subject to partial diminution or partial decrease i. Subject to a condition precedent iii. C and D. O conveys to A for life. Condition precedent: appears before the language creating the remainder or is woven into the fabric of the grant 1. to B ii. and B does not have any children. To A for life. then. on A’s death. leaving B behind who was still under 21. and if B has reached the age of 21. a class is closed when its maximum membership has been set. and then. then to O’s heirs b. Rule applied even contrary to grantor’s intent-> led to its demise v. A is alive and B has two children. A is live. The class is open. O conveys to A for life. 3 Rules limiting contingent remainders 1. If A died. Applies only when: O conveys to A for life. if B graduates from college. B has not satisfied the condition precedent yet.h. to A’s heirs. A is alive. A is alive. Contingent Remainder i. Ex: To A for life. Present and Future estates would merge ii. then to B’s first child. Virtually abolished 1. Additional takers not yet ascertained j. A’s heirs have a contingent remainder 3. Contingent remainder destroyed if it was still contingent at the time the preceding estate ended i. so contingent remainder. A is alive. Tried promote alienability iv. B is still in high school. of B’s children will survive A iv. if any. We do not yet know which. The Rule in Shelley’s Case a. a. Class is open when it is possible for others to enter. k. so others are shut out g. A would have a fee simple absolute iii. then to B’s children. The destructibility rule a. and/or ii. To A for life. a. It’s a prerequisite to taking. The Doctrine of Worthier Title a. the remainder would be destroyed and O (the grantor) would have a fee simple absolute b. i. The unborn child has a contingent remainder 2. Promotes alienability . to B. The rule is abolished today 2. Unascertained Person Examples: 1. O’s heir’s contingent remainder is void i. Unmet condition. a. then to those children of B who survive A. Example: To A for life.
O has a fee simple subject to A’s springing executory interest. Wait until their turn to take. Applies only to contingent remainders. Remainders 1. executory interests. Determine which future interests have been created by your conveyance. Does not apply to any future interest created in O. 2. a. the grantor 2. within 21 years of the death of our measuring life. this intent will be honored e. if he intends a contingent remainder and says the doctrine of worthier titles does not apply. a. A could live . Identify the measuring lives. O. Cut shorts. A must dies. Identify the conditions that must happen before a future interest holder can take. remote. Grantor’s intent controls the situation. A’s child could die before it reaches the age.conveyance is good b. O conveys to A. A must leave a child. and certain vested remainders subject to open b. Usually. but if B returns from Europe within the next year. 2. Cuts short another transferee iii. A could have another child. 1. Will we know with certainty. Rule Against Perpetuities Certain kinds of future interests are void if there is any possibility. Springing executory interest i.d. To A and his heirs. 3. No-any remote possibility. 4 Step Analysis: 1. A is unmarried. Remainders a. conveyance is void i. he cuts short O’s otherwise limitless time with the land. Wait patiently b. A has a fee simple subject to B’s shifting executory interest. A could die in labor. fixed duration 2. if our future interest holder can or cannot take? a. Always follows a defeasible fee ii. however. Do not cut short another transferee c. the grantor ii. Valid in most states still since it is a rule of construction Executory Interests v. Yes. a. Who is relevant to the condition’s occurrence? 4. B has a shifting executory interest b. that the given interest may vest more than 21 years after the death of a measuring life. then to B 1. Executory interests a. Shifting Executory Interest i. If A marries. etc. if and when he marries.
A’s interest passes on to B (the other joint tenant) 2. and then we take a second look to gauge the integrity or validity of any suspect future interest 2. Partition in kind i. Voluntary agreement b. Historically needed a straw as well: O holds black acre in fee simple absolute. I. Alternative vesting period of 90 years used to measure instead of the 21 year limit Concurrent Estates 1. Forced sale . How to terminate (SPAM) 1. if one is void iv. 3 Forms a. A gift to an open class conditioned on members surviving to an age beyond 21 will usually be void-> entire class will be void. no need for a will ii. if rest is not grammatically correct. Best interest of all parties c.Identical-> have equal shares 4. P-Possesses-> identical rights to possess the whole 5. T-Title-> same title 3. Wait until the measuring life has run its course. but wishes to hold the land in joint tenancy with A. Joint Tenancy i. T-Tip: The 4 Elements of Joint Tenancy.ii. Interest is not devisable or descendible because of right of survivorship iii. Each joint tenant has right of survivorship (must be clearly expressed) 1. Court order physical division of the property ii. When interest is stricken. USRAP (Uniform Statutory Rule Against Perpetuities) a. strike it down as well Reform to RAP 1. iv. the interest is transferable inter vivos (may do so even without permission) 1. also must have right of surviorship-> Must take there interests: 1. A dies. Allows to escape probate because the surviving joint tenant gets interest automatically. He would have to transfer it to a third party first. Fertile Octogenarian Rule iii. Inter vivos sale or conveyance (the other people’s interests remain joint tenants while the new person is tenant in common) 2. T-Time-> at the same time 2. Wait and See or Second Look Doctrine a. Many shifting executory interests violate RAP-> if no limit on time it will vest v. Parition a.
Paid 90% for land. Mortgage a. Minority Rule i. Mortgage is a lien on the title. Spouse’s interest is protected from creditors of other spouse b. Best interests of all parties iii. Possession a. Protection afforded a. No adverse possession. Tenancy by the Entirety i. devisable. Only created between married people who share the right of survivorship 2. Rent from third parties a. Interest is a building.i. Marital estate-Recognized in 21 states 1. Presumption favors the tenancy in common when in doubt (system does not like skipping probate) Co-Tenants Rights and Duties 1. cannot be physically divided 3. Happens automatically with married partners in states recognized 3. Mortgage is a transfer of title subject to a condition subsequent. Tenancy in Common i. One spouse cannot unilaterally transfer their interest-> void c. Court ordered ii. and transferable inter vivos iii. No rent from co-tenant in exclusive possession 3. Agreement to sever 4. No rights of survivorship iv. Majority Rule i. unless co-tenant in exclusive possession has ousted others . Each co-tenant owns an individual part with right to possess the whole ii. Each co-tenant is entitles to possess and enjoy the whole i. get 90% of the rental income 4. it does not sever the joint tenancy b. Provide fair share of rental income received to other co-tenants i. Paying 90% of the purchase price does not exclude the person paying 10% from using the whole (action for ouster possible) 2. so the title is disrupted and the joint tenancy is severed b. Each interest is descendible.
this implies a periodic tenancy measured by the way rent is tendered c. but nothing is said about duration. Will receive contribution for reasonably necessary repairs provided that the other co-tenants have been notified 7. It can arise by implication in 3 ways i. Repairs a. Notice is not necessary to terminate the Term of Years (states when it is ended) c. Carrying Costs: taxes. The land is leased w/o mention of a duration. mortgage. L leases to T. it must be in writing to be enforceable under the Statute of Frauds 2. To T from month to month i. 50 years b. Permissive 9. If the term of years is greater than 1 year. 6 months is enough notice 3. Tenancy at Will a. etc. To terminate. If a tenant holds over after lease is concluded wrongfully. No waste a. notice must be given equal to the length of the period/interval itself. Could be another person’s nightmare c. No affirmative right to contributions b. unless otherwise agreed i. Any increase in value of property when sold due to improvements. running from interval to interval b. Ameliorative b. Oral term of years that violates the Statute of Frauds creates an implied Periodic Tenancy measured by the way rent is tendered iii. Exception for intervals of a year to year or more. No fixed period or duration-> lasts as long as L or T desire . This implies a month-to-month periodic tenant ii. the improver receives 8.5. Lease is open-ended and continuous. Tenancy for Years or Term of Years a. To T from year to year. determined period of time i. Voluntary c. To T from Week to Week. a. His fair share 6. Can bring an action for partition Landlord/Tenants 4 Leasehold interests 1. two months. Lease for a fixed. T pays rent each month. Improvements a. Periodic Tenancy a. but a prevision is made for the payment of rent at regular intervals 1. Could be 1 day.
Created when T has wrongfully held over. most states now require reasonable notice to terminate the tenancy at will 4. L can treat T’s vacating the premises as an implicit offer of surrender. Must do no more than and no less than maintaining the premises in reasonably good repair T’s duty to pay rent a. Ignore 1. L still entitled to rent while waiting for the eviction 2.lasts until the L either evicts the T or elects to hold the tenant to a new leasehold Tenant’s Duties 1. any acceptance of surrender must be in writing to satisfy the Statute of Frauds ii. Landlord must not engage in any self-help 1. In most states. . Re-Let 1. By statute. The tenant is now called a tenant at sufferance b.i. If L accepts T’s surrender. Failing to pay rent and T is still in possession of the land i. means T has demonstrated by words or conduct that he wishes to give up the lease 3. forcibly removing T. T is a Tenant in Sufferance ii. Unless both parties expressly agree to a tenancy at will. L can move to evict through appropriate judicial proceedings 1. past the conclusion of the original lease i. Maintenance is the benchmark c. If unexpired term is in excess of one year. The term is term of art in Property law. but is out of possession of the premises (S-I-R) i. the payment of regular rent at intervals will create an implied periodic tenancy c. removing possessions of T-> all punishable by civil and criminal penalties c. Re-let the premises and hold T liable for any deficiency 2. just as if T was still there (available in a minority of states) 2. Ignore the abandonment by T and hold T responsible for unpaid rent. Ex: changing the locks. Tenancy at Sufferance a. Usually short lived. T’s duty to repair a. the lease is dissolved amicably 4. T fails to pay rent. which landlord accepts 2. L can choose to continue the relationship with T and sue for rent owed iii. Must keep the premises in reasonably good repair b. L must attempt to mitigate iii. Surrender 1. Ex: To T for as long as L or T desire (both parties have the right to terminate at any time) b.
In Absence of an agreement-> T may remove the installed item as long as removal does not cause substantial harm to premises. how to know? a. No ameliorative waste (improvements) b. The Parties’ express agreement controls b. then new T’s problem (old American frontier mentality. L liable if holdover T is still there b. Tenant removing a fixture creates voluntary waste a. No permissive waste (neglect) c.2. The tenant has the right to quiet use and enjoyment of the premises. objectively shows the intent to permanently improve the realty i. objective judgment Landlord’s Duties Early Common Law: Under common law operated under caveat lessee (lessee beware) with 6 exceptions to the general no-landlord-duty-rule. Mitigation principle-> majority of states require this. Minority rule: The American Rule-> L must provide T with the legal possession. Duty to deliver possession of premises a. Fixture: once moveable chattel that. Exceptions a) Short term leases of furnished dwellings b) Pre-exististing latent defects where the landlord should have known about the defect and where the defect was not apparent under reasonable inspection by the tenant c) To maintain common areas used by all tenants in a building d) Undertake carefully any repairs the landlord promised or volunteered to make e) Abstain from fraudulent misrepresentations as to the condition of the leased premises f) To abate immoral conduct and other nuisances 1. by virtue of its attachment to realty. No voluntary waste (overt harmful acts of destruction) i. demonstrate a reasonably and good faith effort to re-let premises to show that you tried to cut your losses 3. Majority rule: requires L to put T in legal as well as actual physical possession of the premises at the start of the lease i. without interference from the landlord b. furnace b. Doctrine of Waste and the Law of Fixtures 1. Duty to satisfy implied covenant of quiet enjoyment (residential and commercial leases) a. T’s duty not to commit waste a. just the legal right to be there i. If T is holdover. Ex: Heating systems. not matter if he installed it 2. windows.  1. landlords were often a considerable distance away from tenants) 2. Must not remove a fixture. Tenant Installation that qualifies as a fixture. 2 Ways can be breached .
SI.Goodbye or Get Out i. Constructive Eviction-> 3 Elements (SI-N-G) a. 4 options available to T-> MR3 i. T2 assigns to T3. T is permitted to transfer her leasehold interest in whole or in part 2. EX: failure to provide running water. L and Assignee are liable to each other for all covenants or promises in the original lease that run with the land ii. etc. Help protect whistleblower tenant if complaints on L c.i. Ts apartment floods b. Housing code violations 5. T1 transfers his entire leasehold interest to T2 b. Chronic or recurring problems. T1 assigns to T2. non-waivable (even if there is a disclaimer in the lease. G. lack of adequate plumbing. M: Move out and terminate the lease ii. it will be null) b. Landlord and T2 (assignee) come into privity of estate i. Some act or failure to act by L ii. N-Notice i. Duty to Control Common areas 6. iii. etc. end lease. Duty to satisfy implied warranty of habitability (residential leases) a. T cannot remain in possession and still please successfully that he has been constructively forced out 3. T must give L notice of problem. Ex: ever rain. L leases to T1. R: Reduce Rent-> reduce rent to an amount equal to fair rental value of the premises in view of their defects. fundamentally in compatible with Ts quiet use and enjoyment of leased premises iii. heat c. EX: Transferring all of the remaining 10 months of your lease d. b. Tenant must vacate premises within a reasonable time after L fails to correct the problem ii. Fundamental. Assignment a. R: Remain-> may remain in possession and affirmatively sue L for Damages 4. Duty to not to permit nuisances on premises Assignment and Sublease 1. Duty to refrain from breaching the doctrine of retaliatory eviction a. or withhold all rent until the court determines fair rental value iv. promise to insure. . L wrongfully excludes T from possession of the whole or any part of the premises ii. EX: promise to pay rent. T3 abuses premises. promise to paint. harass. Privity allows either party to sue if a wrong was committed e. T2= assignee c. L conducts constructive eviction on T 1.Substantial interference i. R: Repair and Deduct necessary repairs from rent iii. so L can try to act c. Can’t raise rent. The premises must be fit for basic human habitation (only very basic living requirements be met) i.
creates affordable housing for lower income. consist of price controls often augmented by limitations on the landlord’s ability to evict tenants at the end of the lease term. cost of rental housing will be higher and therefore there will be less of it. landlords will be forced to screen applicants more carefully. such as gentrification. So long as the landlord is able to earn a reasonable rate of return on his investment. T2 is responsible to T1-> remit rent to T1 who remits rent to L f. L and T1 will be secondarily liable to each other 3. T1 is liable for T3 to L 3. L and T2 (assignee) are not in privity of contract unless T2 has expressly assumed the performance of all promises contained in the original lease g. 1. L can proceed against T3 under privity of estate and wins 2. The argument is that tenants would be worse off. Rent control: Rent control laws. state. Probably the most important such statute is the Fair Housing Act (FHA). L and T1 are in privity of contract since they originally established the leasehold i. T1 is obliged to enlist L to remediate any problems on the premises SOCIAL REGULATIONS OF LEASEHOLDS A. The arguments against rent control include: they reduce the resources landlords could devote to improving the quality of housing. EX: Transferring 3 months of your interest when it is a two-year term lease c. L cannot proceed against T2. Policy: There are argument for and against rent control. and local laws substantially restrict the landlord’s common law right to decide with whom he wishes to deal. These laws prohibit most private acts of racial discrimination in the sale or rental of real property. Sublease a. usually adopted at the local level.1. Antidiscrimination statutes: Federal. L can proceed against T1 under privity of contract. L and T2 (sublessee) do not share privity of contract nor privity of estate e. L and T1 (assignor) are not in privity of estate h. a. rent control statutes do not constitute a government taking of property without just compensation. The relationship between L and T1 remains fully intact d. If T3 flees or unable to pay. T1 transfers less than his entire leasehold interest to T2 b. Privity of estate ended between L and T2 once T2 assigned to T3 and there was never a privity of contract between L and T2 unless T2 expressly assumed the performance of all promises in the original lease f. rental of housing more costly to landlords.  Servitudes Definition: Private arrangements concerning the use of land that endure as title and possession of the burdened land passes from the initial contracting party to new . B. which exempts (1) the sale or lease of a single family house without use of brokers or public advertisements that reveal discriminatory motive and (2) rentals of residential housing in owner-occupied units of four units or less. The arguments for include: protect residents form changes in the community. a.
An easement to endure for more than one year must be in writing (deed of easement) b. C-O-A-H i. 1. The parties reasonably expected the use to survive division because it is reasonable necessary for the party’s continued use and enjoyment of his parcel 3.owners or possessors. G: Grant a. A grant of nonpossessory property interest in land b. Actual (entry is quite literal. The Statue of Frauds applies since it is considered a property interest in land. Basically the right in land of another. Continuous. Creation of an affirmative easement implied from prior or existing use i. The parcel that bears the burden of the easement e. P: Prescription (similar to adverse possession) a. By Reservation: “I convey to you the land reserving a right of way to the pond” 5. no matter how terribly inconvenient.Public Trust Doctrine . The previous use must have been readily apparent ii.use must be continuous for the given statutory period (usually 10 years) ii. Landlocked setting: an easement of right of way will be implied be necessity If grantor conveys a portion of his land with no way out. I: Implication a. it must be utilized 4. where you have the ability to use the estate of another. Give its holder the right to do something on another’s land called the servient tenement ii. Minority of states: insist on strict necessity-> if there is another way to and from the allegedly landlocked parcel. Servient tenement i. Majority of states: require reasonable necessity to imply this c. Hostile to servient owner (without the servient owner’s permission or consent) 2. Affirmative Easement i. How to create an affirmative easement: PING-P 1. except over some part of grantor’s remaining land b. Easement a. P. but modern law does c. Dominant tenement i. N: Necessity a. Open and Notorious (must be visible to the parcel owner) iii. Common law did not recognize an easement reserved in favor of a 3rd party. and not merely symbolic) iv. The parcel that derives the benefit as a consequence of the easement d. Express Words i.
a. Necessity a. Merger a. Scope of an easement is set by the terms or conditions that created it 1. Release in writing given by the easement hold will terminate the easement 6. will terminate the easement 4. Mere nonuse or mere oral representations are insufficient to terminate by abondonment 7. License “coupled with interest”-> license is tied together with some other legally recognized interest the license is irrevocable until that other interest is vindicated-> EX: profit and timber iii. If person buys another parcel of land nearby. Destruction of the servient tenement other than through the willful conduct of the servient owner. Induced reliance situation-> Equitable Estoppel-> licensor grants license which licensee relies on b. Release a. he may not expand his easement on his other parcel of land to his new parcel of land v. Termination of an Easement: END CRAMP 1. Easement is terminated when title to the easement and title to the servient tenement become vested in the same person-> A does not need an easement over land that she now owns outright . Abandonment a. Condemnation of the servient tenement by governmental eminent domain power will end the easement 5. Condemnation a. Estoppel a. Estoppel a. EX: the right to cut across a neighbor’s land. The easement holder must demonstrate by physical action the intent to never make use of the easement again i. Easements created by necessity expire as soon as the necessity ends 3. 6. or the local power company’s right to lay a power line on another’s tract iv. Servient owner materially change position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced 2. Unilateral expansion of an easement is not permitted a. Destruction a. Arises when a government entity tells a private property owner that he has to give access over his land to the public. A erects a struction on his parcel that precludes her from ever again reaching B’s parcel ii. A has the right of way across B’s parcel. the right to water one’s cattle at another’s pond. when the public interest is involved.
not linked to the easement holder’s use and enjoyment of his own land 1. Easement in gross is not transferable unless it is for commercial purposes a. but usually recreational easements (hunting. EX: A grants B a right of way across A’s land so that B can more readily reach Bs land a. regardless of whether it is even mentioned in the transfer 5. EX: You have a negative easement for streamwater coming from an artificial flow-> you have the right to compel the servient owner to refrain from doing anything on his land that would interrupt or impede my premises access to that flow g. Negative Easement i. Minority of states such as California recognize the right to a scenic view v. 4 Categories: LASS 1. Streamwater from an artificial flow 4. fishing) are not assignable (more . Held in Gross: it confers upon its holder only a personal or commercial gain. EX: right to tap into a sewage drain located on farmer Pete’s land i. Prescription a. which suffers the imposition of the easement-> the servient tenement 4. Light 2. A has servient tenement 5. Servient tenement uses COAH elements to interfere with easement f. One parcel is involved: the servient tenement 2. This easement is transferred automatically with the dominant tenement. Must be created expressly. unless the new owner is a bona fide purchaser without any form of notice of the easement 6. Appurtenant: benefits the easement holder in his physical use or enjoyment of his own land 1. The burden of the easement appurtenant will also pass with the servient land. in a signed writing (deed of easement) iv. There must be a burdened parcel. Exception: modern trend under the Restatement 3rd is that all easements in gross are assignable regardless of their commercial character. No natural or automatic right to a negative easement iii.8. There must be a benefited parcel which derives an advantage or gain thanks to the easement (the benefited parcel = dominant tenement) 3. Holder of this easement is entitled to compel the servient landowner to refrain from doing something that would otherwise be permissible ii. It Takes Two: 2 parcels of land must be involved 2. B has an easement appurtenant to B’ dominant tenement. Each easement is either Appurtenant or Held in Gross i. Air Support 3.
Legal description of property (address of property. ticket holder. what the financing. 6. oral agreements are just fine e. The Elements 1. Land Transactions: The Purchase and Sale of Real Estate Title: abstract and conceptual identification of ownership of property. held in gross. etc. Every conveyance of real estate consists of a 2 step process a. qualitative description 3. right to place power lines on another’s land. Enables its title holder to enter the servient tenement and take from it the soil or some other resource. do have an action for breach of contract) ii. fish. appurtenant. Provisions that tell you how taxes and utilities paid. Oral agreements create licenses even when the easement violated the statute of frauds because it was not in writing 8.being furnished by the seller to the buyer) 4. . oil. or wildlife b.personal and there is concern that the servient land could be burdened beyond the original contemplation of the parties) 3. Title is manifested through what we call a deed. A push being made to merge profits into the easement category. Dates of when transfer of possession is to occur. Warranty of title (assurance that the title is held by the seller and is being conveyed to the buyer) 5. EX: right to swim in another’s pond. Profit a. Title and deed are ideas that are interchanged. EX: Company acquires the entitlement to place a billboard on your front law. shares all of its rules. the interest rate) 2. Purchase price (how paid for. etc. -> no dominant tenenment. such as minerals. Good title (marketable title. Basically just like an easement. Not subject to the statute of frauds. mere privilege to enter another’s land for some narrow purpose b. Not a grant of property interest like an easement d. EX: newspaper carrier. 7.endures until the closing i. unless estoppel applies to bar the revocation f. survey. timber. Freely revocable at the will of the licensor. parking garage patron i. The Land contract-> Contract of Sale. A freely revocable. Turn into an easement when made irrevocable c. only servient tenement: your lawn 4. the length of the mortgage. Tickets create freely revocable licenses (broadway show tickets-> not entitled to see the show because the license is revocable. License a. You can buy property with a non-marketable title 1. etc.
deed cannot be recalled . LE: lawful execution of the deed-> must be in writing.) 9.benefit to the rich) 4. inspections. To take place need: 1. The instrument has instructions on it c. The maker is basically the grantor e. ii. Revocable Trust i.class problem) f. Discussion of whether or not an escrow agreement is present 10. etc. People who do not have money get these usually (revocable escrows are void. Avoid probate court iv. but actual delivery is not necessary. retaining the right of possession and to rents and profits of the property for their joint lives and the life of the survivor. Commercial/Sales Escrow: usually used to close real estate deal i. Use this instead ii. Escrow: written instrument deposited by its maker with some third party custodian b. utilize a title searcher. Provision that tells you who is responsible for damages during the time of the contract and before closing 8. The Deed must Follow LEAD 1. Look to the present intent of the grantor. Escrow: A way of delivery can be accomplished this way a. Usually a gap between the contract for sale and when the closing occurs-> the gap is deliberate. doesn’t have to be literal. Grantor must make the deposit to the escrow agent irrevocably. the seller passes legal title to the premises to the buyer iii. 3. Attempted delivery at death is usually unallowable since courts view it as attempting to make the deed at will a. it afford the buyer the opportunity to get financing. Persons involved sign a declaration of trust providing that they hold the property in trust. At the closing.do they stay.7. and on their deaths the title of the property is to pass to the heirs iii. Itemization of what happens to furnishings of the house (appliances. signed by the grantor and done in a manner with the given jurisdiction’s formal statutory requirements 2. Trust creator retains a right to revoke v. People who have money usually get trusts (revocable trusts. The closing: the deed becomes the operative document i. etc. It says the custodian shall deliver the instrument to another party on the occurrence of one or more future conditions d. Provision for the return of initial payment if the sale does not go through b. AD: delivery of a deed-> must be delivered.
The worst deed a buyer could hope for ii. marriages. Requirements 1. encumbrances. No need for enforceable contract. General Warranty Deed i. servitudes on his property 2. Deed cannot be recalled 2. SoT will not run until that future date) . Primarily reserved for deathbed transfers and other contexts in which time is of the essence b. Advantage: With the escrow agent.The best deed a buyer could hope for ii.2. No promises that the grantor is even conveying a good title iv. 3 present covenants (breach happens at the instant of delivery. death escrow is gratuitous 5. Other interests besides Revocable trusts that are revocable: bailments. 3 types of Deeds a. joint tenancies. upon the death of the grantor given to grantee ii. Covenant of seisin i. the sellers and buyer do not have to be there at the real estate closing iii. Covenant of the right to convey i. Grantor promises that he has the authority to convey (no temp.Contains 6 promises or covenants 1. restraints on alienation or has a disability) c. Covenant against encumbrances i. Advantage: When done properly. The Doctrine of Relation Back: the buyer can become the deed holder as of the date the grantor officially deposited the deed-> good because if the seller dies or is in health troubles-> stamp out any possibility of probate g. Escrow based on the death of the grantor. Must be an enforceable contract between the grantor and the grantee ii. Promise that the Grantor owns the land he conveys b. statute of limitations begins and runs the moment the deed is delivered) a. 3 future covenants (not breached until a future date in which grantee’s possession is disturbed. Contains no covenants iii. Promise that there are no liens. are tied to the doctrine of relation back iv. Quitclaim Deed i. etc. 2. Death Escrow: i.
the buyer bares the risk unless the contract states otherwise iii. The grantor promises that the grantee will not be disturbed in possession or enjoyment by someone with a better title b. The grantor promises to do whatever is reasonably necessary to perfect the conveyed title (fix his signature. unless buyer has waived them or agrees 2. signed by the party to be bound. Special Warranty Deed i.Insurance: if seller has insurance. The grantor promises that he will defend against lawful claims of superior title in the property c. No servitudes or liens. Who bears the risk of loss of damage or destruction to blackacre when it happens between the contract and closing b. but the grantor makes these 3. Free from reasonable doubt and encumbrances-> free from lawsuits and the threat of litigation 1. in most states the seller holds insurance proceeds as a trustee for the buyer c. Majority view: Equitable title i. In equity. administrative or ministerial things to perfect title later on) c. Exception: Doctrine of Part Performance i. courts may imply an agreement to pay a reasonable price d.a. Buyer takes physical possession of land 2. Implied promises a. Statute of Frauds a. Covenant of quiet enjoyment i. Zoning restrictions-> must be in actual violation. Buyer pays all or a substantial part of the purchase price and/or 3. Buyer makes substantial improvements 4. No fault destruction. equity will intervene and decree specific performance of an oral contract for the sale of land ii. easier to remedy building code violations and they are . The problem of risk of loss->equitable conversion a. When met. Contains the same six covenants of title. not just that there are zoning restrictions present 3. describing the land and reciting some consideration b. Covenant of further assurances i. once the contract is signed the buyer is deemed the owner of the land ii. Building code violations do not make a title unmarketable. Marketable title i. The sale of land must be in writing. 2/3 of the elements must be present 1. Minority view: The loss is on the seller 5. If price has not been agreed to. Covenant of general warranty i. Price is an essential term and must be included c.
This is how one make sure that the title is clean. Duty of disclosure i. Exception: Implied warranty of fitness and workmanlike construction applies to the sale of new homes by builders The Recording System Bona fide purchaser (BFP): Someone who pays value or consideration and takes with no notice of any prior claims as to the property he is buying Recording: A public record of conveyances enables priority to be given to recorded conveyances but still requires some mechanism for sorting out priority between recorded conveyances to the same property. 3 different ones: 1. No active concealment of a known defect c. Haunted house case iii. Notice Acts: The last BFP to take wins whether or not the later grant is recorded 3. the recorder. Exception: Minority view says title acquired by adverse possession is marketable b. “Literally recorded first” -> this does not mean you will win (need to properly record) “Duly recorded” (properly recording) Jurisdictions have different recording acts. Goes back to common law norm of caveat emptor-> let the buyer beware ii. Circumstances that will render title unmarketable 1. Then.usually minor. a race to record 2. Race Act: The earliest to record prevails. No implied warranty of habitability for land contract i. Race-notice Acts: The later BFP wins if won the race to record BFP is on actual and constructive notice Actual Notice: Prior to closing. maintains a record of real estate transactions presented for recording and indexes those transactions by grantor and grantee The Search Process: A title searcher uses the index to search backward in time through an alphabetical grantee index to find transactions by which the present owner received title. you learn that O is a double dealer .Can be delivered by a good record title or proof of title iii. No false statements of material fact ii. the searcher looks forward in time through an alphabetical grantor index to determine if there were any title transactions made by each owner other than the grant to the next owner. The Recording System: A public official. Adverse possession (threat of litigation down the road) a. do not want to hold up the mkt on commercial property ii. and to repeat that process until an adequate root of title is found.
2. inserted in a deed to a single parcel. Two types of Constructive Notice a. tucked away in an apparently unrelated deed. C wins in race-notice state because it was the last BFP and won the race to record since the wild deed does not count as record notice for the BFP Shelter Rule: Someone can step into the shoes and take shelter under the BFP. O. EX: O sells blackacre to A. The holder of the wild deed loses f. It won’t be discovered by a title searcher within the chain of title d. sells the same land to C. Instrument not indexed: The older rule is that an improperly indexed instrument provides constructive notice. 1. the double dealer. C records. Although recorded. Then. subsequent purchaser prevails e. Evans  (Mother Hubbard clause does not afford notice) . Deed is recorded.C wins in notice state because it is the last BFP ii. See Luthi v. Because there is no way diligent searcher of title to the “other property” will ever find such a clause. if there is an unrecorded link in the subsequent purchaser’s chain g.Constructive Notice 1. and then can win. “Omnibus” or “Mother Hubbard” clauses: Theses clauses. A sells to B. Record notice. Later. Inquiry notice-whether purchases looks or not. and not to race jurisdictions) You can seek shelter all the way down When is the instrument recorded: An instrument is recorded when (1) it is eligible to be recorded AND (2) is actually entered in the public records in a manner that complies with the jurisdiction’s requirements. who does not record. but improperly so cannot give record notice of its contents c. i. C is a BFP and see would win in a notice and race-notice state. It does not give notice. A deed that is tied to an unrecorded link in the prior purchaser’s chain b. they are usually held to be inadequate to provide notice. Modern view: That this does not provide constructive notice bc even the most diligent searcher will not find it. The Wild Deed a. The A to B deed is the wild deed 1. (can only be used in the subsequent purchases) (applies to notice jurisdiction and race notice. within the chain of title->still on notice if you haven’t seen it b. The prior purchaser will prevail against a subsequent one. Corollary: Zimmer Rule i. purport to cover “all other property” of the grantor. on the view that the grantee has done all he can to provide record notice. i. it is not connected to the chain of title because it contains a missing grantor (the O to A link) h. B records the A to B deed.If deed was properly recorded. he is on notice of whatever a route inspection of blackacre would reveal Chain of Title Problems 1.
e. If the defect is hidden (latent defect> seal is fine. Scope of protection afforded by recording acts: The protection provided by recording acts is defined by the act. B is not on constructive notice. therefore. B loses. a misspelled deed recording will not give record notice to a subsequent purchaser. adverse possession or prescriptive or implied easements). Root of title: Claims that are based on an instrument older than the root of title – an unbroken good chain of title going back to a point earlier than the period of time specified in the act – are forever barred. description. does not give constructive notice – Messersmith v. Recording acts only apply to conveyances and not to interests created by operation of law (e. and there is a patent defect. Byers  4. a) Exception: The rule of idem sonas is inapplicable under circumstances where the written name is material. Recording does not make valid an invalid grant. most states treat it as not recorded. a) Patent defects and actual notice: If a purchaser does a search and finds the deed with the patent defect. B wins. 1. and it does not give constructive notice. bar all claims of title that predate a specified point in the past – anywhere from at least 22 to 50 or more years ago. In the files it says this. Some states regard a misspelling that sounds substantially identical to the correct name is sufficient to give constructive notice (rule of idem sonas). most states treat it as providing constructive notice. All states agree that if the misspelling is so significant that it does not even sound like the correct name. . address. Defectives instrument: If the defect is apparent on the face (patent defect. adopted by about 20 states.g. Marketable title acts: Theses acts. there is no constructive notice.). B is only on constructive notice if the deed has a latent defect.3. b) Deeds that fail to meet statutory requirements: The recording of an instrument affecting the title to real estate that does not meet the statutory requirements of the recording laws. but notary license is invalid. (1) If B doesn’t search.. Smith  (where deed lacked notarial acknowledgement) c) Minority view: There is no constructive notice regardless of whether the defect is patent or latent.g. B. Orr v.. (2) If B doesn’t search. Re-recording and exemptions: The effectiveness of marketable title acts is diluted by provisions that either exempt some pre-root interests form the act or permit them to be kept alive by re-recording during the marketable title act period. 2. wrong name. Misspelled names: States differ over whether a misspelled name in a recorded instrument gives notice. something that is obvious upon reading) of the instrument. then he would be on actual notice.
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