Cross, Chapter 26

Chapter 26
Real Property and

Land-Use Control
Cross/Miller, The Legal Environment of Business: Text and Cases, Eleventh Edition. © 2021 Cengage. All Rights
Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in
part.
26-1 The Nature of Real Property
• Real property (or realty):

• Consists of land and everything permanently attached to it, including
structures and other fixtures
• Encompasses:
• Airspace and subsurface rights
• Rights to plants and vegetation
• In essence, real property is immovable.
Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
26-1a Land and Structures
• Land includes:
• The soil on the surface of the earth
• The natural products or artificial structures that are attached to the surface
of the earth
• All the waters contained on or under its surface
• Much, but not necessarily all, of the airspace above its surface
• The exterior boundaries of land extend down to the center of the
earth and up to the farthest reaches of the atmosphere (subject to
certain qualifications).
26-1b Airspace and Subsurface Rights (slide 1 of 2)
• The owner of real property has rights to:
• The airspace above the land
• The soil and minerals underneath the land
• Any limitations on either airspace rights or subsurface rights, called encumbrances,
normally must be indicated on the document that transfers title at the time of purchase.
Airspace Rights
• Disputes concerning airspace rights may involve:
• The right of commercial and private planes to fly over property
• Flights over private land normally do not violate property rights unless the flights are so low
and so frequent that they directly interfere with the owner’s enjoyment and use of the land.
• The right of individuals and governments to seed clouds and produce artificial rain
26-1b Airspace and Subsurface Rights (slide 2 of 2)
Subsurface Rights
• In many states, ownership of land can be separated from ownership of its subsurface.
• In other words, the owner of the surface may sell subsurface rights to another person.
• When ownership is separated into surface and subsurface rights, each owner can pass title to
what she or he owns without the consent of the other owner.
• Subsurface rights include the ownership of minerals, oil, or natural gas.
• A subsurface owner’s rights would be of little value if he or she could not use the surface to
exercise those rights.
• Hence, a subsurface owner has a right (called a profit) to go onto the surface of the land to find
and remove minerals.
• Conflicts can arise between the surface owner’s use of the property and the subsurface
owner’s need to extract minerals, oil, or natural gas.
• If the owners of the subsurface rights excavate, they are absolutely (strictly) liable if their
excavation causes the surface to collapse.
• Many states have statutes that make the excavators liable for damage to structures on the land.
26-1c Plant Life and Vegetation
• Plant life, both natural and cultivated, is considered to be real

property.
• In many instances, the natural vegetation, such as trees, adds greatly to
the value of realty.
• When a parcel of land is sold and the land has growing crops on
it, the sale includes the crops, unless otherwise specified in the
sales contract.
• When crops are sold by themselves, however, they are considered to be
personal property, or goods.
• Consequently, the sale of crops is a sale of goods and is governed by the Uniform
Commercial Code (U C C) rather than by real property law.
26-1d Fixtures (slide 1 of 5)
• Fixture – An item of personal property that has become so

closely associated with real property that it is legally regarded as
part of that real property.
• The item is attached to the real property in a permanent way.
• The item may be:
• Embedded in the land
• Permanently attached to the property
• Permanently attached to another fixture on the property by means of cement, plaster,
bolts, nails, or screws
• An item may even sit on the land without being attached, as long as the owner
intends it to be a fixture.
• Example: A statue
• Fixtures are included in the sale of land unless the sales contract
specifies otherwise.
• The issue of whether an item is a fixture (and thus real estate) or
not a fixture (and thus personal property) often arises with
respect to:
• Land sales
• Real property taxation
• Insurance coverage
• Divorces
• How the issue is resolved can have important consequences for the parties involved.
Typical Fixtures
• Some items can only be attached to property permanently.
• Examples: Tile floors, cabinets, recessed lighting
• Because such items are attached permanently, it is assumed that the owner intended them to be
fixtures.
• When an item of property is custom-made for installation on real property, the item usually is
classified as a fixture.
• Example: Storm windows
• An item that is firmly attached to the land and integral to its use may be deemed a fixture.
• Example: A complex irrigation system bolted to a cement slab on a farm
• The courts assume that owners, in making such installations, intend the objects to become part of
their real property.
The Role of Intent

• Generally, when the courts need to determine whether a certain
item is a fixture, they examine the intention of the party who
placed the object on the real property.
• When the intent of that party is in dispute, the courts usually will deem that
the item is a fixture if either or both of the following are true:
• The property attached cannot be removed without causing substantial damage to the
remaining realty.
• The property attached is so adapted to the rest of the realty as to have become a
part of it.
Trade Fixtures Are Personal Property

• Trade fixtures are an exception to the rule that fixtures are a part
of the real property to which they are attached.
• Trade fixture – The personal property of a commercial tenant that has
been installed or affixed to real property for a business purpose.
• Example: A walk-in cooler purchased and installed by a tenant who uses the
premises for a restaurant
• When the lease ends, the tenant can remove the fixture but must repair any damage
to the real property caused by the fixture’s removal.
26-2 Ownership and Other
Interests in Real Property
• Ownership of property is an abstract concept that cannot exist independently of the legal
system.
• One can only possess rights in real property; no one can actually possess, or hold, a piece of land,
the air above it, the earth below it, and all the water contained on it.
• Numerous rights are involved in real property ownership, which is why property ownership
is often viewed as a bundle of rights.
• One who possesses the entire bundle of rights is said to hold the property in fee simple, which is
the most complete form of ownership.
• When only some of the rights in the bundle are transferred to another person, the effect is to limit
the ownership rights of both the transferor of the rights and the recipient.
• Ownership interests in real property have traditionally been referred to as estates in land,
which include:
• Fee simple estates
• Life estates
• Leasehold estates
26-2a Ownership in Fee Simple
• Fee simple absolute – An ownership interest in land in which the owner has
the greatest possible aggregation of rights, privileges, and power.
• The owner can use, possess, or dispose of the property as he or she chooses during his
or her lifetime.
• However, a person who uses his or her property in a manner that unreasonably interferes with
others’ right to use or enjoy their own property can be liable for the tort of nuisance.
• On death, the interest in the property passes to the owner’s heirs.
• A fee simple absolute is potentially infinite in duration and is assigned forever
to a person and her or his heirs without limitation or condition.
• The owner has the rights of exclusive possession and use of the property.
26-2b Life Estates
• Life estate – An interest in land that exists only for the duration of the life of
a specified individual, usually the holder of the estate.
• A conveyance creates a life estate.
• Conveyance – The transfer of title to real property from one person to another by deed or
other document.
• The life tenant has the right to use the land, provided that he or she commits no waste.
• Waste – The use of real property in a manner that damages or destroys its value.
• Example: The tenant can use the land to extract minerals and oil from the land if mines and oil
wells are already on the land, but the life tenant cannot establish new wells or mines.
• With few exceptions, the life tenant has an exclusive right to possession during his or her
lifetime.
• The tenant also has duties to keep the property in repair and to pay property taxes.
• The life tenant’s ownership rights cease to exist on the life tenant’s death.
26-2c Concurrent Ownership (slide 1 of 6)
• Concurrent ownership – Joint ownership.

• There are four types of concurrent ownership:
1. Tenancy in common
2. Joint tenancy
3. Tenancy by the entirety
4. Community property
• Concurrent ownership rights held in a tenancy by the entirety or as
community property are less common than concurrent ownership rights
held in a tenancy in common or a joint tenancy.
Tenancy in Common
• Tenancy in common – Joint ownership of property in which each party
owns an undivided interest that passes to his or her heirs at death.
• The interest is undivided because each tenant shares rights in the whole property.
• Unless the co-tenants have agreed otherwise, a tenant in common can transfer her or
his interest in the property to another without the consent of the remaining co-owners.
• In most states, it is presumed that a co-tenancy is a tenancy in common unless there is
specific language indicating the intent to establish a joint tenancy.
Joint Tenancy
• Joint tenancy – Joint ownership of property by two or more co-
owners in which each co-owner owns an undivided portion of the
property.
• On the death of one of the joint tenants, his or her interest automatically
passes to the surviving joint tenant(s).
• The right of a surviving joint tenant to inherit a deceased joint tenant’s ownership
interest—referred to as a right of survivorship—distinguishes a joint tenancy from a
tenancy in common.
• A joint tenant can transfer her or his rights by sale or gift to another
without the consent of the other joint tenants.
• Doing so terminates the joint tenancy.
• The person who purchases the property or receives it as a gift becomes a tenant in
common, not a joint tenant.
• A joint tenant’s interest can be levied against (seized by court order) to
satisfy the tenant’s judgment creditors.
• If this occurs, the joint tenancy terminates, and the remaining owners hold the
property as tenants in common.
Tenancy by the Entirety

• Tenancy by the entirety – Joint ownership of property by a
married couple in which neither spouse can transfer his or her
interest in the property without the consent of the other.
• In some states in which statutes give the wife the right to convey her
property, this form of concurrent ownership has effectively been abolished.
• A tenancy by the entirety is terminated by:
• A divorce
• Either spouse’s death
• Mutual agreement
Community Property
• Community property – A form of concurrent property ownership
in which each spouse owns an undivided one-half interest in
property acquired during the marriage.
• This type of ownership generally does not apply to:
• Property acquired prior to the marriage
• Property acquired by gift or inheritance as separate property during the marriage
• After a divorce, community property is divided equally in some states and
according to the discretion of the court in other states.
26-2d Leasehold Estates (slide 1 of 4)
• Leasehold estate – An interest in real property that gives a tenant a
qualified right to possess and / or use the property for a limited time under a
lease.
• The tenant’s right to possession is temporary, which is what distinguishes a tenant from a
purchaser, who acquires title to the property.
• In every leasehold estate, the tenant has a qualified right to exclusive possession.
• It is qualified because the landlord has a right to enter onto the premises to ensure that no
waste is being committed.
• The tenant can use the land—for instance, by harvesting crops—but cannot injure it by
such activities as cutting down timber to sell or extracting oil.
Fixed-Term Tenancy
• Fixed-term tenancy – A type of tenancy under which property is leased for
a specified period of time, such as a month, a year, or a period of years; also
called a tenancy for years.
• The term need not be specified by date and can be conditioned on the occurrence of an
event.
• Example: Leasing a cabin for the summer
• At the end of the period specified in the lease, the lease ends (without notice), and
possession of the property returns to the lessor.
• If the tenant dies during the period of the lease, the lease interest passes to the tenant’s heirs
as personal property.
Periodic Tenancy
• Periodic tenancy – A lease interest in land for an indefinite
period involving payment of rent at fixed intervals, such as week
to week, month to month, or year to year.
• The tenancy is automatically renewed for another rental period unless
properly terminated.
• Under the common law, to terminate a periodic tenancy, the landlord or tenant must
give at least one period’s notice to the other party.
Tenancy at Will
• Tenancy at will – A type of tenancy that either the landlord or the tenant can terminate
without notice.
• This type of tenancy can arise if a landlord rents property to a tenant “for as long as both agree” or
allows a person to live on the premises without paying rent.
• Tenancy at will is rare today because most state statutes require a landlord to provide some period
of notice to terminate a tenancy.
Tenancy at Sufferance
• Tenancy at sufferance – A tenancy that arises when a tenant wrongfully continues to
occupy leased property after the lease has terminated.
• Example: Whenever a fixed-term tenancy or a periodic tenancy ends and the tenant continues to
retain possession of the premises without the owner’s permission, a tenancy at sufferance is
created.
26-2e Nonpossessory Interests (slide 1 of 5)
• Nonpossessory interest – An interest that involves the right to

use land but not the right to possess it.
• Nonpossessory interests include:
• Easements
• Easement – A nonpossessory right, established by express or implied agreement, to
make limited use of another’s property without removing anything from the property.
• Profits
• Profit – In the context of real property, the right to enter onto another’s property and
remove something of value from that property.
• Licenses
• Easements and profits can be classified as either appurtenant or in gross.
Easement or Profit Appurtenant
• An easement (or profit) appurtenant arises when the owner of one piece of land has a right
to go onto (or remove something from) an adjacent piece of land owned by another.
• The land that is benefited by the easement (or profit) is called the dominant estate.
• The land that is burdened by the easement (or profit) is called the servient estate.
• Because easements (or profits) appurtenant are intended to benefit the land, they run (are
conveyed) with the land when it is transferred.
Easement or Profit in Gross

• In an easement (or profit) in gross, the right to use or take things from another’s land is
given to one who does not own an adjacent tract of land.
• These easements are intended to benefit a particular person or business, not a particular piece of
land, and cannot be transferred.
Creation of an Easement or Profit
• Most easements and profits are created by an express grant in a contract,
deed, or will.
• This allows the parties to include terms defining the extent and length of time of use.
• In some situations, an easement or profit can be created without an express
agreement.
• An easement or profit may be created by implication, necessity, or prescription.
• Implication – A way of creating an easement or profit in real property when it is reasonable to
imply its existence from the circumstances surrounding the division of the property.
• Necessity – A way of creating an easement when one party must have the easement in order
to have access to his or her property.
• Prescription – A way of creating an easement or profit in real property by openly using the
property, without the owner’s consent, for the required period of time (similar to adverse
possession).
Termination of an Easement or Profit

• An easement or profit can be terminated or extinguished by:
• Deeding it back to the owner of the land that is burdened by it
• Abandoning it and providing evidence of the intent to relinquish the right to
use it
• Mere nonuse will not extinguish an easement or profit unless the nonuse is
accompanied by an overt act showing the intent to abandon.
• Example: Installing and using a different access road to one’s property and discontinuing
using an easement across the neighboring property
• A court must be convinced that there was an intent to abandon the easement or profit.
License
• License – A revocable right or privilege of a person to come on another
person’s land.
• It arises from the consent of the owner of the land and can be revoked by the owner.
• Example: A ticket to attend a concert
• In essence, a license grants a person the authority to enter the land of another and
perform a specified act or series of acts without obtaining any permanent interest in the
land.
• When a person with a license exceeds the authority granted and undertakes some action on
the property that is not permitted, the property owner can sue that person for the tort of
trespass.
Exhibit 26-1 Interests in Real Property
Type of Interest Description
Ownership Interests 1. Fee simple—The most complete form of ownership.
2. Life estate—An estate that lasts for the life of a specified individual.
3. Concurrent ownership—When two or more persons hold title to
property together, concurrent ownership exists. Examples of
concurrent ownership include:
a. Tenancy in common
b. Joint tenancy
c. Tenancy by the entirety
d. Community property
Leasehold Estates 1. Fixed-term tenancy (tenancy for years)
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance
Nonpossessory Interests 1. Easements
2. Profits
3. Licenses
26-3 Transfer of Ownership
• Real property ownership can be transferred by:

• Sale
• The terms of the transfer are specified in a real estate sales contract.
• When real property is sold, the type of interest being transferred and the conditions
of the transfer normally are set forth in a deed executed by the person who is
conveying the property.
• Gift
• Will or inheritance
• Adverse possession
• Eminent domain
26-3a Real Estate Sales Contracts (slide 1 of 6)
• In some ways, a sale of real estate is similar to a sale of goods

because it involves a transfer of ownership, often with specific
warranties.
• A sale of real estate, however, is a more complicated transaction that
involves certain formalities that are not required in a sale of goods.
• In part because of these complications, real estate brokers or agents who are
licensed by the state assist the buyers and sellers during the sales transaction.
• Usually, after some negotiation (offers, counteroffers, and responses), the
parties enter into a detailed contract setting forth their agreement.
• A contract for a sale of land includes such terms as:
• The purchase price
• The type of deed the buyer will receive
• The condition of the premises
• Any items that will be included
• A real estate sales contract is often contingent on the buyer’s ability to obtain financing
through a mortgage loan at or below a specified rate of interest (unless the buyer pays
cash for the property).
• A real estate sales contract may also be contingent on certain events, such as the
completion of a land survey or the property’s passing one or more inspections.
Closing Date and Escrow
• The contract usually fixes a date for performance, or closing, that frequently
is four to twelve weeks after the contract is signed.
• Closing – The final step in the sale of real estate, in which ownership is transferred to
the buyer in exchange for payment of the purchase price.
• Deposits toward the purchase price normally are held in a special account,
called an escrow account, until all of the conditions of sale have been met.
• Escrow account – An account generally held in the name of the depositor and the
escrow agent.
• The funds in the account are paid to a third person on fulfillment of the escrow condition.
Marketable Title
• A grantor (seller) is obligated to transfer marketable title, or good
title, to the grantee (buyer).
• Marketable title – Title to real estate that is reasonably free from
encumbrances, defects in the chain of title, and other matters that affect
title, such as adverse possession.
• The most common way of ensuring title is through title insurance.
• Title insurance – Insurance commonly purchased by a purchaser of real property to
protect against loss in the event that the title to the property is not free from liens or
superior ownership claims.
• If the buyer signs a purchase contract and then discovers that the seller
does not have a marketable title, the buyer can withdraw from the contract.
Implied Warranties in the Sale of New Homes

• Most states imply a warranty of habitability in the sale of new
homes.
• Implied warranty of habitability – An implied promise by a seller of a
new house that the house is fit for human habitation.
• Essentially, the seller is warranting that:
• The house is in reasonable working order.
• The house is of reasonably sound construction.
• The seller can be liable if the home is defective.
• In some states, the warranty protects not only the first purchaser but any subsequent
purchaser as well.
Seller’s Duty to Disclose Hidden Defects

• In most jurisdictions, courts impose on sellers a duty to disclose
any known defect that materially affects the value of the property
and that the buyer could not reasonably discover.
• Failure to disclose such a defect gives the buyer a right to:
• Rescind the contract
• Sue for damages based on fraud or misrepresentation
• There is normally a limit to the time within which the buyer can bring a suit against the
seller based on the defect.
• Time limits run from either:
• The day of the sale
• The day that the buyer discovered (or should have discovered) the defect
26-3b Deeds (slide 1 of 6)
• Deed – A document by which title to real property is passed.

• Unlike a contract, a deed does not have to be supported by legally
sufficient consideration.
• To be valid, a deed must include the following:
1. The names of the grantor (the giver or seller) and the grantee (the donee or buyer)
2. Words evidencing the intent to convey
• Example: “I hereby bargain, sell, grant, or give.”
• No specific words are necessary.
• If the deed does not specify the type of estate being transferred, it presumptively transfers
the property in fee simple absolute.
3. A legally sufficient description of the land
• The description must include enough detail to distinguish the property being conveyed
from every other parcel of land.
• The property can be identified by reference to an official survey or recorded plat map,
or each boundary can be described by metes and bounds.
• Metes and bounds – A way of describing the boundary lines of land according to
the distance between two points, often using physical features of the local
geography.
• Example: A property description might say, “beginning at the southwesterly
intersection of Court and Main Streets, then West 40 feet to the fence, then
South 100 feet, then Northeast approximately 120 feet back to the beginning.”
4. The grantor’s (and frequently his or her spouse’s) signature
5. Delivery of the deed
• Different types of deeds provide different degrees of protection against
defects of title.
Warranty Deeds
• Warranty deed – A deed in which the grantor promises that she
or he has title to the property conveyed in the deed, that there are
no undisclosed encumbrances on the property, and that the
grantee will enjoy quiet possession of the property; provides the
greatest amount of protection for the grantee.
• Generally, the warranty deed makes the grantor liable for all defects of
title during the time that the property was held by the grantor and previous
titleholders.
Special Warranty Deed

• Special warranty deed – A deed that warrants only that the
grantor held good title during his or her ownership of the property
and does not warrant that there were no defects of title when the
property was held by previous owners.
• If the special warranty deed discloses all liens or other encumbrances,
the seller will not be liable to the buyer if a third person subsequently
interferes with the buyer’s ownership.
• If the third person’s claim arises out of, or is related to, some act of the seller,
however, the seller will be liable to the buyer for damages.
Quitclaim Deed
• Quitclaim deed – A deed that conveys only whatever interest the grantor
had in the property and therefore offers the least amount of protection
against defects of title.
• If the grantor had no interest, then the grantee receives no interest.
• Quitclaim deeds are often used when the seller, or grantor, is uncertain as to
the extent of his or her rights in the property.
• They may also be used to release a party’s interest in a particular parcel of
property, such as in divorce settlements or business dissolutions when the
grantors are dividing up their interests in real property.
Grant Deed
• Grant deed – A deed that simply states that property is being
conveyed from the grantor to another.
• Examples: “I grant the property to you” or “I convey, or bargain and sell,
the property to you.”
• Under statute, a grant deed may impliedly warrant that the grantor has at
least not conveyed the property’s title to someone else.
26-3c Recording Statutes
• Once the seller delivers the deed to the buyer (at closing), legal
title to the property is conveyed, and the buyer should promptly
record the deed with the state records office.
• Every state has a recording statute.
• Recording statute – A statute that allow deeds, mortgages, and other real property
transactions to be recorded so as to provide notice to future purchasers or creditors
of an existing claim on the property.
• By putting everyone on notice as to the true owner, recording a deed prevents the
previous owners from fraudulently conveying the land to other purchasers.
• Deeds generally are recorded in the county in which the property is located.
• Many state statutes require that the grantor sign the deed in the presence
of two witnesses before it can be recorded.
26-3d Adverse Possession (slide 1 of 4)
• A person who wrongfully possesses the real property of another

(by occupying or using the property) may eventually acquire title
to it through adverse possession.
• Adverse possession – The acquisition of title to real property through
open occupation, without the consent of the owner, for a period of time
specified by a state statute.
• The statutory period varies from three to thirty years, depending on the state, with
ten years being most common.
Requirements for Adverse Possession

• For property to be held adversely, four elements must be
satisfied:
1. Possession must be actual and exclusive.
• The possessor must physically occupy the property.
• This requirement is met if the possessor:
• Lives on the property
• Builds fences on the land
• Erects structures on the land
• Plants crops on the land
• Grazes animals on the land
2. Possession must be open, visible, and notorious, not secret or clandestine.
• This requirement ensures that the true owner is on notice that someone is
possessing the owner’s property wrongfully.
3. Possession must be continuous and peaceable for the required period of
time.
• This requirement means that the possessor must not be interrupted in the occupancy
by the true owner or by the courts.
• “Continuous” does not mean constant, but rather that the possessor has
continuously occupied the property in some fashion for the statutory time.
• “Peaceable” means that no force was used to possess the land.
4. Possession must be hostile and adverse.
• In other words, the possessor cannot be living on the property with the owner’s
permission and must claim the property as against the whole world.
Purpose of the Doctrine

• There are a number of public-policy reasons for the adverse
possession doctrine.
• These include society’s interest in:
• Resolving boundary disputes
• Determining title when title is in question
• Assuring that real property remains in the stream of commerce
• More fundamentally, the doctrine punishes owners who do not
take action when they see adverse possession and rewards
possessors for putting land to productive use.
26-4 Limitations on the
Rights of Property Owners
• The rights of every property owner are subject to certain
conditions and limitations.
• Nuisance and environmental laws restrict certain types of activities.
• Property ownership is conditional on the payment of property taxes.
• Zoning laws and building permits frequently restrict the use of realty.
• If a property owner fails to pay debts, the property may be seized to
satisfy judgment creditors.
26-4a Eminent Domain (slide 1 of 2)
• The government has an ultimate ownership right in all land in the

United States.
• This right is referred to as eminent domain.
• Eminent domain – The power of a government to take land from private citizens for
public use on the payment of just compensation.
• Just compensation means fair value.
• Eminent domain gives the government the right to acquire possession of real property in
the manner directed by:
• The takings clause of the U.S. Constitution
• The laws of the state whenever the public interest requires it
26-4a Eminent Domain (slide 2 of 2)
• The power of eminent domain generally is invoked through

condemnation proceedings.
• Condemnation – The judicial procedure by which the government
exercises its power of eminent domain.
• It generally involves two phases:
1. A taking
• Taking – The government’s taking of private property for public use through the
power of eminent domain.
• In this phase, the government must prove that it needs to acquire privately owned
property for a public use.
2. A determination of fair value
• In this phase, the court determines the fair value of the land, which usually is
approximately equal to its market value.
26-4b Inverse Condemnation
• Inverse condemnation – The taking of private property by the

government without payment of just compensation as required by
the U.S. Constitution.
• The owner must sue the government to recover just compensation.
• The taking may be either:
• Physical
• Example: When a government agency uses or occupies the land
• Constructive
• Example: When an agency regulation results in loss of property value
26-4c Restrictive Covenants
• Restrictive covenant – A private restriction on the use of land.

• If its benefit or obligation passes with the land’s ownership, it is said to
“run with the land.”
• A covenant running with the land must be in writing.
• Subsequent purchasers must have reason to know about it.
26-5 Land-Use Control and Zoning
• Zoning laws – Rules and regulations that collectively manage

the development and use of land.
• Zoning laws enable municipalities to control the speed and type of
development within their borders by creating different zones and
regulating the use of property allowed in each zone.
• The United States Supreme Court has held that zoning is a
constitutional exercise of a government’s police powers.
• As long as zoning ordinances are rationally related to the health, safety, or
welfare of the community, a municipal government has broad discretion to
carry out zoning as it sees fit.
26-5a Purpose and Scope of Zoning Laws
(slide 1 of 3)
• The purpose of zoning laws is to manage the land within a

community in a way that encourages sustainable and organized
development while controlling growth in a manner that serves the
interests of the community.
• One of the basic elements of zoning is the classification of land
by permissible use.
• Zoning extends to other aspects of land use as well.
(slide 2 of 3)
Permissible Uses of Land

• Municipalities generally divide their available land into districts
according to the land’s present and potential future uses.
• Typically, land is classified into the following types of permissible uses:
1. Residential use – Use of land for construction of buildings for human habitation only.
2. Commercial use – Use of land for business activities only; sometimes called
business use.
3. Industrial use – Land use for light or heavy manufacturing, shipping, or heavy
transportation.
4. Conservation districts
• These are areas dedicated to carrying out local soil and water conservation efforts.
• Example: Wetlands
(slide 3 of 3)
Other Zoning Restrictions

• Zoning rules extend to much more than the permissible use of land.
• Example: In residential districts, an ordinance may require a house or garage to be set
back a specific number of feet from a neighbor’s property line.
• Example: In commercial districts, businesses may be required to construct buildings of a
certain height and width so that they conform to the style of other commercial buildings in
the area; businesses may be required to provide parking for patrons or take other
measures to manage traffic.
• Zoning laws may attempt to regulate the public morals of the community.
• Example: Cities commonly impose several restrictions on the location and operation of
adult businesses and medical (or recreational) marijuana dispensaries.
26-5b Exceptions to Zoning Laws (slide 1 of 2)
Variances
• A property owner who wants to use his or her land in a manner not permitted by zoning rules
can request a variance.
• Variance – An exception from zoning rules granted to a property owner by local zoning authorities.
• The property owner making the request must demonstrate that the requested variance:
1. Is necessary for reasonable development
2. Is the least intrusive solution to the problem
3. Will not alter the essential character of the neighborhood
• Property owners normally request variances in hardship situations—that is, when complying with the
zoning rules would be too difficult or costly due to existing property conditions.
• In almost all instances, before a variance is granted, there must be a public hearing with adequate
notice to neighbors who may object to the exception.
• After the public hearing, a hearing examiner appointed by the municipality (or the local zoning
board or commission) determines whether to grant the exception.
• When a variance is granted, it applies only to the specific parcel of land for which it was
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zone.
26-5b Exceptions to Zoning Laws (slide 2 of 2)
Special-Use Permits
• Sometimes, zoning laws permit a certain use only if the property owner complies with
specific requirements to ensure that the proposed use does not harm the immediate
neighborhood.
• In such instances, the zoning board can issue special-use permits.
• Special-use permit – A permit granted by local zoning authorities that allows for a specific
exemption to zoning regulations for a particular piece of land.
Special Incentives
• In addition to granting exceptions to zoning regulations, municipalities may also offer
incentives to encourage certain kinds of development.
• Example: To attract new businesses that will provide jobs and increase the tax base, a city may
offer lower property tax rates for a period of years.
Appendix
Note to Instructor:
The following activities are also included at the end of each chapter.
We have provided them here to aid with in-class facilitation.
Practice and Review:
Real Property and Land-Use Control (slide 1 of 2)
• Vern Shoepke purchased a two-story home from Walter and Eliza Bruster in the town of
Roche, Maine.
• The warranty deed did not specify what covenants would be included in the conveyance.
• The property was adjacent to a public park that included a popular Frisbee golf course.
(Frisbee golf is a sport similar to golf but using Frisbees.)
• Wayakichi Creek ran along the north end of the park and along Shoepke’s property.
• The deed allowed Roche citizens the right to walk across a five-foot-wide section of the lot
beside Wayakichi Creek as part of a two-mile public trail system.
• Teenagers regularly threw Frisbee golf discs from the walking path behind Shoepke’s
property over his yard to the adjacent park.
• Shoepke habitually shouted and cursed at the teenagers, demanding that they not throw
objects over his yard.
Practice and Review:
Real Property and Land-Use Control (slide 2 of 2)
• Two months after moving into his Roche home, Shoepke leased the second floor to Lauren
Slater for nine months.
• After three months of tenancy, Slater sublet the second floor to a local artist, Javier
Indalecio. (The lease agreement did not specify that Shoepke’s consent would be required
to sublease the second floor.)
• Over the remaining six months, Indalecio’s use of oil paints damaged the carpeting in
Shoepke’s home.
Using the information presented in the chapter,

answer the following questions.
Practice and Review: Questions (slide 1 of 4)
1. What is the term for the right of Roche citizens to walk across
Shoepke’s land on the trail?
2. What covenants would most courts infer were included in the

warranty deed that was used in the property transfer from the
Brusters to Shoepke?
3. Suppose that Shoepke wants to file a trespass lawsuit against

some teenagers who continually throw Frisbees over his land.
Shoepke discovers, however, that when the city put in the
Frisbee golf course, the neighborhood homeowners signed an
agreement that limited their right to complain about errant
Frisbees. What is this type of promise or agreement called in
real property law?
4. Can Shoepke hold Slater financially responsible for the damage

to the carpeting caused by Indalecio? Why or why not?
Debate This…
Under no circumstances should a local government be able to

condemn property in order to sell it later to real estate developers
for private use.

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Chapter 26

Real Property and

• Real property (or realty):

• Plant life, both natural and cultivated, is considered to be real

• Fixture – An item of personal property that has become so

The Role of Intent

Trade Fixtures Are Personal Property

• Concurrent ownership – Joint ownership.

Tenancy by the Entirety

• Nonpossessory interest – An interest that involves the right to

Easement or Profit in Gross

Termination of an Easement or Profit

• Real property ownership can be transferred by:

• In some ways, a sale of real estate is similar to a sale of goods

Implied Warranties in the Sale of New Homes

Seller’s Duty to Disclose Hidden Defects

• Deed – A document by which title to real property is passed.

Special Warranty Deed

• A person who wrongfully possesses the real property of another

Requirements for Adverse Possession

Purpose of the Doctrine

• The government has an ultimate ownership right in all land in the

• The power of eminent domain generally is invoked through

• Inverse condemnation – The taking of private property by the

• Restrictive covenant – A private restriction on the use of land.

• Zoning laws – Rules and regulations that collectively manage

• The purpose of zoning laws is to manage the land within a

Permissible Uses of Land

Other Zoning Restrictions

Using the information presented in the chapter,

2. What covenants would most courts infer were included in the

3. Suppose that Shoepke wants to file a trespass lawsuit against

4. Can Shoepke hold Slater financially responsible for the damage

Under no circumstances should a local government be able to

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