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