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Finders – Possession
Creation (2): Characteristics: Details:
Possession: 1. Lost Finder has better claim than
anyone other than a true owner or
2. Mislaid prior possessor
- Discovery 3. Abandoned (requires Custom
intent of TO) De Facto Possession
AND 4. Agency Type of industry
Public v. Private = English
5. Treasure Trove
- Control 6. Voidable Title (UCC) Trover, Detinue, Replevin,
Conversion
Rules:
- Finder does not have absolute title to the found property, better claim than subsequent possessors
- Good faith finder of lost objects on land under lease will prevail in finding of a chattel over landowner
- (1) Lost or mislaid, (2) landowner or trespasser or invitee
- (a) lost = finder has better claim
- (b) mislaid = landowner, created to give landowner a cause of action (bailment – constructive possession)
- (c) abandoned = finder always win
- (d) treasure trove = finder always wins; shipwreck = finder wins, but landowner has claim over
- Jus Tertii Rule – TP proves that finder does not have claim to deny finder
- Trespasser, Honesty, Luck, TO’s interest. Generally, protect TO then to finder.
- Most states have legislation to deal with these types of issues
Personal Property:
Animals
Creation (2): Characteristics: Details:
1) Kill Wild Animals (Ferae Careful of a “branded” or
Naturae): known animal
2) Capture - Not possessed, no prior
possessors Look for mark of
3) Mortally Wound + ownership to
Reasonable Pros. Domestic Animals (Animus determine whether
Capture Revertendi) wild or domestic and
- Owned argue policy
4) Pursuit + R P Capture
(Livingston rule)
Rules:
• Mere Pusuit = not enough
• Ratione Soli = landowner has constructive possession of wild animals on land ,
• Policy – if domesticated
Title Theory
• Title forever, TO always wins
Rules:
• Color of Title
• No adverse possession against the government
• Once statute passes, adverse possessor has better claim to title than TO
• Maine Rule – intent must be known, hostile; MISTAKE is not acceptable
• CT Rule -
Estates in Land:
Fee Simple Absolute (FSA)
Creation (2): Characteristics: Future Interest:
1. To A, OR 1. Absolute ownership of 1. NO future interest
2. To A, and his heirs potentially infinite
duration
*Heirs no longer needed 2. Devisable
3. Descendible
4. Alienable
Historically
• Would pass through blood
relationship
• Purpose was to maintain
family dynasties
Estates in Land:
Life Estate
Types: Issues: Future Interest
Pur Autre Vi • No future interest
• To A, for life… • Measured by the life
of another – happens
after a life estate has
• Must be measured in been conveyed
Notes:
Defeasible Fees:
Generally
General Elements of Construction:
1. Words of mere desire or hope or intention are insufficient to create a
defeasible fee
• Cts disfavor restrictions on land
• Will avoid finding a defeasible fee
• “For the purpose…” or “With expectation…” = not enough
“Subject to Open” (TP) -interest may extend to others Typically with children
2) Identify the Conditions Precedent to the vesting of a suspect, future interest. What has to happen before future interest holder can
take?
4) Outcome-Determinative – will we know with certainty within 21 years of the death of measuring life if future interest holder can or
cannot take?
• If yes – conveyance is good
• If no – future interest is void
• Many executory interests with no limit within which it must vest will violate the rule against perpetuities – does not violate when
the grant is to O and his heirs
Future Interests
In Tranferees/Grantees
Future Interest Types NOTES
Certain to acquire in future w/ no
Indefeasible Vested Remainder conditions attached
Remainderman exists but not subject to any
Vested Subject to Complete condition precedent or prerequisite
Divestment Condition Subsequent – set alone by
Vested Remainder commas creates the VR in 1st place
Vested in a group of takers – at least one of
Vested Subject to Open (rule of whom is qualified to take possession;
subject to partial diminution b/c additional
convenience) takers not yet ascertained can still qualify as
class members (class = open or closed)
Rule Against Perpetuities – certain types of limitations on future interests are void if there is any possibility, however
remote, that the given interest may vest more than 21 years after the death of a measuring life
Future Interests
Restraints on Conveyance
Notes:
• Avoidance of probate
• Presumption is for TIC over any other; law tends to disfavor creation of a joint tenancy
• Right to the whole
• Complete Possession; Exclusive Possession; Rent from 3rd; Adverse Poss; Carrying Costs; Repairs; Improvements; Partition
Joint Tenancy:
Leaseholds & LL/Tenant & Bank Accounts
Leasehold Types: Bank Accounts
Notes:
Joint Tenancy:
Ouster (CCCDD)
5 Types of Ouster: Issues:
• High Threshold (majority)
1. Common Law • OT demand,
• Show prevention of possession by the In- • IT refusal
• Required OT action,
Tenant • THEN COA arises
4. De Facto
• Property only possessed by 1, impossible for
dual possession
5. Divorce (Presumptive)
• Not triggering violence
Notes:
• Issues arise with a lease – lease is valid, so must determine how to split
Law of Servitudes:
Easements
Type of Easement: Issues: Termination:
• Transferability • Terms
• Commercial easements in gross • Impossibility
Easement Appurtenant (in are treated as appurtenant
writing = express) • Merger
• Eminent Domain
• Divisible/Apportionment
• Surcharge • Release
Easement in Gross • Abandon
• Illegal Use
• Overuse • Purpose
Affirmative/Negative • Diminution in Value • Prescription
• Reasonability • Estoppel
• Terms •
Expressed/Implied Recording Statute
• Passes authomatically
• Title Insurance
Duration – theoretically
forever but governed by
Does not require
the doctrine of
Reasonable Use standard will exclusivity
reasonability
govern
May end when no longer
Location – place of use at
necessary Scope – fixed at creation,
Same rights as easement and creation
balance of interests
may last as long
Scope – must be continuous
Can be lost by adverse use
by the true owner
Law of Servitudes:
Real Covenants & Equitable Servitudes
Creation Elements: Types: Termination (RESTMJx3):
1. Written or Implied • Affirmative 1. Release
1. (law) + SOF
• Negative (Restrictive)
2. Written & Implied (equity) 2. Merger
2. Privity – horizontal / vertical
3. Intent to Bind Successors • Damages 3. Terms
4. Touch & Concern • Cov = $ damage
5. Running with the Land • ES = injunction 4. Statute
Touch & Concern => (a) affect use/enjoyment/occ. of land; (b) meet expectation of parties; (c) will
not unreasonably interfere with use/marketability/alienability; (d) pub policy considerations
Law of Servitudes:
Implied Reciprocal Negative Easement
Creation Elements: Termination:
1. Inquiry Notice – in other deeds
• Look at neighborhood Change of Neighborhood
• All properties are benefited by the covenant
• Apparent by inspection Change of Law
• SPLIT => JX 1 – notice for other common deeds in neighborhood,
JX 2 – record notice on prior deeds need not be satisfied
3. Continuous
• While it should be written, and some courts do not accept, other courts will try to maintain neighborhood integrity and imply these
unwritten covenants
• Not written but obvious at the end after the houses are built
• NOT by implication or prescription
• Only property law if it involves
Eminent Domain:
Takings & Constitutional Issues
Creation Elements: Issues:: Determining Legitimacy:
SLPT-C
1. Finding a state, enabling • 5th Amendment = • Illegitimate:
statute Takings Clause • To a private entity
• No plan
2. Action must be legitimate
• Due Process Test – • “Private Use”
3. For a public purpose, and substantially advances a
legitimate government • Good Taking:
4. The means of the taking are interest (standard of • Transfer to public entity
not irrational, then review is deference to • To private w/ “general plan”
the legislature) • “Blighted Area”/”Public
5. Acceptable so long as just Need”
compensation
• Equal Protection • Local politics included in
Clause considerations decision
• Deference/Rational Basis
Transferring Real Property:
Conveyance Process
Takings Elements: Issues:: Remedies:
1. Search Period – viewing and • Listings: • Buyers’ Remedy:
offering • Closed • Specific Performance (with
financial abatement)
• Open
• Rescission, Restitution, Damages
2. Contract of Sale • Net Listing
Period/Executory Period • Sellers’ Remedy:
a. Offer • Real Estate Agent Duty: • Specific performance
b. Acceptance • Fiduciary • Damages – liquated typically
c. Financing • Good Faith (presume)
d. Good Title • Disclosure
• MARKETABLE TITLE:
e. Inspection • Seller promises to include
f. K = disclosure, warranties, • Statute of Frauds: title free from reasonable
review, • Written deed doubt of lawsuits or threat
• Signed by party to be of litigation
3. Property Law – Closing charged
• Adverse Possession –
1. Law – title in seller • Description
• JX 1 – must have good record
2. Equity – title in buyer, • Price • JX 2 – ad. poss. allowed
legal title trans at • Material Terms • Encumbrances
• JX 1 – yes • Must be unencumbered unless
closing • JX 2 – not needed waived by buyer
3. Recording • Zoning Violations
• Unmarketable if in violation
Warranties in Land Contract – (1) marketable title & (2) no false statements of material
fact or omissions – depending on the weight of the JX
Transferring Real Property:
Mortgages
Type of Mortgages: Remedies:
1. Power of Sale Mortgage
• Creditor has much leeway – must act in good faith: (a) Damages – limited to recovery of
post notice; (b) available buyers; (c) due diligence the purchase price (often not
great)
2. Land Purchase Contract
• Seller keeps the title, and does not transfer until
installment payments are complete
• Create – EQUITABLE TITLE – require foresclosure
Issues:
• Mineral Estates v. Surface Estates
• Actual eviction –
• Statute of Limitations on Claims
Transferring Real Property:
Deeds
Type of Deeds: Issues: Remedies:
1. Quit Claim • Good Title • Buyers’ Remedy:
• Marketability • Specific Performance (with
• no deed covenants included financial abatement)
• Rescission, Restitution, Damages
• Title Insurance
2. Special Assurance • Lender Policy • Sellers’ Remedy:
• Special promises, grantor • Owner Policy • Specific performance
• Duty of Insurance • Damages – liquated typically
makes promise on behalf of
Company - inform (presume)
self that not conveyed to
anyone else & free from • Title Insurance v. DC Doctrine of Part
encumbrances • Exceptions Performance:
• On record defects (a)Possession of land
3. General Warranty Deed • Off record defects (b)Remit all or part of purchase
• Warrants against all defects • Running w/ land price
• Indemnify (c)Substantial improvement on the
in title, including grantor’s
predecessors premises
4. Issues:
• Silence does NOT create condition, UNLESS latent, material defect
• Importance of INTENT – objective test v. subjective test
• Seller cannot engage in active concealment
• Real Estate Agent
• JX 1 – has a duty to disclose known or should know latent material
defects
• JX 2 – puts obligation on the agent to disclose
Transferring Real Property:
Deed Covenants
Type of Deed Covenants: Remedies:
1. Present Covenants (broken at closing)
Damages – limited to recovery of
1. Seisin – promise that grantor owns estate the purchase price (often not
2. Right to Convey – power to convey (not JT, infant) great)
3. Encumbrances – marketability (no unknown
encumbrances) Encumbrances (if unkown)
Restrictive Covenants – yes, yes
2. Future Covenants (until affect) Zoning Ordinances - no
Recorded Easements – yes, yes
1. Warranty in Title – defend against future TP claims Visible Telephone Lines (Split)
2. Quiet Enjoyment – some TP claim against title Buried Telephone (unseen encum)
causes loss of enjoyment – constructive eviction (actual Historic Homes – no, no
eviction required for COA to arise, must be paramount Wetlands Regulations – no,V yes
– not TIC claim) Subdivision Regs – no,V no
3. Future Assurances – type of warranty/discrete Housing Code – no,V no
Issues:
• Mineral Estates v. Surface Estates
• Statute of Limitations on Claims
• “Paramount Claim” – claim better than present possessor’s claim
Transferring Real Property:
Duty to Disclose
Disclosure Policies: Issues: Other Issues:
Caveat Emptor
• No duty to disclose Subjective v. objective test to Real Estate Agent
• No fraudulent misrepresentations or active concealment Issues:
• Unless in fiduciary relationship
Silence may not create a (a) Duty to Disclose a
Stambovzky condition, instead must relationship with
• Condition created by the seller that (a) materially look to the seller’s intent another party in the
affects the value that is unknown OR not easily sale
detected by the buyer (objective test); then duty Patent defects burden goes to (b) Serves as a
to disclose to buyer and may be grounds for the buyer fiduciary
recission
• Actions of seller are critical to determining notice New Jersey – statute
Latent defect to the seller where the agent must
Johnson certify the waste near a
• Affirmative duty to disclose
Issue occurs when the property
• Latent defect that seller knows OR should know: unknown thing
impairs value or unknown, duty to disclose by INCREASES the value of
seller the house
Lempke
• Subsequent purchasers may sue against builder, warranty
Transferring Real Property:
Recording System
Record Systems: Recording JXs: Other Issues:
1. Recording Race JX
• First in time, first in right Title Search –
Statutes Grantor/Grantee
• First to record
Indexing System
2. Title Insurance Notice JX
• Whether subsequent purchaser has Actual Notice
System
notice of paramount title – if yes,
then loses, if no then prevails Record/Constructive
3. Torrens System • 2 Test Dates: Notice
• At time of conveyance
• At time of recording Inquiry Notice