User:CheshireKatz/Property
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I have my Property Law Outline subpage here.
Based upon:
- Property Law: Ownership, Use, & Conservation by Goldstein & Thompson (Foundation Press 2006)
[edit] History of U.S. Property Claims
| Land Acquisitions of Virginia from discovery | |
|---|---|
| 1498 | Henry Cabot “discovers” & claims North America for the British crown |
| 1500s+ | Britain declares it unlawful to purchase land directly from the Natives |
| 1624-1763 | France claims overlapping areas, conflict ensues |
| 1763 | Treaty of Paris settled, all land east of the Mississippi is Virginian & British |
| 1775 | Viviat (along with Johnson, et. al) purchases Virginia land from the Piankeshaw natives |
| 1776 | Virginia declares independence from Britain |
| 1779 | Virginia statute declares any land purchase from the natives unlawful |
| 1784 | Virginia cedes control of the land to the United States |
| 1781-1816 | Viviat repeatedly fails to get congressional acknowledgment of land purchase |
| 1818 | US conveys an apportionment of that land to M’Intosh |
| 1819 | Johnson dies leaving the land to his sons, who then enter litigation with M’Intosh |
Johnson v. McIntosh, F: Sons file an action of quiet title seeking to affirm their exclusive claim to the property H: Land purchases made by individuals were illegal. The Treaty of Paris granted ultimate title of those lands to Virginia, not the Piankeshaw. Therefore, Viviat & Johnson’s “purchase” was illusory. The property was acquired & redistributed by the US. The US lays claim to all Native American land, unless a treaty for that land exists.
Yosemite Valley Case F: Individual booted off land, as his presence was distinguished from homesteading, b/c land was reserved for public use.
Illinois Central Railroad Case Navigable Waters – Equal Footing Doctrine
[edit] Trespassing
Quare Clausum Fregit (wherefore he broke the close)
Extents of Ownership: Cuius est solum eius est usque ad coelum et ad inferos Translation: For whomsoever owns the soil, it is theirs up to the sky and down to the depths
Jacque v. Steenberg Homes, Inc., F: Intentional Trespassing Damages:
- Nominal $30
- Compensatory $0
- Punitive $100000
Can you get Punitive Damages without getting compensatory damages? Historically the common law said no. What about if you get nominal damages ($30 fine)? Court says yes, you can get punitive damages, if you are awarded nominal damages. How much would be excessive? ($100000 would not be excessive.) Want to protect personal dignity, autonomy, etc.
Maguire v. Yanke, 590 P.2d 85 Hailey, Idaho Fence-in: Liability to cattle owner Fence-out: Liability to neighbour
Externality – Landowner A’s acts on his land effect Landowner B, unbeknownst to Landowner A.
Peters v. Archambault, 278 N.E.2d 729 (1972) Archambault built a home extending over on to their neighbours property. Their neighbour never acknowledged this & then sold the property to the Peters.
Somerville v. Jacobs, 170 S.E.2d 805 Estoppel Laches
[edit] Condemnation
- Eminent Domain Cases
- Berman v. Parker,
- Hawaii Housing Authority v. Midkiff,
- Ruckelshaus v. Monsanto Co.,
- Wayne County v Hatchcock, 471 Mich. 445 (2004) - Ryan’s Poletown Dissent
- Kelo v. City of New London, – Private --> Private
Public purpose interpreted as a public use.
Just Compensation
United States v. 564.54 Acres of Land, H: Government seizes campgrounds for a public recreational project
L.A. County M.T.A. v. Continental Dev. Corp., 941 P.2d 809 (1997) H: MTA wants to put in light rail. Seizes a portion of Continental’s property, forcing Continental to redesign their structure, removing the portion where the light rail will be. Continental demands “special damages” for loss of view, but this is common to everyone in the vicinity, so not special. Continental is compensated for noise, due to the unusual proximity of the remaining building to the light rail.
[edit] Water rights
- Landowners adjacent to a body of water have the right to make reasonable use of it.
- If water supply is limited, usage rights are proportional to landowner's waterfront.
- Water rights can only be converted by waterfront landowners and not outside of the watershed.
- Priority of beneficial use (first in time, first in right)
Erickson v. Queen Valley Ranch Co., 22 Cal.App.3d 578 (1971) F:
National Audubon Society v. Superior Court, 658 P.2d 709 (1983) F: The Los Angeles Department of Water and Power (DWP) took almost the entire flow from the tributaries feeding Mono Lake. Lake levels dropped, surface area reduced by a third, & gull rookery islands became peninsulas exposed to coyotes. Plaintiffs sued to enjoin the DWP diversions, since Mono Lake is protected by the public trust. The doctrine conflicts with the municipal demands of appropriators. This case brings two systems of legal thought together: the trust doctrine and the appropriative rights system. Public trust doctrine protects navigable water from harm caused by diversion of nonnavigable tributaries. State must consider possible harms to the public trust when allocating water. Also, the amount of water diverted can be changed after a right has been issued.
The public trust is an affirmation of the state’s duty to protect streams, lakes, marshlands, and tidelands for the public good. This prevents appropriating water in a manner harmful to the trust’s interests. Since the state’s population and economy depend on large amounts of water, it’s not feasible to declare these diversions to be against the trust. So the state may have to approve some appropriations despite possible harm. However, the state can still try and preserve the uses protected by the trust.
[edit] Non-Land
[edit] History
Pierson v. Post, 3 Cai R. 175 (1805) F: Dead fox case, Hunter pursues fox chasing him into a burrow, another hunter slugs the animal over the head and seizes him for himself. Who owns the fox? The pursuer or the killer?
Ghen v. Rich, 8 Fed. 159 (1881) F: Dead whale case, Whale washes up on shore 17 mi. from Cape Cod. No way to be sure who killed it. Finback’s sink after being killed and it takes time for them to return to the surface. It is unreasonable to expect the whaler to wait for the whale to return to the surface.
Popov v. Hayashi, 2002 WL 31833731 F: :Barry Bonds homerun ball, hits Popov’s glove, crowd knocks Popov over and Hayashi recovers it. Court says sell the ball and split the value.
(Personal project: Deference to League)
Tragedy of the Commons - Overconsumption of common grass by cows, leads to economic decline
[edit] Rule of Capture
Elliff v. Texon Drilling Co.,
Hammonds v. Central Kentucky Natural Gas Co.,
Trespass: depositing "wild" property onto another's land to be stored
usque ad infernos - To the roof of Hell
Ring owner loses ring Chimney Sweep finds ring and brings it for appraisal to jeweler's apprentice Jeweler's apprentice steals ring from Chimney Sweep
Benjamin v. Lindner Aviation, Inc., F: Finds money tucked into airplane wing
4 kinds of found goods:
- Lost - Unintentionally dropped property
- Abandoned - Intentionally discarded property with no intention to reclaim it (Goods go to the finder)
- Mislaid - Intentionally laid down property with intention to reclaim it (Goods go to the property owner)
- Treasure Trove - Money, Gold, or Silver in the ground so long, the owner is certainly dead.
Additional questions of ownership: Land owner v. Finder and Employee/Employer
Finder's rights: 1)Reward; 2) Ownership after time period
[edit] Intellectual property rights
[edit] Patents
Protects ideas & inventions
[edit] Copyrights
Protects expressions & likenesses
Haelan Laboratories v. Topps Chewing Gum,
White v. Samsung Electronics America, Inc.,
[edit] Trademarks
Protects manufacturer's identity
[edit] Quasi Intellectual Property Rights
International News Service v. Associated Press, F: INS is a
[edit] Cyberspace
Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003)
[edit] Land Transactions
[edit] The Process
Livery of seisin (archaic)
Recording system - Security for Title
Transactions Pre-Internet with Broker
Searching K of Sale Executory Period (60-90 days) Closing
<------------------|-----------------------------------------------|--------------------------->
Buyer/Broker | * Price * Condition of Premise | * Deed Transfer
Seller/Broker | * Down Payment 10% * Title Investigation | * Settlement
| * Financing | * Purchase Price to Seller
| | * Note
| | * Morgage - Property Interest (Lien)
| | * Title Insurance
| | * Optional: Record with county
Illegal activities by brokers:
- Giving legal advice
- Blockbusting
- Steering
Broker contracts vary in terms:
- Exclusive K: Requires the buyer to pay broker commission, even if the buyer is not found by the broker
- Exclusive agency K: Requires the buyer to pay broker commission, even if another broker finds the buyer
- Open K: No obligation to broker unless the buyer is found by the broker
[edit] Statute of Frauds
Purposes of Statute of Frauds:
- Prevent fraud
- Encourage consideration by parties about the terms of the deal
- Provide a moment of fear or caution before signing to reduce chance of buyer’s (or seller’s) remorse
Baliles v. Cities Service Co., 578 S.W.2d 621 (Tenn. 1979) F: Newman buys lots 99 & 100 from CSC; gets $5k loan & starts building on lot 100, then runs out of money. Newman released lot 99 back to CSC & then asks for deed to lot 100; CSC refuses; Newman sells his interest in lots 99 & 100 to Baliles for $6,500; Cities says the Κ fails to satisfy the SoF. H: Court agrees with Cities that the Κ is not specific enough about property to be sold (doesn’t unambiguously describe property, doesn’t mention county or state) However, Baliles (& Newman) partially performed through payment & construction on the property. Additionally, Cities assisted Newman in acquiring a loan from the bank encouraging his reliance on their Κ and under Equitable Estoppel it would be unjust to not compensate him for that reliance.
Partial performance can be used to satisfy the SoF, where a Κ otherwise would not satisfy it. Part performance may be demonstrated by 1) Payment, 2) Possession, or 3) Improvements/Construction
Hickey v. Green, 442 N.E.2d 37 (Mass. 1982) F: Hickey offered to buy Lot S listed by Green and the two Κed orally. Hickey gave a $500 check (with a blank payee line) as consideration. Hickey told Green they planned to build & live on the property. Hickey listed home for sale and Κs to sell to another party. Later, Green tells Hickey she's selling to someone else; a higher price was offered and denied. H: Specific performance affirmed under equitable estoppel, with requiring conveyance of Lot S by Green only upon payment to her in cash within a stated period of the balance of the agreed price of $15K.
Bushmiller v. Schiller, 368 A.2d 1044 (Md. 1977) F: Schiller enters K with Bushmiller to buy house with condition she can acquire financing. Schiller gives consideration of $13,000. Schiller gets a balloon loan, but is discouraged from it by son. Schiller Failed to make a good faith effort to satisfy the condition precedent of obtaining financing, seller was entitled to damages for the breach
[edit] Quality of Title
Varieties of titles
- Marketable title: lacking sufficient title defects such as encumbrances, liens, mortgages, questionable chain of title, or other risk of litigation over the property, that would make it unmarketable.
- Chain of title issues (usually fixable): Misspellings, Deed errors, Unsettled claims of Adverse Possession, Foreclosure, etc.
- Security interests: Liens, Mortgages, etc.
- Possessory interests: Long-term leasers residing on the property
- Non-posseory interests: A condition on the property, such as a restrictive covenant or encumbrance restricting certain buildings from being developed on the property.
- Insurable title: an insurance company will guarantee the property.
- Record title: a county deed of records provides detailing chain of title including recorded mortgages, liens, etc.
Conklin v. Davi, 388 A.2d 598 (NJ 1978) F: Buyers want to back out because it is revealed that the property was acquired by adverse possession and seller's failed to reveal that fact. Buyers claim that this makes the title unmarketable.
To rescind over a delay in closing, a condition must be included in the contract specifying that time is of the essence.
Centex Homes Corp. v. Boag, 320 A.2d 194 (NJ 1974) F: Boag was purchasing an apartment in Centex's development. Boag's employment suddenly moved to Chicago.
Kuhn v. Spatial Design, Inc., 585 A.2d 967 (NJ 1991) F: Kuhn Ks to buy home from Spatial Design (SD) with a mortgage contingency and put down deposit. Kuhns knew that they were not sufficiently financially solvent to obtain the mortgage, yet applied anyway. Prudential issued a mortgage commitment, but later withdrew it. Kuhn then tries to withdraw from K with SD. SD
Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (1963) F: Skelly seeks to buy a residential property from Ashmore to demolish the home and build a gas station over it. Jones has a lease on the property which prevents the property from being razed. Skelly proceeds with K, planning to clear enough property to begin developing the gas station and they will expand it once Jones's lease is up. During the executory period, a fire consumes the property. Ashmore and the mortgage company are compensated for their interests in the residence and Jones departs. The closing date for the K arrives and Skelly wants the insurance compensation Ashmore received for the house. They claim that they had an equitable conversion interest in the property which superseded Ashmore's. Ashmore refuses to proceed with closing, unless Skelly waives their legal claim to the insurance money. Skelly refuses and the closing is canceled, so the attorneys can research the case. Ashmore informs Skelly that their opportunity to close has terminated and their option contract is void for lack of consideration. The court imposes Skelly's request for specific performance but asserts that
Wiggill v. Cheney, 597 P.2d 1351 (Utah 1979) F:
[edit] Deed Description
Methods of describing property boundaries in deed
- Metes & Bounds/Monuments
- Government survey
- Recorded instrument
- Subdivision Plat
[edit] Warranty of Title
Warranty deeds are the alternative to quitclaim deeds, which transfer all ownership of a property with no assurance
There are two kinds of warranties in deeds: Present and Future
| Present | Seisin |
| Right to convey | |
| Against encumbrances | |
| Future | Warranty |
| Quiet Enjoyment -> Paramount Claims | |
| Further Assurances |
[edit] Duty to Disclose
Caveat Emptor vs. Latent/Patent
Brown v. Lober, 389 N.E.2d 1188 (Ill. 1979) F:
Strawn v. Canuso, 657 A.2d 420 (N.J. ) F: 200 New Jersey homebuyers were allowed to sue the developers of their single-family community in Camden County for fraud and misrepresentation because the homebuyers were not specifically advised by the developer - and were thus unaware - that a closed landfill which contained toxic wastes was located a half-mile away from the homes. They contended the market value of their homes was greatly diminished. The developer's advertising promoted a bucolic environment with "healthy, fresh, country air" and proximity to country clubs and shopping malls.
Under Strawn, developers and brokers have a duty to disclose off-site conditions when three factors are met:
- the conditions are unknown to the buyers;
- are known or should have been known to the seller; and
- "might materially affect the value or desirability of the property."
The ruling was restricted to physical off-site conditions, and does not apply to individuals re-selling their homes - at least, not yet.
[edit] Warranty of Fitness
Implied into contracts for land, even if not explicit.
Wawak v. Stewart, 449 S.W.2d 922 (1970) F: Wawak builds a home with ductwork set in concrete beneath the floor. Home sold to Stewarts. Whenever it rains, mud & rainwater flood the ductwork and creep up in the house. H: Court ruled that there was an implied warranty of fitness between builder and buyer.
Nichols v. R.R. Beaufort & Associates, Inc., 727 A.2d 174 (1999) F: R.R. Beaufort builds a home on unstable soil. Home sold to Beaufort's cousin, Cronin. When Cronin found cracks in garage floor, Beaufort replaced it. Years later, home sold to Nichols. After three years, the garage floor caved in. The court abandoned the privity requirement for claims made by subsequent purchasers against a builder or contractor for breach of an implied warrant of good workmanship for latent defects because the implied warranty was to protect innocent buyers, and latent defects would not manifest until after the home was sold to an unsuspecting buyer.
Stambovsky v. Ackley, 169 A.D.2d 254 (1991) F: Haunted house case.
[edit] Transfer of Title
| Land registration statutes | |
|---|---|
| Statute | Conditions for subsequent purchaser to win property |
| Race Statute | The subsequent purchaser recorded before any other buyer |
| Notice Statute | The subsequent purchaser had neither actual nor constructive notice of any prior conveyance |
| Race/Notice Statute | The subsequent purchaser recorded before any other buyer |
| The subsequent purchaser had neither actual nor constructive notice of any prior conveyance | |
Mister Donut of America, Inc. v. Kemp, 330 N.E.2d 810 (1975) F: Mr. Donut leased property from Webby with an option to buy. Webby later sold property to Kemp. Mister Donut then sought enforcement of their option to buy from Kemps.
Gagner v. Kittery Water District, 385 A.2d 206 (1978) F:
Miller v. Green, 264 Wis. 159 (1953) F: Miller, the lessee leased farmland from its owner, Heinz, and actively used the land. The lessees entered into a land contract with the owner to purchase the property. The claimants then entered into a purchase agreement with the owner and purportedly bought the site. The claimants recorded their deed. In the lessees' action to establish their superior rights to the property, the trial court found for the claimants. On appeal, the court held that the lessees possessed the property under their rental agreement and that their use of the property was sufficiently open and exclusive to constitute constructive notice of their possessory rights to the land. The court also held that the lessees' possession was constructive notice of their land contract and that their rights to the land were superior to the claimants' rights, even though the claimants had recorded a deed first.
Daniels v. Anderson, 642 N.E.2d 128 (1994) F:
- A&J enter K for land w/Daniels including RoFR for adjacent land
- A&J enter installment K w/Zografos for sale of that adjacent land
- Zografos pays up to two-thirds to A&J
- Daniels seeks to enforce their RoFR which should have been offered at (2)
- Zografos finishes paying A&J for land ($60,000 → A&J) with notice of Daniels interest in the land.
- Court: Daniels pays Zografos for land + property taxes ($60,000+pt), as if they had bought the land at (2), then directs Daniels & Zografos to seek other damages from A&J.
- If Zografos had finished paying for land without receiving notice of Daniels interest, Zografos would have received the land and Daniels right would have been voided.
[edit] Title Searches
Howard Savings Bank v. Brunson, 582 A.2d 1305 (1990) F: Brunson purchased land in Newark, NJ. Deed was properly recorded & indexed by county. Brunson borrowed $50,000 from Howard Savings Bank (Howard), secured by a mortgage, properly recorded, but not indexed. Brunson delivered deed for the property to Ijalbas, properly recorded and indexed by county. Ijalbas borrowed money from Chrysler First Financial Services Corporation (Chrysler), secured by a mortgage, properly recorded and indexed. After this, Howard's recorded mortgage was discovered by county and finally indexed. Howard foreclosed on the Ijalba's property, claiming its mortgage had priority over Ijalbas' deed and Chrysler's mortgage. Ijalbas & Chrystler argued that Howard's mortgage wasn't indexed, and thus a title search did not reveal it. Court found their was no notice by Howard as their interest was not indexed. Requiring lengthy title searches for unindexed items would create too great a burden on buyers. Placing burden on mortgagee to make certain their interest are indexed is most equitable.
Skelton v. Martin, 673 So.2d 877 (1996) F: In 1991, Martin failed to pay taxes on owned land. County certified Bank Atlantic to seize deed & sell land. In 1994, Bank Atlantic sold deed to Skelton. Meanwhile, Perry entered K to buy land from Martin. Perry hired Equity Title to do the title search. Equity Title did not submit a formal request to the county, but instead conducted an online search, which did not reveal the tax lien. Perry bought the land. However, the court did not recognize the online search as a current standard in Florida, thus Skelton owns the land and Perry may seek damages from Martin.
Sabo v. Horvath, 559 P.2d 1038 (1976) F:
Breen v. Morehead, 136 S.W. 1047 (Tex. 1911) F:
[edit] Abstracts, Opinions, & Title Insurance
Williams v. Polgar, 215 N.W.2d 149 (1974) F: H: An abstracter is liable to an individual who reasonably relies on a faulty abstract where that reliance was foreseeable, even where fault was not fraudulent, but negligible.
Title insurance is insurance for events which may have occurred prior to closing. The contract may exclude a number of events, if it so desires.
White v. Western Title Insurance Co., 710 P.2d 309 (1985) F: White purchased land with substantial subsurface water and obtained title insurance from WTI. In their K with White, WTI included exceptions in the fine print for a vast array of concerns not evident in the public record, as well as anything the insured knew about, and a number of other items including water rights. An easement of water rights is discovered, which was clearly on public record, but not revealed to the Whites by WTI, whether or not they found it. WTI refuses to compensate and fierce litigation commences. Court says that they will interpret the contract.
Haw River Land & Timber Co. v. Lawyers Title Insurance Corp., 152 F.3d 275 (1998) F:
[edit] Land Finance
[edit] Land Security
Land Security exist to ensure performance of the contract. Upon foreclosure, the property is seized. Two kinds of foreclosures.
- Strict Foreclosure: Property is conveyed to creditor. All creditee's interests in it are forfeited.
- Foreclosure by Sale: Property is sold at public auction, the creditor is paid their due, and the rest is returned to the creditee.
There are a number of kinds of security transactions:
- Mortgage
- Purchase Money Mortgage
- Installment Land Sale
- Reverse Annuity Mortgage
- Shared Appreciation Mortgage
- Veritable Interest Rate Mortgage
- Nonrecourse Mortgage
- Sale leaseback
- Assumption Transaction
Sebastion v. Floyd, 585 S.W.2d 381 (1979) F: Lady enters into installment contract, misses 7 installments in 21 months, sellers sue to enforce default provision in contract. Court says protections for mortgagors should be given to buyers who enter into installment land contracts, too. H: When a typical installment land contract is used as the means of financing the purchase of property, legal title to the property remains in the seller until the buyer has paid the entire contract price or some agreed-upon portion thereof, at which time the seller tenders a deed to the buyer. However, equitable title passes to the buyer when the contract is entered. The modern trend is for courts to treat land sale contracts as analogous to conventional mortgages, thus requiring a seller to seek a judicial sale of the property upon the buyer's default.
Koenig v. Van Reken, 279 N.W.2d 590 (1979) F: Lady is in trouble w/ 3 mortgages on her house, signs contracts with Van Reken, who bails her out, but then takes title to her house and leases it back to her & gives her an exclusive option to repurchase. She pays for 1.5 years, then defaults on one monthly payment. Van Reken tries to evict her, she sues to have her deal with him considered an equitable mortgage H: Court says yes, equitable mortgage “Under Michigan law, it is well settled that the adverse financial condition of the grantor, coupled with the inadequacy of the purchase price for the property, is sufficient to establish a deed absolute on its face to be a mortgage.”
First Indiana Federal Savings Bank v. Hartle, 567 N.E.2d 834 (1991) F:
Cornelison v. Kornbluth, 542 P.2d 981 (1975) F: Bad faith waste, active damage to property or bad husbandry (on farms)
Murphy v. Financial Development Corp., 495 A.2d 1245 (1985) F: Murphys end up in arrears with Def. Receives foreclosure notice. Murphy pays off mortgage, but not some legal fees, like 2nd appraisal. Def commenced foreclosure anyway, selling to bank, who resold to Home Traders, Inc. H: A mortgagee must exert every reasonable effort to obtain a fair and reasonable price under the circumstances, even to the extent, if necessary, of adjourning the sale or of establishing an upset price below which he will not accept any offer. Fair price is determined on a case-by-case basis, but a "shock the conscience" test is applied. Bad faith requires an intentional disregard of duty or a purpose to injure.
[edit] Dividing land
[edit] Present conveyance / future interest
| Present Conveyance / Future Interest (FI) | |||||||
|---|---|---|---|---|---|---|---|
| Present Conveyance | Form | FI of Grantor | FI of a 3rd Party | Examples | Language | ||
| Fee simple absolute | O grants I to A (& his heirs) absolutely |
||||||
| Life estate | O grants I to A until A dies (whether A has resold I or not) |
Reversion | Remainder | When A dies, I reverts back to O (even if I was already conveyed to a 3rd party), unless promised to a 3rd party through a remainder condition. |
"for life" | ||
| Fee simple determinable |
O grants I to A with a necessary restriction, then back to O. |
Possibility of Reverter |
"for so long as," "during," "until" must use clear durational language; automatically ended; always subject to condition |
||||
| Fee simple subject to a condition subsequent |
O grants I to A, but O has right to terminate under a condition |
Right of Entry (or Power of Termination) |
"but if X, then O may reenter & retake" must use clear durational language; right to reenter must be explicit; always subject to condition |
||||
| Fee simple subject to an executory limitation |
O grants I to A with a necessary restriction, then B. |
Executory Interest |
"but if X, then B may reenter & retake" must use clear durational language; automatically ended, unless shifting, then right to reenter must be explicit; always subject to condition |
||||
| Shifting: O grants I to A, but B has right to terminate under a condition |
|||||||
| Leasehold: Terms of Years Period Tenancy Tenancy at Will Tenancy at Sufferance |
O grants I to A | Reversion | Remainder | ||||
| Fee tail (archaic) | O grants I to A (& only A's heirs) | Reversion | Remainder | If A dies with no heirs, I reverts back to O, unless promised to a 3rd party through a remainder condition. |
|||
Absolute restraints on alienations are void. ("to A so long as she never attempts to sell")
Life estate must be explicitly lifetime terms, never with term of years ("to A for life or 30 years")
Life estate pur autre vie measured by a life other than the grantees
Life estate prevented from Voluntary Waste (destructive acts), Permissive Waste (failure to maintain), Ameliorative Waste (must not enhance property value, unless all FI holders are known & consent)
To C for life, then to C's children. 1) C has no children - Contingent 2) C has one child - Vested 3) C has two children - Vested
Shifting interest A > B If B gains +100 acres, > C
Springing interest If X marries D, A > X
Escheat = Distribution of land to state when the intestate deceased has no heirs.
Words of Purchase - Property Description Words of Limitation -
Marhenholz v. Co. Board of School Trustees, 417 N.E.2d 138 (1981) F: Huttons gave land to School district, but "this land to be used for school purposes only." Son of Huttons, Harry, inherited land. (Jaqmains claim to have bought the land from the Huttons, but no purchase is permissible where land is already conveyed under FSD or FSSCS)
[edit] Future Interest Problems
| Future Interest & Perpetuities Problems | |||||
|---|---|---|---|---|---|
| A grants Land to B... |
Who holds land interests? | Cont. Rem. or Exec Int. in conflict with... | |||
| RAP? | W&S? | ||||
| for life | (default). (4) | B has a Life Estate and at B's death... |
A has a Rev. | No. Grantor's Rev is inherently vested | |
| & Rem to C. (1) | C has a Vest. Rem. | No. | |||
| & Rem to C (in her will). C dies before A. (3) |
C's estate has a Vest. Rem. | No. | |||
| & Rem to C's heirs. (2) | Heirs have a Cont. Rem. Heirs are only known at C's death. |
No. Cont. Rem. vests at C's death. C is the measuring life. |
|||
| & Rem to B's issues as are 25 at B's death. (11) |
Issues (25+) have a Cont. Rem. If none are of age, A has a Rev. |
No. Cont. Rem. vests at B's death. B is the measuring life. |
|||
| & Rem to B's (or C's) issues as reach the age of 21 (where C dies before B). (12) |
Issues (21+) have a Vest. Rem. & issues (21-) have Exec. Int. If none are of age, A has a Rev., until first Exec. Int. is acted on. |
No. Every Exec. Int. vests within 21 years after B's death. B can serve as the measuring life. |
|||
| & Rem to B's (or C's) issues as reach the age of 25 (where C dies before B). (9 & 10) |
Issues (25+) have a Vest. Rem. & issues (25-) have Exec. Int. If none are of age, A has a Rev., until first Exec. Int. is acted on. |
Yes. An Exec. Int. might vest more than 21 years after B's death, where B serves as the measuring life.* |
No, if youngest issue at B's death is 4+ years old. |
||
| for so long as the land is preserved as open space... |
(default). (5) | B has a Fee Simple Determ. and upon breach... |
A has a Rev. | No. Grantor's interest is inherently vested. | |
| & Rem to C. (6) | C has an Exec. Int. Where C's Int. is unlawful, A has a Rev. |
Yes. The Exec. Int. might vest more than 21 years after the measuring life expired. |
No, if the Exec. Int. is acted on within RAP. |
||
| &, separately, A grants all remaining interests to C. (7) | C has an Exec. Int. A has a Rev. &, if C dies before B, a PoRev. |
||||
| & Rem to C for life. (7) | C has an Exec. Int. A has a Rev. &, if C dies before B, a PoRev. |
||||
| & all A's interests to C. | |||||
| & all A's interests to C. | |||||
| & all A's interests to C. | |||||
| & all A's interests to C. | |||||
| *Court may change the age term to 21 to accommodate. | |||||
| Future Interest & Perpetuities Problems | |||||
|---|---|---|---|---|---|
| A grants Land to B... |
Who holds land interests? | Cont. Rem. or Exec Int. in conflict with... | |||
| RAP? | W&S? | ||||
| for life. | B has a Life Estate and at B's death... |
A has a Rev. | No. Grantor's Rev is inherently vested. | ||
| for so long as the land is preserved. |
B has a Fee Sim. Det. and on breach... |
||||
| for life... | then to C. | B has a Life Estate and at B's death... |
C has a Vest. Rem. | No. C's Rem. is vested. | |
| for so long as the land is preserved... |
B has a Fee Sim. Det. and on breach... |
C has an Exec. Int. A has a Rev., where C's Int. is invalid. |
Yes. The Exec. Int. might vest more than 21 years after the measuring life expired. |
No, if the Exec. Int. is acted on within RAP. |
|
A = Grantor
B = Living, Known 3rd Party
C = Living, Known 3rd Party
D = Living, Unknown 3rd Party
E = Unborn, Unknown 3rd PartyFA = Fee Simple Absolute
FD = Fee Simple Determinable
LE = Life EstateRv = Reversion
Rm = Remainder
Ex = Executory Interest
| A = Grantor B = Living, Known 3rd Party C = Living, Known 3rd Party D = Living, Unknown 3rd Party E = Unborn, Unknown 3rd Party |
FA = Fee Simple Absolute FD = Fee Simple Determinable LE = Life Estate |
Rv = Reversion Rm = Remainder Ex = Executory interest |
LE to B = Rv by A LE to B > FA to C = VRm by C LE to B > FA to D = CRm by D LE to B > FD to C = VRm by C + Rv by A FD to B = Rv by A FD to B > LE to C = Rv by A
Statues
Wait & See
USRAP: RAP, 90 years, reform cypres
Life Estate - Grantor: Reversion - Third Party Transforge: Remainder - Vested / Contingent ??
Leasehold
"So long as" - Fee Simple Det. - Pos. of Rev.
"But if" - FS Sub to Con Sub - Right of Reentry
"But if" - FS Sub to Exe Int - Exe Int
[edit] Landlord-Tenant Relationship
[edit] Leaseholds
Known from the start of lease. Because of this, no notice is necessary to terminate. A term of years greater than 1 year must be in writing (SoF).
Periodic Tenancy - A lease for successive or continuous lengths of time, until L or T give proper notice of termination. Notice must be given to terminate at common law, equal to the period (unless year to year, then only 6 months notice is required).
| Leaseholds | ||||
|---|---|---|---|---|
| Kinds | Language | Terms | Notice | Conditions |
| Tenancy of Years or Fixed-term leasehold |
Lease for a fixed period (1 day, 2 months, 10 years), then automatically terminated |
No notice is necessary | If longer than a year, must be in writing (SoF) |
|
| Periodic Tenancy | Lease for successive periods, terminated only with notice by L or T |
|||
| Tenancy at Will | Tenancy for no fixed period, terminated only with notice by L or T |
Terminated by either party at any time. State statutes require reasonable demand to vacate. |
||
| Tenancy at Sufferance | When T has wrongfully held over past period of leasehold (short lived) |
None. | Only until L evicts or recontracts | |
[edit] Responsibilities
T has responsibility to keep premises in reasonably good repair & must not commit waste.
Doctrine of waste linked with law of fixtures.
When a tenant removes a fixture, he commits voluntary waste.
Fixture: Once-movable thing that by virtue to its attachment to realty objectively shows the intention to permanently improve the realty. (heating systems, customized storm windows, furnace, lighting fixtures) T must not remove a fixture, no matter that she installed it. Fixtures pass with ownership of the land. But what's a fixture: 1)The parties private agreement on fixtures controls. 2) In the absence of agreement, T may remove her installation, so long as removal does not cause substantial to the premises. 3) If removal will cause substantial harm, then in objective judgment T has shown an intention to install a fixture.
T's duty to pay rent.
When T is in breach & still in possession of premises: Landlord may 1) evict through courts & sue for rent owed or 2) continue relationship & sue for rent owed. Landlord you MUST NOT engage in self-help (change locks, forcibly remove T, remove T's possessions). Self-help is flatly outlawed criminally & civilly.
When T is in breach & is no longer in possession of premises (vacates prior to termination): Landlord may 1) Surrender (implicit offer by T to give up leasehold & L accepts), 2) Ignore abandonment (continue to hold T responsible; only available in minority of states), 3) Relet premises on wrongdoers behalf, hold T liable for any deficiency. L must at least try to Relet (mitigate).
L must put T in actual physical possession of premises. If a previous holdover T still resides there, L is liable.
Fundamental implicit covenant right of quiet enjoyment: T has a right to quiet use & enjoyment of premises without L's interference. 1) A breach of actual, wrongful eviction 2) breach by constructive eviction 1)Substantial Interference attributable to L's failure to act a Chronic problem. 2) Notice must be given, & L must fail to respond meaningfully, 3) T must have vacated after L failed to correct problem. Is L responsible for bothersome conduct of other Ts? No. However, there are two exceptions: 1) L has a duty not to permit a nuisance on the premises, 2) L must control common areas.
Implied warranty of habitability (residential leases) (NON-WAIVABLE, "as is" terms are void)
Premises must be fit for basic human habitation. Bare living requirements must be met. Appropriate standard is local housing code or independent judicial conclusion (failure to provide heat in winter, plumbing, etc.). T is entitled to 1) Move out & terminate, 2) Repair & deduct (permitted by statute), 3) reduce or withhold rent until court determines value, 4) Remain, pay rent, & affirmatively sue. If T lawfully reports L for failure to meet housing code, L is barred from penalizing T (eviction, rent increase, or harassment).
[edit] Assignments & Subleases
Privity of Estate & Contract
Assignee is responsible for all promises that run with the land (duty to pay rent, to maintain property, etc.). Assignee only obtains privity of contract where she explicitly assumes the terms of the contract.
If T2 is assigned property by T1, L has privity of Estate with T2 & privity of contract with T1. If T2 is sublet property by T1, L has privity of Estate & Contract with T1. T1 has privity of Estate & Contract with T2.
In general, the assignee has privity of estate with a lessor. With privity of estate comes the duty on the part of the assignee to perform certain obligations under covenant, e.g. pay rent. Similarly, the lessor retains the obligations to perform on covenants to maintain or repair the land.
If the assignor agrees to continue paying rent to the lessor and subsequently defaults, the lessor can sue both the assignor under the original contract signed with the lessor as well as the assignee because by taking possession of the property interest, the assignee has obliged himself to perform duties under covenant such as the payment of rent.
| Assignments vs. Subleases | ||
|---|---|---|
| L to T1 for 5 years, then... | Reversionary interest? | Assignment? |
| T1 to T2 for remainder of the lease | None | YES |
| T1 to T2 for remainder of the lease, so long as...(condition) |
Reversion on occurrence of condition | NO, Sublease |
| T1 to T2 for 2 years | Reversion at specified time | NO, Sublease |
Funk v. Funk, 633 P.2d 586 (Idaho 1981) H: "With my consent" term for subleases is limited to reasonable justifications for dismissal.
Berg v. Wiley, 264 N.W.2d 145 (Minnesota 1978) F: PLA (Tenant) ran restaurant & DEF (Landlord) wanted it closed. After a series of disputes, landlord breaks in at night & changes the locks. H: No Self-help to evict T, must go through courts.
Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (Texas 1997) H: A commercial landlord has a duty to mitigate damages when the tenant breaches the lease and abandons the premises.
Aurora Business Park Associates, L.P. v. Michael Albert, Inc., 548 N.W.2d 153 (Iowa 1996) H:
Hypo: L leases to T1, T1 assigns to T2, T2 assigns to T3, T3 begins to destructively harm property.
L has privity of estate with T3, but if T3 has fled state or is bankrupt, L has privity of contract with T1 (secondary privity). L has no privity with T2, absent express assumption.
Hypo: L leases to T1, T1 assigns to T2, T2 assigns to T3, T3 begins to destructively harm property.
L has privity of estate with T3, but if T3 has fled state or is bankrupt, L has privity of contract with T1 (secondary privity). L has no privity with T2, absent express assumption.
[edit] Co-Tenancy
Partnership
Accounting
Contribution
Partition
Owelty
Unity of... (pg. 741)
Carr v. Deking, 765 P.2d 40 (Iowa 1988) H: A cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. The nonjoining cotenant is not bound by this lease; the lessee becomes a tenant in common with the other owners for the duration of the lease.
[edit] Co-Tenancy Table
| Modern Constructions of Co-Tenancies | ||||
|---|---|---|---|---|
| Tenants in Common (TiC) |
Joint Tenants (JT) | Tenants by the Entirety (TbtE) |
||
| Necessary Language? "O grants..." |
"to A & B" | "to A & B as JT w/RoS" "to A & B as husband & wife" |
"to A & B as tenants by the entirety*" |
|
| Requirements for Creation |
Four Unities Among Joint Tenants 1. Granted at the same Time 2. Granted in the same Title 3. Identical Possessory rights 4. Identical & Equal Interests |
Marriage (or equivalent) |
||
| Rights to Sever or Partition |
Multilateral Sale or Partition (by ALL similarly situated parties) | |||
| Divorce (50/50 Split by Sale or Partition)** | ||||
| Right to Alienate | Unilateral Sale of Percent of Interest (Not Partition)** | |||
| Right to Inherit | Descendable & Divisible rights |
Right of Survivorship | ||
| * Most jurisdictions require explicit language for a TbtE to be created. ** Partition or severance by divorce or unilateral sale, results in a TiC for the recipients. |
||||
Partition _______: Voluntary by parties
Partition in kind: physical division, a judicial act if in the best interest of all.
Forced Sale: a judicial act if in the best interest of all.
In a jurisdiction that recognizes a tenancy by the entirety, any use of the phrase husband & wife, absent contradictory terms, will be assumed TbtE
Creditors of one spouse can't touch TbtE, Neither tenant acting alone can defeat right of survivorship.
- No unilateral partition of possessory rights. A joint tenant or tenant in common may seek partition through legal action; partition of a tenancy by the entirety requires divorce.
- Absent ouster, co-tenant in exclusive possession is not liable to others for rent.
- Absent ouster, co-tenant in exclusive possession for a statutory AdvPos period may not claim title to the whole (No hostility without ouster)
- A co-tenant may lease property, but must account to co-tenants their share of the income.
- Rights of Contribution
-
- Each co-tenant is responsible for their share of carrying costs, (ie. property taxes).
- Each co-tenant is responsible for their share of reasonable repairs, but notice is required.
- No right of contribution for improvements. At partition, the improver is credited for any increase & liable for any decrease in value.
- Each co-tenant is responsible for their share of carrying costs, (ie. property taxes).
- Co-tenants must not commit waste. Actions for waste can be brought during lifetime of the co-tenancy.
[edit] Divorce
[edit] Traditional
In re Marriage of Graham, 574 P.2d 75 (1978) H: An educational degree has no value, because future earnings are too difficult to calculate.
Marital property does not include:
(a) Property acquired by gift, bequest, devise, or descent
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent
(c) Property acquired by a spouse after a decree of legal separation; and
(d) Property excluded by valid agreement of the parties.
Dugan v. Dugan, 457 A.2d 1 (1983) H: Goodwill is an accountable property of the entirety
Connell v. Francisco, 898 P.2d 831 (1995) H: In Wa., a mutual property right is presumed between unmarried couples that ostensibly behave as married couples (meretricious relationships).
[edit] Same-sex Couples
Braschi v. Stahl, 543 N.E.2d 49 (1989)
In re Cooper, 187 A.D.2d 128 (1993)
[edit] Easements
Chevy Chase Land Co. v. U.S., 733 A.2d 1055 (1987) H: Desire to create a trail. Burden of hikers no greater than occasional freight train. Scope of
Marcus Cable Assoc. v. Krohn, 90 S.W.3d 697 (2002) H:
O'Neill v. Williams, 527 A.2d 322 (1987) H: Grants or reservations are interpreted fairly construed in favor of easement's seeker.
Miller v. Lutheran Conf. & Camp Assoc., 200 A. 646 (1938) H: Frank & Rufus Miller possess a lake with 3/4 & 1/4 interests respectively. Rufus dies & Rufus's heirs give license to a Lutheran camp.
Stoner v. Zucker, 83 P. 808 (1906) H:
- Easement implied from prior use
- The properties were once owned simultaneously by the same person and then severed in two.
- Quasi-easement
- Notice: Verbal or Actual Physical Presence
- Necessity (other methods, but economically infeasible to business)
Dupont v. Whiteside, H:
Dominant: Licensed to come on to Servient's property
Servient: Possesses land upon which a dominant is licensed to be on.
- Easement by (strict) necessity
- There was one owner (necessity must have arisen from property split)
- No other practicable method of accessing property
- Where land is not landlocked, no strict necessity.
MacDonald Properties v. Bel-Air Country Club, 140 Cal. Rptr. 367 (Cal. App. 1977) H: In CA, easement by prescription only requires 5 years. Permission or adverse use? If they know they're there, why are the true owners not addressing their presence.
How to distinguish between easement by prescription & adverse possession? Look for evidence of permanence.
Lyons v. Baptist School of Christian Training, 804 A.2d 364 (Maine 2002) H: pg. 872 with test on pg. 873
[edit] Barbri assessment
Easement grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land Easements can be affirmative (most) or negative.
- Kinds
-
- Appurtenant Easement - Benefits its holder in her enjoyment of her property (two parcels involved).
- Passes automatically with the dominant tenement, regardless of its mention in the conveyance.
- A grants B a right-of-way across A's land so that B can more easily reach B's land.
- Easement in gross- Benefits its holder only in some personal or commercial gain, not connected to holder's land.
- Non-transferable, unless for commercial purposes.
- eg. right to fish, mine minerals, lay power lines, place a billboard
- Negative - Entitles holder to compel the servient into refraining from some act.
- 1) Light, 2) Air, 3) Support, 4) Streamwater (from artificial flow), 5) Scenic view (in some states). Must be express in assigned writing.
- Affirmative - Entitles holder to enter servient land
-
- Methods of Construction of Affirmative
- Express - Granted or Reserved (If longer than one year, must be in writing through deed of easement.
- Implied from Prior/Ongoing Use
- A owns two lots & lot 1 is hooked up to a sewer drain on lot 2. Implied easement if 1) Use had been apparent, 2) Parties expected use would survive division, because it is reasonable necessary to dominant lands use & enjoyment.
- Necessity - An easement of right-of-way will be implied of necessity, if grantor conveys a portion of his land with no way out, except for some part of servient land.
- Prescription - May be acquired by satisfying the elements of adverse possession: Continuous use for statutory period, Open & notorious use, Actual use, Hostile use (without the servient owners permission), though not exclusivity.
- Scope
- set by the terms of the grant or conditions that created it. Unilateral expansion of an easement is impermissible.
- Licenses
- Mere privilege to enter another's land for some delineated purchase, not subject to SoF. Freely revocable, unless estoppel bars revocation. Estoppel kicks in where licensee has invested labour & monies in reasonable reliance on license's continuation. Two classic cases:
- 1) Tickets create freely revocable licenses.
- 2) Nothing good comes of neighbors talking by fences, oral easements are freely revocable licenses.
- Profit A Prendre - Shares all the qualities of an easement from which a profit is drawn (right to collect minerals, lumber, oil, etc.)
[edit] Covenant
- Covenant - A contractual promise by landowner to refrain from doing something regarding land.
-
- Negative (restrictive) covenant (dramatically more expansive than negative easement) example
- "I promise not to build for commercial purposes on my land."
- Affirmative covenant example
- "I promise to maintain our common fence, garden, etc."
- Distinguished from equitable servitude on the basis of relief sought
- Suits for money damages arise from covenants
- Suits for injunction arise from equitable servitude
- Does a covenant run with the land? Only when the fact support the conclusion that the burden & benefit were reasonably expected to run.
- A1's parcel is burdened, B1's parcel is benefited. A1 sells to A2, B1 sells to B2. A2 violates the covenant.
- Does the burden of A1's promise run to A2 run? Usually not. Requires that 1) Original promise must have been in writing, 2) Intended burden to run 3) Promise must Touch & concern land, 4) Horizontal (A & B in succession of estate*, only required for Burden) & vertical (some non-hostile nexus between B1 & B2, such as contract, devise, or dissent**) privity , 5) Notice
- Does the benefit of B1's promise run to A2 run? Often not. Requires that 1) Original promise must have been in writing, 2) Intended benefit to run 3) Promise must Touch & concern land, 4) Vertical privity
* grantor/grantee, landlord/tenant, creditor/debtor, or shared some servitude now at issue
** If A2 acquired through adverse possession
Runyon v. Paley, F: Promisor
| Horizontal ← → Privity |
||||||
|---|---|---|---|---|---|---|
| Promisee | Promisor | |||||
| ↓ Vertical Privity ↓ |
↓ Vertical Privity ↓ |
|||||
| Current Owner of Servient Estate |
Current Owner of Dominant Estate |
|||||
Ways to break an easement:
- Consent → release
- Merger
- Abandonment → non-use
- Equitable → Laches, Estoppel, or Acquiescence
- Prescription
- Changed Conditions
- Statutes
- Limited Term
- BFP without notice
- Marketable Title → Rerecording
- Easement by Necessity → Necessity Ends
- Easement by Estoppel → Stops Being Unfair
- Legally Unenforceable
[edit] Equitable Servitude
- Equitable Servitude
- Does an equitable servitude run with the land?
- Often not. Requires that 1) Original promise must have been in writing, 2) Intended servitude to run 3) Promise must Touch & concern land, 4) Notice, 5) Equitable servitude does not require privity
- Vast majority of states accept implied ES
- A is a subdivider, who divides her land into 50 lots. Lots 1-45 have been sold with the reservation for residential purposes. A sells Lot 46 to B a commercial developer. Can B be enjoined from building a convenience store? Common scheme doctrine: 1) When sales began, A had a general scheme of residential development which included the lot in question. 2) B had notice of the promise contained in the prior deeds. Three forms of notice attributable: 1) Actual, 2) Inquiry (neighborhood seems to conform to common restrictions, lay of the land), or 3) Record (notice sometimes imputed to purchasers on the public record*)
* Subsequent buyer does not have record notice of the contents of prior deeds by the common grantor
[edit] Adverse Possession
- Requirements
-
- Continuous, uninterrupted use for statutory period
- Open & notorious use
- Actual use
- Hostile use (without the servient owners permission)
- Subjective intent is irrelevant
- Tacking
- One adverse possessor may tack on his predecessor's time so long as there was non-hostile privity
- Not permitted where there has been an ouster
- Disabilities
- Will not run against a true owner afflicted by a disability (infancy, insanity, imprisonment, etc.) at the inception of the adverse possession
[edit] Conveyances
- Every conveyance will consist of
- 1) The land contract (Contract controls)
- Contract must satisfy the SoF by 1) being in writing, 2) being signed by DEF, 3) describing of land, 4) stating some consideration
- Absent satisfaction of SoF, equity will intervene if 2 out of 3: B takes possession of land, B remits payments, B makes substantial improvements.
- Two implied promises - 1) Marketable title (title free from reasonable doubt, lawsuits, & threat of litigations)*, 2) No false statements of material fact (&, in most states, failing to disclose latent material defects)
- 2) The closing (Deed controls)
- Legal title is passed from seller to buyer
- Lawfully Executed
- 1) in writing, 2) signed by grantor, AND 3) compliance with statutes
- & Delivered
- 1) Physically handed over OR 2) Grantor had present intent to be immediately bound
* A title is unmarketable if 1) acquired by adverse possession, 2) marked by encumbrances (servitudes & mortgages) that the buyer has not waived, 3) in violation of zoning ordinances.
[edit] Deeds
- Kinds of Deeds
- Quitclaim deed
- No covenants of title, even assurance of good title
- General Warranty deed
- Makes a series of promises not only on behalf of grantor, but on behalf of grantor's predecessors
- Present covenants (breached, if ever, only at time of delivery; statute of limitations runs from delivery)
- 1) Covenant of seisin (promise of ownership),
- 2) Covenant of right to convey (promise of right to alienate),
- 3) Covenant against encumbrances (promise that there are no servitudes or mortgages)
- Future covenants (not breached, if ever, until grantee is disturbed in possession; statute of limitations runs from disturbance)
- 4) Covenant of quiet enjoyment (promise from disturbance by 3rd parties with lawful claims),
- 5) Covenant of warranty (promise to defend against 3rd parties with lawful claims),
- 6) Covenant for further assurances (promise to perform whatever future acts are reasonably necessary to perfect grantees title, if later revealed to be imperfect)
- Statutory Special Warranty Deed (Bargain & Sale deed) - No promises on behalf of predecessors, but two on his own behalf
- 1) Grantor promises that she has not conveyed the property previously
- 2) Grantor promises that she has not created any encumbrances
[edit] Recording system
[edit] Race/Notice systems
- In notice jurisdiction, last bona fide purchaser wins, regardless of first to record.
- In race-notice jurisdiction, first bona fide purchaser to record wins.
- Bona fide purchaser
- 1) Must be purchasing for value
- 2) Must not have notice at the time of conveyance - Actual, Inquiry (evidence on the property), or Record (nothing on record)
[edit] Proper recording
- Problem of the wild deed
- O sells to A who does not record
- A sells to B who does record the transaction of A to B (O disconnected from A in the chain of title)
- Record of A to B is a wild deed.*
- O sells to C who does record
- C wins in both notice jurisdiction & race-notice jurisdiction
- NJ - Last bona fide purchaser
- RNJ - First bona fide purchaser to record properly
*If a deed entered on the records has a grantor unconnected to the chain of title, it is a wild deed & incapable of giving notice.
- Problem of the deed
In 1950, O owns Blackacre.
In 1950, X sells Blackacre to A who records
In 1960, O sells Blackacre to X who records
In 1970, X sells Blackacre to B who records
One who conveys land in which he has no interest (X) is estopped from denying the validity of that transfer, if he subsequently acquires the land that he has previously transferred.
From 1950 to 1960, O owns Blackacre
From 1960 to 1970, A owns Blackacre
From 1970 forward, B owns Blackacre
A acquired by being a bona fide purchaser who recorded and X is estopped. B acquired by being a bona fide purchaser who recorded and A recorded to early.
[edit] Race/Notice Problems
| Non-Race Jurisdiction Problems | |||
|---|---|---|---|
| Who owns Greenacre? | |||
| Facts | A grants Greenacre to B B does not record A grants Greenacre to C C records |
A grants Greenacre to B B does not record A grants Greenacre to C B records C records |
|
| Owner | C owns Greenacre | B owns Greenacre | |
| Explanation | In Race Jurisdiction, first to record owns property. | ||
| Race Jurisdiction (archaic) Problems | |||||
|---|---|---|---|---|---|
| Who owns Land? | |||||
| Facts | A grants Land to B & B does not record |
A attempts to grant Land to B, but the |
|||
|
|
|
|
|||
| Owner | C owns Land | B owns Land | C owns Land | B owns Land precariously |
C owns Land |
| Rule | In Race Jurisdiction, first to record owns property. |
Notice is irrelevant. | Until purchaser records, prior owner may sell property again. |
Transfer requires a proper deed, absent one their is no transaction. |
|
