PROPERTY LAW SYLLABUS

P

ROPERTY

L

AW

S

YLLABUS

F ERNANDO C OLON -N AVARRO

Fall 2014 – Spring 2015

Email: fcolon@tmslaw.tsu.edu

Office hours: Tuesday to Friday 10:00 am to 12:00 noon

Required Literature:

Fernando Colon-Navarro, P

ROPERTY

, (Third ed. 2012)

Peter T. Wendell, P OSSESSORY E STATES AND F UTURE I NTEREST P RIMER

(Third ed. 2007)

Objective

Property is a first year-required course. Property law is deeply grounded in the common law and is based upon rules dating back to feudal England. Modern law, in the form of torts and contracts-based doctrines, also influences property law. It is the objective of this course to help students navigate through these influences. A series of practice problems, drafting exercises, and graded exams will be administered to help gauge the students’ understanding. Additionally, this course introduces students to the process of reading cases and statutes, as well as a series of value sets aimed at preparing them for the practice of law, in general. By the end of the academic year, students should able to successfully pass the comprehensive exam, and they will have acquired the knowledge and skills required for the bar exam as well.

Purpose

The purpose of this syllabus is to provide students a roadmap of the course to help them prepare for class. This syllabus is not intended to answer all the questions that will arise during the semester; therefore, it is their responsibility to ask questions.

NOTE: ALL INSTRUCTIONAL LESSONS IN THIS SYLLABUS ARE SUBJECT TO

CHANGE.

E:\Syllabi\Fall 2014-15_Property Law_Colon-Navarro_Syllabus.doc

(Created on 9/23/2014 12:44:00 PM; Last Saved by Generic on 10/5/2014 6:13 PM) Page 1 of 20

TABLE OF CONTENTS/READING SUMMARY

SECTION 1.

FOUNDATION OF PROPERTY LAW ............................................................. 4

1.1

First Possession: Acquisition by Rule of Capture (Text, pp. 13-46) .............................. 4

SECTION 2.

ACQUISITION ................................................................................................... 4

2.1

First Possession: Acquisition by Rule of Capture (Text, pp. 13-46) .............................. 5

2.2

Subsequent Possession: Acquisition by Discovery (Text, pp. 47-73) ............................ 5

2.3

Subsequent Possession: Acquisition by Gift (Text, pp. 74-90) ...................................... 6

SECTION 3.

REAL ESTATE TRANSACTIONS ................................................................... 6

3.1

Contract for Sale (Text, pp. 91-182) ............................................................................... 7

3.2

Deeds (Text, pp. 183-220) .............................................................................................. 9

3.2.1

The Deed and Mortgages ............................................................................................ 9

3.2.2

Transfer of Land Deeds .............................................................................................. 9

3.3

Assuring Good Title ........................................................................................................ 9

3.3.1

Recording Statutes ...................................................................................................... 9

3.4

Mortgages ..................................................................................................................... 12

SECTION 4.

CONCURRENT OWNERSHIP ....................................................................... 13

SECTION 5.

PRIVATE INTERESTS IN LAND: ESTATES AND FUTURE INTERESTS15

5.1

Estates and Future Interests .......................................................................................... 16

5.2

Present Possessory Estates ............................................................................................ 16

5.3

Defeasible Estates ......................................................................................................... 16

5.4

Future Interests.............................................................................................................. 16

5.5

Regulating Conveyances ............................................................................................... 17

5.6

Rules Against Perpetuities ............................................................................................ 17

SECTION 6.

SERVITUDES .................................................................................................. 18

6.1

Licenses and Easements ................................................................................................ 18

6.2

Covenants ...................................................................................................................... 19

SECTION 7.

ADVERSE POSSESSION................................................................................ 19

7.1

Acquisition by Adverse Possession .............................................................................. 19

SECTION 8.

LEASEHOLDS ................................................................................................. 19

8.1

Leaseholds Distinguished, and Types of Tenancies ..................................................... 19

8.2

Tenant’s Obligations and Landlord’s Remedies ........................................................... 19

8.3

Landlord’s Obligations and Tenant’s Remedies ........................................................... 20

8.4

Tenant’s Rights to Habitable Premises ......................................................................... 20

8.5

Transfers by Landlord or Tenant .................................................................................. 20

SECTION 9.

Nuisance ............................................................................................................ 20

9.1

Introduction, and Private and Public Nuisance ............................................................. 20

9.2

Water and Support Rights, and Light and Air .............................................................. 20

9.3

Judicial Land Use Controls: The Law of Nuisance ...................................................... 20

SECTION 10.

Zoning ............................................................................................................... 20

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CLASSROOM RULES

The use of electronic devices for anything other than classroom participation will result in dismissal from class. Unprofessional conduct towards others will result in dismissal from class.

Use of an incorrect exam number will result in a loss five points on each respective exam or assignment. Attendance is mandatory. Missed tutorial sessions will count as absences, unless otherwise instructed. Proper attire is mandatory. Habitual lateness will result in grade reductions.

*Always read the notes following the cases, and work the problems. Brief the cases and be ready to identify the issue and the rule of law in each case and to synthesize them into a general rule of law.

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SECTION 1.

FOUNDATION OF PROPERTY LAW

Student Learning Outcomes . Students will understand the basics of what it means to be a lawyer.

Students will also understand what it means to think like a lawyer. Lastly, students will understand that law school requires a very particular level of effort and comprehension, which exceeds that required in a typical undergraduate-level—and even a typical graduate level— education.

1.1

First Possession: Acquisition by Rule of Capture (Text, pp. 13-46)

Lesson 1, Read pages 1-12 of your textbook. Also, answer the following in your groups and in your own.

What does it mean to “think like a lawyer?”

How is the study of law different from the study of subjects in undergrad?

Does law concern itself with answers or arguments?

What do “star lawyers” do?

What is the role of research in lawyering?

What do many practicing lawyers do every day?

Is it enough on the law school exam to recite or to regurgitate a rule and then come to a conclusion? Why or why not?

What is the “C” or conclusion in IRAC?

When reading a case or answering a hypothetical always ask yourself the following questions:

What is the stated rule of law?

What are the policy reasons for the implementation or rejection of the articulated rule of law?

Based on the reasoning provided by the court, is the rule of law properly applied in the case?

Is there a more compelling reason to either apply or reject the application of the rule of law to the case or hypothetical you are studying?

SECTION 2.

ACQUISITION

Student Learning Outcomes.

Students will distinguish between three different methods of acquisition: (1) capture, (2) find, and (3) gift. Students will identify the elements of each method of acquisition through, and they will demonstrate how each method applies Additionally, students will differentiate these acquisition methods through case synthesis. Furthermore, students will successfully apply each method to fact patterns on in-class problems and quizzes.

Finally, students will become familiar with the doctrine of “first in time, first in right” and summarize it through case analysis and practice problems.

To facilitate these outcomes, students should be prepared to answer the following questions throughout in-class discussion:

What is possession?

How is property acquired?

What is acquisition by capture?

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What are the requirements for acquisition by capture?

What is acquisition by creation?

What is acquisition by find?

What are the requirements for acquisition by find?

What is acquisition by gift?

What are the requirements for acquisition by gift?

How do we measure intent to transfer property by gift?

When has a gift been delivered?

What is a gift “causa mortis”?

When is the recipient of a gift in possession?

What does, “first in time, first in right” mean?

2.1

First Possession: Acquisition by Rule of Capture (Text, pp. 13-46)

Lesson 2, read Property pages 1-40; and read and brief Pierson v. Post (be ready to identify the issue and the rule of law)

Lesson 3, read and brief Ghen v. Rich, Keeble v. Hickeringill, Michelle Russel v. Texas (pgs.

953-954 textbook). For class, be ready to identify the rule, issue(s), and rule of law in each case. Also, be ready to exchange this information with your classmates in typewritten format. Also, read the notes on oil and gas on page 34. Be ready to do the problems on page

31-34.

Section Exercise

Apply the general rule of law to the following problem:

Captain Nero, the owner and master of a Norwegian vessel on a seal hunting expedition, sighted a pack of seals on a small uncharted island off the coast of Labrador. A party of the crew landed from a small rowboat and began rounding up the seals. Fifty seals are slaughtered and left readily accessible on land by the time a sudden storm arises. To prevent the rowboat from being smashed on the rocks, the crew returned to the main vessel to ride out the storm, but the vessel is blown off course.

The next day, an American sealer, owned and commanded by Captain Bligh, landed its small boat on the island, discovered the seals, slaughtered an additional 100 seals, and loaded all

150 seals on the sealer for processing. Then, the Norwegian vessel arrived and learned the course of events. Captain Nero demanded the return of the seals. Captain Bligh refused the demand.

Describe the respective property rights of Captain Nero and Captain Right with regard to the seals.

2.2

Subsequent Possession: Acquisition by Discovery (Text, pp. 47-73)

We know that we can make an un-owned (i.e. wild animal) thing ours by possession, by virtue of being first to it. The following materials deal, however, with a different question: suppose you already own something but somebody else acquires possession of that something without your consent. Is possible for that subsequent possessor to become,

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nevertheless, the owner simply by virtue of the possession? We will also examine a way of acquiring property other than purchase.

Lesson 4, read text pages 47-74; read and brief Armory v. Delamirie, Hanna v. Peel, and

McVoy v. Medina. (Always read the notes after the cases and work the problems. Also, brief the cases and be ready to identify the issue and the rule of law in each case and to synthesize them into a general rule of law.)

2.3

Subsequent Possession: Acquisition by Gift (Text, pp. 74-90)

Lesson 5, read Property pages 74-90 and ponder the following questions:

What are the requirements for the transfer of property by gift?

How do we measure intent?

When has a gift been delivered?

What is a gift causa mortis?

When is the recipient of a gift in ¨possession¨?

Read the notes but pay attention to the problems on page 75-76. Also, read and brief

Newman v. Bost, and Gruen v. Gruen

Lesson 6, we will have a clicker post-test on the Acquisition of Property. We also may begin to cover the next section pertaining to transfers of land.

SECTION 3.

REAL ESTATE TRANSACTIONS

Student Learning Outcomes . Students will identify how land is transferred. Students will explain the requirements for an enforceable purchase and sale agreement. Furthermore, students will discuss how the agreement meets the statute of frauds requirements. Additionally, students will interpret a fact pattern to define equitable conversion. Students will become familiar with the risk of loss associated with a purchase and sale agreement. Again, students will recognize a party’s obligation at closing, the duty to pass along marketable title and remedies that arise due to a breach of the purchase and sale agreement. Students will expand on what makes a purchase agreement enforceable through implementing the statute of frauds. Students will have the ability to summarize equitable conversion through fact patterns. Also, students will review loss of a purchase and sale agreement in conjunction with marketable title and remedies for a breach of the purchase and sale agreement. Through in-class problems and quizzes students will apply these concepts to determine the most appropriate answer. By formulating definitions to these concepts, students will develop a method of analysis to critique and determine the best answer through reading cases to be prepared to test over this subject.


What are the requirements for a purchase and sale agreement to be enforceable?

What must “writing” contain to meet the requirements of the Statute of Frauds?

What is equitable conversion?

Where is the risk of loss allocated in a purchase and sale agreement?

What is the effect in the purchase and sale agreement of a clause stating that “time is of the essence”?

What are the parties’ obligations at closing?

What is marketable title?

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What are the remedies for breach of the purchase and sale agreement?

3.1

Contract for Sale (Text, pp. 91-182)

Lesson 7, expect a diagnostic formative pre-test (“clicker test”) on the materials related to this section. Read Property pages 91-115 (up to Statute of Frauds). Also, read and brief

Licary v. Blackwelder and Hickey v. Green. Do the problems and note the cases on pages

114-115.

Lesson 8, read Property pages 115-128, and read and brief Lohmeyer v. Bower.

Lesson 9, read Property pages 121-150, and read and brief Jones v. Lee and Kutzin v. Pirnie.

Also, read the notes beginning on page 146. There are a lot of key concepts (law) important to understanding the contract for sale (e.g., time is of the essence).

Lesson 10, read Property pages 150-172. Also, read and brief Strambosvky v. Ackley,

Johnson v. Davis, and Lempke v. Dagenais.

Lesson 11, we will have a clicker post-test on the contract for sale. We also may begin to cover the next section pertaining to deeds and mortgages.

Lesson 12, we will perform an exercise wherein we will draft provisions for a contract for sale with a broker as the buyer’s agent. The following are the student outcomes of this exercise:

Develop and evaluate strategies for accomplishing an objective.

Learn to apply and analyze legal rules and principles

Practice communicating orally and in wiring

Develop the skills to counsel clients

Acquire awareness of ethical standards.


1) Venner, the owner of Greenacre, a tract of land, entered into an enforceable written agreement with Brier providing that Venner would sell Greenacre to Brier for an agreed price. At the place and time designated for the closing. Venner tendered an appropriate deed, but Brier responded that he had discovered a mortgage on Greenacre and would not complete the transaction, because Venner's title was riot free of encumbrances, as the contract required. Venner said that It was his intent to pay the mortgage from the process of the sale, and he offered to put the pro ceeds in escrow for that, purpose with any agreeable, responsible escrow holder. The balance due on the mortgage was substantially less than the contract purchase price. Brier refused Venner's proposal. Venner began an appropriate legal action against Brier for specific performance.

There is no applicable statute in the jurisdiction where Greenacre is located. Discuss Venner's best legal argument in support of any claim he may have for relief.

2) A seller owned a single family house. A buyer gave the seller a signed handwritten offer to purchase the house. The offer was unconditional and sufficient to satisfy the statute of frauds, and when the seller signed an acceptance an enforceable contract resulted.

3)

The house on the land had been the seller’s home, but he had moved to an apartment, so the house was vacant at all times relevant to the proposed transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written

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mortgage lending commitment from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and burned to the ground. The loss was not insured, because three years earlier, the seller had let his homeowner’s insurance policy lapse after he had paid his mortgage debt in full.

4) The handwritten contract was wholly silent as to matters of financing, risk of loss, and insurance. The buyer declared the contract voided by the fire, but the seller asserted a right to enforce the contract despite the loss. There is no applicable statute. If a court finds for the seller, what is the likely reason?

5) A seller who owned land in fee simple entered into a valid written agreement to sell the land to a buyer by installment purchase. The contract stipulated that the seller would deliver to the buyer, upon the payment of the last installment due, “a warranty deed sufficient to convey a fee simple title.” The contract contained no other provision that could be construed as referring to title.

6) The buyer entered into possession of the land. After making 10 of the 300 installment payments obligated under the contract, the buyer discovered that there was outstanding a valid and enforceable mortgage on the land, securing the payment of a debt in the amount of 25 percent of the purchase price that the buyer had agreed to pay. There was no evidence that the seller had ever been late in payments due under the mortgage and there was no evidence of any danger of insolvency of the seller. The value of the land was then four times the amount due on the debt secured by the mortgage.

7) The buyer quit possession of the land, stopped making payments on the contract, and demanded that the seller repay the amounts that the buyer had paid under the contract.

After the seller refused the demand, the buyer sued the seller to recover damages for the seller’s alleged breach of the contract. In such action, should damages be awarded to the buyer?

8) By a valid written contract, a seller agreed to sell land to a buyer. The contract stated,

“The parties agree that closing will occur on next May 1 at 10a.m.” There was no other reference to closing. The contract was silent as to quality of title. On April 27, the seller notified the buyer that she had discovered that the land was subject to a longstanding easement in favor of a corporation for a towpath for a canal, should the corporation ever want to build a canal. The buyer thought it so unlikely that a canal would be built that the closing should occur notwithstanding this outstanding easement. Therefore, the buyer notified the seller on April 28 that he would expect to close on May 1. When the seller refused to close, the buyer sued for specific performance. Will the buyer prevail?

9) Al entered into a contract with Edna on April 1, 1989, to sell Blackacre. Closing was scheduled for June 1, 1989. Edna did not know that Al did not own Blackacre. Blackacre was owned by Fred, Al's father. On May 15th, Fred died leaving Blackacre to Al in a validly drawn will. Al decided to sell Blackacre to Bob on May 16th and signed a contract with Bob for the sale. Edna learns of the sale to Bob on May 28th and petitions a court of valid jurisdiction for specific performance to acquire title to Blackacre. What result?

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3.2

Deeds (Text, pp. 183-220)

3.2.1

The Deed and Mortgages

Student Learning Outcomes . Students will name the requirements for a valid real estate conveyance. Once determined, students will state the requirements for a valid deed 1) the parties name, 2) the property in question, 3) the price of the property; and identify the type of deed: either 1) a general warranty deed, 2) a warranty deed, or 3) a quitclaim deed. Once the type of deed is identified, students will recognize if there has been a valid delivery and the covenants of title associated with the deed. Students will also be able to indicate the remedies for a breach of the covenants of title. Distinguishable from deeds, students will also be introduced to mortgages. In mortgages, students will evaluate whether the mortgage falls under the lien theory or the title theory. With either deeds or mortgages, students will differentiate the two by examining practice problems and cases in the book. Students will analyze different types of deeds and mortgages to determine covenants of title and assuring good title is passed. To emphasize this students will compare different fact patterns to see when good title passes and if there is a breach of covenants of title. At the conclusion of this section, students will be able to measure their improvement of comprehension when comparing a pre-test and post-test assessment of the subject.


What are the requirements of a valid real estate conveyance?

What are the requirements of a valid deed?

What are the three types of deeds?

In a conveyance when has there been a "delivery”?

What are the "covenants of title¨?

What are the remedies for a breach of the covenants of title?

How is a mortgage defined?

What are the types of mortgage theories?

What are the requirements to assure good title?

This section is covered in Property, pages 173-329.

3.2.2

Transfer of Land Deeds

Lesson 13, expect a diagnostic formative pre-test (“clicker test”) on the materials related to this section. Read Property pages 172-199. Also, read Sweeney v. Sweeny and

Rosengrant v. Rosengrant.

Lesson 14, read Property pages 199-215 (stop at Rockafellor). Also, read Brown v.

Lober, and Frimberger v. Anzellotti.

3.3

Assuring Good Title

3.3.1

Recording Statutes

Student Learning Outcomes . Students will indicate when a subsequent purchaser gets superior title over a prior purchaser. Additionally, students will have the opportunity to label a bona-fide purchaser as 1) someone who takes for value and, 2) someone

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who takes without notice. To determine who holds title in real property students will cite one of three recording systems: 1) the notice statute, 2) the race statute or 3) the race-notice statute. Furthermore, students will summarize who gets title by examining if there is a bona-fide purchaser and under what recording system the jurisdiction follows. Students will organize the three recording systems in a way to differentiate and distinguish them. Through, case synthesis and practice problems students will calculate who holds title based on the statute, and in the end be able to compare different scenarios to correctly evaluate who is entitled to the possession of the real property.


When does a subsequent purchaser get superior title over a prior purchaser?

Who is a bona-fide purchaser?

How many recording systems are there?

What is the notice statute?

What is the race statute?

What is the race-notice statute?

When does a subsequent purchaser get superior title over a prior purchaser?

How many types of recording systems are there?

Who is a bona fide purchaser?

Sample Problems

1) On day 1, O deeds to A. On day 2, O deeds to B, a bona fide purchaser. On day 3, A records. On day 4, B records. Who prevails under a notice, race, and race notice system?

2) On day 1, O deeds to A. On day 2, O deeds to B, who knew of the conveyance to A. On day 3, B records. Who prevails under a notice, race, and race notice system?

Lesson 15, read Property pages 215-221, and Rockafellor v. Gray.

Lesson 16, read Property pages 221-253 (up to chain of title). Also, read Luthi v. Evans,

Orr v. Byers, and Messersmith v. Smith. Work problems on pgs.245-246 and be ready to submit them.

Lesson 17, read Property pages 253-269, Board of Education v. Hughes, and Guillette v.

Daly Dry Wall. On page 269 do problems 2 and 3 and be ready to discuss them in class.

Lesson 18, read Property pages 270-284 (up to Marketable Title Acts). Also, read

Daniels v. Anderson, Lewis v. Superior Court, Harper v. Paradise, and Waldorf

Insurance.

Lesson 19, an exercise on how to take law school exams. Open Book Chapters 8-12.

Lesson 20, read pages 284-300 (up to Mortgages). Also, read Walter E. Barnett, Walker

Rogge, Inc v. Celsea, and Lick Mill Creek.

Lesson 21, formative assessment: post-test (on deeds). Also, prepare to move on to the next topic, Mortgages.

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Section Exercises

1) Corp, a corporation, owned Blackacre in-fee simple, as the real estate records showed.

Corp entered into a valid written contract to convey Blackacre to Barbara, an individual. At closing,

Barbara paid the price in full and received an instrument in the proper form of a deed, signed by duly authorized corporate officers on behalf of Corp, purporting to convey Blackacre to Barbara.

Barbara did not then record the deed or take possession of Blackacre. Next, George (who had no knowledge of the contract or the deed) obtained a substantial money judgment against Corp.

Then Barbara recorded the deed from Corp. Thereafter George properly filed the judgment against Corp.

A statute of the jurisdiction provides:

“Any judgment properly filed shall, for ten years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered.”

Afterward, Barbara entered into a valid written contract to convey Blackacre to Polly. Polly objected to Barbara’s title and refused to close. The recording act of the jurisdiction provides:

“Unless the same be recorded according to law, no conveyance or mortgage of real property shall be good against subsequent purchaser for value and without notice.”

Barbara brought an appropriate action to require Polly to complete the purchase contract.

Discuss the issues and determine who the court should decide for.

2) O conveys to A Blackacre by a warranty deed. A does not record the deed. O then conveys

Blackcre to Z in consideration for $1.00 through a quitclaim deed. Z immediately records the deed. The state that Blackacre is located is race notice state. If Z is to prevail on a quitclaim argument, what is Z’s greatest obstacle? Why?

3) Ethan and Joel are brothers and hold land as joint tenants with right of survivorship. Ethan moves out after conveying his interest to Wes, his adopted brother, by quitclaim deed. Wes never records the deed transfer. Two years later, Joel does record, leaving Sophia, his adopted daughter, as the only surviving heir to his estate. After Joel's death, Ethan asks Wes to return the deed and give up his interest in the land. Wes agrees and turns over the deed to Ethan, who burns it on Joel's funeral pyre. Ethan then conveys a deed to Steven. The applicable recording act states: "A conveyance of an interest in land is not valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded." Stephen, runs down to the town recording office and records before the ink is dry. In a lawsuit between Stephen and Wes,

Stephen prevails because:

4) A conveyance statute reads: "No conveyance is valid against any subsequent purchaser for value without notice unless the conveyance is recorded. No lease of three years or more is valid against a subsequent purchaser for value without notice, unless the lease has been recorded."

Grimm is a successful businessman. He helps out Gip, a friend, by leasing him a convenience store that he owns. He figures that Gip will get rich selling lottery tickets. The lease is for 10 years. Grimm tells Gip, "You really ought to record this." Gip says, "Grimm, no need for me to record, any prospective purchaser will clearly realize that I'm in possession of the store. After all, Sticks n'Straw Convenience is open 24 hours a day. When a potential buyer comes to inspect the place, I'll tell him about the lease, and sell him a lottery ticket. No need to worry." Grimm eventually sells the property to B. B. Wolf, who drives by on Christmas day, the only day the

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store is closed. She thinks the place looks good and continues with the transaction. Wolf has no notice in the recorded lease of Gip's lease. After she closes on the building, Wolf tries to kick

Gip out. Gip refuses and asks where he should send the rent. The deed transferred from Grimm to Wolf was a warranty deed. What will be the outcome of an eviction action?

5) O gratuitously quitclaims Blackacre to Carr but continues to live on the property. Carr duly records the deed. Two years later, O sells Blackacre to B for valuable consideration. B fails to check the chain of title but immediately files his deed at the register of deeds office. Who has title to Blackacre?

6) Betsy and Emma lived together in Emma's home for twenty years. In 1987, Emma became disabled because of a heart ailment and Betsy had to take care of her. Emma told Betsy that she wanted to be sure that Betsy got her house after she died, so she gave Betsy a quitclaim deed.

Betsy did not record the deed, but put it in her safety deposit box.

Four months later, Priscilla, Emma's daughter, found out about this and told her mother that if she would sell the house to her, she could live there for the rest of her life. Emma, who wanted the money, agreed and she told Betsy that she had changed her mind and decided to leave the home to her children. Betsy promised to destroy the deed, and the next day she did. Several days later, however, as Betsy and Emma were driving to the store, their car was hit by a train and they both died. Priscilla's and Betsy's heirs claim title to the house. In an appropriate action to resolve this dispute, the most likely finding by the court will be?

3.4

Mortgages

Lesson 22, read Property pages 300-321. Also, read Bean v Walker.

Lesson 23, read Property pages 321-329. Also, read Murphy, Grant S. Nelson, and James

Brigham v. Norman (appendix pg. 963).

Lesson 24, open book, chapter 13 and foreword.

Lesson 25, open book, chapters 4-7.


1) A man borrowed money from a bank and executed a promissory note for the amount secured by a mortgage on his residence. Several years later, the man sold his residence. As provided on the contract for sale the deed to the buyer provided that the buyer agreed “to assume the existing mortgage debt” on the residence.

Subsequently, the buyer defaulted on the mortgage loan to the bank, and appropriate foreclosure proceedings were initiated. The foreclosure sale resulted in a deficiency. There is no applicable statute. Is the buyer liable for the deficiency?

With a mortgage assumption, the buyer who assumes the mortgage debt becomes primarily liable. The man, absent a release by the bank, also is liable, although the man is secondarily liable. This situation can be contrasted with one inn which the buyer purchased “subject to the mortgage,” in which case, only the man would be liable for any deficiency.

2) A man owned property that he used as his residence. The man received a loan, secured by a mortgage on the property, from a bank. Later, the man defaulted on the loan. The bank then

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brought an appropriate action to foreclose the mortgage, was the sole bidder at the judicial sale, and received title to the property as a result of the foreclosure sale.

Shortly after the foreclosure sale, the man received a substantial inheritance. He approached the bank to repurchase the property, but the bank decided to build a branch office on the property and declined to sell.

If the man prevails in an appropriate action to recover title to the property, what is the most likely reason?

3) A farmer borrowed $100,000 from a bank and gave the bank a promissory note secured by a mortgage on the farm that she owned. The bank promptly and properly recorded the mortgage, which contained a due-on-sale provision.

A few years later, the farmer borrowed $5,000 from a second bank and gave it a promissory note secured by a mortgage on her farm. The bank promptly and properly recorded the mortgage.

Subsequently, the farmer defaulted on her obligation to the first bank, which then validly accelerated the debt and instituted nonjudicial foreclosure proceedings as permitted by the jurisdiction. The second bank received notice of the foreclosure sale but did not send a representative to the sale. At the foreclosure sale, a buyer who was not acting in collusion with the farmer outbid all other bidders and received a deed to the farm.

Several months later, the original farmer repurchased her farm from the buyer, who executed a warranty deed transferring the farm to her. After the farmer promptly and properly recorded that deed, the second bank commenced foreclosure proceedings on the farm. The farmer denied the validity of the second bank’s mortgage. Does the second bank continue to have a valid mortgage on the farm?

4) Soledad sells the mortgage and note on Four Rivers Manor to WaterBank. WaterBank goes ahead and resells the mortgage and note to Bank-a-lot. Bank-a-lot properly records the sale of the mortgage as required under state statute. Bank-a-lot, a small bank, decides to use WaterBank as the collection agent for the Four Rivers Manor mortgage as payments come due. Bank-a-lot, therefore, leaves the mortgage and note in the hands of WaterBank. WaterBank is owned by

Chainley, a shady business man, who is running WaterBank into the ground. Desperate,

Chainley sells the Four Rivers Manor mortgage to TriBank. This helps, but it's not enough to keep WaterBank afloat and they go under. When wrapping up WaterBank's affairs, Bank-a-lot learns of the sale of the mortgage to TriBank. Bank-a-lot further learns that WaterBank never told TriBank about Bank-a-lot's interest in the mortgage. Bank-a-lot sues WaterBank for return of the mortgage and note. What will the court decide?

SECTION 4.

CONCURRENT OWNERSHIP

Student Learning Outcomes . Students will describe what an estate is and label the three types of concurrent estates. Students will associate the requirements of each concurrent estate, in order to compare and contrast the characteristics. Through practice and application students, will be able to list the characteristics of a joint tenancy: that the tenancy was created with the right of survivorship; and the interest was created in the same: 1) time, 2) title, 3) interest, and 4) possession. Furthermore, students will differentiate between the modern view and the traditional view of a joint tenancy. Additionally, students will summarize how to convey a co-ownership and how a joint tenancy is created and destroyed. Students will formulate what the effect of

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destruction is to a joint tenancy and how a tenancy in common is created. Following the creation of a tenancy in common students will determine how a tenancy in common is destroyed.

Students will also evaluate how a tenancy by the entirety is created and destroyed. Finally, students will conclude about what the rights and liabilities are of cotenants. Through a series of pre-test and post-test practice exams students will be able to judge and evaluate the three types of concurrent estates.


What is an estate?

What are the three types of concurrent estates?

What are the characteristics of a joint tenancy?

What are the four unities of a

How is co-ownership conveyed?

How is a joint tenancy created and/or destroyed

What is the effect of the “destruction” of a joint tenancy?

How is a “tenancy in common” created and/or destroyed?

What is a tenancy by the entirety?

What are the rights and liabilities of cotenants?

Lesson 26, formative assessment pre-test on concurrent ownership. Read Property pages

331-371 (up to Partition). Also, read Riddle v. Harmon and Harms v. Sprague. Do problems on page 355.

Lesson 27, read Property pages 371-392, Delfino v. Valencia, Spiller v. Mackereth, and

Swartzbaugh v. Sampson.


1) A rectangular parcel of undeveloped land contained three acres and had 150 feet of frontage on a public street. The applicable zoning ordinance required that a buildable lot contain at least two acres and have frontage of not less than 100 feet on a public street. A brother and sister owned the land as tenants in common, the brother owning a one-third interest and the sister owning a two-thirds interest. Neither of them owned any other real property. The sister brought an appropriate action to partition the land and proposed that a two-acre rectangular lot with 100 feet of frontage be set off to her and that a one-acre rectangular lot with 50 feet of frontage be set off to the brother. The brother’s defense included a demand that the land be sold and its proceeds be divided one-third to the brother and two-thirds to the sister. Who will prevail?

2) Hansel and Gretel were joint owners with right of survivorship of Greenacre. Gretel conveyed all of her interest using a deed to Scumball, a close and dear friend, without

Hansel's knowledge. Shortly thereafter Gretel died.Who has title to Greenacre and how is it held?

3) Grace and Kiri inherit Virendell Nursery from their parents as joint tenants. One-quarter of the land is currently farmed and another % is an extensive propagating greenhouse.

The remaining 1/2 is vacant. Kid decides that in order to make more money off the land, they should plant the remaining half with several varieties of perennials. She goes ahead

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and does this. Grace refuses to participate, and Kid sues seeking 1/2 the costs of the improvements that she spent on planting. What is the result of the suit?

4) Gaston and Teresa Curtis are a married couple looking for an expensive home in

Mendham. The required down payment is astronomical, and Gaston's mother, Vida, offers to lend the young couple some initial cash. Gaston offers to put her name on the title until they repay the debt and Vida agrees. They buy the house and the title reads:

"Gaston and Teresa Curtis, and Vida Curtis as joint tenants with right of survivorship."

Vida pays half of all expenses for the house over the years. Teresa dies unexpectedly young and Teresa's will reads: "All my interest in real property to my son from my first marriage." The question becomes, in probate, what interest of the house shall pass to

Teresa's son. Gaston offers to prove that Vida's interest was only placed in the title as a security interest. How should the court rule regarding title to the property?

5) Husband and wife own Blackacre in joint tenancy with right of survivorship. This particular jurisdiction does not recognize a tenancy by the entirety nor are any community property principles recognized. Thereafter husband and wife deeded 10% of

Blackacre to their daughter. Later they deeded another 10% of Blackacre to their son-inlaw.What are the rights of the parties to Blackacre?

SECTION 5.

PRIVATE INTERESTS IN LAND: ESTATES AND FUTURE INTERESTS

Student Learning Outcomes.

Students will define “estate” and recognize the difference between present estates and future estates. Subsequently, students will indicate the difference between freehold estates and non-freehold estates, and differentiate between an absolute estate and a qualified estate. Students will describe how a fee simple, fee tail and a life estate are created.

Separately, students will examine the rights and obligations for a life tenant. Students will analyze what an estate for years is and how it is created and later terminated. Students will review the difference between a tenancy at will and a tenancy at sufferance. After the students have established the components of present estates, students will be introduced to future interests in estates. Students will diagram what a reversionary interest is as well as what a nonreversionary future interest is not. Students will contrast between a remainder and an executory interest. Students will differentiate between a contingent and a vested remainder based on unique facts patterns and practice problems. Furthermore, students will define the difference between a shifting and springing executory interest. After future interests have been defined, students will be given the rule against perpetuities to apply to the fact patterns. The rule against perpetuities will have students formulate a life in being as well as specifying a measuring life. By the end of this section, students should be able to correctly define and apply different estates and additionally, be able to read fact patterns to determine future interests while applying the rule against perpetuities.


What is an estate?

What is the difference between present estates and future estates?

What is the difference between freehold estates and non-freehold estates?

What is the difference between an absolute estate and a qualified estate?

How is a fee simple created?

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How is a fee tail created?

How is a life estate created?

What are the rights and obligations of the life tenant?

What is an estate for years?

How is an estate for years created and terminated?

What is a tenancy at will?

What is a tenancy at sufferance?

What are the types of qualified estates?

What is a reversionary future interest?

What is a non-reversionary future interest?

What is the difference between a remainder and an executory interest?

What is the difference between a contingent and a vested remainder?

What is the difference between a shifting and springing executory interest?

What is the interest to which the rule against perpetuities applies?

What is a life in being?

What is a measuring life?

5.1

Estates and Future Interests

Lesson 28, there will be a formative assessment – post-test on concurrent ownership and a pre-test on estates and future interest

5.2

Present Possessory Estates

Lesson 29, Wendell pages 1-15 (Chapters 1-2), and 42-54(Chapter 4)

5.3

Defeasible Estates

Lesson 30, Wendell pages 17-37, and pages 58-93.

5.4

Future Interests

Lesson 31, Wendell pages 98-134 (Chapter 7-).


1) Olive owned Blackacre, a single-family residence. Fifteen years ago, Olive conveyed a life estate in Blackacre to Lois. Fourteen years ago, Lois, who had taken possession of

Blackacre, leased Blackacre to Trent for a term of 15 years at the monthly rental of $500.

Eleven years ago, Lois died intestate leaving Ron as her sole heir. Trent regularly paid rent to Lois and, after Lois’s death, to Ron until last month. The period in which to acquire title by adverse possession in the jurisdiction is 10 years. In an appropriate action,

Trent, Olive, and Ron each asserted ownership of Blackacre. Describe the estate.

2)

Thirty years ago, a landowner conveyed land by warranty deed to a church (a charity) “so long as the land herein conveyed is used as the site for the principal religious edifice maintained by said church.” Twenty years ago, the landowner died intestate, survived by a single heir. One year ago, the church dissolved and its church building situated on the land was demolished. There is no applicable statute. The common law Rule Against

Perpetuities is unmodified in the jurisdiction. In an appropriate action, the landowner’s

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heir and the attorney general, who is the appropriate official to assert public interests in charitable trusts, contest the right to the land. In such action, who will prevail?

3) Testator made out a will and left his land to his son, Bob, for life and then to the children of Bob. If there were no children, to Dora and her children. Testator dies. Bob is a bachelor with no children and Dora has two minor children. What are the rights of the parties?

4) Kendis owns Villa Morris in fee simple, and following her husband's death she conveys

Villa Morris: "To my only child Canda, for life, remainder to the children of Ace in fee simple." Ace was Canda's only child at the time that conveyance was made. Note, however, that both Canda and Ace were married, but Ace had no children at the time of conveyance. With regards to Ace's own children (Kendis's great-grandchildren), what interest would they hold on conveyance? Why?

5) Florence conveys land, "To Lisa and her heirs, except if Lisa tries to convey the property, then to Eric and his heirs." During Eric's lifetime, describe his interest?

6) Leroux owns Lorien Gardens in fee simple and in 1970 converts the land "to Jamal for life and to the first child of Jamal's brother Kurt, who shall reach the tender age of 21 years." At the time of the conveyance in 1970, Kurt is unmarried. In 1976, Kurt marries and in 1978 Kurt has a daughter, Loriel. Assume that Kurt dies before Loriel becomes 21 and the jurisdiction does not have the common law rule of destructibility of contingent remainders. Who owns Lorien Gardens?

7) Romeo owns ocean front property and conveys it, "To the woman who is the most precious and special person I have every known, Juliet, for life, then to the heirs of my brother, Monty." At the time of the conveyance, Monty has not yet married, preferring the swinging singles life, and has no children that he knows of. At the time of Juliet's death, Romeo is still alive and Monty is unmarried and childless. When Juliet dies, to whom should her interest go? Why?

8) Bruce owns Icebellow Farm. He is nearing retirement, but his kids show no interest in farming the earth and raising grain. He puts his highest hopes in his son Murray, a cheesemaker, thinking that he will someday come around, after a few years. Bruce is diagnosed with a week to live, based upon a tetanus infection, and drafts his will. It reads:

"I leave lcebellow Farm to my best friend and good neighbor, Wong, for life, then to my eldest son Murray in fee simple absolute." The remainder of Bruce's property is to be divided among his remaining children, his only heirs at the time of his death. Bruce passes away and his estate is dispersed. Weeks later, Wong discovers that Icebellow

Farm has diamonds beneath the surface and begins to start mining the property and digging tunnels. Murray asks Wong to stop the mining, but Wong (who has 3 kids in college) refuses. Murray sues seeking to stop Wong. How should the court rule? Why?

5.5

Regulating Conveyances

Lesson 32, Wendell pages 146-167 (Chapter 10-11)

5.6

Rules Against Perpetuities

Lesson 33, Wendell pages 172-205 (Chapter 12)

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Lesson 34, formative assessment (post-test) on estates and future interests.

Sample Exercise

1) Arthur’s estate plan included a revocable trust established 35 years ago with ABC Bank as trustee.. The principal asset of the trust has always been Blackacre, a very profitable, debt-free office building. The trust instrument instructs the trustee to pay the net income

“to -Arthur for life, and, after the death of Arthur, to pay the net income to his wife,

Alice, for -life; and, after her death, to distribute the-net trust estate as she may appoint by will, or in default of her exercise of this power of -appointment, to my son (her stepson), Charles.” Arthur died 30 years ago survived by Alice -and Charles. Arthur had not revoked or amended the trust agreement. A few years after Arthur s death, Alice remarried; she then -had a child, Marie; was widowed for a second time; and, last year, died. Her will contained -only one dispositive provision: I give my - -entire estate to my daughter, Marie, and I -intentionally make no provision for my stepson, Charles. Marie is now 22 years old. -The common-law Rule Against Perpetuities is unmodified by statute in the jurisdiction. There-are-no-other-applicable-statutes-- Charles brought an appropriate action against Marie to determine who was -entitled to the net trust estate and thus to Blackacre. Discuss all possible issues.

2) Mame is affluent and in her will dated March 1, 1950 leaves everything to Patrick. Mame dies in 1991. When Patrick meets with Mame's executors, Patrick learns that 2 pieces of property were deeded to others; namely, the Rough Ride Ranch to Brigitta in 1975, and the Vino Vicarage to Rosalind in 1990. The deed to the ranch includes the clause: "for so long as the property is used to house sick parakeets. If the property is used for any other purpose, then it goes to the Able Aviary Association." The deed to Vino Vicarage includes: "as long as the vicarage is used as a headquarters in campaigning for a tax cut for the wealthy to pass by 2000. However, if the tax cut is passed before 1990, then the property should pass to Patrick at that time." Mame died leaving only one son, Fred, who was a bastard who never called his mother and so received nothing at all in Mame's will.

This is a common law jurisdiction, and the state's probate laws provide that future interests, or estates in real property, may be passed by will or descent in the same manner as present or possessory interests. (Note that neither Brigitta, nor Rosalind qualify as a charitable institution.) At the time of Mame's death, describe Patrick's interest.

SECTION 6.

SERVITUDES

6.1

Licenses and Easements

Lesson 35

Expect a formative assessment post-test on estates and future interests. Also, read textbook pages 393-426, including Holbrook v. Taylor , Van Sandt v Royster .

Lesson 36 (Re: Prescriptive Easements)

Read textbook pages 426-463, including Othen v. Rosier , and Raleigh Avenue Beach Assn .

Lesson 37 (Re: Express Easements)

Read textbook pages 463-470 (stop at substantive limitations), including Willard v. First

Church of Christ, Scientist

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Lesson 38 (Re: Express Easements [cont’d])

Read textbook pages 470-501, including Miller v. Lutheran Conference and Brown v. Voss

Lesson 39 (Re: Terminating Easements, Negative Easements, and Recap)

Read textbook pages 502-520, including Preseault v. United States

6.2

Covenants

Lesson 40 (Re: Introduction to Covenants, and Formal and Substantive Requirements)

Read textbook pages 521-567.

Lesson 41 (Re: Implied Reciprocal Negative Servitudes, Remedies, and Covenants Running with the Land)

Read textbook pages 567-598, including Sanborn v. McLean and Tulk v. Moxhay

Lesson 42 (Re: Public Policy Limitations)

Read textbook pages 598-616

Lesson 43 (Re: Common Interest Communities)


Lesson 44 (Re: Modifying or Terminating Covenants)


SECTION 7.

ADVERSE POSSESSION

7.1

Acquisition by Adverse Possession

Lesson 45 (Re: Adverse Possession [not including the case material])


Lesson 46

Read textbook pages 699-740, including Van Valkenburgh v. Lutz, Mannillo v. Gorski,

Howard v. Kunto, and O’Keefe v. Snyder

SECTION 8.

LEASEHOLDS

8.1

Leaseholds Distinguished, and Types of Tenancies

Lesson 47 (Re: Introduction, Distinguishing Leaseholds, Types of Tenancies)

Read textbook, pages 741-765

8.2

Tenant’s Obligations and Landlord’s Remedies

Lesson 48


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8.3

Landlord’s Obligations and Tenant’s Remedies

Lesson 49


8.4

Tenant’s Rights to Habitable Premises

Lesson 50


8.5

Transfers by Landlord or Tenant

Lesson 51

Read textbook, pages 849-854, including Ernst v. Conditt and Kendall v. Pestana, Inc.

Lesson 52

Formative post-test and discussion on leaseholds

SECTION 9.

Nuisance

9.1

Introduction, and Private and Public Nuisance

Lesson 53


9.2

Water and Support Rights, and Light and Air

Lesson 54


Lesson 55


9.3

Judicial Land Use Controls: The Law of Nuisance

Lesson 56

Read textbook, pages 906-924, including Morgan v. High Penn Oil Co.

, Estancias Dallas

Corp. v. Schultz , Boomer v. Atlantic Cement Co.

, Spur Industries, Inc. v. Del E. Webb

Development Co.

(tentative)

SECTION 10.

Lesson 57

Zoning

Read textbook, pages 937-952 (tentative)

Final Exam

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