Chapter 47
Real Property
§ 1: Nature of Real Property
Real property is immovable and includes:
Land.
Buildings.
Trees and vegetation.
Airspace.
Subsurface (mineral) rights.
Fixtures.
§ 2: Ownership Interests
in Real Property
Ownership interests are classified as
either Possessory or Non-Possessory:
Possessory interest such as a fee simple,
life or leasehold estate, gives the owner a
right to possess the land.
A Nonpossessory interest such as an
easement, profit or license, does not give the
owner a right to possess the land.
Fee Simple (Absolute)
Although not absolute, the fee simple
(sometimes called fee simple absolute) gives the
owner the greatest aggregation of rights,
powers and privileges possible under American
law and can assigned to heirs.
A “conveyance” (transfer of real estate) “from
A to B” creates a fee simple. A is the Grantor
and B is the Grantee.
Life Estates
Estate that lasts for the life of some specified
individual. “A grants Blackacre to B for B’s
life” grants B a life estate in Blackacre.
When B dies, Blackacre returns to A or his
heirs or assigns, or a third party in the same
condition, normal wear and tear excepted.
Grantor A retains a “future interest” in the
property.
During B’s life, she can possess, use, and take
the fruits of the estate, but not take from the
property itself.
Future “Reversionary” Interest
Reversionary Interest: Grantor (A) retains
right to re-possess land when Grantee’s (B)
life estate expires or defeasible condition is
violated.
Future “Remainder” Interest
Grantor (A) assigns/transfers/sells her future
interest to 3P who now has a remainder.
When Grantee (B) dies, interest passes to 3rd
Party.
Leasehold Estates
A real property owner or lessor agrees to
convey the right to possess and use the
property to a lessee for a certain period
of time.
Tenancy for Years:
Periodic Tenancy.
Tenancy at Will.
Tenancy at Sufferance.
Non-Possessory Interests
An easement is a right of a person to make
limited use of another person's real property
without taking anything from the property.
A profit is the right to go onto land in
possession of another and take away some part
of the land itself or some product of the land.
Property that is benefited by easement/profit
carries the the interest with the sale of land.
Non-Possessory Interests [2]
If the owner of the easement or profit is
contiguous to the owner of the land, it is said to
be appurtenant (‘easement appurtenant”). If
the owner’s property is separated, it is said to be
gross.
Non-Possessory Interests [3]
Easements or profits can be created by:
Deed (physical delivery is sufficient).
Will (at Grantor’s death).
Contract between Grantor and Grantee.
Implication: circumstances surrounding
creation of easement imply its creation.
Necessity.
Prescription: easement by adverse possession.
Termination of an
Easement or Profit
By deed back to owner of the land
burdened by it.
Owner of easement or profit becomes
owner of the land burdened with it.
Abandonment by the owner of the right.
Licenses
Revocable right of a person to come unto
another’s land without removing
anything from the land.
Personal privilege that arises from the
consent of the owner of the land that can
be revoked.
§ 3: Transfer of Ownership
Ownership in real property can be
transferred by:
A written Deed.
A Gift.
A Sale.
An Inheritance.
Adverse Possession.
Eminent Domain.
Deeds
A Deed is the instrument setting forth the
interests in real property being transferred.
Necessary components of a Deed:
Names of Grantor and Grantee.
Words evidencing intent to convey.
Legally sufficient description of the land.
Grantor’s signature.
Delivery of the Deed.
Types of Deeds
Warranty Deed.
Special Warranty Deed.
Quitclaim Deed.
Grant Deed.
Sheriff’s Deed.
Period of redemption.
Recording Statutes
Recording a deed (or any interest in real
property) puts the public on notice of the
new owner’s interest in the land and
prevents the previous owner from
fraudulently conveying the same interest
to another buyer.
Race statute.
Pure notice statute.
Notice-race statute.
Contracts for the
Sale of Real Estate
Contracts must be in writing and signed
to be enforceable under the Statute of
Frauds.
Brokers and Agents.
Formation of the Sales Contract.
Warranty of Habitability.
Seller’s Duty to Disclose Defects.
Seller must deliver marketable title.
Sale Process
Transfer By Inheritance
Owner of real property dies, his property
is transferred by:
Will (testate).
Without Will (intestate).
Title is transferred at the time state law
so provides in its testate and intestate
laws.
Transfer By Adverse Possession
One person possesses the property of another
for a certain statutory period of time, that
person automatically acquires title to the land,
just as if there had been a conveyance by deed.
Must be:
•
•
•
•
Actual and exclusive.
Open, visible and notorious.
Continuous and peaceable.
Hostile and adverse.
§ 4: Limitation of the Rights of
Property Owners
Rights in property are not absolute.
They are constrained by federal and state
laws, e.g., nuisance, tax and
environmental.
Transfer By Eminent Domain: The 5th
amendment gives the government the
right to “take” private land for public use
with just compensation.
Limits: Zoning
Zoning is the State’s power to control the
use of land through legislation without
having to compensate the owner (unless
so severe that it is a “taking”).
Must be rational in advancing state interest and
must be non-discriminatory.
• Variances.
• Building Permits.
Limits: Restrictive Covenants
Private restriction on use of land. Restrictions of
the use of the land which is binding on the party
who purchases originally and on subsequent
purchasers –if it “runs with the land”.
Running with the land requires:
Written agreement.
Must bind all subsequent owners.
Must touch and concern the land.
Successor to the original parties must have notice of the
covenant.
Actual or constructive.
Case 47.1: Smith v. Levine
(Seller’s Duty to Disclose)
FACTS:
The Levines noticed cracks in the walls and a
slope in the floor of Smiths home.
The Smiths, knowing about an engineer’s report
saying the foundation was defective, said that
these were “superficial” and “routine,” and did not
mention the report.
The Levines bought the house and signed a note
payable to the Smiths. When the Levines learned
of Bradley’s report, they confronted the Smiths
and sued.
Case 47.1: Smith v. Levine
(Seller’s Duty to Disclose)
HELD: FOR LEVINES.
A jury found that the Smiths had committed fraud and
awarded the Levines damages. The Smiths
appealed.
Smiths’ failure to disclose the problems and the
engineer’s report about the foundation constituted
fraud.
That is the information contained in Bradley’s report,
and that is the information the jury could reasonably
have found the Smiths should have, but did not
disclose to the Levines.”
Case 47.2: Klos v. Molenda
(Adverse Possession)
FACTS:
In 1950, Klos purchased part of some property
owned by Molenda. The seller and buyer placed
stakes in the ground as boundary markers.
Two years later, Klos built a house and laid a
driveway 30 inches from the stake line. He
planted grass and maintained a hedge in that 30
inches.
Thirty years later, Molenda died and a survey
located the property line between the Molendas’
and Kloses’ land along the Kloses’ driveway. Mrs.
Molenda dug up the grass and the hedge and
erected a fence along Klos’ driveway. Klos sued.
Case 47.2: Klos v. Molenda
(Adverse Possession)
HELD: FOR KLOS.
The Klos’s held title to the land by adverse
possession.
The Kloses maintained the land for over 30 years
prior to the erection of the fence by Mrs. Molenda.
The hostile nature of the Klos possession was not
destroyed merely because the Molendas were
mistaken as to where the property line should be
located.
Case 47.3: Purdie v. Attorney General
(Eminent Domain)
FACTS:
The New Hampshire legislature passed a statute
that declared the state’s ownership in “all shore
lands subject to the ebb and flow of the tide to the
high water mark.”
Beach-front property owners sued the state,
asserting a taking of their property without just
compensation in violation of the state constitution
and the Fifth Amendment of the U.S. Constitution.
The court ruled in favor of the plaintiffs, and the
state appealed.
Case 47.3: Purdie v. Attorney General
(Eminent Domain)
HELD: FOR PLAINTIFFS, LANDOWNERS.
Case was remanded for a decision regarding the
location of the “mean high water mark” and a
determination as to which, if any, of the plaintiffs
were entitled to damages.
By unilaterally authorizing the taking of private
shore land for public use and provides no
compensation for landowners whose property has
been appropriated, the statute violates the
prohibition in the State Constitution and the Fifth
Amendment of the Federal Constitution against
the taking of property for public use without just
compensation.