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.

Reversionary Interest: Grantor (A) retains right to re-possess land when Grantee’s (B) life estate expires or defeasible condition is violated. Future “Reversionary” Interest

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 3 rd 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 5 th 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.

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 47.1: Smith v. Levine (Seller’s Duty to Disclose)

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.

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 47.2: Klos v. Molenda (Adverse Possession)

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.

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. Case 47.3: Purdie v. Attorney General (Eminent Domain)