Chapter 24 - Real Property

Chapter 24 - Real Property

Chapter 24 - Real Property




1. Discuss what is meant by the term “real property,” including how a fixture becomes a part of real property. What are the three requirements for personal property to become a fixture?

2. Distinguish the concepts of tenancy in common, joint tenancy and tenancy by the entirety.

What is a partition action, and can it be sought in each of the listed tenancies?

3. What is an easement? How can it be created?

4. Describe how one can obtain property through adverse possession. What are the elements an adverse possessor must satisfy in order to establish her claim to the land?

5. The Fair Housing Act prohibits discrimination in housing. What are the classifications protected against discrimination in the Act? Give an example of a situation that would violate the Act using each classification.

6. A deed is a written instrument that transfers title from one person (the grantor) to another (the grantee). Recording a deed to real property is necessary to protect the owner’s rights in the property. This is because one cannot deliver possession of real estate to another in the same way one delivers items of goods. If you sell me your piano, there is no certificate of title for the piano but I acquire title when I am given possession. What type of deed would you want to obtain from the seller of real property, and why?

7. The UCC implies certain warranties in contracts for the sale of goods, and courts have recognized similar implied warranties in the sale of new homes. Most states, however, do not extend this protection to purchasers of commercial property. What are the differences between residential and commercial property? Should the buyer of commercial property be entitled to the same protection as the buyer of a new home? Why or why not?

8. What is zoning? Why is it a valid exercise of a local government’s police power? Are there any restrictions on the right of government to zone real property, and if so, what are they?


I. Learning Objectives

II. Scope of Real Property

A. Real Property includes land and things firmly attached to land.

B. Fixtures

1. Factors Indicating Whether an Item Is a Fixture

a. Attachment

b. Adaptation

c. Intent

d. Example: Chevron U.S.A., Inc. v. Sheikhpour, 2011 U.S. Dist. LEXIS 19566 (U.S. Dist. Ct. C.D. Cal. 2011)

2. Express Agreement

3. Trade Fixtures

4. Security Interests in Fixtures

III. Rights and Interests in Real Property

A. Estates in Land

1. What are freehold and nonfreehold estates?

2. Fee Simple Absolute

3. Life Estate

B. Co-Ownership of Real Property

1. Tenancy in Common

2. Joint Tenancy

a. What is the significance of having right of survivorship?

3. Tenancy by the Entirety

a. Example: Tkachik v. Mandeville, 790 N.W.2d 260 (Sup. Ct. Mich. 2010)

4. Community Property

5. Tenancy in Partnership

6. Condominium Ownership

7. Cooperative Ownership

IV. Interests in Real Property Owned by Others

A. Easements

1. Affirmative easement

2. Negative easement

3. Easement appurtenant

B. Creation of Easements

1. Easements can be acquired in the following ways:

a. By grant

b. By reservation

c. By prescription

d. By implication

(1) prior use

(2) necessity

2. Easements and the Statute of Frauds

C. Profits

1. Also called easements with a profit

D. Licenses

1. Temporary right to enter another’s land for a specific purpose.

2. Under what circumstances can a license be revoked?

3. What is the difference between a license and an easement?

E. Restrictive Covenants

1. Describe the concept of “covenants that run with the land.” What are the three requirements?

2. Example: Gardner v. Jefferys, 2005 Vt. LEXIS 86 (Vt. Sup. Ct. 2005)

3. Termination of Restrictive Covenants

V. Acquisition of Real Property

A. Acquisition by Purchase

B. Acquisition by Gift

C. Acquisition by Will or Inheritance

D. Acquisition by Tax Sale

E. Acquisition by Adverse Possession

1. To acquire title by adverse possession, one must possess land in a manner that puts the true owner on notice of the owner’s cause of action against the possessor.

2. Example: Schlichting v. Cotter, 2007 Conn. Super. LEXIS 461 (Conn. Super. Ct. 2007)

VI. Transfer by Sale

A. Describe the five steps normally involved in a Sale of Real Property.

B. Contracting with a Real Estate Broker

1. Types of Listing Contracts

a. Open listing

b. Exclusive agency listing

c. Exclusive right to sell

C. Contract of Sale

1. Financing the Purchase

D. Fair Housing Act

1. Cyberlaw in Action

E. Deeds

1. Quitclaim Deeds

2. Warranty Deeds

a. General warranty deed

b. Special warranty deed

3. Deeds of Bargain and SaleF. Form and Execution of Deed

G. Recording Deeds

1. Recording Statutes

2. Types of Recording Statutes

a. Race statues

b. Notice statutes

c. Race-notice statutes

H. Methods of Assuring Title

1. Title opinion

a. Abstract of title

b. Marketable title

2. Torrens system

3. Title insurance

VII. Seller's Responsibilities Regarding the Quality of Residential Property

A. Implied Warranty of Habitability

B. Duty to Disclose Hidden Defects

VIII. Other Property Condition-Related Obligations of Real Property Owners and Possessors

A. Expansion of Premises Liability

1. Security Precautions against Foreseeable Criminal Acts

2. Determining Foreseeability

B. Americans with Disabilities Act

1. Places of Public Accommodation

2. Modifications of Property

3. New Construction

4. Remedies

IX. Land Use Control

A. Nuisance Law

1. How is nuisance defined?

2. Public nuisance versus private nuisance

B. Eminent Domain

1. Describe what the Fifth Amendment to the Constitution provideS regarding government takings of real property.

2. “Just compensation”

a. Example: Kelo v. City of New London, 125 S.Ct. 2655 (U.S. Sup. Ct. 2005)

b. Inverse condemnation

C. Zoning and Subdivision Laws

D. Nonconforming Uses

E. Relief from Zoning Ordinances

1. Amendment

2. Variance

F. Challenges to the Validity of the Zoning Ordinance

1. Describe the Supreme Court’s ruling in City of Renton v. Playtime Theatres, Inc.

G. Land Use Regulation and Taking

1. Regulations Denying Economically Beneficial Uses