Transcript
Chapter 13—Property and the Environment
A. Chapter Introduction
This chapter introduces the student to the legal aspects of property. Private property ownership serves as the primary basis of the American economic system. As a result, a substantial body of law has been developed to protect property rights and the rights of owners of property to use, protect, preserve, and transfer their property interests. Paralegals are often called upon to assist attorneys in the drafting of documents necessary for the transfer of real and personal property. After studying this chapter the student will be able to:
Define personal property and describe methods of acquiring ownership.
Explain bailments and identify the parties to a bailment.
Delineate and describe the four types of real property.
Identify and distinguish the different types of interests in real property.
Explain the methodology to transfer of interests in real property.
Identify and describe the various types of leaseholds.
Describe land-use controls and environmental protection laws.
B. Instructional Ideas
Tour Recorder of Deeds office.
Have a real estate agent as a guest speaker.
Have a title abstractor as a guest speaker.
Explain the process of legal land descriptions.
Examine a plat map of the county or parish.
C. Lecture and Class Discussion Outline
Personal Property—Everything that is not real property; sometimes referred to as goods or chattels.
Types of Personal Property
Tangible property—Physically defined property such a goods, animals, and minerals wherein the value resides in the tangible item itself
.
Intangible property—Rights that cannot be reduced to physical form, such as stock certificates, bonds, and copyrights wherein the value of the item resides in the mind of the owner or potential purchasers.
Bailments—Occur when the owner of personal property delivers the property to another person to be held, stored, or delivered, or for some other purpose.
Parties
Bailor—Owner of the property
Bailee—Party to whom the property is delivered.
Mutual Benefit Bailment – Arises when both parties benefit from the bailment. The bailee owes a duty of reasonable or ordinary care and is liable for ordinary negligence.
Real Property
Nature of Real Property—Real property is immovable; it includes land, buildings, subsurface rights, air rights, plant life, and fixtures.
Interests in Real Property
Freehold Estates—Estates where the owner has a present possessory interest in the real property.
Estates in Fee
Fee simple absolute or fee simple—Highest form of ownership.
Fee simple defeasible or qualified fee—Estate that ends if a specified condition occurs.
Life Estates—An interest in real property that lasts for the life of a specified person. Called an estate pour autre vie if the time is measured by the life of a third person.
Future Interest—Right to possess real property in the future rather than currently.
Reversion—Right to possession that returns to the grantor after the expiration of a limited or contingent estate.
Remainder—Right to possession that goes to a third person after the expiration of a limited or contingent estate; the third person is called a remainderman.
Concurrent Ownership—Two or more persons jointly own real property.
Joint Tenancy—Owners may transfer their interest without the consent of co-owners; transfer severs the joint tenancy. Under the right of survivorship, the interest of a deceased owner passes to his or her co-owners.
Tenancy in Common—Owners may transfer their interest without the consent of co-owners; transfer does not sever the tenancy in common. Interest of a deceased owner passes to his or her estate.
Tenancy by the Entirety—Form of co-ownership that can be used only by a married couple; neither spouse may transfer his or her interest without the other spouse’s consent. Under the right of survivorship, the interest of a deceased spouse passes to his or her surviving spouse.
Community Property—Form of co-ownership that applies only to a married couple and only in nine states; neither spouse may transfer his or her interest without the other spouse’s consent. When a spouse dies, the surviving spouse automatically receives one-half of the community property, with the deceased spouses one-half interest passing to his or her heirs.
Condominium—Owners have title to their individual units and own the common area as tenants in common; owners may transfer their interests without the consent of other owners.
Cooperative—A corporation owns the building and the residents own shares of the corporation. Usually, owners may not transfer their shares without the approval of the other owners.
Transfer of Ownership of Real Property
Sale of Real Estate—An owner sells his or her property to another for consideration.
Marketable Title—A title free of encumbrances, defects in title, or other defects.
Deed—An instrument used to convey real property by sale or gift.
Warranty deed—Provides the most protection to the grantee because the grantor makes warranties against defect in title.
Quitclaim deed—Provides least amount of protection to the grantee because the grantor transfers only the interest he or she has in the property.
Adverse Possession – A person who occupies another’s property acquires title to the property if the occupation has been:
1. For a statutory period of time (in many states, 10 to 20 years)
2. Open, visible, and notorious
3. Actual and exclusive
4. Continuous and peaceful
5. Hostile and adverse
Easement—An interest in land that gives the holder the right to make limited use of another’s property without taking anything from it, e.g. roads or paths for ingress and egress.
Leasehold Estates
Landlord–Tenant Relationship – Created when an owner of a freehold estate transfers a right to another to exclusively and temporarily possess the owner’s property.
Types of Tenancy
Tenancy for years —Tenancy for a specified period of time.
Periodic tenancy—Tenancy for a period of time determined by the payment interval.
Tenancy at will—Tenancy that may be terminated at any time by either party.
Tenancy at sufferance—Tenancy created by the wrongful possession of property.
Lease—The rental agreement between the landlord and the tenant that contains the essential terms of the parties’ agreement.
Land-Use Control
Public Regulation of Land Use
Zoning ordinances—Laws adopted by local governments that restrict use of property, set building standards, and establish architectural requirements.
Variance—Permits an owner to make a non-zoned use of his or her property; requires permission from a zoning board.
Nonconforming use—A non-zoned use that is permitted, grandfathered in when an area is rezoned.
Environmental Protection—Federal and state governments have enacted environmental protection statutes to control pollution and to penalize those who violate these statutes.
Environmental Protection Agency (EPA)—Federal administrative agency created in 1970 that is empowered to implement and enforce federal environmental protection statutes. The EPA can adopt regulations to interpret and enforce the laws it is authorized to administer.
D. Internet Resources
www.legalonline.com
www.hud.gov
www.epa.gov
E. Suggested Answers
Questions for Critical Legal Thinking and Writing
Anything other than real property is personal property. Personal property is movable.
Estray statutes permit owners of lost property to claim title to the property after the passage of time and complying with public notice requirements.
Bailments occur when the owner of personal property delivers the property to another person to be held, stored, or delivered, or for some other purpose. Owner of the property is referred to as the bailor. Party to whom the property is delivered is referred to as the bailee. The bailee owes a duty of reasonable or ordinary care and is liable for ordinary negligence.
Fee simple ownership is the most complete form of ownership. The owner in fee simple may sell, lease, divide, alter, encumber, and even destroy the property. The life tenant to the life estate may not sell or destroy the property, but may enjoy the other benefits of possession for as long as they live.
In joint tenancy the owners may transfer their interest without the consent of co-owners, but doing so severs the joint tenancy and the interest of a deceased owner passes to his or her co-owners. In tenancy in common the owners may transfer their interest without the consent of co-owners and the transfer does not sever the tenancy in common. The interest of a deceased owner passes to his or her estate. Tenancy by the entirety is a form of co-ownership used only by a married couple in which neither spouse may transfer his or her interest without the other spouse’s consent and the interest of a deceased spouse passes to his or her surviving spouse.
They are intended to prevent fraud and establish certainty in ownership and transfer of property.
A person who occupies another’s property acquires title to the property through adverse possession if the occupation has been for the required period of time, has been open, visible, notorious, actual, exclusive, continuous, peaceful, hostile, and adverse.
The right to use another’s land for a limited purpose. An express easement is indicated by a written grant, and implied easement by actual use.
Tenancy for years is tenancy for a specified period of time. Periodic tenancy is for a period of time determined by the payment interval. Either party may terminate tenancy at will at any time. Tenancy at sufferance is created by the wrongful possession of property by a holdover tenant.
Cases for Discussion
Petitioners brought action alleging that they had acquired title to property through adverse possession. The Circuit Court held that petitioners had title and appeal was taken. The Court of Appeals held that evidence was sufficient to establish that petitioners, by adverse possession, had title to land on which their concrete garage was located.
Suit was brought by prior purchasers (the Hills) of specific mausoleum crypt against seller (Pinelawn) and subsequent purchasers (the Shackelfords) seeking specific performance and damages. The trial court entered judgment in favor of plaintiffs, and defendants appealed. The Court of Appeals reversed and remanded in part, and plaintiffs petitioned for discretionary review. The Supreme Court of North Carolina held that a purchaser of real property (the Shackelfords) who obtains and records deed thereto after being served with summons in action by prior purchaser (the Hills) demanding conveyance of that property is not protected as purchaser for value under recordation statute. Furthermore, subsequent purchasers of mausoleum crypt (the Shackelfords), who not only obtained their deed from party to action (Pinelawn) but also were parties to action themselves, were not innocent purchasers for value and thus could not rely on recordation statute. Court of Appeals opinion reversed and cause remanded.
Tenant brought action against landlord to recover full security deposit, penalty for wrongfully withholding security deposit, and damages for breach of duty to provide habitable housing. The trial court ordered return of a portion of security deposit, denied statutory damages for wrongfully withholding security deposit, and denied damages for alleged breach of duty to provide habitable housing. Tenant appealed. The Court of Appeals held that the award of damages of one and one half amount of wrongfully withheld security deposit was not discretionary with trial court, and landlord’s alleged breach of duty to provide habitable housing would entitle tenant to difference between fair rental value of apartment as it should have been and as it was, and to any consequential damages. Affirmed in part, reversed in part, and remanded.
Devisee of condominium and its contents sought to recover stock certificates and proceeds from financial institutional passbooks found on premises. The trial court determined that devisee was not entitled to receive certificates and proceeds. Devisee appealed. The Court of Appeals held that “contents” within meaning of devise of condominium and its contents did not refer to stock certificates and proceeds. Affirmed.
Case for Briefing
The plaintiffs were servient estate holders Elizabeth Ayres and Clara Quillen. The defendant was dominant estate holder Irvin Walker.
The plaintiff owns property that is bounded on three sides by water of a bay and on the fourth side by defendant’s property.
Is there an implied easement of the landlocked property of plaintiffs? The court ruled that there was.
F. Feedback
Multiple Choice—Circle the letter immediately to the left of the best answer.
1. Real property is:
a.* land and anything permanently attached to it.
b. farm machinery.
c. automobiles.
d. cash.
e. non-imaginary property.
2. All of the following would be considered real property, except:
a. standing timber.
b. a home on a foundation.
c. fences.
d.* cattle.
e. a well.
3. Personal property is:
a. owned only by one person.
b.* anything other than real property.
c. land.
d. cash only.
4. An example of tangible personal property is:
a.* household furniture.
b. stock certificates.
c. cash.
d. bonds.
e. certificates of deposit.
5. Real property includes:
a. the air space above the boundaries of the property.
b. the subsurface area beneath the boundaries of the property.
c. anything permanently attached to the property.
d.* all of the above
6. Concurrent or joint ownership refers to real estate that is owned by:
a. a corporation.
b.* two or more people or entities.
c. a trust.
d. all of the above
e. none of the above
7. The type of ownership of real estate that is owned by a husband and wife is referred to as:
a. tenancy in common.
b. joint tenancy.
c.* tenancy by the entireties.
d. tenancy at sufferance.
8. The type of deed that transfers ownership interest to a piece of real estate from the seller to the buyer with a guarantee that the property is transferred free and clear of claims or encumbrances is called a:
a.* warranty deed.
b. deed of release.
c. deed of trust.
d. deed of sale.
9. In order to maintain a claim to a piece of real estate by adverse possession, one must show that use and occupancy of the real estate was:
a. open.
b. hostile.
c. continuous.
d. exclusive.
e.* all of the above
f. a, c and d only
10. Personal property:
a. consists of anything capable of being owned other than real property.
b. includes tangible property.
c. includes intangible property.
d.* all of the above
e. both a and b only
