Property Law For Dummies

Alan Romero is a professor of law and Director of the Rural Law Center at the University of Wyoming College of Law. He's been teaching Property Law and related courses at various law schools since 1998.

Introduction 1

About This Book 1

Conventions Used in This Book 2

What You’re Not to Read 2

Foolish Assumptions 2

How This Book Is Organized 3

Part I: Introducing Property Law 3

Part II: Understanding Real Property Rights 3

Part III: Looking at Shared and Divided Property Ownership 4

Part IV: Acquiring and Transferring Property Rights 4

Part V: The Part of Tens 5

Icons Used in This Book 5

Where to Go from Here 6

Part I: Introducing Property Law 7

Chapter 1: Getting the Lowdown on Property Law 9

Defining Property 9

Viewing property as legal rights 10

Categorizing property as real or personal 11

Describing the Duration and Sharing of Ownership 12

Acquiring Original Property Rights 13

Transferring Property Rights to Another 14

Chapter 2: Defining Property in Legal Terms 15

Distinguishing between Real and Personal Property 15

The real world: Land and buildings 16

A personal touch: Everything else that can be owned 16

Describing a Property Owner’s Rights 17

Possessing property 17

Using property 18

Excluding others from your property 18

Transferring property 18

Limiting a Property Owner’s Rights 19

Declaring default common law rules 19

Modifying property rights by contract 19

Publicly regulating property 20

Exploring Remedies for Violations of Property Rights 20

Common law forms of action 21

Legal and equitable remedies 22

Chapter 3: Considering Property Ownership 23

Defining Title 23

Acquiring Title 24

The first owners: Identifying original government title 24

Patents: Conveying government land to individuals 25

Acquiring private land for the public 26

Conveying title to private land during life 27

Transferring property by will 27

To the heirs: Distributing property by intestate succession 28

Acquiring title by taking possession 30

Selling property by judicial order 30

Sharing and Dividing Property Ownership 31

Defining present and future estates 32

Understanding undivided concurrent ownership 33

Part II: Understanding Real Property Rights 35

Chapter 4: Identifying Common Law Rights in Real Property 37

Nuisance Law: Enjoying Property without Unreasonable Interference 38

Determining whether an activity is a nuisance 38

Substantially harming the landowner 40

Remedying nuisances 40

Altering How Surface Water Drains 41

The reasonable use rule: Altering drainage reasonably 41

The common enemy rule: Protecting your own land 42

The civil law rule: Paying for any harm you cause 42

Regulating Water Rights 43

Claiming water from watercourses 43

Drawing water from underground 45

Extracting Oil and Gas from Underground 46

The rule of capture: “Go and do likewise” 47

Modifying the rule of capture 47

Avoiding Landslides and Subsidence: Supporting Land 48

Laterally supporting adjacent land in its natural state 49

Laterally supporting nearby land and improvements to land 50

Supporting land from beneath 50

No Trespassing! Excluding Others from Land 51

Considering what constitutes a trespass 51

Remedying trespasses 53

Using Airspace 53

Defining boundaries in the air 54

Using and protecting airspace 54

Chapter 5: Adjusting Rights by Private Agreement: Covenants 55

Introducing Land-Related Covenants 55

Enforcing a Running Covenant at Law 56

Determining intent for a covenant to run 58

Deciding whether a covenant touches and concerns the relevant land 59

Establishing vertical privity 61

Satisfying the horizontal privity requirement 63

Enforcing a Covenant in Equity 64

Enforcing covenants without privity 64

Requiring notice of the covenant 65

Remedying a breach of a covenant in equity 66

Burdens for the Benefit of All: Enforcing Implied Reciprocal Covenants 67

Inferring covenants from a common development plan 67

Implying intent to run 69

Giving notice of implied covenant 70

Interpreting Covenants 71

Amending Covenants 72

Terminating Covenants 73

Invalidating covenants that restrain alienation 74

Terminating a covenant because of changed circumstances 74

Waiving a covenant 75

Abandoning a covenant 76

Refusing to enforce unreasonable covenants 77

Analyzing a Covenant Dispute 78

Chapter 6: Giving Others the Right to Use Your Land: Easements 79

Grasping the Basics of Easements 79

Distinguishing affirmative and negative easements 80

Describing profits 81

Telling easements apart from licenses 81

Knowing what’s an easement and what’s a covenant 82

Creating Easements 83

Looking at express easements 83

Avoiding the statute of frauds 84

Implying easements three ways 86

Over time: Acquiring easements by prescription 89

Interference and Trespasses: Determining the Scope of Easements 92

Prohibiting interference by the servient owner 92

Preventing use that benefits nondominant land 93

Changing the type or purpose of use 94

Increasing the burden on the servient land 94

Maintaining the easement 95

Transferring and Dividing Easements 96

Sticking to the land: Transferring appurtenant easements 96

Dividing appurtenant easements 97

Transferring easements in gross 97

Dividing easements in gross 98

Terminating Easements 99

Terminating easements by express release or agreement 99

Ending easements by merging dominant and servient estates 100

Abandoning easements 100

Terminating easements by estoppel 101

Extinguishing easements by adverse use 102

Chapter 7: Zeroing In on Zoning 103

Discovering Who Typically Regulates Land Use 103

Regulating the Big Three: Use, Height, and Bulk 104

Protecting Nonconformities from New Zoning Restrictions 105

Permitting Conditional Uses 106

Avoiding Unnecessary Hardship with Variances 107

Demonstrating inability to reasonably use the land as zoned 108

Explaining why unique conditions require a variance 108

Avoiding alteration of the essential character of the locality 109

Amending Zoning 109

Requiring consistency with a comprehensive plan 110

Invalidating spot zoning 111

Chapter 8: Recognizing the Limits of Public Regulation 113

Looking for the Local Power Source: State Enabling Statutes 113

Explaining Property Deprivations: Substantive Due Process 115

Identifying a deprivation of property 115

Deciding whether a regulation is rational 116

Considering whether a regulation advances a public purpose 117

Compensating for Property Taken for Public Use 119

Compensating for condemnations 120

Figuring out when a regulation is a taking 121

Remedying regulatory takings: Paying up 125

Treating Similarly Situated Owners the Same: Equal Protection 125

Looking for rational differences in treatment 126

Remedying equal protection violations 128

Respecting Free Speech Rights 128

Regulating the land use effects of speech 129

Regulating the content of speech 129

Part III: Looking at Shared and Divided Property Ownership 131

Chapter 9: Dividing Ownership over Time: Estates 133

Introducing the Concept of Present and Future Estates in Land 134

Creating and Distinguishing the Present Estates 134

Creating a fee simple: No expiration 135

Dealing with the fee tail: Direct descendants 135

Limiting a present estate to life 136

Making Present Estates Defeasible: Conditional Endings 136

Determinable estates 137

Estates on condition subsequent 137

Estates subject to an executory limitation 137

Identifying Future Estates 138

Reversionary interests 139

Nonreversionary interests: Creating future estates in others 140

Describing the present estate the future estate holder will own 141

Distinguishing contingent and vested remainders 143

Interpreting grants to heirs 144

Restricting Certain Future Estates via Common Law Rules 146

Destroying contingent remainders 146

Invalidating restraints on alienation 147

Limiting Nonreversionary Interests: The Rule against Perpetuities 148

Understanding the interests subject to the rule 149

Determining the moment of vesting 149

Considering lives in being 150

Modifying the rule by statute 153

Transferring Present and Future Estates 153

Governing the Relationship between Owners of Present and Future Estates 154

Taking a closer look at waste 155

Forcing the judicial sale of real property in fee simple absolute 156

Chapter 10: Sharing Property: Concurrent Ownership 159

Concurrent Ownership: Owning the Same Property at the Same Time 160

Getting Familiar with Tenancy in Common 160

Creating a tenancy in common 161

Understanding fractional shares 161

Transferring one’s interest 162

Taking a Closer Look at Joint Tenancy 162

Overcoming the presumption of tenancy in common: Creating a joint tenancy 163

Satisfying the four unities: Time, title, interest, and possession 163

Understanding the right of survivorship 164

Severing the joint tenancy 165

Examining Tenancy by the Entirety 167

Creating a tenancy by the entirety 167

Restricting transfers by tenants by the entirety 168

Till death do us part? Terminating a tenancy by the entirety 169

Governing the Relationship among Cotenants 169

Using the concurrently owned property 169

Paying expenses 170

Renting the property 172

Acquiring interests in the property 172

Avoiding waste 173

Breaking Up: Terminating Concurrent Ownership by Partition 174

Partitioning voluntarily: Deciding to split property or proceeds 174

Compelling partition 175

Court orders: Dividing the property physically or by sale 175

Fair shares: Accounting among cotenants 177

Restraining partition 178

Creating and Owning Condominiums 178

Creating a condominium 178

Owning individual units 179

Owning common areas 180

Managing common areas 180

Chapter 11: Owning Property in Marriage 181

Protecting the Surviving Spouse 182

Yours, Mine, and Ours: Community Property Systems 183

Distinguishing separate property from community property 183

Transferring and dividing property 184

Protecting Homesteads 185

Dividing Property upon Divorce 186

Classifying property to be distributed 187

Valuing property to be distributed 188

Distributing property 188

Chapter 12: Leasing Property: Landlord-Tenant Law 191

Distinguishing Leaseholds from Other Interests 191

Licensing versus leasing 192

Comparing easements and leases 193

Creating and Differentiating the Four Types of Tenancies 193

Fixed-term tenancy 194

Periodic tenancy 194

Tenancy at will 195

Tenancy at sufferance 195

Possessing the Leased Premises 195

Delivering possession to the tenant 196

Covenanting not to disturb the tenant’s quiet enjoyment 197

Maintaining the Leased Premises 198

Understanding common law duties 198

Contracting to maintain the premises 198

Taking a look at constructive eviction 199

Warranting habitability of the premises 200

Protecting third parties from injury 203

Transferring the Leasehold 205

Restraining the tenant’s right to transfer 205

Transferring all or part of the tenant’s estate 207

Holding transferring tenants liable for subsequent breaches of the lease 208

Terminating the Leasehold 209

Terminating pursuant to agreement 209

Abandoning the leased property 210

Terminating the leasehold in other ways 211

Holding over after termination of lease 212

Applying and refunding security deposits 213

Evicting the Tenant 213

Evicting by self-help 214

Evicting by summary procedure 215

Part IV: Acquiring and Transferring Property Rights 217

Chapter 13: Acquiring Rights by Finding and Possessing Personal Property 219

Taking a Closer Look at Possession 219

Resolving Claims among Competing Possessors 220

Intending to control 221

Determining whether someone interfered with possession 221

Getting possession by trespassing 221

Becoming an Owner by Possessing Unowned Property 222

Taking Possession of Owned Property 223

Protecting the owner’s rights 223

Describing bailments and the possessor’s duties to the owner 224

Examining the Possessor’s Ownership Rights against Third Parties 225

Resolving Conflicts between a Finder and the Landowner 226

Keeping mislaid property with the landowner 226

Possessing embedded property 228

Recovering treasure trove 228

Discouraging wrongdoing by the finder 229

Reforming the Common Law by Statute 230

Finding the owner 230

Rewarding the finder if the owner shows up 230

Awarding the property to the finder if the owner doesn’t claim it 230

Determining when the lost property statute applies 231

Escheating property to the state 231

Chapter 14: Becoming an Owner by Adverse Possession 233

Getting Acquainted with Adverse Possession 233

Clearing up ownership on the ground 233

Applying the statute of limitations to ejectment 234

Exploring the Elements of Adverse Possession 236

Element #1: Actually Possessing the Property 237

Defining actual possession 237

Determining the scope of possession 238

Possessing under color of title 239

Paying taxes 239

Element #2: Possessing Exclusively 239

Element #3: Possessing Openly and Notoriously 240

Element #4: Possessing Adversely 241

Possessing by right rather than permission 241

Using the property as an owner 242

Element #5: Possessing Continuously and without Interruption 243

Defining continuous possession 243

Interrupting possession 244

Element #6: Possessing for the Statutory Period 245

Determining the required period 245

Combining periods of possession 245

Understanding Title by Adverse Possession 246

Quieting adverse possession title 246

Identifying the interests affected 247

Chapter 15: Contracting to Sell Land 249

Creating an Enforceable Contract to Sell Real Property 250

Requiring a signed writing 250

Identifying essential elements of a writing 251

Amending or rescinding the purchase agreement 252

Making an exception when an oral agreement is partly performed 252

Specifying Deadlines for Performance 254

Remedying an immaterial breach of a deadline 254

Remedying a material breach of a deadline 255

Conditioning the Parties’ Obligations to Perform 257

Tendering the deed and purchase price 258

Requiring marketable title 258

Obtaining financing 263

Considering other conditions 264

Managing the Risk of Loss 265

Allocating risk by equitable conversion 266

Contracting about risks 267

Insuring against risks 267

Remedying Breaches of Contract 268

Calculating damages 269

Liquidating damages 269

Specifically performing the contract 270

Disclosing Latent, Material Facts 270

Implicitly Warranting Workmanship and Habitability 271

Chapter 16: Conveying Title by Deeds 273

Merging a Purchase Agreement with a Deed 273

Recognizing the Formal Requirements for a Deed 275

Identifying the parties 275

Identifying the land 275

Expressing intent to convey 279

Signing the deed 280

The Handoff: Delivering and Accepting a Deed 280

Performing acts intended to make a deed effective 280

Delivering by escrow 281

Delivering by escrow at death 283

Accepting delivery of a deed 283

Warranting Title in a Deed 283

Covering the various covenants 284

Distinguishing present and future covenants 286

Limiting or omitting warranties: Distinguishing types of deeds 289

Remedying breaches of title covenants 292

Chapter 17: Recording Title 295

Understanding Priority Disputes 295

Recording Documents 296

Identifying recordable documents 297

Complying with conditions for recording 298

Using Indexes to Find Recorded Documents 298

Distinguishing the Three Types of Recording Statutes 300

Determining Whether an Interest Is Recorded 301

Recording a document improperly 301

Being unable to find a recorded document 301

Paying Value for Property Interest 303

Taking Property Interest without Notice 305

Actual knowledge 305

Constructive notice 306

Inquiry notice 308

Protecting Subsequent Purchasers from Unlikely Claims 308

Curing defects by title curative acts 309

Eliminating specific old interests 309

Applying marketable title acts 310

Chapter 18: Mortgaging Real Property 311

Introducing Mortgages and Deeds of Trust 312

Possessing the Property before Foreclosure 312

Taking possession 313

Appointing a receiver 313

Selling Property in Foreclosure 315

Curing default or exercising equity of redemption 315

Extinguishing junior interests 317

Distributing the proceeds of a foreclosure sale 318

Recovering deficiency from borrower 320

Protecting Mortgagor by Statute 320

Anti-deficiency statutes 321

One-action statutes 322

Statutory rights of redemption 322

Transferring Mortgaged Property 324

Restricting transfer 324

Assuming mortgage debt 325

Enforcing a mortgage against the transferor 325

Transferring Mortgage 326

Part V: The Part of Tens 327

Chapter 19: Ten Notable Property Cases 329

Spur Industries, Inc V Del E Webb Development Co 329

Tulk V Moxhay 330

Sanborn V Mclean 331

Village of Euclid V Ambler Realty Co 332

Penn Central Transportation Co V City of New York 333

Lucas V South Carolina Coastal Council 334

Javins V First National Realty Corp 335

Armory V Delamirie 336

Pierson V Post 337

Stambovsky V Ackley 338

Chapter 20: Ten Common Mistakes in Applying Property Law 339

Misapplying the Rule against Perpetuities 339

Mislabeling Present and Future Estates 340

Misunderstanding Hostility 341

Considering the Intent to Create a Covenant Rather than Intent to Run 342

Considering Only Notice of a Covenant’s Burden 343

Applying Estoppel or Part Performance without Evidence of an Agreement 343

Deciding a Joint Tenancy Exists without the Four Unities and Express Intent 344

Applying the Equitable Conversion Doctrine Where It Doesn’t Apply 344

Failing to Identify the Landlord’s Wrongful Act in a Constructive Eviction 345

Applying Purchase Agreements after Closing and Deeds before Closing 346

Chapter 21: Ten Property Subjects Commonly Tested in Bar Exams 347

Purchase Agreements 348

Mortgages 348

Deeds 348

Recording Acts 348

Landlord-Tenant Law 349

Estates 349

Concurrent Ownership 349

Covenants 349

Easements 350

Adverse Possession 350

Index 351