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					        Real and Personal

Chapter 8
            Law of Property

• Oldest part of         • Real Property:
  common law               immovable (i.e. land)
• Concepts from          • Personal Property
  common law               (chattel): moveable
  developed in England     (i.e. furniture and
  from 12th to 16th        clothing)
  centuries              • Contract law is used
• Right guaranteed         to make
  and protected by         arrangements about
  government               the property use.
                Real Property
• Land
   – under - oil, minerals
   – attached - buildings,
• Property - “legally
  protected expectation
  of being able to use a
  thing for one’s
• Governmental regs.
  may restrict property
  owner’s land use (i.e.
  Endangered Species
  Act re: rare plants and
  animal protection)
               Ownership of Land
• Deeds
   – most common way to transfer ownership
   – quitclaim deed vs. warranty deed
   – ID original owner, describe land, ID new owner, &
     state that the ownership is being transferred,
     possibly subject to certain conditions
• Titles
   – comes from receipt of valid deed; is means by
     which owner has legal possession of the property
   – “formal right of ownership”
• Titles are recorded by state officials (usually county)
Forms of Ownership
        • Fee Simple - indefinite time
          and right to dispose of it
        • up in the air “to the skies”
          (but airplanes can use it)
        • down to the core “to the
          center of the earth”
           – these rights can be sold
           – subsurface mineral rights
             often legally separated
        • Can be inherited,
          transferred, sold in part, or
          sold in whole (entirety)
              Forms of Ownership
• Joint tenancy
   – Each tenant has same interest in undivided
     possession of property
   – Right of survivorship – if one tenant dies,
     ownership passes to other owner
• Tenancy in Common
   – Each tenant (owner) has undivided interest in
   – If one tenant dies, that interest passes to
• Life Estates
   – have use of land for life of “tenant for life”- but
     can’t ruin it!
              Evolving Property Law:
• Not seen much before 1960s
• Fee simple estate applies
• Living space in building is owned
  in fee simple (numerous
  conditions attached)
• BUT land building sits on, as well
  as elevators & lobbies, are held in
  common (for condo owners) by
  another person (business)
• Most states have statutes to
  simplify the legal process of
  modern living arrangements
  consistent with traditional
  property law.
• Property law adjusts to modern
• Servitudes
   – property requirements imposed by an owner
   – positive and negative requirements
   – easements and covenants most important
• Easements
   – right to enter land of another and make use
     of it or take something
   – example: sidewalks, utilities
• Adverse possession is a form of easement
             Adverse Possession
• Must be:
  – Actual - does in fact
    possess property
  – Open - visible so owner is
    on notice
  – Hostile - without consent
    of owner
  – Exclusive - not shared with
    others who have no right
  – Continuous - goes on
    without major interruption
  – And - State law may
    require payment of taxes.
• Covenants or Covenant Running With
  the Land
   – Not actual legal interest in an estate
   – More like a contract with an estate
   – Most residential subdivisions have
   – Tool for developing real estate
   – Goes with the estate from owner to
     • “Covenant runs with the land”
       Landlords & Tenants
• Landlords and
  – rented property is
    called a leasehold
  – landlord has
    interest of some
  – tenant possesses
    estate for a fixed
    period or at will as
    determined by
•   Can be commercial or residential
•   ID parties
•   Describe premises being leased
•   State how long in effect
    – But can be month to month
• State how much rent is to be paid
• Usually also:
    – who pays utilities, taxes, insurance
    – where/when rent is paid
    – terms of damage deposit
    – who is responsible for
    – subleasing
    – termination provision
Rights/Duties of a
• Right of possession     • Can’t:
  during lease               – abuse property
• Can exclude other          – remove valuable
  parties                      property
• Landlord must make         – be nuisance to
  essential repairs or         neighbors
  may have                   – engage in illegal
  constructive eviction        activities on
                          See Issue Spotter:
                            “Would Tighter
                            Leases Help?”
            Public Control of Real

• Eminent Domain
   – Government can force sale of property or
     granting of easement without consent of owner
   – 5th Amendment requires “just compensation”
• Police powers
   – Control land use with regulations (i.e. zoning)
   – Is there compensation? Yes, but when property
     loses value, compensation may not appear to be
     “just” to an owner.
   – See Macon-Bibb County Planning & Zoning
    Comm. v. Vineville Neighborhood Assn.
                 Torts Against Property

• Trespass to Land: Unauthorized intrusion that interferes with
  another’s peaceful enjoyment of their property
• Private Nuisance: interference with use & enjoyment of land
   – Destruction of crops, causing health risks from pollution,
     throwing objects on the land, using the neighboring house
     for drug deals
• Public Nuisance: Interference with a right held in common by
  general public
   – Illegal gambling, bad odors, obstruction of a highway
• Trespass to Personal Property: Interference with the right of an
  owner to the exclusive use and enjoyment of property
• Conversion: Unlawful control of another’s personal property
• Misappropriation: Invasion of property rights such as
  trademarks or trade secrets
          Issue Spotter: “Protecting
             Company Property”
• Problems with theft of
  company property
  –   Pens
  –   Staplers
  –   Reams of paper
  –   More expensive items
  –   It all adds up
• Can a policy that informs
  employees that taking
  supplies is theft of
  company property and
  subject to dismissal?
• Do we have to notify
  employees of this policy
  at all?
          Torts Against Property
• Is a person harmed on the property a
  trespasser or an invitee?
• Customers are invitees, not trespassers
• What duty of care must property
  owners take to insure safety on their
• In business, a common, major tort is
 premises liability.
      Premises Liability
• Accidents that result from negligence of
  the business
• Common are “slip-and-fall” cases
• Duty to keep premises reasonably safe
  under the circumstances
• However, if a danger is obvious, people
  have a duty to protect themselves
• See Campisi v. Acme Markets, Inc.
• See Issue Spotter: “Duties to Elderly
                          Premises Liability
• Accidents that result from negligence of the business
• Common are “slip-and-fall” cases
• Not providing sufficient security to prevent crimes
  from occurring on the property
   – Problems are especially in high crime areas
   – Issue: Owner “knew or should of known” of
     problem in the area
   – Issue: Did owner act “reasonably” to protect
   – Owners may protect themselves: lighting, safety
     patrols, posters, warnings
• In Stewart v. Federated Department Stores, court
  upheld $1.5 million verdict in favor of heirs of woman
  who was robbed and murdered in parking garage of
  Bloomingdale’s department store