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Authors: Barlow Burke, Joseph Snoe
ISBN-13: 9780735570313, ISBN-10: 0735570310
Format: Paperback
Publisher: Wolters Kluwer Law & Business
Date Published: March 2008
Edition: 3rd Edition
The focused coverage of Examples & Explanations: Property, Third Edition , along with the proven Examples & Explanations format, which combines textual material with well-written examples, explanations, and questions that test the reader's
Preface | xix | |
Acknowledgments | xxi | |
Part 1 | Possession, Personal Property, and Adverse Possession | |
Chapter 1 | The Law of Property | 3 |
Introduction | 3 | |
Common Law Cases | 5 | |
Case Analysis | 8 | |
Chapter 2 | Personal Property and Possession | 13 |
Introduction and Definitions | 13 | |
Possession, Relativity of Title, and First-in-Time | 14 | |
Actual Possession and the Fox Case | 15 | |
Custom | 17 | |
More Uses for the Doctrine of Custom | 19 | |
Natural Resources and Other Concerns | 19 | |
Water Law | 20 | |
Actionable Interference | 21 | |
Misappropriation | 22 | |
Chapter 3 | The Law of Finders and Prior Possessors | 29 |
Conversion, Replevin, and Trover | 31 | |
Armory v. Delamirie | 31 | |
Extensions of the Armory Rule--and a Right of Subrogation | 32 | |
Lost Property, Mislaid Property, Abandoned Property, and Treasure Trove | 32 | |
Other Considerations | 34 | |
Instrumental View | 35 | |
Legislation | 35 | |
Chapter 4 | Bailments | 41 |
Definition | 41 | |
Overview of Negligence and Strict Liability | 43 | |
Specialized Bailment Issues | 43 | |
Misdelivery of Bailed Property | 45 | |
When Bailed Property Is Lost or Damaged | 47 | |
Chapter 5 | Good Faith or Bona Fide Purchasers | 53 |
Voidable Title and Bona Fide Purchasers | 53 | |
The UCC and Bona Fide Purchasers | 55 | |
Entrustment | 56 | |
Chapter 6 | Gifts | 61 |
Inter Vivos Gifts | 61 | |
Gifts Causa Mortis | 64 | |
Chapter 7 | Fixtures | 69 |
Chapter 8 | Adverse Possession | 73 |
Introduction | 73 | |
Elements of Adverse Possession | 75 | |
Privity and Tacking | 80 | |
Disabilities and Tolling the Running of the Statute of Limitations | 81 | |
Life Tenants and Remaindermen | 82 | |
Part 2 | Common Law Estates and Interests in Real Property | |
Chapter 9 | Common Law Estates and Present Interests | 107 |
Some History | 107 | |
Estates: Some Fundamentals | 108 | |
Estates and Interests | 109 | |
What to Look for in Studying Freehold Estates | 110 | |
Defeasible Fee Simple Estates | 117 | |
Classifying Estates in Fee Simple | 121 | |
Chapter 10 | Future Interests | 129 |
Introduction | 129 | |
Distinguishing Present Interests and Future Interests | 129 | |
Future Interests Retained by the Grantor or Transferor | 130 | |
Future Interests in Third-Party Transferees | 131 | |
Vested and Contingent Remainders | 133 | |
Practice Interpreting Grants with Conditions | ||
Precedent and Conditions Subsequent | 135 | |
Alternative Contingent Remainders | 136 | |
Why We Distinguish Vested and Contingent Remainders | 137 | |
Executory Interests | 138 | |
Variations on Vested Remainders | 139 | |
Chapter 11 | Special Rules of Construction | 151 |
The Rule of Destructibility of Contingent Remainders | 151 | |
The Merger Rule | 153 | |
The Rule in Shelley's Case | 154 | |
The Doctrine of Worthier Title | 156 | |
Chapter 12 | The Rule Against Perpetuities | 161 |
The Rule Against Perpetuities | 161 | |
Interests Not Affected | 162 | |
Interests Affected | 162 | |
Interests Dependent on an Event | 165 | |
Grantee Identified by Description Rather Than Named | 168 | |
Intergenerational Family Transfers | 169 | |
Effect of Class Closing Rules | 171 | |
Commercial Options | 174 | |
Statutory Reforms of the Rule | 175 | |
Chapter 13 | Concurrent Ownership | 185 |
Tenancy in Common | 185 | |
Joint Tenancy with Right of Survivorship | 186 | |
Distinguishing Joint Tenancies from Tenancies in Common | 188 | |
Severance | 189 | |
Tenancy by the Entirety | 192 | |
Rights and Obligations Between Co-tenants | 193 | |
Partition | 197 | |
Chapter 14 | Marital Property | 209 |
Common Law Dower | 209 | |
Dower Reform | 210 | |
The Elements of Dower | 210 | |
Dower and Adverse Possession | 211 | |
Dower and Waste | 212 | |
Release of Dower | 212 | |
Barring Dower | 212 | |
Forcing an Election | 212 | |
Curtesy | 212 | |
The Modern Elective Share | 214 | |
Calculating the Amount of the Elective Share | 214 | |
Homesteads | 215 | |
Community Property | 216 | |
Part 3 | The Law of Landlord and Tenant | |
Chapter 15 | The Landlord and Tenant Relationship | 225 |
Types of Leases | 225 | |
The Landlord's Duty to Deliver Possession | 229 | |
The Holdover Tenant (Briefly Now--More Later) | 230 | |
Chapter 16 | Transfers of the Lease | 239 |
Privity of Contract and Privity of Estate | 239 | |
Assignments and Subleases | 239 | |
The Traditional Rule | 240 | |
Rule of Intent | 240 | |
The Effect of Tenant Transfers on Privity | 241 | |
Real Covenants | 242 | |
Landlord's Consent to a Sublease or Assignment | 243 | |
Landlord Consent Provisions | 243 | |
The Rule of Dumpor's Case | 245 | |
Transfers of the Landlord's Interest | 245 | |
Chapter 17 | Waste, Duty to Repair, Destruction of Leased Premises, and Security Deposits | 251 |
Waste | 251 | |
The Measure of Damages for Waste | 252 | |
Fixtures | 252 | |
The Duty to Repair | 253 | |
The Destruction of the Premises | 254 | |
Security Deposits | 255 | |
Chapter 18 | Termination and Abandoment of the Lease | 259 |
Landlord Eviction of Tenant in Default | 259 | |
Self-help | 259 | |
Ejectment | 260 | |
Summary Possession Statutes | 261 | |
Tenant's Abandonment and Surrender | 263 | |
Surrender | 263 | |
Abandonment | 263 | |
Chapter 19 | Achieving Habitable Premises | 271 |
Evictions--Actual and Otherwise | 271 | |
The Implied Warranty of Habitability | 275 | |
Retaliatory Eviction as a Tenant's Defense to Eviction | 279 | |
Illegal and Frustrated Leases | 281 | |
Chapter 20 | Premises Liability of Landlords | 293 |
Landlord Liability for Criminal Acts | 295 | |
Exculpatory Clauses | 296 | |
Chapter 21 | The Holdover Tenant and Concluding Comments | 301 |
Part 4 | Transfers of Land | |
Chapter 22 | The Sales Contract | 311 |
Introduction | 311 | |
Closing | 312 | |
Remedies for Breach | 313 | |
Real Estate Brokers and Agents | 313 | |
Broker as Seller's Agent | 315 | |
Broker's Duty to Disclose Latent Defects to Purchasers | 316 | |
The Statute of Frauds | 317 | |
Part Performance and Other Exceptions | 318 | |
Chapter 23 | Executory Period Issues | 327 |
Introduction | 327 | |
Marketable Title | 328 | |
Caveat Emptor and the Duty to Disclose Defects | 333 | |
Time for Performance | 334 | |
Remedies for Breach of Sales Contract | 335 | |
Equitable Conversion and Risk of Loss | 336 | |
Chapter 24 | Real Estate Closings | 349 |
The Closing or Settlement Process | 349 | |
Delivery | 350 | |
Mortgages | 354 | |
Chapter 25 | Post-Closing Title Assurances | 369 |
Merger Doctrine | 369 | |
Types of Deeds | 369 | |
Deed Covenants | 370 | |
Present Covenants | 372 | |
Future Covenants | 373 | |
Damages | 374 | |
Attorney Fees | 375 | |
Remote Grantees | 376 | |
Implied Warranty of Quality | 377 | |
After Acquired Title (Estoppel by Deed) | 379 | |
Chapter 26 | The Recording Systems | 391 |
Introduction | 391 | |
Searching a Chain of Title Using the Grantee Index | 393 | |
Searching a Chain of Title Using the Grantor Index | 394 | |
Searching a Tract Index | 394 | |
The Recording Acts | 395 | |
Race or Pure Race Statute | 395 | |
Race-Notice Statute | 396 | |
Notice or Pure Notice Statute | 399 | |
Purchasers for Value | 400 | |
Problems in Grantor-Grantee | 401 | |
Marketable Title Acts | 402 | |
Title Insurance | 404 | |
Part 5 | Private Land Use Controls | |
Chapter 27 | Private Nuisance | 423 |
Introduction | 423 | |
Intentional and Unintentional Interferences | 424 | |
Substantial Interference | 425 | |
Unreasonable Interference | 425 | |
Injunctions and Damages | 426 | |
Chapter 28 | Creation of Easements | 433 |
Introduction | 433 | |
Terminology | 434 | |
Express Easements | 436 | |
Easements by Estoppel and Irrevocable Licenses | 437 | |
Implied Easements | 439 | |
Easements Implied from Prior Use | 440 | |
Easements Implied by Necessity | 442 | |
Prescriptive Easements | 443 | |
Chapter 29 | Assignability, Scope, and Termination of Easements | 459 |
Assignability of Easements | 459 | |
Divisibility and Apportionment | 460 | |
Scope of Easements | 462 | |
Termination of Easements | 465 | |
Chapter 30 | Real Covenants and Equitable Servitudes: Running with the Land | 477 |
Introduction | 477 | |
Terminology | 478 | |
Identifying Real Covenants and Equitable Servitudes | 479 | |
Intent to Bind and Benefit Successors | 480 | |
Touch and Concern | 481 | |
Real Covenants and the Privity of Estate | 485 | |
Equitable Servitudes and the Notice Requirement | 489 | |
Chapter 31 | Real Covenants and Equitable Servitudes: Common Schemes and Termination | 497 |
The Common Scheme and Subdivisions | 497 | |
The Common Scheme and Standing to Enforce a Servitude | 498 | |
The Common Scheme and Notice for Recording Acts and Equitable Servitudes | 500 | |
The Common Scheme and the Statute of Frauds | 502 | |
What Constitutes a Common Scheme | 502 | |
Termination of Covenants and Servitudes | 504 | |
Part 6 | Public Land Use Controls | |
Chapter 32 | Constitutional and Statutory Constraints on Zoning | 517 |
Introduction | 517 | |
An Introduction to Constitutional Law | 517 | |
The Standard State Zoning Enabling Act | 518 | |
Cumulative and Noncumulative Zoning | 519 | |
The Constitutional Law in Euclid | 520 | |
Unconstitutional On Its Face and Unconstitutional As Applied | 523 | |
Nonconforming Uses | 524 | |
Amortization | 525 | |
Chapter 33 | Variances, Special Exceptions, and Zoning Amendments | 531 |
Variances | 531 | |
Special Exceptions | 534 | |
Judicial Review of Variances and Special Exceptions | 535 | |
Amending the Zoning Ordinance | 536 | |
The Problem of Spot Zoning | 537 | |
Initiative and Referendum | 539 | |
Contract and Conditional Zoning | 540 | |
Floating Zones, Cluster Zones, and PUDs | 540 | |
Chapter 34 | Selected Challenges to Zoning Ordinances | 551 |
Aesthetic Regulation | 551 | |
Adult Entertainment | 555 | |
Household Composition of Single-Family Residences | 557 | |
Exclusionary Zoning | 561 | |
Chapter 35 | Takings | 573 |
Conventional Condemnation | 573 | |
Inverse Condemnation | 575 | |
Categorical or Per Se Takings | 576 | |
Regulatory Takings | 579 | |
Exactions | 586 | |
Remedies | 589 | |
Table of Cases | 599 | |
Index | 603 |