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Chapter 24 - Real Property
24-1
CHAPTER 24
REAL PROPERTY
I. OBJECTIVES
This chapter is designed to teach students about the nature of real property, the basic
rights and responsibilities that attend real property ownership, the ways in which interests
in real property may be transferred, and government regulation of the use of real
property. After reading the chapter and attending class, a student should be able to:
A. Define real property and explain what is included in the concept of real property.
B. Provide several examples of property that would be considered to be a fixture and
explain the significance of classifying an item of property as a fixture.
C. Explain and distinguish among the various forms of ownership of real property.
D. Explain the legal effects of easements and restrictive covenants as well as the
duties of property owners toward third persons.
constitutional limits on those powers.
II. ANSWER TO INTRODUCTORY PROBLEM
A. The answer to this question requires a determination whether the items are fixtures.
B. Because Joyce and John are married, they could take title as tenants by the entirety or
as community property in states that recognize those forms of ownership.
D. The Fieldings may have acquired an easement by prescription, depending on how
foreseeably present on their property.
F. Both zoning laws and restrictive covenants may limit the uses that John and Joyce
G. It is difficult to argue that dumping your refuse on your neighbor’s land is ethical
utilitarian theory.
III. SUGGESTIONS FOR LECTURE PREPARATION
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A. Introduction
1. Emphasize the economic, historical, and practical importance of land in our
buyers under contracts for the sale of real estate may obtain specific performance
against breaching sellers).
important.
3. Discuss what is included within the definition of real property. Note the classical
crust and everything firmly attached to it.
B. Fixtures
1. Explain the meaning of the term "fixture." Emphasize the importance of the
2. Discuss the three factors used to determine whether an item is a fixture:
attachment, adaptation, and intent.
Examples: Problem Cases #1 and 9.
3. Discuss the exceptions to the normal fixture rules made in cases involving
can become a permanent fixture if removal would harm the landlord's reversion or
system. Moffitt never believed the system would stay with the building because
the lessee had purchased it. The Mogilevskys, in contrast, assumed that the
system would remain with the premises because the company only paid for the
contract and conversion. The jury awarded $22,000 for breach of contract,
representing the cost to repair the holes. But the jury found that there was no
Chapter 24 - Real Property
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
conversion because the components of the heating and cooling system were trade
fixtures that belong to the company. The Mogilevskys appealed. The appellate
court affirmed the jury verdict.
Points for Discussion: Note the three factor fixture text, but supplement it with a
make the Mogilevskys whole?
C. Rights and Interests in Real Property
1. Tell the students that real property ownership should be conceived of as a "bundle
of rights" and that the nature of a person's rights will depend on the type and
extent of his interest in the land.
2. Explain the concept of an estate in land. Explain the two most common types of
own a future interest under which he may have the right to future possession.
3. Note that a fee simple owner has the whole bundle of rights and that she may
etc.).
D. Forms of Co-ownership
1. Explain and give examples of the three traditional forms of co-ownership
(tenancy in common, joint tenancy, and tenancy by the entirety). Compare and
recognized in a number of states.
Example: Problem Case #10.
never divorced from "first" wife and was never married to "second wife" who
was his purported co-tenant by the entirety; the tenancy was held to be a
tenancy in common).
2. Discuss the fact that co-ownership entitles all co-owners to possession of the
undivided interest, you might compare it to owning a share in a corporation: the
Chapter 24 - Real Property
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Also discuss creditors' rights to reach joint property.
wanted to disinherit Frank and she tried to defeat the right of survivorship by
transferring her interest in the properties by a quitclaim deed. Upon Janet’s
Chapter 24 - Real Property
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
sister’s intent to disinherit him and to seek contribution from Frank for the
expenses Janet had paid alone. The court pointed out that entireties property
passes by right of survivorship and is not part of an estate. However,
contribution can be required when one co-tenant has been forced to bear more
than his share of a common burden, and the court permitted the estate’s claim
for contribution.
Points for Discussion: How does a tenancy by the entirety differ from a joint
tenancy? Contribution is an equitable remedy based on justice, so was it
of the country?
3. Explain how the traditional forms of co-ownership may be severed.
interest.
b. Explain the right of partition.
4. Discuss the typical features of community property. Explain the concept of
examples.
partnership materials.
6. Compare and contrast condominium ownership with cooperative ownership. Note
that cooperative ownership in itself is not really an interest in land; rather, it is an
interest in a corporation that owns land. The cooperative owner does obtain a
leasehold interest under his long-term proprietary lease, however.
E. Interests in Property Owned by Others
1. Note that it is possible for a person to have a legally protected right to enter, use,
or control the use of land that belongs to another person. Give some simple
basic ownership. Thus, the landowner may grant someone else a right to enter or
use her land or the right to control the way she uses her land without surrendering
her ownership.
2. Easements
a. Explain what an easement is. Emphasize that it does not constitute a
b. Discuss the creation of easements through express grant or reservation. Note
that such transactions are within the statute of frauds.
d. Discuss the creation of easements by prescription. Note that if the property
land.
Chapter 24 - Real Property
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Example: Problem Case #3.
Chapter 24 - Real Property
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3. Licenses
the licensor.
4. Restrictive Covenants
a. Note that restrictive covenants are contract rights that may, if certain
requirements are met, run with the land and bind subsequent parties.
Ethics in Action: The ethical issue most prominently in play here is whether a
purport to prohibit the sale of property to persons of certain races violate
public policy and have been held unenforceable on that basis. (Such covenants
have also been held invalid on constitutional grounds. See Shelley v. Kraemer,
334 U.S. 1 (U.S. Sup. Ct. 1948)).
Example: Problem Case #4.
restrictive covenants. A neighboring landowner, Read, who was a member of
the school’s board of trustees at the time the restrictive covenants were first
included in the land’s deed, subsequently sold his land to his daughter and
son-in-law, the defendants. They sought to block the issuance of permits for
determined that the covenants were valid when created and that they may be
enforceable as between the parties to the case.
Points for Discussion: The court looks both at whether the burdens of the
covenants could potentially apply to the plaintiff, as a subsequent landowner
Chapter 24 - Real Property
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
and nonparty to the original coventants, and whether the benefits passed to the
defendants to enforce and enjoy, despite the fact that they are potentially
subsequent third parties. As to the former, the burdens only apply if the
covenants run with the land. How is that determination made? Explore with
the students the distinction in the case between legal and equitable
considerations in determining whether the covenants run with the land. Intent
is a vital consideration in this inquiry. What are indications that the covenants
were intended to run with the land? As to the benefits analysis, on what basis
covenant is usually construed in favor of the less restrictive interpretation. Ask
your students why.
e. Discuss the ways in which covenants may be terminated.
Example: Problem Case #6.
F. Acquisition of Real Property
possession.
a. Go through the elements of adverse possession. If you like mnemonic devices
Stratford v. Long (p.681): Stratfords bought land in 1976 and immediately
believed a disputed piece of land was theirs. The neighboring landowner
never disputed the claim. The Stratfords improved their land, including
improvements that encroached on the disputed land. And they fenced a
possession.
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Points for discussion: The court determined that rugged land is not subject to
a strict “actual possession” requirement. So, the fact that the Stratfords used
did not “use” the entire parcel was not sufficient to defeat their claim to the
land. What indicators of actual possession did the court find? Are there (or
should there be) limits to how lax the actual possession requirement is for
wild, undeveloped land? How widely does the adverse possessor’s claim to
land have to be known in order to be considered open and notorious
possession?
Additional Example: Problem Case #2.
the requirements of adverse possession.
3. Transfer by Sale
a. Give a brief overview of the typical steps in the transfer of property by sale.
You might wish to direct students to the website cited in Log-On (p. 682) for
more information about purchasing real estate.
writing.
c. Emphasize that for the most part, real estate sales contracts are governed by
the general contract law principles discussed in earlier chapters of the text.
Note the need for such contracts to meet a writing requirement.
the important features of the deed.
1) Explain and contrast warranty deeds, quitclaim deeds, and deeds of
bargain and sale. Distinguish special warranty from general warranty
deeds.
instruments affecting title to real property).
g. Discuss the various methods of assuring title to real estate. Explain why
assuring title is an important step in the acquisition of property. You may wish
