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Chapter 24 - Real Property
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to emphasize the title assurance method(s) used in your state.
h. Discuss the implied warranty of habitability that applies to the sale of
ordinary sellers (sellers who are neither developers nor builders) do no make
Chapter 24 - Real Property
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court has said "yes." See Licciardi v. Pascarella, 476 A.2d 1273 (N.J.
Super. 1983).
2) Note that warranty liability imposes, on home builders and developers,
fairly rigorous, long-term exposure to liability. It seems likely that builders
i. Discuss the growth of the duty to disclose. You may wish to refer to
builder-vendors and developers.
Example: Problem Case #7.
G. Other Property Condition-Related Obligations of Real Property Owners and
Possessors
1. Note that the obligations discussed in this section are in addition to the sale-
2. Discuss (review?) general principles of premises liability under the law of
negligence. (You may wish to refer to Chapter 7 and its discussion of the levels of
setting involving third parties' foreseeable criminal acts, as to which the property
owner or possessor failed to take reasonable security precautions. What policy
rationales support this expansion?
Chapter 24 - Real Property
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b. Discuss the causation issues arising in the premises liability cases involving
failures to take security precautions regarding third parties' foreseeable
not be the sole cause. If the property owner's or possessor's failure to use
reasonable care is a substantial factor leading to the plaintiff's injuries, that is
property owner or possessor from liability.
3. Discuss the property-related provisions of Title III of the Americans with
Disabilities Act. Explain that the duties created by these provisions apply when
a. Discuss, in general, the sorts of property modifications that may be required to
avoid violating the ADA's rules against discrimination against disabled
property, would result in an undue burden, or are not readily achievable.
b. Note the ADA requirements regarding new construction of buildings
amounting to places of public accommodation. Briefly discuss the
enforcement mechanisms and remedies for violations of the ADA.
Additional Example: Problem Case #5.
H. Land Use Control
1. Emphasize that even if a person holds the highest form of ownership possible in
our system of property, his rights are still subject to land use controls exerted by
businessperson needs to know about real estate. It is also important to have a
basic understanding of the limitations on land use.
private control on land use.
Chapter 24 - Real Property
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2. Nuisance
b. Discuss the difference between private nuisance and public nuisance.
use ("delicate use") on his land.
3. Eminent Domain
a. Discuss the significance and effect of the power of eminent domain: the
government can obtain title to private property so long as it does so for public
use and pays just compensation. This is so even if the owner of the property
discussion of this issue in Chapter 3.
1) You may want to note that eminent domain is not limited to government
acquisition of real property (though that is the usual use of the power).
Eminent domain apparently may also be used to acquire ownership of
intangible personal property, such as football team franchises.
b. Discuss the concept of public use.
proceedings. The nine landowners claimed that taking their land would violate
the public use language in the Constitution. The Supreme Court stated that
while the government cannot take private property for the sole purpose of
transferring it to a private party, it can do so if use by the public is the primary
was not unconstitutional.
Points for Discussion: Ask your students why they think this case has been so
factors persuaded the court that the City of London had an actual public
purpose here?
Chapter 24 - Real Property
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b. Provide an overview of the official proceedings conducted under your state's
law when the state formally exercises the eminent domain power.
c. Introduce the notion that government takings of private property sometimes
occur even though the government has not initiated formal eminent domain
an extreme nature, may amount to regulatory takings for which the
government must pay compensation. (Regulatory takings will be examined
later in the chapter.)
4. Zoning
a. Explain the philosophy underlying zoning and why society has an interest in
zone is part of its police power.
Example: Problem Case #8.
b. Major ethical considerations suggested by attempts to place group homes in
certain areas despite contrary language in restrictive covenants or zoning
individuals in choosing the sorts of persons with whom they come in contact
in the vicinity of their homes?
c. Discuss nonconforming uses and the "grandfathered" status they hold. Note,
however, that this status does not necessarily mean that the use will be
continue the use may be lost by abandonment or substantial change.
d. Discuss the various ways of obtaining relief from a zoning ordinance. You
situations, one cannot obtain relief from a zoning ordinance.)
e. Discuss constitutional challenges to the validity of zoning ordinances. First
Amendment-based challenges such as those in the Playtime Theatres and
FW/PBS cases (referred to in the text) should make for interesting discussion.
Chapter 24 - Real Property
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also referred to in the text, involved an equal protection challenge to a zoning
Fair Housing Act.
g. Discuss the potential relationship between land use regulation and taking (a
topic also discussed in the Business and the Constitution chapter). This
relationship has become especially important recently, as the Supreme Court
has decided a number of cases dealing with supposed regulatory takings.
premise of the Supreme Court's ruling: that the easement the Coastal
Commission attempted to acquire for the public by way of land use
regulation was the very sort of thing for which the power of eminent
domain (which requires payment of just compensation) was meant to be
Tigard, which will be discussed shortly.
2) Explore the issue of regulations that allow property owners no
economically beneficial use of their property, as in Lucas v. South
Carolina Coastal Commission (discussed in the text). Review the facts of
Lucas, noting that most land use regulations will not impose restrictions as
takings (in terms of economically beneficial uses) might sometimes trigger
a compensation right. Lucas therefore seems likely to continue spawning
regulatory taking litigation, in which property owners allege that the
government has gone "too far" with a certain land use regulation. Courts
Chapter 24 - Real Property
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condemnation doctrine (where the government action constitutes an actual
degree" analysis used in the regulatory takings cases. If a physical
invasion or occupation by means of authorized government action is
proven, the government is expected to pay for the physical taking. The
Supreme Court has sometimes used the term per se takings to refer to
physical takings cases.
does not substantially advance legitimate state interests), held that the
statute effected a taking in violation of the Fifth Amendment. The U.S.
Supreme Court reversed on the ground that the “substantially advances”
test is the incorrect test to apply in a takings case because it does not test
regulatory takings.
IV. RECOMMENDED REFERENCES
A. EDWARD H. RABIN, FUNDAMENTALS OF MODERN REAL PROPERTY LAW (3d ed. 1992).
(5th ed. 2005).
C. Lynda J. Oswald, Property Rights Legislation and the Police Power, 37 AM. BUS. L.J.
527 (2000).
D. Richard Epstein, Kelo: An American Original: Of Grubby Particulars & Grand
Principles. 8 Green Bag 2d 355 (2005).
V. ANSWERS TO PROBLEM CASES
1. Fixtures. The court applied the three factors that cause property to be considered
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.
v. Sheikpour, 2011 U.S. Dist. LEXIS 19566 (C.D. Cal. 2011)
2. Yes. The court found that Schlichtling’s use of the disputed property met the
Super. Ct. 2007).
3. Yes. Aidinoff’s use of the driveway was open, visible, continuous and
permission was given “after the fact.” There was also reasonable necessity to use
2006 Conn. Super. LEXIS 1394 (Conn. Super. Ct. 2006)
4. Yes, the court held that the language of the covenant indicating that it was to be
should run with the land.
Yes, given the language of the deed that the property should be kept open, the
2005 Vt. LEXIS 86 (Vt. Sup. Ct. 2005).
5. No. Under Title III of the ADA there is no duty to design an amusement park ride
services that a place of public accommodation decides to offer; it governs how the
Studios, Inc., 2014 U.S. Dist. LEXIS 9092 (C.D. Calif. 2014).
6. No. The parties had no agreement about whether the Olbeksons could remove the
furnace, so the case depends on whether the furnace was a fixture. The court
admitted that they only planned to remove the furnace if their daughter did not
buy the house, and no reasonable person could think that a tenant could take a
2002 Mont. Dist. LEXIS 2935 7.
7. No. The court held that the builder-developer and broker representing the builder-
8. No. The court stated that “[t]he residence of 2312 West Farwell Drive provides no
‘offering [of adult entertainment] to members of the public’….The City Code
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.
cannot be applied to a location that does not, itself, offer adult entertainment to
the public….Indeed, the public offering occurs over the Internet in ‘virtual
space.’” Thus, it held that the law did not apply to a residence at which there is no
offering of adult entertainment to the public. Voyeur Dorm, L.C. v. City of Tampa,
265 F.3d 1232 (11th Cir. 2001).
9. Yes. The court found the law of fixtures was instructive in determining how to
interpret the statute. It stated that “an object may be ‘affixed to the land’ solely by
A.2d 726 (Conn. Super. Ct. 2007).
10. No. Michael was able to rebut the presumption of equal ownership by showing
could provide for his mother and children. Hoth v. Hoth, 2011 Mo. App. LEXIS
473 (Ct. App. Mo. 2011).
