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CHAPTER 8
REAL AND PERSONAL PROPERTY
REAL PROPERTY—Real property is land, things under land such as oil and minerals, and
things attached to land, such as buildings and natural vegetation. Personal property consists of
tangible items that can be moved, including chattel, such as clothing, books, cars, and things that
may be represented by pieces of paper, such as stocks and bank accounts. Property is a protected
expectation of being able to use a thing for one’s advantage. The ability to use and control
property determines most of its value. One could own two similar plots of land, but if one was
subject to many restrictions and the other was not, there would be very different interests in the
property. Ownership does not mean unrestricted rights to property. The right of the sovereign to
impose limits on land use is an ancient part of property law, as are the rights of other persons not
to have property used in an offensive manner to create a nuisance.
English Origins—Property law comes to us from England, where it developed starting about a
thousand years ago. The king owned all property initially and granted knights and others in favor
tenancies in land. While those were rights to the land and its income for life (usually subject to
assorted taxes), it soon became custom that tenants could pass on property to their heirs and the
land holders became the owners. By the time feudalism disappeared, before the settlement of
North America by Europeans, the right to individual ownership was well established.
Add. Case (treasure trove): Corliss v. Wenner (Ct. App. Idaho, 2001)--Wenner hired Anderson
to build a driveway on his ranch in Idaho. Anderson and his employee, Corliss, were excavating
when they uncovered a jar containing 96 gold pieces dating 1857 to 1914. They agreed to split
the coins but then argued, so Anderson fired Corliss and turned the coins over to Wenner. Corliss
sued, contending the coins belonged to him as finder. The district court held that the “finders
keepers” rule of treasure trove had not been adopted in Idaho and was not a part of the common
law of England incorporated into Idaho law at the time of statehood. The coins, having been
buried, were mislaid property. As such, the right of possession goes to the land owner. Corliss
appealed.
Decision: Affirmed. As a unique case; the law is not settled. The finder of lost property or
treasure trove, which includes coins so long concealed that the owner is unknown, has “a right
to possess the property against the entire world but the rightful owner regardless of the place of
finding.” But, the finder of mislaid property, which is personal property the owner intentionally
set down but then forgot, must give the property to the owner of the premises, who has a duty to
Deeds and Titles—Deeds identify land by legal description and name the owner(s) and, when
transferred, the name(s) of the new owner(s). Quitclaim deed passes interests of grantor, which
may not provide good title. Warranty deed promises good title, so is most desired. Special
warranty deed does not warrant against encumbrances prior to current seller. Titles, which
usually accompany deeds, are the forms that are used to recognize formal ownership of land.
Titles are registered and recorded by state officials, usually county recorders. The titles indicate
who owns property and what liens, such as mortgages, exist as claims against the property.
Add. Case: Rorvig v. Douglas (Sup. Ct., Wash., 1994)--Rorvig bought land next to Douglas
who suggested they work together to build a subdivision. Proposed agreements went back and
forth, but Rorvig never signed a contract. Douglas claimed Rorvig agreed to join the properties
together and recorded (at the county office) a memorandum of agreement. When Rorvig tried to
sell his property, a title search revealed title was not clear, because of the alleged tie to the
Douglas property. The buyer walked. Rorvig sued Douglas for slander of title and for quiet title
for Rorvig. The trial court held there was no contract, Douglas was liable for slander of title
(value of losing the sale), and Rorvig had quiet title. Douglas appealed.
Decision: Affirmed. Douglas knew there was no contract yet filed the document that made it
appear that the title was not clear. Slander of title is defined as: 1) false words; 2) maliciously
Add. Case: Kuehl v. Meyer (Ct. App., Iowa, 2001)--Kuehls bought land from Meyer through
Petersen Realty. The property was listed as “to be taken from the abstract” and asserted to be
280 acres. After the land described in the abstract was conveyed by warranty deed, which did
not state the number of acres, the Kuehls learned there were 260 acres. They sued for breach of
contract, breach of warranty, and fraud. The trial court dismissed. Kuehls appealed.
Decision: Affirmed. The agreement did not specify the number of acres; the Kuehls received
marketable title to the real estate described in the agreement. They did not investigate the
Add. Case: Ferrif v. City of Hot Springs, Ark. (8th Cir., 1996)--Ferrif and Allen bought three
houses in Hot Springs in 1985 as rental property. Ferrif owned one-third and Allen owed
two-thirds. By 1987, Allen was in financial trouble and assigned his interest in the property to
Ferrif. A deed transferring the Allen interest to Ferrif was not prepared until 1994. In 1991 the
city razed the houses because they were abandoned and were a public nuisance. The city tried to
notify Allen before the demolition but could not find him. The city did not contact Ferrif, who
lived in California, and did not know the houses were torn down. Ferrif sued for the value of the
houses. The court held that the city violated its duty to contact Ferrif and owed him for the value
he lost. The houses were worth $36,500; the court awarded Ferrif one-third of that amount
because he was listed as one-third owner as of 1991. Ferrif appealed.
Decision: Ferrif is due the entire amount. Title is “the present right to the legal title.” There is
no dispute that Allen assigned his interest in the property in 1989, although nothing had been
Fee Simple—Property is referred to as an estate: “an interest in land which (a) is or may become
possessory and (b) is ownership measured in terms of duration.” One may have land now, have a
right to become its owner in the future, or may have limited control for a set period of time.
Ownership must pass to the control of others at death. Fee simple is the most common form of
real property ownership—the right to exclusive possession of a piece of land for an indefinite
time and the right to dispose of the land as the owner chooses. Fee simple usually also means
ownership of minerals and oil under land, but those rights may be sold separately of the surface
and most are. Fee simple means “ownership” of air above the surface, but not an absolute control
of the air, as others may transmit signals that pass through airways and planes may fly at
reasonable altitudes above fee simple land.
Add. Case: Smith v. Nugget Exploration (Sup.Ct., Wyo., 1993)--In 1966, property in Wyoming
was sold by quitclaim deed. The “surface grazing rights” were sold to Willowbrook; the mineral
rights ended up with Nugget. When Willowbrook sold the property to Smith in 1989, Nugget sued
to have the rights of the parties determined. Nugget claimed that Willowbrook and Smith only
bought grazing rights and that Nugget owed everything else, giving it the right to dredge gravel
on the property. Smith claimed to own the estate in fee simple, which included grazing rights.
The trial court agreed with Nugget; Smith appealed.
Decision: Reversed. If one party bought “grazing rights” and one got “mineral rights,” then
who owned the estate in fee simple? When a title is unclear from the deed that transferred an
estate, the court will try to determine what was meant at the time of transfer. It does not appear
Tenancies—Different ownership structures may be used. Tenancy is possession or use of lands
by any kind of right or title, whether fee simple or for limited purposes. Tenancy in common is
ownership by which each tenant has undivided interest. Interest passes to heirs. Joint tenancy is
most common among married couples as there is an undivided interest with right of survivorship.
Tenancy by the entirety is only for married couples in about half the states; a right of
survivorship but tenancy can be ended except by divorce. Life estate grants the right to be a
tenant for life.
Add. Case: Rushing v. Mann (Sup. Ct., Ark., 1995)--Comer died in 1951. About his fee simple
land, his will said: “I give and devise unto my niece, Elizabeth Swanson, for her life, with
remainder at her death to Lester Mann for his life, and then unto his bodily heirs, or if no bodily
heirs, then to Claude Mann in fee simple.” Claude died in 1954. Lester died without heirs in
1989. Elizabeth died in 1992, ending her life estate. Claude’s heirs sued Comer’s heirs, asking
the court for clear title. Claude’s heirs won. Comer’s heirs appealed.
Decision: Reversed. Neither Claude or Lester had a vested remainder in the property; because
they died before Elizabeth, Lester took no life estate (and could pass on nothing). Because Lester
Trusts—Ownership that separates the legal and beneficial ownership of property. A settlor
(grantor) places property in a trust. Trustee holds title and can make decisions about the property.
Beneficiary of trust has equitable title to property. Trustee manages the property for benefit of
beneficiary. Business trusts often use this for ownership interests in property that is more flexible
than corporate or partnership ownership. Trust can protect property in case of bankruptcy of the
business.
Evolving Property Law: Condominiums—Condos are an example of how property law evolves
to fit the needs of society. Fee simple estates can be boxes up in a building that is owned in
common with other condo owners. Most states have various property statutes that clarify how
certain property law rules are to function, but, in general, estate owners have broad rights to
innovate.
International Perspectives: Insecure Property Rights
In most poor nations, few people can have title to urban or rural land. In most countries, a
majority of the land is untitled. It is often used–farmed or houses built on it–but the users do not
have security; the state can evict them at any time. This is a major reason for poverty in those
countries, as it discourages investments and makes the occupiers of land, usually the poor, unable
to capitalize the value of the land they occupy and may use to earn a living.
Servitudes—A large category of negative and positive requirements on property owners. Most
are adopted voluntarily by owners but can impact future owners who may not be so keen for the
servitude, but the servitude may be tied to the property and cannot be avoided. Covenants and
easements are the major categories of servitudes.
Easements. Are rights to enter property owned by (and in possession of) another and make some
use of it or take something from it. Easements look much the same as a deed; the give legal
specifications to the easement rights, such as the right to drive across land, build sidewalks, use a
water well or install utilities. Positive easements allow the holder to use the estate for certain
purposes. A negative easement is giving up a right, such as a conservation easement to forego
development. A profit is the right to remove valuable assets from land, such as minerals, oil or
trees. Once granted, easements may not be interfered with by the person in possession of the
estate, unless willing to bargain for a change in the easement status.
Adverse Possession. (easement by prescription) is use of another’s land without permission.
Conditions are: 1) actual--the adverse user in fact uses or possesses the property; 2) open--the
use is visible so the owner is on notice; 3) hostile--the use is without permission of owner; 4)
exclusive--the use is not shared with others; 5) continuous--the use must be without major
interruption for as much time as required by law to obtain title by adverse possession. States
have statutes of limitations to govern this.
CASE: Moran v. Sims (Ct. App., Miss., 2004)—Sims owned property surrounded by Moran’s
property. His deed was first recorded in 1985, but had been in the family for 50 years. He built a
house on the property in 1991. It was accessed by a driveway across the land Moran bought in
1996. Sims asked the court for an easement. The trial court held he had a prescriptive easement.
Moran appealed.
Decision: Affirmed. Such easement may be had by ten years possession. The use was open,
Questions: 1. The appeals court held that Sims did have an easement by prescription across the
Moran’s property. Sims asked them to give it to him, but they would not? Why not?
Presumably they wanted him to pay for the right to have a driveway across their property or
2. The Morans did not own the property for ten years during which Sims used the driveway. Why
did Sims not have to wait ten years?
The rule is, in Mississippi, 10 years. It does not mean 10 years possession against one property
Add. Case: Hickerson v. Bender (Ct. App., Minn., 1993)--The Fagans owned two lake lots.
They sold one in 1955 to Becker that had an easement “for the purpose of ingress to and egress
from Gull Lake over the easterly Fifteen (15) feet” of the lot the Fagans kept. Becker sold the
lot; eventually Hickerson bought it in 1990. It was still vacant. The other lot (which had the
easement on its eastern 15') was sold to Bender in 1958, who built a home on it; the deed said
nothing about the easement and he did not know of it until Hickerson raised the issue. The
Bender home blocked the easement. Hickerson sued Bender. The court held the easement had
been abandoned and was subject to adverse possession by Bender, so Hickerson got no
easement.
Decision: Affirmed. The easement had been abandoned by lack of use since it was granted in
1955 until it was reclaimed 35 years later. Also, the Benders had adverse possession of the
Add. Case: Silacci v. Abramson (Ct.App., Cal., 1996)--Silacci and Abramson’s homes backed
up to one another. A prior owner of Abramson’s home had built a fence that enclosed 1,600
square feet of became Silacci’s property. Silacci wanted the fence moved to the real property line,
Abramson claimed he now had title to that parcel by “exclusive prescriptive easement” and the
trial court agreed. Silacci appealed.
Decision: Reversed. “Adverse possession is a means to acquire ownership of land. In adverse
possession, the claimant must prove open and notorious use, hostile to the true owner, for a
period of five years, and he must also show that he has paid taxes on the parcel of land.”
Abramson did not pay taxes on the land. “An easement acquired by prescription is one acquired
by open and notorious use” such as by using another’s property without objection. That does not
apply here because not enough time has passed without the property owner objecting. “An
easement ... is not an ownership interest, and certainly does not amount to a fee simple estate.
The trial court used the term ‘exclusive prescriptive easement,’ an unusual doctrine which does
not apply.”
Add. Case: McWilliams v. Schmidt (Ct. App., Ark., 2001)--McWilliams bought land in 1965.
Land to the east belonged to the Gangluffs. In 1995 Gangluff sold the land, which resulted the
property line being questioned. McWilliams claimed the line was a fence built in 1941. A survey
in 1998 by Gangluff showed the line to be further west, placing six acres on the McWilliam’s side
of the fence in possession of Gangluff. He built a new fence in accord with the survey.
McWilliams sued for ejectment, contending the six acres was his by adverse possession if the
fence boundary was not correct. Gangluff sued for quiet title. The trial court held for Gangluff;
McWilliams appealed.
Decision: Affirmed. Gangluff never gave up title to the six acres used by McWilliams for pasture.
In 1941 the Gangluffs allowed the owner before McWilliams to use the six acres. Since the use of
Covenants. Also called a covenant running with the land, creates essentially a contract with an
estate; it is not an interest in an estate. People, not estates create contracts (and covenants), but
since covenants may last beyond the current owner, the covenant will “run” with the land and
later owners must abide by the obligation created. Common residential covenants are restrictions
on kinds of houses that may be built in a subdivision and what may and may not be done on the
property, so as to help insure quality.
CASE: Thayer v. Hollinger (Sup. Ct., MT, 2013)—Hollinger and Williams developed land
around a lake, selling off 75 lots and retaining land on the outside of the lake lots. Lake lot
owners and Hollinger shared use of a common road. Lot owners used the road to access trails on
Hollinger’s property, contending they had the right to use the trails for motorized vehicles. The
district court agreed with Hollinger that lake lot owners had no right of access via easements
concerning roads. The lot owners appealed.
Decision: The lot owners are incorrect in the assertion that their original deeds provide
easements to use trails on all surrounding lands. They have the right to use the roads to get to
Questions: 1. Why, after so many decades, would the homeowners think they have the right to
drive on the Hollingers’ land?
Some people come to think what they have had access to may be used however they wish. It
might increase the value of their property if lake lot ownership meant a right of access to a lot of
2. Since the homeowners had been allowed to hike and ride horse on the trail, would that
not give them a constructive easement to use the trails for other uses?
No. They may have snuck on to the land for motorized use, but Hollinger clearly objected to it
Add. Case: Powell v. Washburn (S.Ct., Az., 2006)—Powell lived in a planned community built
by Washburn. Washburn recorded the covenants, conditions and restrictions (CC&Rs) when the
land was developed. It referred to the county zoning ordinances as controlling. They did not
permit RVs as residences. Washburn later allowed RVs to be used as residences; Powell sued to
enforce covenants. Trial court held for Powell, appeals court reversed.
Decision: Trial court decision affirmed. The courts are to give effect to the intention of the
Add. Case: Country Club Dist. Homes v. Country Club Christian Church (Ct. App., Mo.,
2003) --A church owned several lots in a residential subdivision. The lots adjoined the church,
which announced that it would construct parking spaces on the lots for church use. The
homeowners association sued to block construction. The association noted that the lots were
covered by a restrictive covenant that applied to all lots in the subdivision. The covenant stated
that “none of said lots shall be improved, used nor occupied for other than private residence
purposes.” The trial court held for the homeowners. The church appealed.
Decision: Affirmed. Restrictive covenants are regarded as private contractual obligations and
will be enforced when the intention is clear. The covenant clearly states that the lots will only be
used for private residences. Parking spaces for the church would violate the covenant. The
Add. Case: Stuart v. Chawney (Sup. Ct., Mich., 1997)--A subdivision was platted in 1967. A
covenant containing 25 provisions restricting housing style was filed by the developer with the
county Register of Deeds. 20 years later, a property owner wanted to build a house that would
not conform with the covenant. Other owners invoked the covenant. The matter ended on appeal
to the Michigan high court.
Decision: The covenant called for an “Architectural Control Committee” to enforce the
covenant. Nothing had been done in the 20 years since original construction. Failure to follow
the terms of the covenant means that it will not be enforceable. To enforce a negative covenant,
Landlord and Tenants—As society becomes more mobile, tenancy, a possessory estate interest,
has become more common. A leasehold gives a tenant certain occupancy and use rights of the
property; the landlord has the right to reclaim the property in the future. Unless prohibited by the
lease, a tenant may sublease part or all of the leasehold.
Leases—An agreement that creates a leasehold in an estate and contains covenants (conditions),
such as rent payment requirements and restrictions on property use. State statutes help govern
tenancies.
Rights of a Tenant—A tenant has a right in the property rented, including the right to exclude the
landlord, with certain exceptions, such as enter to make needed repairs. State laws often give
landlords other entry rights, such as for periodic inspection. Landlords are also expected to make
needed repairs in a timely manner. If the premises become unlivable, the tenancy is broken and
the tenant may leave.
Add Case: Robinson v. C&L Assoc. (Ct. App., Ohio, 2010)—C&L leased an apartment to
Robinson. She had problems with the oven and reported it five times to C&L, which never did
anything. C&L sold the apartments to OMC. After the sale, Robinson was burned by the
defective oven. She sued C&L and OMC for negligence. The case was dismissed; Robinson
appealed.
Decision: Reversed. The Ohio Landlords and Tenant Act imposes duties on a landlord to make
repairs and do whatever is necessary to put and keep the premises in a sit and habitable
condition. A landlord is liable for injuries which caused by the landlord’s failure to fulfill the
Add. Case: Heath v. La Mariana Apartments (Ct. App., N.M., 2006)--Heath was with her
three-year-old son on the balcony in front of her second-story apartment when the phone rang
and she went in to answer it. The boy fell through an eight and three-quarter inch space between
a wooden support column and the first vertical post of the balcony guardrail. He suffered
injuries. His mother sued the owners, claiming negligence per se for failure to comply with the
Uniform Building Code (UBC). At the time the apartments were built, the UBC called for such
spaces to be no more than nine inches, but that was reduced to four inches in later revisions of
the UBC. The district court directed a verdict for the defendant. Heath appealed.
Decision: Affirmed. For there to be negligence per se, 1) there must be a statute which
prescribes certain actions or defines a standard of conduct, 2) the defendant must violate the
statute, 3) the plaintiff must be in the class of persons sought to be protected by the statute, and
Add. Case: Francis v. Bryson (Sup. Ct. App., W.Va., 2005)--The Brysons rented a house from
Francis for two years before they entered into a new agreement. Francis claimed it was a
month-by-month tenancy for $350 a month, which the Brysons broke when they stopped paying
rent after five years. The Brysons claimed they had agreed to buy the house and that the
payments were toward the purchase of the house. There was no written contract. By the time of
the litigation, the Brysons owed $4,300 in back rent, which the court awarded Francis. The court
awarded the Brysons $7,000 for the value of improvements, such as installing new doors and a
new kitchen floor. Francis appealed.
Decision: The judgment ordering Francis to pay the Brysons $7,000 for improvements is
affirmed. It appears from the evidence that the Brysons believed they were purchasing the
Add. Case: Barton v. Mitchell Co. (Ct. App., Fla., 1987)--Barton had a five year lease from
Mitchell on store space she used to sell patio furniture. After two years, Mitchell leased the
space next door to an exercise studio. The studio made so much noise (loud music, yelling) that
it became difficult for Barton to transact business. She lost customers and salespersons. Mitchell
promised to take care of things but, after eight months had not, so Barton left. Mitchell sued for
the balance of the lease and was awarded $18,930. Barton appealed.
Decision: Reversed. A paragraph in the lease, Quite Enjoyment, said the tenant “shall peaceably
Add. Case: Bocchini v. Gorn Mgmt. (Ct. App., Md., 1986)--Bocchini rented an apartment
managed by Gorn in 1978. In 1983 the upstairs neighbor made a lot of noise—loud stereo,
stomping on the uncarpeted floor, yelling, etc. Bocchini complained to Gorn, who wrote letters to
the neighbor, but nothing changed. After complaining more, and Gorn saying nothing could be
done, Bocchini vacated in 1984. Gorn sued for breach of lease; she countersued for breach of
covenant of quiet enjoyment and constructive eviction. Trial court held for Gorn. Bocchini
appealed.
Decision: Reversed. In 1860 a Maryland court recognized as a matter of common law: “that a
lessee who holds under one who has a fee in the premises demised, is entitled to the quiet
enjoyment of them during his term, and there is an implied covenant to that effect on the part of
the lessor in the case where none is expressed, if the contrary is not stated.” This is still the law,
Add. Case: New Haverford Partnership v. Stroot (Sup. Ct., Del., 2001)--Stroot was a tenant
at Haverford apartments. She had problems with water leaks and mold in her apartment and
suffered health problems. Complaints resulted in no action. Her health improved after she moved
out. A microbiologist inspected Haverford, took samples, and decided there was excessive mold
growth due to the leaks, and the mold posed a health risks. Experts testified that Stroot suffered
permanent health damage from the exposure. A jury awarded Stroot $1 million, less 22% for
contributory negligence. The landlord appealed.
Decision: Affirmed. Landlords may be sued based on ordinary negligence. While the Landlord
Tenant Code of the state regulates legal rights, remedies, and obligations of the parties to a
rental agreement, it does not preclude suits for negligence. Testimony revealed the relationship
Add. Disc. —Duty to Mitigate Damages: When a tenant wrongfully abandons property, the
landlord has a duty to attempt to re-rent the premises immediately; there is not an automatic
claim on the unpaid rent for the rest of the lease. The landlord must demonstrate diligence in
attempting to release the premises.
Duties of a Tenant—A tenant may not abuse the property so as to affect it beyond the lease term.
There is a duty to report problems to the landlord and not let them get worse and cause damage,
such a leaking roof. Tenants may also not be a nuisance to neighbors or engage in illegal acts on
the premises.
Add. Case: Good v. Said (Ct. App., La., 2009)--Good leased commercial property to Saia in
1976. Saia assigned the lease to Windjammer in 1978. Windjammer later assigned the lease to
Roth. The lease stated that the lessee could, without the consent of the lessor (Good), assign the
lease. It then states: “In such event, Lessee shall remain liable for the payment of all rent
required to be paid hereunder and for the performance of all terms, covenants and conditions
herein undertaken by Lessee.” The lease also held that in the event of legal action, the prevailing
party was entitled to recover attorney fees and costs. Roth breached the lease. Good then sued
Saia, the original lessee, and Roth for breach and won. Good requested the court award him
attorney fees of $20,025 plus costs of $471.50. The trial court refused. Good appealed that
decision.
