Chapter 48
REAL PROPERTY
RESTATEMENT
Real property includes land, buildings, fixtures, and rights in the land of another. A fixture is personal property that
has been attached to the earth. Profits are the right to remove something from the land of another. Easements are
the right to use someone else’s land. An easement can be created by necessity as when property is landlocked or by
prescription when the easement is acquired adversely. A license is a revocable privilege to be on the land of another.
Liens are interests in real property that can be foreclosed in the event of nonpayment.
A person’s interest in real property can be a freehold estate such as a fee simple or a life estate.
The determination of whether an item is a fixture is determined by several tests such as degree of annexation,
adaptation, intent, and whether the machinery or equipment is movable and whether the item is a trade fixture.
Property owners can have liability to third parties for conditions on their property. The categories of land occupiers
are trespassers, licensees, and invitees. The higher the degree of invitation for the land occupier, the greater the
duty. Some courts have abolished the distinctions among land occupiers and simply required landowners to show
reasonable care to all occupiers. Recreational use statutes provide immunity from liability to persons using property
for recreational purposes for no charge.
The forms of property co-ownership include condominiums and cooperatives with different methods of ownership and
advantages under each.
The transfer of real property can occur by deed. A deed is a written instrument from grantor to grantee. The types of
deeds include the quit claim deed and the warranty deed. Deeds require delivery and acceptance for a transfer to
take place. Recording is not necessary to effect a transfer, but it does protect the parties against future transfers and
conflicting titles. The grantor makes the following warranties in the transfer of land: that the grantor owns the title;
that the transfer is proper; that there are no encumbrances other than those noted; and that the grantor will do
nothing to interfere with the title.
Covenants by the grantee can run with the land or become a part of the title to the land and may include, for example,
an affirmative easement.
Property can also be transferred by eminent domain or adverse possession.
Mortgages are liens on real property which can be foreclosed upon and are used as security for a loan. Upon default,
the mortgagee can sue to collect on the underlying contract or foreclose on the mortgage.
STUDENT LEARNING OUTCOMES
LO.1: List the types of real property interests, the rights of the parties, and their liabilities.
LO.2: Distinguish between liens, licenses, and easements.
LO.3: Discuss the nature and form of real property ownership.
LO.4: Explain the liability of landowners for injury to others on their property.
LO.5: Discuss the forms of co-ownership and parties’ rights.
LO.6: Describe how deeds convey title to land.
LO.7: Describe the characteristics and effects of mortgages
INSTRUCTOR’S INSIGHTS
Break the chapter down into seven components – related Learning Outcomes are indicated in ( ):
1. What is the nature of real property?
Define real property (LO.1)
Discuss easements and contrast with licenses (LO.2)
2. What is the nature and form of real property ownership? (LO.3)
3. What is the liability of real property owners to third parties?
4. What are the methods for co-ownership of real property and the co-owners’ rights? (LO.5)
5. What are the methods for transferring title to real property?
Cover the types of deeds
6. What are other methods of transferring real property?
7. What are mortgages and what are the parties and rights involved in them?
Define mortgage (LO.7)
Describe the characteristics of a mortgage (LO.7)
CHAPTER OUTLINE
I. What is the Nature of Real Property?
A. Definitions – real property includes:
1. Land – soil and things permanently affixed thereto; things embedded beneath the surface
2. Buildings and fixtures
3. Rights in land of another
B. Easements
1. Dominant tenement: benefited land
2. Servient tenement: subject to easement
3. Must be in writing under the statute of frauds
4. Creation of easements
a. By deed
b. By implication
CASE BRIEF: Dianne v. Wingate
84 So. 3d 427 (Fla. App. 2012)
FACTS: Adrian and Charline Wingate (Appellees) own and occupy a home adjoining Gloria Dianne and
Freddie L. Wingate’s (Appellants) property. On February 1, 1999, Appellant Freddie L. Wingate
and his (now deceased) wife, Peggy Ann Wingate (now Peggy Dianne), granted an easement over
and across their property, providing ingress and egress to Adrian and Charline, which was
recorded. Around October 21, 2009, Freddie and Peggy placed speed bumps across a paved
portion of the easement, which is used by Adrian and Charline to gain access to their residence.
Freddie and Peggy also placed concrete barriers on either side of the speed bumps to prevent
vehicles from going around the speed bumps. The speed bumps have proven dangerous to drivers
and their passengers and have damaged vehicles passing over them. Adrian and Charline
demanded summary judgment as well as a permanent injunction restraining Freddie and Peggy
from keeping the speed bumps across the easement. The court granted summary judgment and
ordered the removal of the speed bumps. Peggy and Freddie appealed.
ISSUE: How much can an easement holder regulate an easement?
HOLDER: How much the easement holder can regulate depends on the type of easement, the grant, and the
nature of the use.
REASONING: There was at least a factual question about the degree of burden. The court held that there were
issues of fact about the burden that the speed bumps caused the dominant easement holders. The
issues that require examination are whether there are underlying reasons for the control of ingress
and egress, whether the easement language offers guidance on what the servient interest holder
can do, and if there are other means for accomplishing whatever safety goals the servient interest
holder may have. Dominant interest holders do not have a right of absolute prohibition of ingress
and egress restrictions unless such is spelled out in the easement grant itself. The decision is
reversed and the lower court must hold a trial on all of these issues. Reversed and remanded.
5. Termination of easement
C. Profits: rights to take part of the soil or produce of the land
D. Licenses
DISCUSSION POINTS: Sports & Entertainment Law
New England Patriots and Their Season License Holders
The Patriots have the right to regulate their licenses and revoke them. The landowner controls licensee use and
conduct.
E. Liens
F. Fixtures
1. Definition – becomes part of real property
2. Tests of a fixture
a. Annexation – cannot be removed without materially damaging the realty
DISCUSSION POINTS: Thinking Things Through
The Dryer Vent That Dumped on the Doc
Cathel, Judge. The Condominium’s Declaration states in Article 15.2:
In addition to any easement established by law, each unit shall have, appurtenant thereto, an easement in
the common elements for the purposes of providing maintenance, support, repair or service for such unit to
and for the ducts, pipes, conduits, vents, plumbing, wiring and other utility services to the unit.
The traditional law of easements applies to condominiums. Furthermore, the Condominium’s Declaration specifically
provides in Article 6.1 that “[e]ach unit in the Condominium has all the incidents of real property and the owner of a
unit shall have such estate therein as may be acquired in real property….”
The generally accepted rule for an express easement is “that [because] an easement is a restriction upon the rights
of the servient property owner, no alteration can be made by the owner of the dominant estate which would increase
such restriction except by mutual consent of both parties.” There are, however, instances in which a dominant and
servient estate may both benefit and shoulder the burden of a particular covenant or easement. This can occur in the
situation of an implied negative reciprocal easement.
In the case sub judice the language in Article 15.2 of the Condominium’s Declaration creates an express easement.
An easement is granted to the dominant estate, appurtenant to the individual condominium units (in this case
petitioner’s unit), “in the common elements,” i.e., the exterior of the unit, by the servient estate, the Condominium….
This easement was properly established when the Declaration was filed along with the Bylaws and Condominium
plat, establishing the Condominium.
The Court of Special Appeals contends that there is an inherent conflict created by such a grant of an easement in
the context of a condominium. The court argues that because the individual condominium unit owner is also a
member of the Condominium unit owners as a whole, she has an interest in “both the servient and dominant
estate[s].” In other words, petitioner is granted an easement over or through the common elements as the dominant
estate represented by her condominium unit, but, as a member of the Condominium, she also has an interest in the
servient estate by virtue of her interest in the common elements. We find no conflict in this situation. While petitioner
“can be said to have a tenancy in common in the general common elements with all of the other Condominium unit
owners,” petitioner owns her individual condominium unit in fee simple. These are two wholly different types of
estates. There is no conflict extant between the two types of ownership in regards to the existence of the express
easement.
Our job now is to interpret what exactly the easement provides for. In doing this, we look to standard constructs of
contract interpretation. The establishment of an easement in a condominium declaration is analogous to the
establishment of an easement by deed.
[i]t is evident that condominium unit owners were to be provided with the ability to perform maintenance, support,
repair or service on those items (ducts, pipes, conduits, vents, plumbing, wiring and other utility services) which
pierced the “shell” of the unit, passing through the exterior walls or common element spaces. This type of easement is
a logical extension of certain rights of individual unit owners. Otherwise, anytime something untoward occurred to one
of the above-listed items the unit owner would be required to receive permission from respondent in order to remedy
the situation.
The problem that arises in the case of petitioner’s exercise of this easement, is that her particular exterior dryer
installation was defective because the exhaust had not been properly vented at the time the unit was constructed and
at the time of purchase in 1991, nor, in fact, did it exist when the Declaration establishing the easement was filed.
There appears to be no dispute that a vent was contemplated for the respective unit, but failed to be installed during
the construction phase – otherwise building codes and probably fire codes would have been violated. The fact that
petitioner’s unit was improperly constructed by the developer of The Cloisters does not negate this aspect of the
easement.
It was reasonable for petitioner to remedy the hazard created by the improper original construction of the dryer
exhaust system. In order to reasonably enjoy the grant of the easement, petitioner was entitled to install an exterior
dryer exhaust vent.
The installation of an exterior dryer exhaust vent is reasonable and necessary, and was fully contemplated, for the
proper, and more importantly, safe, operation of the dryer and its presence and maintenance.
Respondent concedes that the easement grants unit owners control over certain systems which run through the
common elements of the Condominium, but asserts that the easement does not “serve to grant a unit owner the
unfettered right to install a completely new system in an area in which it has previously not been installed.” In support
of this, respondent contends that such a holding would open and let loose a virtual Pandora’s box of monstrosities on
the Condominium.
Respondent’s concerns are not valid in this case. The installation of the exterior dryer exhaust vent by petitioner is not
something that is new or in addition to the original construction of the other forty-seven condominium units. Every
other condominium unit in The Cloisters already has such an exterior dryer exhaust vent system and the owners are
able to maintain those systems without the approval of the Board. Our holding does not allow unit owners the
unfettered ability to make changes to the exterior of their condominium unit without prior approval by respondent.
Rather, it reasonably allows only the petitioner, where an obvious construction defect exists relating to safety, to install
the exterior vent in reliance on the rights granted by the express easement (and for that matter in exercise of the
rights inherent in an exception contained in the Bylaws).
The Circuit Court and the Court of Special Appeals, along with respondent, state that there were several alternate
locations that the exterior vent could have been placed in order that it not interfere with Dr. Kantt’s enjoyment of his
property. The record, however, does not reflect this.
It is not a viable alternative to, effectively, completely remodel petitioner’s condominium unit by tearing down walls
and dropping ceilings in order to be able to provide exterior ventilation for the clothes dryer in a different location.
Petitioner had the vent installed in the most logical place. We find the location of petitioner’s original installation of
the exterior dryer exhaust vent to be the most reasonable option under the facts presented in the case sub judice.
Reversed.
CASE BRIEF: In re Ryerson
519 B.R. 275 (D. Idaho 2014)
FACTS: Denny Ryerson (Debtor) filed his Chapter 11 bankruptcy case on August 30, 2013 and Anaconda
(mortgage creditor) asked for relief from the stay to sell the property securing the mortgage notes.
The property securing the notes is located on the shore of Lake Coeur d’Alene. A residence and
related structures sit on two contiguous lakefront lots, and there are two additional lots adjacent
thereto. The two primary lots total 2.18 acres. The residence, a luxury custom home, is about
11,000 square feet in size. There is a separate 1,500 square foot caretaker residence and a
separate 900 square foot garage with a dwelling unit over it. The court valued the lots and
residences, excluding moveable personal property (i.e., extensive furniture and art) at $9,000,000.
Anaconda commenced foreclosure on the deeds of trust. There was a $7,000,000 bid that
Anaconda obtained for the residence property. At a separate foreclosure sale on April 15th,
Anaconda obtained a $145,000 bid for the adjacent lots.
Ryerson was entitled to remove personal property such as furniture and art, but he also removed
fixtures and Anaconda sought remedies for the loss of the improperly removed fixtures. Anaconda
requested that the Debtor, who had “stripped” over $550,000 worth of “fixtures” from the property,
be required to return them.
The Debtor maintains that the items are not fixtures and intends to sell the non-fixture personal
property and devote the proceeds to payment of creditors under the Chapter 11 plan.
ISSUE: What property is personal property and what property is fixtures?
HOLDING AND
REASONING: The court decided for the debtor with respect to some of the property and the creditor in others:
(1) under Idaho law, recessed “can” lighting, in-cabinet lighting, wall sconces, installed indirect
(2) the French-made gas and electric range, though a wedding present from debtor to his wife,
The decisions were based on degree of attachment, damage upon removal, relationship of the item
DISCUSSION POINTS: Discuss what happens to the value of the property when it is stripped, especially in
situations where it is a close call as to whether an item is a fixture. There was also an
order in place to remove only the art and paintings, not the fixtures.
II. What is the Nature and Form of Real Property Ownership?
A. Fee simple estate – the holder has the entire interest in the land
C. Future interests
III. What is the Liability of Real Property Owners to Third Parties?
A. Status-of-plaintiff common law rule
1. Trespassers
2. Licensees
3. Invitees – occupier: duty to discover and warn
B. Negligence rule: modern changes – trend to ignore common law distinctions and use negligence standards
C. Intermediate rule: modern changes – abolished distinction between licensee and invitee so owner owes the
CASE BRIEF: Wrinkle v. Norman
301 P. 3d 312 (Kan. 2013)
FACTS: On March 10, 2006, Rodney Wrinkle (appellant/plaintiff) and his friend, Raymond Lee, observed
four or five cows wandering loose in front of property belonging to Gene and Charlene Norman
(defendants), and some of the cattle were straying toward the highway that ran between Wrinkle’s
and the Normans’ property. Wrinkle was riding his lawn tractor, and he signaled to approaching cars
to slow down. Initially riding on his lawn tractor and then going on foot, Wrinkle proceeded to herd
the cattle into the Normans’ yard. The Normans’ gate was open, and Wrinkle herded the cows
through the gate toward a pen.
A clothesline wire was attached to a pole in the Normans’ yard. As Wrinkle herded the cattle across
the Normans’ yard toward the cow pen, one calf strayed into the clothesline wire, caught the line
around its neck, and began to choke. Wrinkle grabbed the back of the clothesline and walked
around to the other side, flipping the line several times in order to remove the line from the calf’s
neck. The calf took off running toward the gate of the pen, apparently catching the clothesline
somehow, so that the clothesline caught Wrinkle from behind. Wrinkle’s feet went out from under
him, and he landed on his back on a concrete pad.
Wrinkle immediately experienced severe pain. Lee helped him get home, and Wrinkle eventually
went to the hospital, where he was diagnosed with a broken back. He was hospitalized for 30 days.
Afterward, he approached the Normans in person about the injury and later wrote a letter in which
he asked that they submit to their insurance carrier a claim for $44,115.72, which was the
outstanding balance on his hospital bill. The Normans refused to arrange for payment of the
medical expenses.
Wrinkle then filed an action grounded in negligence alleging that the Normans had created a
dangerous condition on their property that presented an unreasonable risk of harm by leaving their
gate open and by leaving a clothesline wire running across the ground.
The Normans filed a motion for summary judgment. The court granted the Normans’ motion for
summary judgment, holding that Wrinkle was a trespasser on the Normans’ property and they had
breached no duty toward him. The Court of Appeals affirmed. Wrinkle appealed.
ISSUE: Was there a duty to anticipate the need for protecting those who might enter your property for the
purpose of helping the property owner?
HOLDING AND
REASONING: Although the rescuer was somewhere between a licensee and invitee, the question is what to do
The duty of reasonable care is essentially the same as the duty under the theory that the Normans
were negligent in the manner of storing their clothesline. Because Wrinkle asserts that the injury
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed,
DISSENT: A duty to remove any object from one’s property that could in any fashion somehow be a factor in
an injury to another person entering one’s property simply increases the possibility of liability and
litigation to an absurd level.
IV. What are the Methods for Co-Ownership of Real Property and the Co-Owners’ Rights?
A. Multiple ownership
B. Condominiums
1. Discuss co-ownership and individual ownership