Understanding Property Law

Transcription

1 Understanding Property Law

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3 Understanding Property Law fourth edition John G. Sprankling Distinguished Professor of Law University of the Pacific McGeorge School of Law Carolina Academic Press Durham, North Carolina

4 Copyright 2017 John G. Sprankling All Rights Reserved Names: Sprankling, John G., Title: Understanding property law / John Sprankling. Description: Fourth edition. Durham, North Carolina : Carolina Academic Press, LLC, [2016] Series: Understanding series Includes bibliographical references and index. Identifiers: LCCN ISBN (alk. paper) Subjects: LCSH: Property--United States. Classification: LCC KF561.S DDC dc23 LC record available at Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

5 For Gail, Tom, and Doug.

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7 Contents Preface xvii Chapter 1 What Is Property? An Unanswerable Question? Property and Law Defining Property: What Types of Rights Among People? Defining Property: Rights in What Things? 10 Chapter 2 Jurisprudential Foundations of Property Law Why Recognize Private Property? First Occupancy (aka First Possession) Labor- Desert Theory Utilitarianism: Traditional Theory Utilitarianism: Law and Economics Approach Liberty or Civic Republican Theory Personhood Theory 23 Chapter 3 Property Rights in Wild Animals The Origin of Property Rights The Capture Rule In General Evaluation of the Capture Rule Rights of Landowners Regulation by Government 32 Chapter 4 Finders of Personal Property Finders as Owners Who Is a Finder? Categories of Found Property Rights of Finder against Original Owner Rights of Finder against Third Persons Generally Rights of Finder against Landowner Statutes Defining Rights of Finders 45 Chapter 5 Gifts of Personal Property Gifts in Context What Is a Gift? 48 vii

8 viii CONTENTS 5.03 Gifts Inter Vivos Gifts Causa Mortis Restrictions on Donor s Autonomy 56 Chapter 6 Intellectual Property Introduction Copyrights Patents Trademarks Trade Secrets Rights in News: International News Service v. Associated Press Rights of Publicity Rights in Domain Names Moral Rights of Artists 77 Chapter 7 Other Personal Property Rules Accession Adverse Possession of Personal Property Bailments Bona Fide Purchasers Property Rights in Body Parts Trespass to Chattels 95 Chapter 8 History of the Estates in Land System The Estates System Defining Estate and Future Interest Property Law in Feudal England Property Law in Post- Feudal England Estates in Land in the Early United States Trends in Modern Law Governing Estates in Land 108 Chapter 9 Present Estates A Byzantine System Creation of Estates Classifying Estates Estates: Freehold or Nonfreehold? Basic Categories of Freehold Estates Freehold Estates: Absolute or Defeasible? Freehold Estates: Legal or Equitable? Restrictions on Transfer: Rule Against Restraints on Alienation Restriction on Use: Waste 132 Chapter 10 Concurrent Ownership The Nature of Concurrent Ownership 136

9 CONTENTS ix Types of Concurrent Estates Rights and Duties of Cotenants Termination of Concurrent Estates 149 Chapter 11 Marital Property Gender and Marital Property Traditional Common Law System Modern Common Law System Community Property System Conflict between the Systems: The Problem of Migrating Couples Attempts to Avoid the Systems: Premarital Agreements The Future of Marital Property Law?: Uniform Marital Property Act Same-Sex Marriage Rights of Unmarried Couples 169 Chapter 12 Introduction to Future Interests Future Interests in Context What Is a Future Interest? Why Create a Future Interest? Types of Future Interests Classifying Future Interests: An Overview Common Law Approach to Future Interests Modern Future Interest Legislation Contemporary Relevance of Future Interests 179 Chapter 13 Future Interests Held by the Transferor Three Future Interests Types of Future Interests Transfer of Interest Other Rights of Interest Holder Modern Reforms 185 Chapter 14 Future Interests Held by the Transferee An Intricate Common Law Maze Classifying Future Interests Held by the Transferee Remainders Executory Interests Consequences of the Distinction between Remainders and Executory Interests Creation of Interests Transfer of Interests Other Rights of Interest Holders Four Special Restrictions on Contingent Future Interests Held by Transferees 204

10 x CONTENTS The Rule Against Perpetuities: At Common Law The Rule Against Perpetuities: Modern Reforms The Doctrine of Worthier Title The Rule in Shelley s Case The Destructibility of Contingent Remainders 222 Chapter 15 Introduction to Landlord-Tenant Law Landlord- Tenant Law in Context What Is a Leasehold Estate? Leasehold Estate Distinguished from Nonpossessory Interests Historical Evolution of Landlord-Tenant Law Categories of Leasehold Estates Modern Revolution in Landlord-Tenant Law 235 Chapter 16 Creation of the Tenancy The Lease Selection of Tenants Tenant s Duty to Pay Rent Landlord s Duty to Deliver Possession Tenant s Duty to Occupy 255 Chapter 17 Condition of Leased Premises Let the Tenant Beware? The Common Law Foundation The Problem of Substandard Housing Constructive Eviction Illegal Lease Doctrine The Implied Warranty of Habitability: New Common Law The Statutory Warranty of Habitability Landlord Liability for Personal Injury Fixtures 281 Chapter 18 Transfer of Leasehold Interest Transfers in General Distinguishing between Assignment and Sublease Assignment Sublease Should the Assignment-Sublease Distinction Be Abolished? Tenant s Right to Assign or Sublease Transfers by Landlord 298 Chapter 19 Termination of the Tenancy The Struggle for Possession Surrender 301

11 CONTENTS xi Abandonment Landlord s Right to Terminate Lease Self- Help Eviction Ejectment Summary Eviction Proceedings 318 Chapter 20 The Sales Contract Anatomy of a Sales Transaction Role of the Attorney Role of the Real Estate Broker Requirements for Valid Contract A Typical Sales Contract Contract Provisions on Title Contract Provisions on Financing Closing the Transaction Remedies for Breach of Contract 344 Chapter 21 Condition of the Property Let the Buyer Beware? Seller s Duty to Disclose Defects Broker s Duty to Disclose Defects Builder s Implied Warranty of Quality Risk of Loss before Conveyance 359 Chapter 22 The Mortgage The Role of Security for Debt What Is a Mortgage? Evolution of the Mortgage Creation of a Mortgage The Secured Obligation Priority of the Mortgage Transfer of the Mortgage Discharge of the Mortgage Foreclosure of the Mortgage Rights after Foreclosure Other Security Devices 383 Chapter 23 The Deed The Deed in Context Evolution of the Deed Types of Deeds Requirements for Valid Deed Interpretation of Deeds Recordation of Deeds 403

12 xii CONTENTS Effect of Forgery Effect of Fraud Estoppel by Deed 405 Chapter 24 Fundamentals of Land Title The Problem of Conflicting Title Claims General Rule: First in Time Prevails First Exception to General Rule: Subsequent Bona Fide Purchaser Prevails Who Is a Bona Fide Purchaser? Notice Jurisdictions Who Is a Bona Fide Purchaser?: Race-Notice Jurisdictions What Constitutes Notice? Second Exception to General Rule: The Shelter Rule Special Rule for Race Jurisdictions: First Purchaser for Value to Record Prevails Why Protect the Bona Fide Purchaser? 420 Chapter 25 The Recording System The Recording System in Context Purposes of the Recording System Anatomy of the Recording System Procedure for Recording Documents Procedure for Searching Title Recorded Documents That Provide Notice Recorded Documents That Do Not Provide Notice Effect of Marketable Title Acts Technology and the Future of the Recording System 440 Chapter 26 Methods of Title Assurance Title Assurance in Context Covenants of Title Title Opinions and Abstracts Title Insurance Policies Registration of Title 462 Chapter 27 Adverse Possession Title by Theft? Evolution of Adverse Possession Requirements for Adverse Possession Procedural Aspects of Adverse Possession Special Restrictions on Adverse Possession Policy Rationales for Adverse Possession 479

13 CONTENTS xiii Chapter 28 Transfer of Property at Death Death And Property The Will The Trust Intestate Succession Escheat 496 Chapter 29 Nuisance An Impenetrable Jungle? What Is a Private Nuisance? Evolution of Nuisance Law Elements of Private Nuisance Defenses to Liability for Private Nuisance Remedies for Private Nuisance Public Nuisance 514 Chapter 30 Trespass The Right to Exclude What Is a Trespass? Trespass and Rights of Migrant Farmworkers Trespass and Freedom of Speech Trespass and Beach Access Encroachments Good Faith Improvers 526 Chapter 31 Surface, Subsurface, and Airspace Rights Attributes of Ownership Water Rights Public Trust Doctrine Right to Support Boundary Line Doctrines Subsurface Rights Airspace Rights: How High? 541 Chapter 32 Easements The Easement in Context What Is an Easement? Express Easements Easements Implied from Prior Existing Use Easements by Necessity Prescriptive Easements Irrevocable Licenses or Easements by Estoppel Other Types of Easements Scope of Easements 564

14 xiv CONTENTS Transfer of Easements Termination of Easements Negative Easements Licenses Profits a Prendre 572 Chapter 33 Real Covenants The Birth of Private Land Use Planning What Is a Real Covenant? Policy Implications of Private Land Use Restrictions Creation of a Real Covenant Termination of Real Covenants Remedies for Breach of Real Covenants Scholarly Perspectives on Real Covenants The Restatement (Third) of Property: Servitudes 591 Chapter 34 Equitable Servitudes The Equitable Servitude in Context What Is an Equitable Servitude? Evolution of the Equitable Servitude Creation of an Equitable Servitude Special Problem: Equitable Servitudes and the Subdivision Termination of Equitable Servitudes Remedies for Breach of Equitable Servitudes The Restatement (Third) of Property: Servitudes 610 Chapter 35 Condominiums and Other Common Interest Communities A New Model of Home Ownership Types of Common Interest Communities Restrictive Covenants and the Common Interest Community The Owners Association 623 Chapter 36 Fundamentals of Zoning The Land Use Revolution What Is Zoning? The Birth of Zoning A Sample Zoning Ordinance The Constitutionality of Zoning Zoning and the Nonconforming Use Zoning and Vested Rights 639 Chapter 37 Tools for Zoning Flexibility A Modern Approach to Zoning Zoning Amendments 643

15 CONTENTS xv Variances Special Exceptions (aka Conditional or Special Uses) New Zoning Tools The Subdivision Process 655 Chapter 38 Modern Land Use Controversies From Zoning to Land Use Regulation Zoning and the Constitutional Framework Family Zoning Exclusionary Zoning Aesthetic Zoning Growth Control and Zoning Environmental Regulation 676 Chapter 39 Eminent Domain Eminent Domain in Context The Takings Clause of the Fifth Amendment: Nor Shall Private Property Be Taken for Public Use, without Just Compensation Nor Shall Private Property Be Taken For Public Use Without Just Compensation Eminent Domain Procedure 693 Chapter 40 Land Use Regulation and the Takings Clause The Takings Problem The Foundation Era of Regulatory Takings: The Pennsylvania Coal Co. v. Mahon Revolution and Its Aftermath: Overview of the Modern Era in Regulatory Takings: 1978 Present Basic Modern Standard for Regulatory Takings: Penn Central Transportation Co. v. New York City (1978) Special Rule for Permanent Physical Occupations: Loretto v. Teleprompter Manhattan CATV Corp. (1982) Special Rule for Loss of All Economically Beneficial or Productive Use: Lucas v. South Carolina Coastal Council (1992) Special Rule for Exactions: The Nollan- Dolan Duo (1987/1994) Temporary Takings Judicial Takings? Remedies for Regulatory Takings 724 Table of Cases 727 Index 761

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17 Preface The goal of this book is simple: to help you understand property law. It is designed for law students who are taking the standard first- year course in property. Thus, it (a) explains the basic principles of property law in the United States and (b) discusses the policy concerns and historical currents that shape this law. Accordingly, the book can be used as a supplement to any property casebook. At the same time, I hope that it will be useful to attorneys, judges, and scholars as a general survey of property law doctrine, history, and theory. Property law reflects a society s fundamental economic, political, and social choices. First, it determines how the society allocates its resources and thus how it distributes its wealth. Who owns a particular farm or factory? Or a particular invention? Property law answers these questions. Second, the distribution of wealth, in turn, affects political power. Indeed, American property law still mirrors Thomas Jefferson s view that property is necessary for democratic self- government. Finally, property law embodies our core social values, such as protection of individual liberty and freedom from discrimination. Accordingly, the study of property law is both challenging and fascinating. Many people contributed to this book, and I owe them my thanks. Dean Francis J. Mootz III and Associate Dean Michael Colatrella provided constant support. My Pacific McGeorge colleagues Ray Coletta, Matthew Downs, George Gould, Amy Landers, Brian Landsberg, Mike Mireles, and Rachael Salcido reviewed portions of the manuscript and offered valuable suggestions. Finally, Linda Lacy, Ryland Bowman, and the entire Carolina Academic Press team were a pleasure to work with throughout the editorial and production process. I am grateful to my former partners at Miller, Starr & Regalia, especially Harry Miller, Marvin Starr, and Edmund Regalia; their treatise on California real estate law inspired the first edition of this book. I also honor the contributions that other treatise authors especially Roger Cunningham, Joseph Singer, William Stoebuck, and Dale Whitman have made toward our understanding of American property law. Most importantly, I thank my wife Gail Heckemeyer for her loving encouragement and careful proofreading. xvii

18 xviii PREFACE I welcome your comments, criticisms, and suggestions. Please write me at the University of the Pacific, McGeorge School of Law, 3200 Fifth Avenue, Sacramento, CA, or me at jsprankling@pacific.edu. John G. Sprankling August, 2016