A talk given by Scott Phinney - http://scottphinney.com

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Scott Phinney
Real Property

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§ 1: The Nature of Real Property
Real property is immovable and includes:
 Land.
 Buildings.
 Trees and vegetation.
 Airspace.
 Subsurface (mineral) rights.
 Fixtures.

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§ 2: Ownership Interests
in Real Property
Ownership interests are classified as either
Possessory or Non-Possessory:
•A Possessory interest such as a fee simple, life or
leasehold estate, gives the owner a right to possess the
land.
•A Nonpossessory interest such as an easement, profit
or license, does not give the owner a right to possess
the land.

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Fee Simple (Absolute)
Although not absolute, the fee simple
(sometimes called fee simple absolute)
gives the owner the greatest aggregation of
rights, powers and privileges possible under
American law and can assigned to heirs.
A “conveyance” (transfer of real estate)
“from A to B” creates a fee simple. A is the
Grantor and B is the Grantee.

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Life Estates
Estate that lasts for the life of some specified
individual. “A grants Blackacre to B for B’s life”
grants B a life estate in Blackacre.
When B dies, Blackacre returns to A or his heirs or
assigns, or a third party in the same condition, normal
wear and tear excepted.
Grantor A retains a “future interest” in the property.
During B’s life, she can possess, use, and take the
fruits of the estate, but not take from the property
itself.

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Leasehold Estates
A real property owner or lessor agrees to convey
the right to possess and use the property to a
lessee for a certain period of time.
Tenancy for Years:
 Periodic Tenancy.
 Tenancy at Will.
 Tenancy at Sufferance.

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Non-Possessory Interests
An easement is a right of a person to make
limited use of another person's real property
without taking anything from the property.
A profit is the right to go onto land in
possession of another and take away some
part of the land itself or some product of the
land.
Property that is benefited by easement/profit
carries the interest with the sale of land.

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Non-Possessory Interests [2]
If the owner of the easement or profit is
contiguous to the owner of the land, it is said to
be appurtenant (‘easement appurtenant”). If the
owner’s property is separated, it is said to be
gross.
AA BB
AppurtenantAppurtenant
AA BB
In GrossIn Gross

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Non-Possessory Interests [3]
Easements or profits can be created by:
 Deed (physical delivery is sufficient).
 Will (at Grantor’s death).
 Contract between Grantor and Grantee.
 Implication: circumstances surrounding creation of
easement imply its creation.
 Necessity.
 Prescription: easement by adverse possession.

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Termination of an
Easement or Profit
By deed back to owner of the land burdened by
it.
Owner of easement or profit becomes owner of
the land burdened with it.
Abandonment by the owner of the right.

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Licenses
Revocable right of a person to come unto
another’s land without removing anything from
the land.
Personal privilege that arises from the consent of
the owner of the land that can be revoked.

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§ 3: Transfer of Ownership
Ownership in real property can be transferred
by:
 A written Deed.
 A Gift.
 A Sale.
 An Inheritance.
 Adverse Possession.
 Eminent Domain.

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Deeds
A Deed is the instrument setting forth the
interests in real property being transferred.
Necessary components of a Deed:
 Names of Grantor and Grantee.
 Words evidencing intent to convey.
 Legally sufficient description of the land.
 Grantor’s signature.
 Delivery of the Deed.

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Types of Deeds
Warranty Deed.
 Special Warranty Deed.
Quitclaim Deed.
Grant Deed.
Sheriff’s Deed.
 Period of redemption.

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Recording Statutes
Recording a deed (or any interest in real
property) puts the public on notice of the new
owner’s interest in the land and prevents the
previous owner from fraudulently conveying
the same interest to another buyer.
Race statute.
 Pure notice statute.
 Notice-race statute.

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Contracts for the
Sale of Real Estate
Contracts must be in writing and signed to be
enforceable under the Statute of Frauds.
 Brokers and Agents.
 Formation of the Sales Contract.
 Warranty of Habitability.
 Seller’s Duty to Disclose Defects.
 Seller must deliver marketable title.
 Case 48.1: Smith v. Levine (1995).

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Sale Process
Seller’s Response
Purchase & Sale
Agreement
Financing
Title Exam &
Insurance
Escrow
Closing
Buyer’s Purchase
Offer Home Inspection

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Transfer By Inheritance
When the owner of real property dies, her
property is transferred by either:
 Will (testate).
 Without Will (intestate).
Title can be transferred at the time of death, as
provided in state testate and intestate laws.

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Transfer By Adverse Possession
One person possesses the property of another for
a certain statutory period of time, that person
automatically acquires title to the land, just as if
there had been a conveyance by deed. Must be:
• Actual and exclusive.
• Open, visible and notorious.
• Continuous and peaceable.
• Hostile and adverse.
 Case 48.2: Klos v. Molenda (1986).

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§ 4: Limits: Eminent Domain
Rights in property are not absolute. They are
constrained by federal and state laws, e.g.,
nuisance, tax and environmental.
Transfer By Eminent Domain: The Fifth
Amendment gives the government the right to
“take” private land for public use with just
compensation.

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Limits: Zoning
Zoning is the State’s power to control the use of
land through legislation without having to
compensate the owner (unless so severe that it is
a “taking”).
 Must be rational in advancing state interest and must
be non-discriminatory.
• Variances.
• Building Permits.
 Case 48.3: Richard Roeser Professional Builder Inc.
v. Ann Arundel County (2002).

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Limits: Restrictive Covenants
Private restriction on use of land. Restrictions of
the use of the land which is binding on the party
who purchases originally and on subsequent
purchasers –if it “runs with the land”.
Running with the land requires:
 Written agreement.
 Must bind all subsequent owners.
 Must touch and concern the land.
 Successor to the original parties must have notice of the
covenant.
 Actual or constructive.

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Law on the Web
Housing and Urban Development.
Information on Condemnation Procedures.
Information on Veterans Administration Home Loan
Legal Research Exercises on the Web.