Property, Krishnan, Spring 2012 Introduction I. WHAT IS PROPERTY? A. Property is socially contingent.

It is whatever interest in a thing the legal system protects against invasion by others. Property is relative it describes the relationship btw people with respect to things, not the relationship btw persons and things. II. THEORY A. The principal theoretical explanations of property are labor theory, utilitarianism, economic efficiency, and custom 1. Labor theory: John Lockes theory that by mixing your labor with something unowned (e.g., catching wild fish) you won the resulting mixture labor and object. 2. Utilitarianism: The argument that we protect others possession as property bc we desire the same protection for our possessions. 3. Economic efficiency: Property leads to economic efficiency. It causes individuals to internalize cost, so that these individuals make economically efficient decisions as to how the resources on the property are consumed. a) Tragedy of commons: This is contrasted with communal property (everything is unowned), where under conditions of scarcity people will unduly deplete the resources bc the individual gain from depletion outweigh the individual cost. The effect is the creation of externalities, where the aggregate gains is lower than the total cost, which creates externalities (externality cost are external). (1) Opt out or free rider problem: People generally act in their own self-interest. This reduces the likelihood of collective action, such as in not overusing resources, as the indiv share of the benefit would be small. There is also an incentive to rely on others to take action and become a free rider and opt out. This is the collective action dilemma. b) Anticommons: Whereas communal property entails few rights to exclude others, the anticommons provide multiple rights to exclude (e.g., wild life preserve). Problem here is that resources are underused. 4. Custom: Property has a customary root. People engaged in common activity (e.g., whaling or cattle ranching) often develop customs that govern their relationships btw themselves and toward their objects of acquisition or husbandry (e.g., whales or cattle). III. DOCTRINE 1. Property may be broken up into 3 constituent elements: a) Right to use b) Right to exclusive possession

c) Right to dispose or transfer IV. BACKGROUND A. Types of property: 1. Private (personal) property: chattels, or goods. Personal property is movable property, which includes every kind that is not real property. 2. Real property: land, things fixed to land, and things incidental or appurtenant (belonging; pertaining) to land B. Title: Signifies ownership and is an abstract concept. Title is manifested in land transactions through a deed. 1. Prove title by a) Occupancy this is one way to manifest title, but courts do not buy this argument (See Johnson v. MIntosh) b) Written instrument a deed 2. Relativity of title: Prior possessors relativity of title as to an object will be greater than any subsequent possessor C. Doctrine of self-help: The law does not promote self-help, but generally wants individuals to use the judicial process. D. Conversion: The wrongful exercise of ownership rights over the personal property of another. E. Law of accession: If one has property and someone takes the property and adds value

Possession
I. TYPES OF POSSESSION A. Constructive possession: Ability to control w/o physical possession. B. Actual possession: corporeal possession II. ACQUISITION OF UNOWNED THINGS: Methods of acquiring property rights in unowned things. A. Discovery (first in time) 1. Not much is undiscovered today, but the idea that property could be acquired by discovery has some modern implications a) First in time (first/ prior possessors): Notion that being there first somehow justifies ownership rights. b) Constructive possession - There is a recognition that first in time controls. Allow system to function orderly. 2. Discovery vs. Occupancy: a) Discovery can arise through conquest: Discovery of land gives the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy only in the natives Johnson v. MIntosh (1) Supports proposition that property is socially contingent

3. Policy a) Entrepreneurial incentive: It promotes entrepreneurship, where if you discover it, then you own it. b) Allows for constructive possession. Constructive possession is important from an econ point of view bc with actual possession, a person has to be on the property at all times. If one is constantly policing his property, he will not be able to focus on other entrepreneurial interest. c) Security: If you find it, its yours. You dont have to worry about someone taking it. B. Capture 1. Rule of capture: Unowned property that is captured (e.g., wild animals, fugitive minerals such as oil and gas) becomes the property of the person effecting the capture 2. Pursuit insufficient: The unowned thing must be actually possessed for it to become property. a) Mere pursuit of an animal does not give one a legal right to it. You have to have corporeal possession Pierson v. Post b) Animal mortally wounded: However, where an animal has been mortally wounded so that actual possession is practically inevitable, a vested property right in the animal accrues that cannot be divested by anothers act in intervening and killing the animal. 3. Actual possession, policy, and custom: What constitutes actual possession of any given type of unowned thing is largely driven by policy considerations (i.e., will recognition of property rights under these circumstances advance or retard desirable social objectives?), but may sometimes be decided by custom, particularly when those customs embody sound public policies. a) Custom and usage: The court can look to custom and usage within an industry to determine the rule of law regarding the ownership of property (e.g., the party who harpoons the whale is the owner even if it is later discovered on the shore by another) Ghen v. Rich 4. Constructive possession and capture: Landowners are considered prior possessors (first possessors) of wild animals on their land. The landowner has constructive possession of the animals while they are on his property Keeble v. Hickeringill a) Malicious interference: A party can recover against another for interfering maliciously with his ability to use his land for pleasure and profit Keeble v. Hickeringill (where neighbor attempted to scare ducks from landing on s land) b) Animus revertendi: Distinguishes btw animals generally thought to be wild and domesticated animals. If the animals have a tendency to return to the alleged owner, then the owner has a stronger claim of possession. 5. Relativity of title and prior possessors: Prior possessors relativity of title as to an object will be greater than any subsequent possessor 6. Oil and gas: Ownership of oil and gas governed by the same rules as capture.

7. Water: Majority rule under common law: Most courts adhered to the American rule of reasonable use, a rule of capture with the slight addition that wasteful uses of water, if they actually harmed the neighbors, are considered unreasonable and hence unlawful. a) Today, groundwater extraction is commonly governed by legislative and administrative programs. C. Creation 1. Intellectual property: Lots of property is acquired by creation 2. 3 types of intellectual property: a) Copyrights: Protect the expression of ideas in books and articles, music, artistic works, and so forth. Protection begins as soon as the work is set down in a tangible medium and usually last until 70 yrs after the death of the author or creator. b) Patents: Protects the application of ideas and the protection last 20yrs from the date of the patent application. c) Trademarks: Words or symbols indicating the source of a product or svc; owners of marks are protected against use of similar marks by others when such use would result in confusion. Manifested by the symbol TM. 3. Rights in persons own body and conversion: A person does not retain ownership interest in cells after they have left his body. To establish conversion, plaintiff must establish an actual interference with his ownership or right of possession. Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion Moore v. Regents of Univ of CA III. RIGHT TO INCLUDE AND EXCLUDE A. Part of the bundle of rights: right to possess, right to use, right to exclude, the right to transfer (83) B. Transferability: Both the rights to include (or to permit; to sell to another) and to exclude (or to deny) together are necessary and sufficient conditions of transferability C. Right to Exclude 1. Law of trespass and conversion protect the right to exclude a) Trespass: A private landowner has the right to exclude others and when nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded. Jacque v. Steenberg Homes 2. Exception: Right to exclude not absolute a) When pressing social necessity requires some modification of this principle, an owner may be required to tolerate some unwanted incursions See State v. Shack (holding that a landowner could not prevent government representatives from talking with migrant workers) IV. RIGHT TO DESTROY A. Generally, you may destroy your own property, but the social disutility of doing so leads some to call for limits on this right. --------------------

SUBSEQUENT POSSESSION
I. ACQUISITION OF PROPERTY BY FIND A. When property is lost, mislaid, or abandoned, and then is found by another, a problem of relative title emerges, as the finder has relative title. 1. Abandoned property: The owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. It is necessary to show an intent to give up both title and possession. Abandoned property is unowned and the first possessor becomes its owner unless the circumstances of that possession are wrongful (e.g., the finder is a trespasser)

Lost and mislaid property: a) Mislaid property: Property is mislaid when, judging from the place where found, it can reasonably be determined that it was intentionally placed there and thereafter forgotten. b) Lost property: Property is lost when the owner has accidentally and involuntarily parted with this possession and does not know where to find it. (1) Test for lost property: The key factor is the place where it is found: judging from the place where found, would a reasonable person conclude that the owner had accidentally and involuntarily parted with possession of it and does not know where to find it? c) General rule: Generally, a finders title is good against the whole world except the true owner, prior finders/possessors, and (sometimes) the owner of land where an object is found See Armory v. Delamirie d) Prior finders: Prior finders prevail over later finders 2. Finder v. Landowner rules a) If the object is lost and the finder is not a trespasser, the finder prevails Hannah v. Peel b) If the object is mislaid, the landowner prevails, on the theory that the owner of mislaid property is more apt to retrace his steps to locate where it was misplaced McAvoy v. Medina c) Even with respect to lost property, the finder loses out to the landowner if the finder is an employee (or agent of the landowner) or invitee of the landowner, or the object is embedded in the soil See Hannah v. Peel (citing Elwes v. Brigg and Staffordshire Water v. Sharman) B. Goals of finders law: Finders law attempts to restore property to the true owner, reward honest finders, deliver the reasonable expectations of landowners, and discourage trespassers and other wrongdoers. 1. Why not have finders keepers? It would be inefficient for us to police our own property constantly. Can avoid this by giving relative rights. Encourages the productive use of resources. So we can have the reliance of a good faith economy. C. Equitable division: Some say a fairer solution is to divide the value between claimants with equally legitimate claims.

Adverse Possession
1. Definition a. Possession, for a statutorily prescribed period of time can, if certain elements are met, ripen into title. 2. Elements: COAH a. Continuous: uninterrupted for the appropriate statutory period, which is anywhere from 10 to 30 years depending on the jurisdiction b. Open and Notorious: the adverse possessors occupation must be visible (cannot be covert or secret)-> this is to afford the true owner notice and the opportunity to assert his paramount ownership

c. Actual: The adverse possessor must make an actual physical entry onto the premises, to start the appropriate statute of limitations. d. Hostile: The possessor does not have the true owners permission to be there. Permission defeats adverse possession 3. The possessors subjective state of mind is irrelevant a. Measured objectively b. Does not matter what the possessor was actually thinking (thought the land was his, was a mistake, etc.) 4. Tacking a. Adverse possessor may tack on to his time with the land his predecessors time, so long as there is privity (satisfied by any non-hostile nexus btwn the possessors, such as blood, contract, deed, or will) b. EX: 1990: A, an adverse possessor assumes possession of blackacre. 2000As son John takes As place, assuming possession of blackacre until 2010. This jurisdiction has a 20-year statute of limitations. In 2010- John owns blackacre. c. Tacking is not allowed when there has been an ouster i. It is wrongful conduct, and it defeats privity ii. A is almost satisfying the COAH elements, when B comes along and says move it or lose it. B cannot tack on As time. d. Statute of Limitation will not run against a true owner who is afflicted by a disability at the inception of the adverse possession i. Disabilities: infancy, insanity, imprisonment, etc. ii. A belated affliction of a disability will not inure to the benefit of the true owner

PERSONAL PROPERTY
A. Bailments 1. Definition: A legitimate possession of personal property by someone who is not the owner of the property. The bailor is the owner and the bailee is the legitimate possessor. Bailments can be created voluntarily (e.g., dropping your watch off at the jeweler for repair) or involuntarily (e.g., accidentally leaving your car keys on the counter of a jeweler). 2. Elements of bailment: A bailment is created when the bailee has actual control of the property and intends to possess the property. Parties to a bailment may contractually specify their rights and obligations. 3. Bailors, bailees, and third parties: A bailee has a better claim to the property than any third party and is thus entitled to damages from any third party who wrongfully injuries the property, but must turn over the damage proceeds to the bailor. a) Recovery of damages: Bailors may recover from a 3rd party for injury to the property if the 3rd party has not already paid the bailee. (1) Winkfield doctrine: A bailor of a voluntary bailment may not proceed against a 3rd party who has already paid the bailee; the bailor can only go after the bailee. (a) Does not apply to involuntary bailment: The Winkfield doctrine does not apply to involuntary bailments and the bailor may recover from a 3rd

party who has already paid the bailee. Rationale bailor had no opportunity to chose bailee and should not be bound to a settlement or judgment the bailee obtains. B. Adverse possession of chattels 1. Generally a fewer number of years in which to bring suit against an adverse possessor than with real property (usually a different statute applies) 2. Discovery rule (Due Diligence rule): In an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered , facts which to form the basis of a cause of action (i.e., when the owner first discovers, or through reasonable effort should have discovered, the cause of action, including the identity of the possessor) OKeeffe v. Snyder a) The true owner has to show that she used reasonable due diligence in trying to recover the paintings, and if he cannot do so, the statute of limitations begins to run at the time the chattel was stolen. Question of due diligence is a question of fact. Policy This rule encourages owners to report their losses and undertake reasonable investigation. 3. Tolling and fraudulent concealment: When a potential defendant fraudulently conceals himself after the action accrues, so as to avoid service, the statute is tolled until the concealment has ended (i.e., concealment of personal property) OKeeffe v. Snyder

C. Gifts

1. Definition: A voluntary transfer of property for no consideration. The traditional rule is that gift promises are legally unenforceable for lack of consideration. 2. Elements: To the accomplish a gift of personal property the (1) donor must intend to make a gift, (2) property must be delivered to the donee (the recipient of the gift), and (3) donee must accept the property a) Intent: The donor must intend to transfer title. If the donors intent is to merely transfer possession, no gift has been accomplished. Intent is usually shown through circumstantial evidence. b) Delivery: The subject of the gift must be delivered to the done. (1) This usually means actual physical possession (actual manual delivery); however, this is sometimes impossible or impractical. (2) The traditional rule is that if an object can be handed over, it must be See Newman v. Bost. When actual delivery is impossible or impracticable, there is symbolic and constructive delivery. (a) Symbolic delivery handing over something symbolic of the property given (e.g., written instrument declaring the gift). Symbolic delivery allowed in some jurisdictions when physical delivery impossible or impracticable See Gruen v. Gruen (where court held it ok for symbolic delivery where father who was on the west coast left son who was on east coast a painting by way of a letter) (b) Constructive delivery handing over a key or some object that will open up access to the subject matter of the gift. Constructive delivery may occur when the things intended to be given are not present, or when present are incapable of manual delivery because of their weight or size - See Newman v. Bost c) Acceptance: Delivery triggers a presumption of a completed gift (acceptance by the donee will be presumed when the gift is of value to the done See Gruen v. Gruen), which presumption can be rebutted by the donees rejection of the gift. 3. Inter vivos and causa mortis: Gifts are commonly divided into gifts inter vivos (during life) and gifts causa mortis (in contemplation of impending death). a) Revocability: Inter vivos gifts are irrevocable as they are made with no knowledge or threat of impeding death. Causa mortis gifts are revocable if the donor recovers or if the he dies from another condition that did not prompt the gift. Courts view causa mortis gifts with skepticism. Inter vivos gift: An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership See Gruen v. Gruen

Freehold Estates

Devisable = can pass it down by a will Descendible= can pass down if there is no will Alienable= transferable Inter vivos= during the holders lifetime Defeasance= runs the risk of forfeiting the estate if a particular condition is violated or becomes actualized Comma Rule: When conditional language in a transfer follows language that, taken alone and set off by commas or other punctuation, would create a vested remainder, the condition is a condition subsequent, creating the vested remainder subject to complete defeasance. 4 Present Possessory Freehold Estates: Date back to English system of feudalism 1. Fee Simple Absolute (The best kind of Present Possessory Estate) a. To A and his heirs b. To A c. Absolute ownership of potentially infinite duration d. Devisable, descendible, alienable 2. Fee Tail a. To A and the heirs of his body b. Pass directly to grantees lineal blood descendants no matter what c. Virtually Extinct in the United States d. Attempted creation becomes a fee simple absolute 3. Defeasible Fees (3 types) a. Devisable, descendible, alienable b. Fee Simple Determinable i. Must use clear Durational language ii. To A for so long as iii. To A during iv. To A until v. If the duration condition is broker, estate is forfeited and returns to Grantor-> The Possibility of a reverter in O (the grantor) vi. Automatic forfeiture c. Fee simple subject to condition subsequent i. Clear durational language and grantor must explicitly state the right to reenter ii. To A, but if X event occurs, the grantor reserves the right to reenter and retake iii. If an event occurs, the grantor has the right to reenter and re-take iv. Forfeiture not automatic, but the grantor has the right to reenter if the event occurs d. Fee Simple subject to executory limitation

4. Life Estate a. To A for life, To A for the life of B b. When A dies, reverts back to O (the grantor-> reversion c. No waste allowed by life tenant i. Affirmative waste 1. Willful acts of destruction that decrease value ii. Permissive waste 1. Neglecting iii. Ameliorative waste 1. Renovations, transformation that increase the value 2. Not allowed unless all the future interest holders consent A living person cannot have heirs One's heirs are not ascertainable until the moment of one's death Only life estates have remainders and condition precedents Future Interest in the Transferees 1. Remainder a. Follows life estate/term of years b. Never follow defeasible fees c. Future interest created in a grantee NOT the grantor d. To a for life then B, To a for 10 years then to B e. Always patient and polite, do not cut short or divest a prior transferee f. Vested Remainder i. Created in ascertained person ii. Not subject to condition precedent iii. 3 Types-> 1. Indefeasibly vested remainder a. O conveys to A for life, remainder to B b. Bs remainder has no strings or conditions attached to his taking 2. Vested remainder subject to complete defeasance a. No condition precedent (no prerequisites) b. The remainder can be cut short because of a condition subsequent (comma rule) c. O conveys to A for life, remainder to B, but if B dies under the age of 25, to C. A is alive and B is 20. i. Remainder to B if taken alone and set off by commas, creates a vested remainder, however the conditional clause that comes thereafter-> if B dies under the age of 25 is an example of a condition subsequent 3. Vested remainder subject to open g. At least one person is qualified to take possession

i. To A, but if X event occurs, then to B ii. The third party (B) takes if the event occurs iii. B has a Shifting (goes to 3rd party) executory interest

h. The class is open, members share is subject to partial diminution or partial decrease i. Additional takers not yet ascertained j. O conveys to A for life, then to Bs children. A is alive and B has two children, C and D. k. Class is open when it is possible for others to enter, a class is closed when its maximum membership has been set, so others are shut out g. Contingent Remainder i. Created in unascertained person; and/or ii. Subject to a condition precedent iii. Unascertained Person Examples: 1. To A for life, then to Bs first child. A is alive, and B does not have any children. a. The unborn child has a contingent remainder 2. To A for life, then to those children of B who survive A. A is live. a. We do not yet know which, if any, of Bs children will survive A iv. Condition precedent: appears before the language creating the remainder or is woven into the fabric of the grant 1. Example: To A for life, then, if B graduates from college, to B. A is alive. B is still in high school. a. B has not satisfied the condition precedent yet, so contingent remainder. Its a prerequisite to taking. Unmet condition. 3 Rules limiting contingent remainders 1. The destructibility rule a. Contingent remainder destroyed if it was still contingent at the time the preceding estate ended i. Ex: To A for life, and if B has reached the age of 21, to B ii. If A died, leaving B behind who was still under 21, the remainder would be destroyed and O (the grantor) would have a fee simple absolute b. The rule is abolished today 2. The Rule in Shelleys Case a. Applies only when: O conveys to A for life, and then, on As death, to As heirs. A is alive. i. Present and Future estates would merge ii. A would have a fee simple absolute iii. Tried promote alienability iv. Rule applied even contrary to grantors intent-> led to its demise v. Virtually abolished 1. As heirs have a contingent remainder 3. The Doctrine of Worthier Title a. O conveys to A for life, then to Os heirs b. Os heirs contingent remainder is void i. A has a life estate and O has reversion c. Promotes alienability

d. Grantors intent controls the situation, if he intends a contingent remainder and says the doctrine of worthier titles does not apply, this intent will be honored e. Valid in most states still since it is a rule of construction Executory Interests v. Remainders 1. Remainders a. Wait patiently b. Do not cut short another transferee c. Wait until their turn to take, fixed duration 2. Executory interests a. Shifting Executory Interest i. Always follows a defeasible fee ii. Cuts short another transferee iii. To A and his heirs, but if B returns from Europe within the next year, then to B 1. A has a fee simple subject to Bs shifting executory interest. 2. B has a shifting executory interest b. Springing executory interest i. Cut shorts, O, the grantor ii. O conveys to A, if and when he marries. A is unmarried. 1. If A marries, he cuts short Os otherwise limitless time with the land. 2. O has a fee simple subject to As springing executory interest.

Rule Against Perpetuities

Certain kinds of future interests are void if there is any possibility, however, remote, that the given interest may vest more than 21 years after the death of a measuring life. 4 Step Analysis: 1. Determine which future interests have been created by your conveyance. a. Applies only to contingent remainders, executory interests, and certain vested remainders subject to open b. Does not apply to any future interest created in O, the grantor 2. Identify the conditions that must happen before a future interest holder can take. a. Usually, A must dies. A must leave a child, etc. 3. Identify the measuring lives. a. Who is relevant to the conditions occurrence? 4. Will we know with certainty, within 21 years of the death of our measuring life, if our future interest holder can or cannot take? a. Yes- conveyance is good b. No-any remote possibility, conveyance is void i. A could have another child, As child could die before it reaches the age, A could die in labor, A could live

ii. Fertile Octogenarian Rule iii. A gift to an open class conditioned on members surviving to an age beyond 21 will usually be void-> entire class will be void, if one is void iv. Many shifting executory interests violate RAP-> if no limit on time it will vest v. When interest is stricken, if rest is not grammatically correct, strike it down as well Reform to RAP 1. Wait and See or Second Look Doctrine a. Wait until the measuring life has run its course, and then we take a second look to gauge the integrity or validity of any suspect future interest 2. USRAP (Uniform Statutory Rule Against Perpetuities) a. Alternative vesting period of 90 years used to measure instead of the 21 year limit

Concurrent Estates
1. 3 Forms a. Joint Tenancy i. Each joint tenant has right of survivorship (must be clearly expressed) 1. A dies, As interest passes on to B (the other joint tenant) 2. Allows to escape probate because the surviving joint tenant gets interest automatically, no need for a will ii. the interest is transferable inter vivos (may do so even without permission) 1. Interest is not devisable or descendible because of right of survivorship iii. T-Tip: The 4 Elements of Joint Tenancy, also must have right of surviorship-> Must take there interests: 1. T-Time-> at the same time 2. T-Title-> same title 3. I- Identical-> have equal shares 4. P-Possesses-> identical rights to possess the whole 5. Historically needed a straw as well: O holds black acre in fee simple absolute, but wishes to hold the land in joint tenancy with A. He would have to transfer it to a third party first. iv. How to terminate (SPAM) 1. Inter vivos sale or conveyance (the other peoples interests remain joint tenants while the new person is tenant in common) 2. Parition a. Voluntary agreement b. Partition in kind i. Court order physical division of the property ii. Best interest of all parties c. Forced sale

i. Court ordered ii. Best interests of all parties iii. Interest is a building, cannot be physically divided 3. Agreement to sever 4. Mortgage a. Majority Rule i. Mortgage is a lien on the title, it does not sever the joint tenancy b. Minority Rule i. Mortgage is a transfer of title subject to a condition subsequent, so the title is disrupted and the joint tenancy is severed b. Tenancy by the Entirety i. Marital estate-Recognized in 21 states 1. Only created between married people who share the right of survivorship 2. Happens automatically with married partners in states recognized 3. Protection afforded a. Spouses interest is protected from creditors of other spouse b. One spouse cannot unilaterally transfer their interest-> void c. Tenancy in Common i. Each co-tenant owns an individual part with right to possess the whole ii. Each interest is descendible, devisable, and transferable inter vivos iii. No rights of survivorship iv. Presumption favors the tenancy in common when in doubt (system does not like skipping probate) Co-Tenants Rights and Duties 1. Possession a. Each co-tenant is entitles to possess and enjoy the whole i. Paying 90% of the purchase price does not exclude the person paying 10% from using the whole (action for ouster possible) 2. No rent from co-tenant in exclusive possession 3. Rent from third parties a. Provide fair share of rental income received to other co-tenants i. Paid 90% for land, get 90% of the rental income 4. No adverse possession, unless co-tenant in exclusive possession has ousted others

5. Carrying Costs: taxes, mortgage, etc. a. His fair share 6. Repairs a. Will receive contribution for reasonably necessary repairs provided that the other co-tenants have been notified 7. Improvements a. No affirmative right to contributions b. Could be another persons nightmare c. Any increase in value of property when sold due to improvements, the improver receives 8. No waste a. Ameliorative b. Voluntary c. Permissive 9. Can bring an action for partition

Landlord/Tenants
4 Leasehold interests 1. Tenancy for Years or Term of Years a. Lease for a fixed, determined period of time i. Could be 1 day, two months, 50 years b. Notice is not necessary to terminate the Term of Years (states when it is ended) c. If the term of years is greater than 1 year, it must be in writing to be enforceable under the Statute of Frauds 2. Periodic Tenancy a. To T from Week to Week, To T from year to year, To T from month to month i. Lease is open-ended and continuous, running from interval to interval b. It can arise by implication in 3 ways i. The land is leased w/o mention of a duration, but a prevision is made for the payment of rent at regular intervals 1. L leases to T, but nothing is said about duration. T pays rent each month. This implies a month-to-month periodic tenant ii. Oral term of years that violates the Statute of Frauds creates an implied Periodic Tenancy measured by the way rent is tendered iii. If a tenant holds over after lease is concluded wrongfully, this implies a periodic tenancy measured by the way rent is tendered c. To terminate, notice must be given equal to the length of the period/interval itself, unless otherwise agreed i. Exception for intervals of a year to year or more, 6 months is enough notice 3. Tenancy at Will a. No fixed period or duration-> lasts as long as L or T desire

i. Ex: To T for as long as L or T desire (both parties have the right to terminate at any time) b. Unless both parties expressly agree to a tenancy at will, the payment of regular rent at intervals will create an implied periodic tenancy c. By statute, most states now require reasonable notice to terminate the tenancy at will 4. Tenancy at Sufferance a. Created when T has wrongfully held over, past the conclusion of the original lease i. The tenant is now called a tenant at sufferance b. Usually short lived- lasts until the L either evicts the T or elects to hold the tenant to a new leasehold Tenants Duties 1. Ts duty to repair a. Must keep the premises in reasonably good repair b. Maintenance is the benchmark c. Must do no more than and no less than maintaining the premises in reasonably good repair Ts duty to pay rent a. Failing to pay rent and T is still in possession of the land i. L can move to evict through appropriate judicial proceedings 1. L still entitled to rent while waiting for the eviction 2. T is a Tenant in Sufferance ii. L can choose to continue the relationship with T and sue for rent owed iii. Landlord must not engage in any self-help 1. Ex: changing the locks, forcibly removing T, removing possessions of T-> all punishable by civil and criminal penalties c. T fails to pay rent, but is out of possession of the premises (S-I-R) i. Surrender 1. L can treat Ts vacating the premises as an implicit offer of surrender, which landlord accepts 2. The term is term of art in Property law, means T has demonstrated by words or conduct that he wishes to give up the lease 3. If L accepts Ts surrender, the lease is dissolved amicably 4. If unexpired term is in excess of one year, any acceptance of surrender must be in writing to satisfy the Statute of Frauds ii. Ignore 1. Ignore the abandonment by T and hold T responsible for unpaid rent, just as if T was still there (available in a minority of states) 2. In most states, L must attempt to mitigate iii. Re-Let 1. Re-let the premises and hold T liable for any deficiency

2.

2. Mitigation principle-> majority of states require this, demonstrate a reasonably and good faith effort to re-let premises to show that you tried to cut your losses 3. Ts duty not to commit waste a. No ameliorative waste (improvements) b. No permissive waste (neglect) c. No voluntary waste (overt harmful acts of destruction) i. Doctrine of Waste and the Law of Fixtures 1. Tenant removing a fixture creates voluntary waste a. Fixture: once moveable chattel that, by virtue of its attachment to realty, objectively shows the intent to permanently improve the realty i. Ex: Heating systems, windows, furnace b. Must not remove a fixture, not matter if he installed it 2. Tenant Installation that qualifies as a fixture, how to know? a. The Parties express agreement controls b. In Absence of an agreement-> T may remove the installed item as long as removal does not cause substantial harm to premises, objective judgment Landlords Duties Early Common Law: Under common law operated under caveat lessee (lessee beware) with 6 exceptions to the general no-landlord-duty-rule. [490] 1. Exceptions a) Short term leases of furnished dwellings b) Pre-exististing latent defects where the landlord should have known about the defect and where the defect was not apparent under reasonable inspection by the tenant c) To maintain common areas used by all tenants in a building d) Undertake carefully any repairs the landlord promised or volunteered to make e) Abstain from fraudulent misrepresentations as to the condition of the leased premises f) To abate immoral conduct and other nuisances 1. Duty to deliver possession of premises a. Majority rule: requires L to put T in legal as well as actual physical possession of the premises at the start of the lease i. L liable if holdover T is still there b. Minority rule: The American Rule-> L must provide T with the legal possession, just the legal right to be there i. If T is holdover, then new Ts problem (old American frontier mentality, landlords were often a considerable distance away from tenants) 2. Duty to satisfy implied covenant of quiet enjoyment (residential and commercial leases) a. The tenant has the right to quiet use and enjoyment of the premises, without interference from the landlord b. 2 Ways can be breached

i. L wrongfully excludes T from possession of the whole or any part of the premises ii. L conducts constructive eviction on T 1. Constructive Eviction-> 3 Elements (SI-N-G) a. SI- Substantial interference i. Some act or failure to act by L ii. Chronic or recurring problems, fundamentally in compatible with Ts quiet use and enjoyment of leased premises iii. Ex: ever rain, Ts apartment floods b. N-Notice i. T must give L notice of problem, so L can try to act c. G- Goodbye or Get Out i. Tenant must vacate premises within a reasonable time after L fails to correct the problem ii. T cannot remain in possession and still please successfully that he has been constructively forced out 3. Duty to satisfy implied warranty of habitability (residential leases) a. Fundamental, non-waivable (even if there is a disclaimer in the lease, it will be null) b. The premises must be fit for basic human habitation (only very basic living requirements be met) i. EX: failure to provide running water, lack of adequate plumbing, heat c. 4 options available to T-> MR3 i. M: Move out and terminate the lease ii. R: Repair and Deduct necessary repairs from rent iii. R: Reduce Rent-> reduce rent to an amount equal to fair rental value of the premises in view of their defects, or withhold all rent until the court determines fair rental value iv. R: Remain-> may remain in possession and affirmatively sue L for Damages 4. Duty to refrain from breaching the doctrine of retaliatory eviction a. Cant raise rent, harass, end lease, etc. b. Help protect whistleblower tenant if complaints on L c. Housing code violations 5. Duty to Control Common areas 6. Duty to not to permit nuisances on premises Assignment and Sublease 1. T is permitted to transfer her leasehold interest in whole or in part 2. Assignment a. T1 transfers his entire leasehold interest to T2 b. T2= assignee c. EX: Transferring all of the remaining 10 months of your lease d. Privity allows either party to sue if a wrong was committed e. Landlord and T2 (assignee) come into privity of estate i. L and Assignee are liable to each other for all covenants or promises in the original lease that run with the land ii. EX: promise to pay rent, promise to paint, promise to insure, etc. iii. L leases to T1. T1 assigns to T2. T2 assigns to T3. T3 abuses premises.

1. L can proceed against T3 under privity of estate and wins 2. L can proceed against T1 under privity of contract. a. If T3 flees or unable to pay, T1 is liable for T3 to L 3. L cannot proceed against T2. a. Privity of estate ended between L and T2 once T2 assigned to T3 and there was never a privity of contract between L and T2 unless T2 expressly assumed the performance of all promises in the original lease f. L and T2 (assignee) are not in privity of contract unless T2 has expressly assumed the performance of all promises contained in the original lease g. L and T1 (assignor) are not in privity of estate h. L and T1 are in privity of contract since they originally established the leasehold i. L and T1 will be secondarily liable to each other 3. Sublease a. T1 transfers less than his entire leasehold interest to T2 b. EX: Transferring 3 months of your interest when it is a two-year term lease c. The relationship between L and T1 remains fully intact d. L and T2 (sublessee) do not share privity of contract nor privity of estate e. T2 is responsible to T1-> remit rent to T1 who remits rent to L f. T1 is obliged to enlist L to remediate any problems on the premises SOCIAL REGULATIONS OF LEASEHOLDS A. Rent control: Rent control laws, usually adopted at the local level, consist of price controls often augmented by limitations on the landlords ability to evict tenants at the end of the lease term. So long as the landlord is able to earn a reasonable rate of return on his investment, rent control statutes do not constitute a government taking of property without just compensation. 1. Policy: There are argument for and against rent control. The arguments against rent control include: they reduce the resources landlords could devote to improving the quality of housing; rental of housing more costly to landlords; landlords will be forced to screen applicants more carefully; cost of rental housing will be higher and therefore there will be less of it. The argument is that tenants would be worse off. The arguments for include: protect residents form changes in the community, such as gentrification; creates affordable housing for lower income. B. Antidiscrimination statutes: Federal, state, and local laws substantially restrict the landlords common law right to decide with whom he wishes to deal. These laws prohibit most private acts of racial discrimination in the sale or rental of real property. Probably the most important such statute is the Fair Housing Act (FHA), which exempts (1) the sale or lease of a single family house without use of brokers or public advertisements that reveal discriminatory motive and (2) rentals of residential housing in owner-occupied units of four units or less. [431]

Servitudes
Definition: Private arrangements concerning the use of land that endure as title and possession of the burdened land passes from the initial contracting party to new

owners or possessors. Basically the right in land of another, where you have the ability to use the estate of another. 1. Easement a. A grant of nonpossessory property interest in land b. Common law did not recognize an easement reserved in favor of a 3rd party, but modern law does c. Dominant tenement i. The parcel that derives the benefit as a consequence of the easement d. Servient tenement i. The parcel that bears the burden of the easement e. Affirmative Easement i. Give its holder the right to do something on anothers land called the servient tenement ii. How to create an affirmative easement: PING-P 1. P: Prescription (similar to adverse possession) a. C-O-A-H i. Continuous- use must be continuous for the given statutory period (usually 10 years) ii. Open and Notorious (must be visible to the parcel owner) iii. Actual (entry is quite literal, and not merely symbolic) iv. Hostile to servient owner (without the servient owners permission or consent) 2. I: Implication a. Creation of an affirmative easement implied from prior or existing use i. The previous use must have been readily apparent ii. The parties reasonably expected the use to survive division because it is reasonable necessary for the partys continued use and enjoyment of his parcel 3. N: Necessity a. Landlocked setting: an easement of right of way will be implied be necessity If grantor conveys a portion of his land with no way out, except over some part of grantors remaining land b. Majority of states: require reasonable necessity to imply this c. Minority of states: insist on strict necessity-> if there is another way to and from the allegedly landlocked parcel, no matter how terribly inconvenient, it must be utilized 4. G: Grant a. The Statue of Frauds applies since it is considered a property interest in land. An easement to endure for more than one year must be in writing (deed of easement) b. Express Words i. By Reservation: I convey to you the land reserving a right of way to the pond 5. P- Public Trust Doctrine

a. Arises when a government entity tells a private property owner that he has to give access over his land to the public, when the public interest is involved. 6. Estoppel a. Induced reliance situation-> Equitable Estoppel-> licensor grants license which licensee relies on b. License coupled with interest-> license is tied together with some other legally recognized interest the license is irrevocable until that other interest is vindicated-> EX: profit and timber iii. EX: the right to cut across a neighbors land, the right to water ones cattle at anothers pond, or the local power companys right to lay a power line on anothers tract iv. Scope of an easement is set by the terms or conditions that created it 1. Unilateral expansion of an easement is not permitted a. If person buys another parcel of land nearby, he may not expand his easement on his other parcel of land to his new parcel of land v. Termination of an Easement: END CRAMP 1. Estoppel a. Servient owner materially change position in reasonable reliance on the easement holders assurances that the easement will no longer be enforced 2. Necessity a. Easements created by necessity expire as soon as the necessity ends 3. Destruction a. Destruction of the servient tenement other than through the willful conduct of the servient owner, will terminate the easement 4. Condemnation a. Condemnation of the servient tenement by governmental eminent domain power will end the easement 5. Release a. Release in writing given by the easement hold will terminate the easement 6. Abandonment a. The easement holder must demonstrate by physical action the intent to never make use of the easement again i. A has the right of way across Bs parcel, A erects a struction on his parcel that precludes her from ever again reaching Bs parcel ii. Mere nonuse or mere oral representations are insufficient to terminate by abondonment 7. Merger a. Easement is terminated when title to the easement and title to the servient tenement become vested in the same person-> A does not need an easement over land that she now owns outright

8. Prescription a. Servient tenement uses COAH elements to interfere with easement f. Negative Easement i. Holder of this easement is entitled to compel the servient landowner to refrain from doing something that would otherwise be permissible ii. No natural or automatic right to a negative easement iii. Must be created expressly, in a signed writing (deed of easement) iv. 4 Categories: LASS 1. Light 2. Air Support 3. Streamwater from an artificial flow 4. Minority of states such as California recognize the right to a scenic view v. EX: You have a negative easement for streamwater coming from an artificial flow-> you have the right to compel the servient owner to refrain from doing anything on his land that would interrupt or impede my premises access to that flow g. Each easement is either Appurtenant or Held in Gross i. Appurtenant: benefits the easement holder in his physical use or enjoyment of his own land 1. It Takes Two: 2 parcels of land must be involved 2. There must be a benefited parcel which derives an advantage or gain thanks to the easement (the benefited parcel = dominant tenement) 3. There must be a burdened parcel, which suffers the imposition of the easement-> the servient tenement 4. This easement is transferred automatically with the dominant tenement, regardless of whether it is even mentioned in the transfer 5. The burden of the easement appurtenant will also pass with the servient land, unless the new owner is a bona fide purchaser without any form of notice of the easement 6. EX: A grants B a right of way across As land so that B can more readily reach Bs land a. B has an easement appurtenant to B dominant tenement, A has servient tenement 5. EX: right to tap into a sewage drain located on farmer Petes land i. Held in Gross: it confers upon its holder only a personal or commercial gain, not linked to the easement holders use and enjoyment of his own land 1. One parcel is involved: the servient tenement 2. Easement in gross is not transferable unless it is for commercial purposes a. Exception: modern trend under the Restatement 3rd is that all easements in gross are assignable regardless of their commercial character, but usually recreational easements (hunting, fishing) are not assignable (more

personal and there is concern that the servient land could be burdened beyond the original contemplation of the parties) 3. EX: Company acquires the entitlement to place a billboard on your front law. -> no dominant tenenment, only servient tenement: your lawn 4. EX: right to swim in anothers pond, right to place power lines on anothers land, etc. 7. License a. A freely revocable, mere privilege to enter anothers land for some narrow purpose b. Turn into an easement when made irrevocable c. Not a grant of property interest like an easement d. Not subject to the statute of frauds, oral agreements are just fine e. Freely revocable at the will of the licensor, unless estoppel applies to bar the revocation f. EX: newspaper carrier, ticket holder, parking garage patron i. Tickets create freely revocable licenses (broadway show tickets-> not entitled to see the show because the license is revocable, do have an action for breach of contract) ii. Oral agreements create licenses even when the easement violated the statute of frauds because it was not in writing 8. Profit a. Enables its title holder to enter the servient tenement and take from it the soil or some other resource, such as minerals, timber, oil, fish, or wildlife b. Basically just like an easement, shares all of its rules, appurtenant, held in gross, etc. A push being made to merge profits into the easement category.

Land Transactions: The Purchase and Sale of Real Estate

Title: abstract and conceptual identification of ownership of property. Title is manifested through what we call a deed. Title and deed are ideas that are interchanged. You can buy property with a non-marketable title 1. Every conveyance of real estate consists of a 2 step process a. The Land contract-> Contract of Sale- endures until the closing i. The Elements 1. Purchase price (how paid for, what the financing, the length of the mortgage, the interest rate) 2. Legal description of property (address of property, survey, qualitative description 3. Good title (marketable title- being furnished by the seller to the buyer) 4. Warranty of title (assurance that the title is held by the seller and is being conveyed to the buyer) 5. Dates of when transfer of possession is to occur. 6. Provisions that tell you how taxes and utilities paid, etc.

7. Provision that tells you who is responsible for damages during the time of the contract and before closing 8. Itemization of what happens to furnishings of the house (appliances- do they stay, etc.) 9. Discussion of whether or not an escrow agreement is present 10. Provision for the return of initial payment if the sale does not go through b. The closing: the deed becomes the operative document i. Usually a gap between the contract for sale and when the closing occurs-> the gap is deliberate, it afford the buyer the opportunity to get financing, utilize a title searcher, inspections, etc. ii. At the closing, the seller passes legal title to the premises to the buyer iii. The Deed must Follow LEAD 1. LE: lawful execution of the deed-> must be in writing, signed by the grantor and done in a manner with the given jurisdictions formal statutory requirements 2. AD: delivery of a deed-> must be delivered, but actual delivery is not necessary, doesnt have to be literal. Look to the present intent of the grantor. 3. Attempted delivery at death is usually unallowable since courts view it as attempting to make the deed at will a. Revocable Trust i. Use this instead ii. Persons involved sign a declaration of trust providing that they hold the property in trust, retaining the right of possession and to rents and profits of the property for their joint lives and the life of the survivor, and on their deaths the title of the property is to pass to the heirs iii. Avoid probate court iv. Trust creator retains a right to revoke v. People who have money usually get trusts (revocable trusts- benefit to the rich) 4. Escrow: A way of delivery can be accomplished this way a. Escrow: written instrument deposited by its maker with some third party custodian b. The instrument has instructions on it c. It says the custodian shall deliver the instrument to another party on the occurrence of one or more future conditions d. The maker is basically the grantor e. People who do not have money get these usually (revocable escrows are void- class problem) f. Commercial/Sales Escrow: usually used to close real estate deal i. To take place need: 1. Grantor must make the deposit to the escrow agent irrevocably- deed cannot be recalled

2. Must be an enforceable contract between the grantor and the grantee ii. Advantage: With the escrow agent, the sellers and buyer do not have to be there at the real estate closing iii. Advantage: When done properly, are tied to the doctrine of relation back iv. The Doctrine of Relation Back: the buyer can become the deed holder as of the date the grantor officially deposited the deed-> good because if the seller dies or is in health troubles-> stamp out any possibility of probate g. Death Escrow: i. Escrow based on the death of the grantor, upon the death of the grantor given to grantee ii. Requirements 1. Deed cannot be recalled 2. No need for enforceable contract, death escrow is gratuitous 5. Other interests besides Revocable trusts that are revocable: bailments, marriages, joint tenancies, etc. 2. 3 types of Deeds a. Quitclaim Deed i. The worst deed a buyer could hope for ii. Contains no covenants iii. No promises that the grantor is even conveying a good title iv. Primarily reserved for deathbed transfers and other contexts in which time is of the essence b. General Warranty Deed i.The best deed a buyer could hope for ii.Contains 6 promises or covenants 1. 3 present covenants (breach happens at the instant of delivery, statute of limitations begins and runs the moment the deed is delivered) a. Covenant of seisin i. Promise that the Grantor owns the land he conveys b. Covenant of the right to convey i. Grantor promises that he has the authority to convey (no temp. restraints on alienation or has a disability) c. Covenant against encumbrances i. Promise that there are no liens, encumbrances, servitudes on his property 2. 3 future covenants (not breached until a future date in which grantees possession is disturbed, SoT will not run until that future date)

a. Covenant of quiet enjoyment i. The grantor promises that the grantee will not be disturbed in possession or enjoyment by someone with a better title b. Covenant of general warranty i. The grantor promises that he will defend against lawful claims of superior title in the property c. Covenant of further assurances i. The grantor promises to do whatever is reasonably necessary to perfect the conveyed title (fix his signature, administrative or ministerial things to perfect title later on) c. Special Warranty Deed i. Contains the same six covenants of title, but the grantor makes these 3. Statute of Frauds a. The sale of land must be in writing, signed by the party to be bound, describing the land and reciting some consideration b. Price is an essential term and must be included c. If price has not been agreed to, courts may imply an agreement to pay a reasonable price d. Exception: Doctrine of Part Performance i. When met, equity will intervene and decree specific performance of an oral contract for the sale of land ii. 2/3 of the elements must be present 1. Buyer takes physical possession of land 2. Buyer pays all or a substantial part of the purchase price and/or 3. Buyer makes substantial improvements 4. The problem of risk of loss->equitable conversion a. Who bears the risk of loss of damage or destruction to blackacre when it happens between the contract and closing b. Majority view: Equitable title i. In equity, once the contract is signed the buyer is deemed the owner of the land ii. No fault destruction- the buyer bares the risk unless the contract states otherwise iii.Insurance: if seller has insurance, in most states the seller holds insurance proceeds as a trustee for the buyer c. Minority view: The loss is on the seller 5. Implied promises a. Marketable title i. Free from reasonable doubt and encumbrances-> free from lawsuits and the threat of litigation 1. No servitudes or liens, unless buyer has waived them or agrees 2. Zoning restrictions-> must be in actual violation, not just that there are zoning restrictions present 3. Building code violations do not make a title unmarketable, easier to remedy building code violations and they are

usually minor, do not want to hold up the mkt on commercial property ii.Can be delivered by a good record title or proof of title iii. Circumstances that will render title unmarketable 1. Adverse possession (threat of litigation down the road) a. Exception: Minority view says title acquired by adverse possession is marketable b. Duty of disclosure i. No false statements of material fact ii. Haunted house case iii. No active concealment of a known defect c. No implied warranty of habitability for land contract i. Goes back to common law norm of caveat emptor-> let the buyer beware ii. Exception: Implied warranty of fitness and workmanlike construction applies to the sale of new homes by builders

The Recording System

Bona fide purchaser (BFP): Someone who pays value or consideration and takes with no notice of any prior claims as to the property he is buying Recording: A public record of conveyances enables priority to be given to recorded conveyances but still requires some mechanism for sorting out priority between recorded conveyances to the same property. The Recording System: A public official, the recorder, maintains a record of real estate transactions presented for recording and indexes those transactions by grantor and grantee The Search Process: A title searcher uses the index to search backward in time through an alphabetical grantee index to find transactions by which the present owner received title, and to repeat that process until an adequate root of title is found. Then, the searcher looks forward in time through an alphabetical grantor index to determine if there were any title transactions made by each owner other than the grant to the next owner. This is how one make sure that the title is clean. Literally recorded first -> this does not mean you will win (need to properly record) Duly recorded (properly recording) Jurisdictions have different recording acts, 3 different ones: 1. Race Act: The earliest to record prevails, a race to record 2. Notice Acts: The last BFP to take wins whether or not the later grant is recorded 3. Race-notice Acts: The later BFP wins if won the race to record BFP is on actual and constructive notice Actual Notice: Prior to closing, you learn that O is a double dealer

Constructive Notice 1. Two types of Constructive Notice a. Record notice- If deed was properly recorded, within the chain of title->still on notice if you havent seen it b. Inquiry notice-whether purchases looks or not, he is on notice of whatever a route inspection of blackacre would reveal Chain of Title Problems 1. The Wild Deed a. A deed that is tied to an unrecorded link in the prior purchasers chain b. Deed is recorded, but improperly so cannot give record notice of its contents c. It wont be discovered by a title searcher within the chain of title d. It does not give notice, subsequent purchaser prevails e. The holder of the wild deed loses f. Corollary: Zimmer Rule i. The prior purchaser will prevail against a subsequent one, if there is an unrecorded link in the subsequent purchasers chain g. EX: O sells blackacre to A, who does not record. Then, A sells to B. B records the A to B deed. i. The A to B deed is the wild deed 1. Although recorded, it is not connected to the chain of title because it contains a missing grantor (the O to A link) h. Later, O, the double dealer, sells the same land to C. C records. C is a BFP and see would win in a notice and race-notice state. i.C wins in notice state because it is the last BFP ii. C wins in race-notice state because it was the last BFP and won the race to record since the wild deed does not count as record notice for the BFP Shelter Rule: Someone can step into the shoes and take shelter under the BFP, and then can win. (can only be used in the subsequent purchases) (applies to notice jurisdiction and race notice, and not to race jurisdictions) You can seek shelter all the way down When is the instrument recorded: An instrument is recorded when (1) it is eligible to be recorded AND (2) is actually entered in the public records in a manner that complies with the jurisdictions requirements. 1. Instrument not indexed: The older rule is that an improperly indexed instrument provides constructive notice, on the view that the grantee has done all he can to provide record notice. Modern view: That this does not provide constructive notice bc even the most diligent searcher will not find it. 2. Omnibus or Mother Hubbard clauses: Theses clauses, inserted in a deed to a single parcel, purport to cover all other property of the grantor. Because there is no way diligent searcher of title to the other property will ever find such a clause, tucked away in an apparently unrelated deed, they are usually held to be inadequate to provide notice. See Luthi v. Evans [651] (Mother Hubbard clause does not afford notice)

3. Misspelled names: States differ over whether a misspelled name in a recorded instrument gives notice. All states agree that if the misspelling is so significant that it does not even sound like the correct name, there is no constructive notice. Some states regard a misspelling that sounds substantially identical to the correct name is sufficient to give constructive notice (rule of idem sonas). a) Exception: The rule of idem sonas is inapplicable under circumstances where the written name is material; therefore, a misspelled deed recording will not give record notice to a subsequent purchaser. Orr v. Byers [662] 4. Defectives instrument: If the defect is apparent on the face (patent defect, e.g., wrong name, address, description, something that is obvious upon reading) of the instrument, most states treat it as not recorded, and it does not give constructive notice. If the defect is hidden (latent defect> seal is fine, but notary license is invalid. In the files it says this.), most states treat it as providing constructive notice. a) Patent defects and actual notice: If a purchaser does a search and finds the deed with the patent defect, then he would be on actual notice. (1) If B doesnt search, and there is a patent defect, B is not on constructive notice. B wins. (2) If B doesnt search, B is only on constructive notice if the deed has a latent defect. B loses. b) Deeds that fail to meet statutory requirements: The recording of an instrument affecting the title to real estate that does not meet the statutory requirements of the recording laws, does not give constructive notice Messersmith v. Smith [670] (where deed lacked notarial acknowledgement) c) Minority view: There is no constructive notice regardless of whether the defect is patent or latent. B. Scope of protection afforded by recording acts: The protection provided by recording acts is defined by the act. Recording does not make valid an invalid grant. Recording acts only apply to conveyances and not to interests created by operation of law (e.g., adverse possession or prescriptive or implied easements). Marketable title acts: Theses acts, adopted by about 20 states, bar all claims of title that predate a specified point in the past anywhere from at least 22 to 50 or more years ago. 1. Root of title: Claims that are based on an instrument older than the root of title an unbroken good chain of title going back to a point earlier than the period of time specified in the act are forever barred. 2. Re-recording and exemptions: The effectiveness of marketable title acts is diluted by provisions that either exempt some pre-root interests form the act or permit them to be kept alive by re-recording during the marketable title act period.