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Property II
University of Toledo School of Law
Chapman, Douglas K.

Property II Chapman

I. Nuisance
A. Defined
a. There is a nuisance when interference becomes substantial and unreasonable.
1. Substantial: if it is offensive or inconvenient to the ordinary or average person. (We don’t look for the easily offended)
b. Nuisance is an offense against the use and enjoyment rights to your property
c. The act does not have to be unreasonable. The conduct must have an unreasonable effect on the neighbors.
B. Reasonable
a. A comparison of the gravity of the harm in relationship to the benefit.
C. Trespass
a. The unlawful entry onto someone else’s property 
b. Trespass is an offense to your possessory rights to the property.
D. Remedies
a. Injunctive Relief – is a pure property remedy – court order to do or stop doing something.
b. Damages – monetary compensation for the harm or the continuing harm. May correct for the harm that has been suffered but it doesn’t stop the nuisance.
c. Purchasing the Injuction – You moved in – They were not a nuisance until you came. They are going to move their cattle but your going to buy the injunction b/c they did nothing wrong so they shouldn’t suffer the cost of moving.
d. Do nothing – not really a remedy. You just deal with it.
II. Conveyance of Real Estate
A. Introduction
1. Participants
a. Vendor -The person selling is called the vendor
b. Vendee – The person buying is called the vendee
c. These two are called these names when they are in the contract phase.
d. When the property and the deed are delivered the vendor becomes the grantor and the vendee becomes the grantee.
e. Broker – The agent of person selling the property and carries the real estate listing.
f. Three kinds of Brokerage agencies
a. An open listing – The broker list the property and if he sells it, the seller pays the broker. If someone other than the broker sells it the broker doesn’t get the fee.
b. Exclusive listing – The seller list with the broker and no one else, they have the exclusive right to be the listing agent. If you the seller find your own buyer the broker doesn’t get the fee.
c. Exclusive Right to Sell – The broker has the exclusive right to listing and no matter who finds the buyer the broker still gets the fee. The fee is divided into two half to the realtor and half to the broker.

g. Realtor – Works for the broker, and we be the one most likely selling your real estate.
h. Lender – Will lend the buyer the money to buy the real estate. (Financial institution)
B. Three Act Play
1. Negotiation Phase – ends with the signing of the pre sale contract
a. The listing is not an offer its and invitation to make an offer to purchase.
b. When you make the offer in real property it has to be in writing and if the other party signs then it’s a contract.
c. Make sure everything you want is in the offer. When it is signed and becomes a contract it controls the sell.
d. The vendor agrees to deliver to you the vendee marketable title.
i. Marketable Title – free from defects and encumbrances
ii. The seller’s mortgage which is a defect is removed at closing.
iii. The seller pays of his mortgage when he gets paid.
2. Executory Phase – Time between signing and closing 5-6wks typically
a. When the contract is singed the seller asks for earnest money to make sure the buyer is serious.
b. If buyer breaches the contract then the seller has the earnest money.
c. Equitable Title
a. at the time the contract signed it passes from the seller to the buyer. The risk of loss changes from the seller to the buyer because the buyer now has equitable title. The buyer should put in the contract that the seller has to maintain casual insurance.
b. The day the contract is signed the risk shift unless we stop it.
d. Steps to Take Before Closing
i. Apply for a mortgage 
ii. Someone comes out to appraise the value of the house before any money is lent.
iii. Inspect the property for termites and leakage, etc…
iv. Implied Warranty of Habitability – says if the seller is silent he is implying the house is habitable. (Majority)
v. Obligation of inspection really lies with the buyer.
vi. Escrow Agent

te and Lead Based Paint Disclosures
a. Must certify that the house does not have lead based paint.  

9. Pro-rations
a. Going to have to figure out the how taxes and condo fees will be pro rated.
10. Attorney Review
a. Put into the contract to have attorney review the contract
11. Title
a. Contract for marketable title – which is a title free from defects
b. Two defects
1. Chain of Title
2. Encumbrances
c. Defects may come from misspellings, mis-description of property,
d. Must disclose the encumbrances, but we must accept all unknown defects
e. The vendee must give the seller reasonable time to correct any defects. The contract for purchase will say that the seller must produce a marketable title.
f. An insurable title can be requested but is not necessarily a marketable title just because its insured.
12. Damage to Real Estate Prior to Closing
a. The common law rule is – the signing of the contract the risk switches from the seller to the buyer.
b. Put in the contract that the risk of loss will stay with the seller closing. The insurance company pays the vendor/seller for the risk of loss. If it’s not in that the vendor is going to have the risk of loss then the law construes that it’s with the buyer.
c. If the property is destroyed the buyer has the option of keeping the contract going and receive the damaged property and the insurance money or the buyer can rescind the contract get all of his