Select Page

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

Property II Outline- Chapman
 
 
I. Nuisance
            1. Both a tort and property violation
            2. Definition
A. A substantial and unreasonable interference with a person’s right to enjoy and use his land.
Intentional Conduct
B. Substantial
            Has to be offensive and inconvenient to the ordinary person
                        Jury question
            Person with sensitive senses is not substantial
C. Unreasonable
                                    Done by a case by case basis 
                                    Cost/benefit analysis
                                    The act is unreasonable done by the effect
Comes down to money and remedies
Reasonable determined by how much each decision would cost
Reasonableness is the balance between gravity of harm and benefit
Benefit typically means money
Unintentional
            If done with negligence, recklessness
            3. Different from trespass
                        Unlawful entry on another’s property
                        Nuisance doesn’t require entry just violation of enjoyment
            4. Remedies of nuisance- Four possible ways
                        1. Injunctive relief against nuisance
                                    Stop doing the nuisance so I can enjoy my property
                                    Shutting down oil refinery
                        2. Do nothing- Court finds no relief or nuisance
                        3. Could award monetary compensation for the harm and continuing harm
                                    No injunctive relief
Court says this nuisance will continue so long as D is willing to pay
                                    Assess damages for past and future harm
4. Injunctive relief against nuisance but Plaintiff pays Defendant for damages
                                    Purchasing the injunction option
                                    Maybe plaintiff came to the nuisance
                                    Defendant doesn’t have to absorb the costs of injunction
                                    Happens if Defendant didn’t do anything wrong
 
 
 
II. The Land Transaction
            A. Parties
                        Seller- Vendor
                        Buyer- Vendee
                        When contract is performed and deed delivered
                                    Vendor ceases to be it and becomes the grantor       
                                    Vendee becomes the grantee
                        Broker
                                    Seller hires this person to help sell their house
                                    Begin by entering into a real estate broker and enter into a listing
                                    Broker does the marketing and negotiation of the sale of property
                                    Creates an agency relationship between seller and broker
                                                Realator shows the homes to seller
                                                Realator often works for seller
                                                Realator has to take the offer to the seller no matter what
                        Consequences of rejecting the “perfect offer”
                                    “perfect offer”- What vendor explicitly asked for
                                    1. Still owe realtor the fee for their commission
                                                Someone who is willing ready and able on seller’s terms
2. If motives for rejecting are impure, seller may leave self open to other causes of action
Impure- deny offer because you don’t like the person making offer
                                                On gender, religion, race
            B. Three types of listing agreements sellers cane enter into with broker
1. Open Listing- Brokers list property and try to sell it and if sell it then broker gets paid, but also can place the sale with other brokers. Try to sell it yourself and if someone else sells it than the broker does not get paid. Not popular among brokers
2. Exclusive Listing- Put it with one broker and only that broker. They have exclusive right to be listing agent. But if seller finds his own buyer the broker is not entitled to a fee.
3. Exclusive right to sell- most common. Not only broker is an exclusive broker but the broker is entitled to fee no matter who buys the house even if seller finds his own buyer.
            This is broker’s favorite option
                                    When broker is paid fee is split into two
                                                Half goes to listing broker
                                                Half goes to the realator
            C. Mortgage- Security interest on loan
                        True term is mortgage deed
                        Equitable title- beneficial title
                                    Gives you right to posses, use, and enjoy property
                        Party deeds to the bank sufficient legal title
                                    To give bank right to foreclose if party doesn’t pay
                        Mortgage deed transfer bit of ownership to bank
                        Mortgage is the security you’re giving to lendor
                        Whether the security is a house or a car
                                    If person defaults, bank can claim house or car
When signing promissory note, its personal liability to pay the loan
                        They hav

tract
6. Set Closing and time
                        This is negotiable/ typically within a reasonable time
                                    40 to 60 days is normal
7. Possession
                        Normally it happens at closing
8. Sale of home conforms to state and federal law
                        Automatically included
9. Pro-rations
                        Real estate taxes are generally paid twice a year
                        If you sale your house on May 22, still owe taxes accruing since January
                                    Buyer gets to pay taxes after May 22
                        K contains the off set for who pays what share
10. Professional Inspectors come in
                        To certify the property is in good condition
                        Make sure no defects
11. Attorney review
Some contracts require attorney to review the contract to make sure contract is good
12. The Deed
                        The types of deeds
13. Title
                        One thing seller has to deliver is marketable title
                                    Free from defects
                        Two things that cause defects
                                    1. broken chain of title
                                                One previous owner did not have proper title
                                    2. Encumbrances
                        Defects in title come from incorrect spellings of names
                        Encumbrances
                                    Against the property are defects against marketable title
                                    Unless the buyer agrees to the encumbrance
                                    Every property today has encumbrances today
                                                Utility pole, sidewalks, past mortgages
                                                Liens against the property, easements
                        Buyer has to know all of the easements and restrictions on the property
Buyer must explicitly accept the encumbrances in order for title to be marketable
                        Zoning restrictions
                                    Generally no encumbrance