Deck 49: Real Property

Question 1

Kenneth Corson, 10, lived with his mother, Lynda Lontz, in an apartment building owned by Bruno and Carolyn Kosinski. While playing with other children who lived in the same building, Corson was drawn to a stairwell that provided access to the building's laundry room and roof. Corson and the other children climbed to the roof and discovered an area where they could jump from the roof of their building to that of the building next door. The children engaged in roof hopping for several days. On the last day, Corson misjudged his jump and fell the three stories to the ground below. Corson and his mother filed suit against the Kosinskis to collect damages for Corson's injuries. What theory might be used to hold the Kosinskis liable [Corson by Lontz v Kosinski, 801 F Supp 75 (ND Ill)]

Answer 1

Refer to the case Corson by Lontz v Kosinki to answer question as below:
Facts to this case
• A child (plaintiff) frequently played by jumping from the roof of his apartment owned by the defendants to the neighboring roof.
• One day, the child fell while jumping from the roof.
Case Issue
What theory is needed to find the owner (defendant) liable?
Relevant Terms, Laws, and Cases
Trespass - is an unauthorized entry to a property. Trespassers typically cannot hold property owners liable for injuries cause to themselves in the property.
Attractive Nuisance Doctrine - holds owners liable to trespassing children for injuries caused to the trespassing child in a dangerous spots which may attract children.
Analysis and Conclusion
As the child trespassed to the roof, in normal file suit it is not possible to hold the owner liable for any injury. But the plaintiff may file claim a suit under the attractive nuisance doctrine , which holds the owner liable. This doctrine will find the owner liable, if it is possible to establish that the place of injury poses serious concern and is frequented by children and the owner has ignored the chance of possible mishap instead of having the knowledge of the same.

Question 2

Determine whether the following would be fixtures or personal property.
a. Refrigerator in a home
b. Refrigerators in an apartment complex with furnished units
c. Refrigerators in a restaurant kitchen
d. Refrigeration/freezer units in a grocery store
e. Mini-refrigerator in a student dorm

Answer 2

Relevant Terms
Fixture - is an item that is attached to a real property and may be considered a part of the real property. For example, the windows of a building would be a fixture as it is sold along with the building and ownership of the building would result in the ownership of the windows.
Personal Property - is property belonging to someone. In here this is a term used to contrast fixture; items that aren't attached to a property. For example, a bowling ball in a bowling alley.
Factors in Considering Fixture or Personal Property:
• Annexation: whether the item is affixed to the property, e.g. a window of a building.
• Adaptation: whether the item is adapted to be used by the property. E.g. an alarm system that was installed in a warehouse, the alarms may not be affixed but it is adapted for the use.
• Intention: the owners intended that the item would be for benefit of the property. E.g. a cooling system that was installed to keep the property cool and in good condition.
• Trade fixture: Required use by a business, but unlike other fixture the owner of the trade fixture can remove it from the property.
To determine whether the below is fixture or personal property, a fixture just have to satisfy any one of the annexation, adaptation, or intention tests; otherwise it will be a personal property.
a) Refrigerators can be removed with some work, thus, it is not annexed to the property. In Absence of any other information, we can't assume the refrigerator was adapted or intended to be a fixture of the home. Hence, Refrigerators are personal property.
b) Refrigerators in pre-furnished units are by adaptation or intention to be fixtures. This is different from the above case because in this case adaptation and intention can be inferred as the refrigerator is used in a furnished property. For example, like a hotel their other furniture, such as bed or desk, would be fixtures. Thus, it is a fixture.
c) The restaurant would require the refrigerator to run its business, it is a trade fixture.
d) The grocery store would require the refrigerator to run its business, it is a trade fixture.
e) The student owns the mini-fridge himself or it is easily removable and no mention that the dorm was pre-furnished with mini-fridges; Hence, a personal property.

Question 3

What is the relationship between trespass and adverse possession

Answer 3

Trespass - entry into a property without permission.
Adverse Possession - gaining ownership of a property by adversely inhabiting in it for a period of time.
A trespass is an adverse action to the owner of a property, because the trespasser is having no permission from the owner to enter the property. Adverse possession necessarily will begin with a trespass , as the trespasser will have to inhabit a place treating him/herself as the owner for a period of time.

Question 4

Bradham and other members and trustees of the Mount Olivet Church brought an action to cancel a mortgage on the church property. The mortgage had been executed previously by Davis and other former trustees of the church and given to Robinson as mortgagee. The court found that the church was not indebted to the mortgagee for any amount. Should the mortgage be canceled [Bradham v Robinson, 73 SE2d 555 (NC)]

Question 5

Miller executed a deed to real estate, naming Zieg as grantee. He placed the deed in an envelope on which was written "To be filed at my death" and put the envelope and deed in a safe deposit box in the National Bank that had been rented in the names of Miller and Zieg. After Miller's death, Zieg removed the deed from the safe deposit box. Moseley, as executor under Miller's will, brought an action against Zieg to declare the deed void. Decide. [Moseley v Zieg, 146 NW2d 72 (Neb)]

Question 6

Henry Lile owned a house. When the land on which it was situated was condemned for a highway, he moved the house to the land of his daughter, Sarah Crick. In the course of construction work, blasting damaged the house. Sarah Crick sued the contractors, Terry Wright, who claimed that Lile should be joined in the action as a plaintiff and that Sarah could not sue by herself because it was Lile's house. Were the defendants correct [Terry Wright v Crick, 418 SW2d 217 (Ky)]

Question 7

Bradt believed his backyard ran all the way to a fence. Actually, a strip on Bradt's side of the fence belonged to his neighbor Giovannone, but Bradt never intended to take land away from anyone. Bradt later brought an action against Giovannone to determine who owned the strip on Bradt's side of the fence. Who is the owner Why [Bradt v Giovannone, 315 NYS2d 96]

Question 8

Robert E. Long owned land in the City of Hampton that he leased to Adams Outdoor Advertising Limited Partnership. Adams had an advertising billboard placed on the property. On October 6, 1993, Long notified Adams that he was terminating the lease. Adams accepted the termination and told Long that it would have the electrical service disconnected and would schedule demolition of the billboard for the first week in November. Long wanted to use the billboard to advertise his own business and filed suit to enjoin Adams from destroying the billboard. Long maintained the billboard was part of the land and belonged to him. Adams asserted that it owned the billboard as a lessee. The trial court found for Long, and Adams appealed. Decide. [Adams Outdoor Adv., Ltd., Part. v Long, 483 SE2d 224 (Va)]

Question 9

Smikahl sold Hansen a tract of land on which were two houses and four trailer lots equipped with concrete patios and necessary connections for utility lines. The tract Hansen purchased was completely surrounded by the land owned by Smikahl and third persons. To get onto the highway, it was necessary to cross the Smikahl tract. Several years after the sale, Smikahl put a barbed wire fence around his land. Hansen sued to prevent obstruction to travel between his land and the highway over the Smikahl land. Smikahl's defense was that no such right of travel had been given to Hansen. Was he correct [Hansen v Smikahl, 113 NW2d 210 (Neb)]

Question 10

Which of the following statements is correct with respect to a real estate mortgage

A) It must be signed only by the mortgagor (borrower).
B) It must be recorded in order to be effective between the mortgagor and the mortgagee.
C) It does not have to be recorded to be effective against third parties without notice if it is a purchase money mortgage.
D) It is effective even if not delivered to the mortgagee.

Question 11

Martin Manufacturing decided to raise additional long-term capital by mortgaging an industrial park it owned. First National Loan Co. agreed to lend Martin $1 million and to take a note and first mortgage on the land and building. The mortgage was duly recorded. Martin sold the property to Marshall, who took the property and assumed the mortgage debt. Does Marshall have any personal liability on the mortgage debt Is Martin still liable on the mortgage debt Explain.

Question 12

In 1972, Donald and Joyce Carnahan purchased a 1-acre lot located on a 22-acre lake. The purchase included a portion of the lake bed. The Carnahans used the lake for recreational activity in both winter and summer, and their activities included motorboats, jet skis, and wave runners. In 1991, the Moriah Property Owners Association, Inc., acquired title to the majority of the lots along the lake and imposed restrictive covenants on the use of the lake, including one that prohibited all motors on the lake except for those powered by 12-volt batteries. The Carnahans filed suit to establish a prescriptive easement in their right to use the lake for all their activities. Do you think the Carnahans acquired an easement by prescription [Carnahan v Moriah Property Owners Association, Inc., 716 NE2d 437 (Ind)]

Question 13

Christine and Steve Mallock buried their son in a burial plot purchased at Southern Memorial Park, Inc. Each year the Mallocks conducted a memorial service for their son at his burial plot. On the seventh anniversary of their son's death, the Mallocks went to their son's grave at 11:00 A.M. for the annual service, which generally took 30 minutes. When they arrived, they discovered that a tent and chairs set up for funeral services on the plot next to their son's grave were actually resting on his gravesite. The Mallocks asked Southern's management if the tent and chairs could be moved until they could conduct their service. The managers refused, and the Mallocks went ahead with their ceremony, cutting it to five minutes, after they moved the chairs and tents by themselves.
Southern's managers called the police and had the Mallocks evicted. Southern claimed the Mallocks had no rights on the property except for the grave and that their deed for the plot did not award an easement for access. Did the Mallocks have the right to access to the gravesite [Mallock v Southern Memorial Park, Inc., 561 So2d 330 (Fla Ct App)]

Question 14

To be enforceable against the mortgagor, a mortgage must meet all the following requirements except:
a. Be delivered to the mortgagee
b. Be in writing and signed by the mortgagor
c. Be recorded by the mortgagee
d. Include a description of the debt and land involved

Question 15

O conveys property to A on December 1, 2006. O conveys the same property to B who does not know about A and who records his deed on December 2, 2006. O then conveys the same property to C. Who has title to the property

Question 16

Bunn and his wife claimed that they had an easement to enter and use the swimming pool on neighboring land. A contract between the former owners of the Bunns' property and the adjacent apartment complex contained a provision that the use of the apartment complex's swimming pool would be available to the purchaser and his family. No reference to the pool was made in the contract between the former owners and the Bunns, nor was there any reference to it in the deed conveying the property to the Bunns. Decide. [Bunn v Offutt, 222 SE2d 522 (Va)]

Question 17

Ritz owned a building in which there was a duly recorded first mortgage held by Lyn and a recorded second mortgage held by Jay. Ritz sold the building to Nunn. Nunn assumed the Jay mortgage and had no actual knowledge of the Lyn mortgage. Nunn defaulted on the payments to Jay. If both Lyn and Jay foreclosed and the proceeds of the sale were insufficient to pay both Lyn and Jay, then:
a. Jay would be paid after Lyn was fully paid.
b. Jay and Lyn would be paid proportionately.
c. Nunn would be personally liable to Lyn but not to Jay.
d. Nunn would be personally liable to Lyn and Jay.

Question 18

After executing the various deeds, J. M. Fernandez Jr. placed them in a closet (with other valuable papers) for safekeeping until they could be physically delivered to the various grantees, including Sylvia Sheppard, when she returned to Key West. This closet was in the home that Fernandez shared with Betty DeMerritt. They were not married but lived together the final 15 years of Fernandez's life. Shortly thereafter, Fernandez was debilitated by a stroke and became a total invalid. He never regained his health and died before Sylvia Sheppard could return to Key West to receive physical delivery of the deed personally from him. When Sylvia Sheppard did arrive in Key West, Betty DeMerritt gave her the deed. This took place two or three days after the death of Fernandez. When questioned as to why she turned the deed over to Sylvia, Betty DeMerritt stated, "I knew he wanted me to do it... because he couldn't do it." She was speaking of Fernandez's physical disability. Does Sylvia have title to the property Was there delivery [Kerr v Fernandez, 792 So2d 685 (Fla)]

Question 19

Which of the following deeds will give a real property purchaser the greatest protection
a. Quitclaim
b. Bargain and sale
c. Special warranty
d. General warranty