Deck 48: Real Property

Question 1

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)]

Answer 1

Refer to the case Terry Wright v Crick to answer question as below:
Facts to this case
• A father moved his house on to his daughter's land but during the move the contractors resulted in damage on the father's house.
• The damage was on the daughter's land.
• The daughter sued the contractors.
• Contractors claimed she has no right to sue because the damage was to the house which did not belong to her.
Case Issue
The issue is whether the daughter can sue the contractors for the incident.
Analysis and Conclusion
The court should hold for the daughter. The daughter had the right to sue because the father's house became attached to her land and thus the damage can be considered as damage to part of her property. The daughter had a right to sue.

Question 2

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]

Answer 2

Refer to the case Bradt v Giovannone to answer question as below:
Facts to this case
• B owned a house with a fenced backyard.
• However, part of the land within the fenced backyard actually belonged to his neighbor G.
• B claim ownership of the land.
Case Issue
The issue is whether B can claim ownership of the land. Note that from the facts B is probably trying to argue for adverse possession; he gained the land from the owner because of his control and possession of it over a period of time is adverse to the owner's wishes.
Relevant Terms, Laws, and Cases
Adverse Possession - gaining ownership of a property by adversely inhabiting in it for a period of time.
Analysis and Conclusion
The court should hold B responsible. It is found that B satisfied adverse possession even though B took the land unintentionally. Note that, the fact that B had the fence enclosing part of G 's land, already gave B an adverse right hostile to G and furthermore B had possession of the land for the required time. Thus, B gained the land by adverse possession.

Question 3

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)]

Answer 3

Refer to the case Adams Outdoor Advertising, Ltd., Partnership v Long to answer question as below:
Facts to this case
• L was an owner of property upon which A was a tenant.
• A had a billboard on the property.
• L cancelled A 's lease and claimed the billboard belonged to the property.
• A claimed that the billboard belonged to them.
Case Issue
The issue is who owns the billboard. Note that this case involves fixtures, if the billboard is considered a fixture of the property it will belong to L.
Relevant Terms, Laws, and Cases
Fixture - is an item that is attached to a real property and may be considered part of the real property. For example, the windows of a building would be a fixture it is sold along with the building and ownership of the building would have ownership of the windows.
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 for 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.
Analysis and Conclusion
The appellate court should hold for L. It was a fixture. They argued that, an item (the billboard) that was affixed (see the annexation factor above) to the property becomes fixture of that property if the owners (tenants) failed to remove it in a reasonable amount of time after giving the notice. The billboard was erected by a previous tenant almost 20 years ago; the tenant did not remove the billboard. L gained ownership of the billboard as a fixture when he purchased the property. Thus, L is the owner of the billboard.

Question 4

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 5

The Friersons have a two-story building in Easley, South Carolina, that shares a common wall with an adjacent two-story building owned by David and Patricia Watson. An outdoor stairway located on the Watsons' property provides access to the second floor of both buildings. A dispute arose when David Watson began to construct apartments on the second floor of his building and proposed to close off a connecting indoor hallway between the two properties at the top of the stairs located inside the building. The Friersons maintained that they had an easement to use both the outdoor stairway and the indoor hallway for access.
The Friersons' predecessors-in-interest, E. C., E. O., and D. M. Frierson, purchased the building in 1929 from the "Estate of R. F. Smith, Inc." The 1929 deed, dated January 14 and recorded on January 23, expressly conveyed "an easement in a certain four foot stairway in the back of the building, with right of ingress and egress on said stairway to the second story of said building." On January 21, 1929, two days before the deed was recorded, the parties to the sale executed a "Memorandum of Agreement" that granted an easement for the use of the hallway. The memo was not recorded. The Friersons brought suit to stop Watson's construction.
The Friersons claimed Watson's construction violated their easement by eliminating the hallway, which denied them access to the second floor of their building.
The circuit court determined that the Friersons had established an easement for use of the hallway by grant and by prescription and granted the Friersons' motion. David Watson appealed. Who is correct on this easement issue Explain why. [ Frierson v. Watson , 636 S.E. 2d 872 (S.C. App.)]

Question 6

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 7

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 8

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 9

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 10

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 11

O conveys property to A on December 1, 2012. O conveys the same property to B who does not know about A and who records his deed on December 2, 2012. O then conveys the same property to C. Who has title to the property

Question 12

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 13

Harald Dude's real estate dealings began breaking bad in 2003. After securing a $1.9 million loan from Washington Mutual on a house he owned in Aspen, Mr. Dude quickly sought to borrow another $500,000 from Wells Fargo. The Washington Mutual mortgage was not yet recorded because of a defect in the property description. To satisfy Wells Fargo, Mr. Dude had to complete a form for the bank's title insurance company, Stewart Title. On that form, he was asked to disclose existing liens and loans on the property, at least those that hadn't already turned up in Stewart Title's title search. Knowing that the company had failed to discover the existence of the Washington Mutual loan and worried that disclosing it now might scotch any chance he had of winning a second loan from Wells Fargo, Mr. Dude decided to conceal its existence. The plan worked: Stewart Title and Wells Fargo proceeded with the second loan just as Mr. Dude had hoped. Discuss who will have priority in the land if Mr. Dude defaults. Does it matter that Mr. Dude failed to disclose the loan and lien of Washington Mutual What can we learn from situations such as this one [ Stewart Title Guaranty Company v. Dude , 708 F.3d 1191 (10th Cir.)]

Question 14

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

Question 15

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 16

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)]

Question 17

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

Question 18

What is the relationship between trespass and adverse possession

Question 19

At approximately 3:00 A.M., on February 3, 2000, Sonya Winchell was driving two of her friends through a Fort Wayne Taco Bell drive-thru. When Winchell arrived in line, there was one car in front of her at the speaker. Winchell noticed that the occupants of the car, Remco Guy and Ariel Graham, were taking a long time placing their order and then got out of their car. At that point, Winchell yelled out her window, "Can we get moving, we are hungry!" Guy approached Winchell's car, stuck his head in the window, and "started cussing everybody out." Guy removed his head from the window, stuck it back in, and asked, "You got an f-ing problem " Winchell responded by "drill[ing] him in the nose." Guy then pulled a gun out of his pants and shot Winchell. One of Winchell's passengers and others summoned police officers who were in a nearby parking lot. Winchell survived the shooting, and Guy was convicted of attempted murder. Winchell filed a civil action against Guy and Graham, and against Taco Bell, alleging negligence. Is Taco Bell liable for the injuries that occur on its property [ Winchell v. Guy , 857 N.E.2d 1024 (Ind.)]

Question 20

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)]