Pre-Review Session Activities

1. Pre-Review Session Activities • Pick up snacks – courtesy of Margaret • Sign up for door prizes

2. PropertyReview Session for Final Exam Dr. Gerry W. Beyer Governor Preston E. Smith Regents Professor of Law Texas Tech University School of Law

3. Agenda • Lessons from exam reviews. • Review of material in “cause of action” vs. “defense” format. • Break. • Door prizes. • Review (continued). • Mini practice exam. • Review of mini practice exam.

4. Lessons from exam reviews • 1. Lack of basic exam skills • Misread facts and/orquestion • Poor time management • Failure to proofread or recheck answers

5. Lessons from exam reviews • 2. Missed issues

6. Lessons from exam reviews • 3. Failure to analyze

7. Lessons from exam reviews • 4. Failure to ascertain value of issues

8. Warnings!! • Just because covered in review does not mean the topic is on the exam. • Just because a topic is not covered in the review does not mean the topic is not on the exam. • Review is simplified; many special rules and exceptions are not mentioned.

9. “Get off my land!” [Trespass] • Requires physical intrusion. • Harm to land not required.

10. “Get off my land!” [Trespass] • 1. License • Permissive use of land. • Revocable at will of the land owner.

11. “Get off my land!” [Trespass] • 2. Express Easement • Grant. • Reservation or exception to grantor. • Reservation to third party • Texas follows common law rule that this is ineffective.

12. “Get off my land!” [Trespass] • 3. Implied Easement by Necessity • Public policy implies an easement if conveyance would landlock a parcel of land. • Only exists while necessity exists. • Can lie dormant; prior use not necessary.

13. “Get off my land!” [Trespass] • 4. Implied Easement by Prior Use • Use had to exist while land was in common ownership. • Look at facts to show that parties intended to permit a pre-existing use to continue.

14. “Get off my land!” [Trespass] • 5. Prescriptive Easement • Long and continued use may create an affirmative easement in the user.

15. “Get off my land!” [Trespass] • 6. Easement by Custom • Principle which operates in only a few states where usage was by common consent and was uniform in practice.

16. “Get off my land!” [Trespass] • 7. Governmental Taking • Government has taken land for public use and paid just compensation. [not tested]

17. “They took my property!” [Conversion] • 1. Profit [easement with a profit] • Right to use another’s land and remove a portion of it or its products (soil, timber, crops, minerals, etc.).

18. “They took my property!” [Conversion] • 2. Surface Water • Person has right to retain water that runs off other people’s land.

19. “They didn’t take care of my land!” • 1. No duty via easement • Servient tenant has no duty to keep the easement in repair.

20. “They didn’t take care of my land!” • 2. No duty via real covenant • Invalid contract. • Original parties not intend covenant to run with land. • Promise does not touch and concern land. • Lack of privity • Original parties • Between original party and current party

21. “They didn’t take care of my land!” • 3. No duty via equitable servitude • Lack of notice • Notice not a proper substitute for missing real covenant element

22. “They didn’t take care of my land!” • 4. Duty under valid covenant or servitude ended • Express time stated expired • Statute limits duration • Release • Merger • Estoppel, laches, prescription, etc. • Unclean hands • Acquiescence • Changed conditions within restricted area

23. “They are hurting my land!” • 1. Use of easement is reasonable. • 2. Action is within scope of covenant.

24. “It’s too loud and it stinks!” [Nuisance] • 1. Use is reasonable. • 2. Use is suitable to area. • 3. “You gave me permission.” • 4. Use complies with zoning rules. • 5. “You moved here!” • 6. Protected by right to farm statute. • 7. Social use of activity is high. • 8. Cost of avoiding nuisance is high. • 9. “I paid for the right to be noisy and smelly.”

25. “My land is slip-sliding away!” • 1. Land slipped on its own. • 2. Land slipped due to complaining party’s improvements.

26. “I’m flooded!” (from runoff) • 1. Common enemy rule -- too bad. • 2. Natural flow not changed. • 3. Actions were reasonable.

27. “The river runs slowly!” • 1. Riparian • No effect on flow. • Use was natural or domestic. • Non-domestic use was reasonable. • 2. Prior appropriation • “I was first!” • To use. • To get permit.

28. “My well went dry!” • 1. Rule of Capture – too bad. • 2. Use was reasonable.

29. “They won’t follow our land sale contract!” • 1. Contract not enforceable • Not in writing (warning re part performance) • Not signed by party to be bound • Not clearly identify the parties • Not clearly describe the property • Terms not clearly described • Price • Performance date

30. “They won’t follow our land sale contract!” • 2. Time was of the essence • Express contract provision • Surrounding facts and circumstances • Nature of property (e.g., unstable market).

31. “They won’t follow our land sale contract!” • 3. Unable to secure financing • Assuming such a condition in contract.

32. “They won’t follow our land sale contract!” • 4. Title not merchantable • Encumbrances (easement, mortgage, deed of trust, tax lien, covenants, etc.) • Break in chain of title (lack of vertical privity)

33. “They won’t follow our land sale contract!” • 5. No tender • Unless excused by anticipatory repudiation • Buyer = money and/or financing • Seller = deed conveying merchantable title

34. “They are throwing me off my land!” • 1. Payments current on note secured by mortgage or deed of trust.

35. “They are throwing me off my land!” • 2. Bona fide purchaser • Race = first to record wins • Race-Notice = no notice (actual or constructive) at time of purchase and recorded first • Notice = no notice at time of purchase (actual or constructive) [Texas approach] • Shelter rule

36. “They are throwing me off my land!” • 3. No breach of warranty • Quit claim = no warranty • Texas = warranty that grantor not previously conveyed

37. “They are throwing me off my land!” • 3. No breach of warranty • Traditional title covenants • Covenant of seisin • Covenant of good right to convey • Covenant against (undisclosed) encumbrances • Covenant of quiet enjoyment • Covenant of warranty • Covenant of further assurances

38. “They are throwing me off my land!” • 4. Sue the title insurance company

39. “They are throwing me off my land!” • 5. Title acquired via adverse possession

40. Mini Practice Test