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Posts Tagged ‘Property’

What is a Condominium?

In Law, Property on February 17, 2016 at 8:45 am

Allen 2

Condominiums are creatures of statute and did not exist at common law, although they have an ancient history. They are common-property arrangements. Each owner within a condominium association owns an individual unit but also possesses shared ownership of common areas with every other owner of a unit within the community.

Community associations regulated by restrictive covenants are widespread in every state in the United States. These associations typically reserve certain spaces within the community for common areas such as swimming pools, tennis courts, gardens, playgrounds, or other recreational facilities or uses that each member of the association subsidizes with his or her respective homeowner-association dues.

The law has for centuries treated such covenants as contracts. Sir William Blackstone, in his Commentaries on the Laws of England, surmised that a “covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contracts, the violation or breach of which is a civil injury.” On this view, covenants may regulate the actions and behaviors of those who submit to them even if those actions and behaviors are only indirectly related to the physical property contemplated by the covenants.

Today’s covenants for condominiums may include restrictions on renting or other uses (e.g., they may prohibit the keeping of pets or require that a unit not be used for business purposes), impose obligations (such as proper maintenance of the unit and payment of assessments or dues), and institute sanctions such as fines or penalties for the violations of any terms of the covenant.

The association takes the form of a nonprofit corporation or other corporate entity, and membership in the association is accomplished by holding a deed to a lot within the community. All fifty states in the United States have statutory laws dealing with the creation and regulation of condominiums.

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British Origins of American Estate and Land Law

In American History, Britain, Economics, History, Humanities, Law, Property on September 17, 2014 at 8:45 am

Allen 2

Estates and land are the foundation of property law in England and the United States.  After the Battle of Hastings in 1066, when William the Conqueror, or William I, became the King of England, he recognized that land ownership was essential to the governance of his kingdom.  Announcing himself owner of all English lands, he distributed property to those loyal to him. The recipients became “tenants”; the rent was called “services”; knights performed “services” on behalf of the king, thus earning their honorific title and their rights to certain lands.

William bestowed a special designation, tenant in chief, to those who were offered more land than they could use.  Everything necessary to survive and flourish at this time came from the land: food, water, shelter, building supplies and other equipment, and mineral resources.  Tenants, therefore, would parcel out tracts of their land to others in exchange for fees and services.  Recipients of the parceled tracts would parcel out smaller tracts of land, and this process of parceling would continue until the people living on the land had no rights to the land.

The result was that ownership in tracts of land became known as freehold or nonfreehold.  Interests in freehold tracts included fee simple estates, fee tale estates, and life estates; interests in nonfreehold tracts included periodic tenancies, terms, and tenancies at will.  These six categories of land ownership and title remain with us today.

Premises Liability and Qualified Duties of Care

In America, Economics, Humanities, Jurisprudence, Law, Philosophy, Property on January 3, 2014 at 8:45 am

Allen 2

The field of premises liability has to do with the potential tort liability of a landholder or landowner for injuries or damages sustained on his property.  Such liability is determined not by the legal status of the landholder or landowner, but by the legal status of the injured party.  For example, if the injured party is a trespasser, then the landholder or landowner could not have owed the injured party a duty of reasonable care because the landholder or landowner did not know or have reason to know of the trespasser’s presence on his property.  A “trespasser” is someone who, without the permission or consent of the landholder or landowner, enters or remains on the landholder’s or landowner’s property.  We say that the landholder or landowner does not owe a duty to unforeseeable trespassers, even if the property possesses dangerous conditions, because we believe that people should not be held accountable for the behavior of others that cannot be known or reasonably discovered.  If a reasonable person with ordinary intelligence could not infer the existence of Person X on the property, then that reasonable person cannot be made to suffer simply for acting reasonably; after all, we want to encourage reasonable behavior among acting agents within our society.

As with all areas of the law, there are exceptions to the rule that a landholder or landowner owes no duty to trespassers.  One such exception is called the “attractive nuisance doctrine,” which maintains that a reasonable landholder or landowner ought to be aware that certain conditions on the property might draw trespassers onto the property.  The classic example is a swimming pool that would seem attractive to children and, therefore, would likely lure children onto the property.  Another exception involves the existence of paths or shortcuts on the property that might give rise to the reasonable expectation that trespassers will regularly use the paths or shortcuts and, hence, might also injure themselves because of the conditions of the property on or around the paths and shortcuts.  In such a situation, a court may deem the landholder or landowner to have owed a duty to the reasonably foreseeable trespassers.

A “licensee” is another legal category of persons on the property of a landholder or landowner.  Unlike trespassers, licensees enter or remain on the property of a landholder or landowner with the landholder’s or landowner’s express or implied consent.  What distinguishes a “licensee” from an “invitee” (another legal status that will be discussed below) is the fact that the licensee tends to be on the property for his own benefit rather than for the benefit of the landholder or landowner.  Examples of licensees include social guests who have entered on the property of another with the intent of visiting the landholder or landowner, who, let us say, is a neighbor.  A landholder or landowner generally owes a licensee a duty of reasonable care with regard to activities undertaken on the property, as well as a duty to warn or make safe any dangerous conditions known to the landholder or landowner but not to the licensee.  Because a licensee is on the landholder’s or landowner’s property by consent, but not by express invitation, we do not force landholders or landowners to use reasonable diligence to ascertain the existence of dangerous conditions on the property.  The costs of holding landholders or landowners to such a high standard (time, money, and energy spent searching the property for conditions that may not exist for the benefit of people who may never enter the property, even if they have the permission to do so) outweigh the potential benefits (reducing the probability that a potential visitor would be injured on the property).  Therefore, the duty of a landholder or landowner to a licensee is measured by a standard somewhere between those standards applicable to trespassers and invitees.

An “invitee” is a person having express permission to enter or remain on the property of the landholder or landowner for the benefit of the latter.  An example might be a plumber or handyman who has been asked onto the property to perform some service for the landholder or landowner.  Landholders and landowners owe a duty of reasonable care to invitees.  Because the landholder or landowner is not only aware of the presence of an invitee on the property, but also the very cause of that presence (but for the landholder’s or landowner’s invitation, the invitee would not be on the property), we require the landholder or landowner to inspect the property and to make reasonable efforts to discover dangerous conditions on the property.  We also require the landholder or landowner to make any dangerous conditions safe for the invitee.

These categories seem straightforward in theory but are often complicated in practice.  What they tell us is that, in the workaday world, “duty” is not sacrosanct; it is contextual and subject to many interpretations depending on the facts at hand and the perceived relationship of the parties.

Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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