Welcome to the Bar Exam Toolbox podcast. Today, we're doing something a little different. We're going to take a bird's eye view of some key Real Property topics we've covered in our "Listen and Learn" series. Specifically, we'll be focusing on property regulation and transfer. Your Bar Exam Toolbox hosts are Alison Monahan and Lee Burgess, that's me. We're here to demystify the bar exam experience, so you can study effectively, stay sane, and hopefully pass and move on with your life.
We're the co-creators of the Law School Toolbox, the Bar Exam Toolbox, and the career-related website CareerDicta. Alison also runs The Girl's Guide to Law School. If you enjoy the show, please leave a review on your favorite listening app, and check out our sister podcast, the Law School Toolbox podcast. If you have any questions, don't hesitate to reach out to us. You can reach us via the contact form on BarExamToolbox.com, and we'd love to hear from you. And with that, let's get started.
Welcome back to the Bar Exam Toolbox podcast. I'm Lee Burgess, and today we're continuing our overview of key Real Property topics from our "Listen and Learn" series. In this episode, we'll be focusing on property regulation and transfer. Remember, if you want to know more about this law and apply that law to the facts, check out the "Listen and Learn" episodes mentioned in the show notes. They will walk you through this law step-by-step and help you apply it. Let's start with zoning.
Zoning is how local governments regulate land use. This is a way of balancing private property rights with public interests. A typical zoning ordinance might designate certain areas for residential use only, others - for commercial use, and still others - for industrial use. For example, a city might zone a downtown area for mixed commercial and residential use, while reserving outlying areas for single-family homes.
But what happens when a property owner wants to use their land in a way that doesn't comply with the zoning ordinance? They might seek a variance. There are two types - use variances and area variances. A use variance allows a property to be used in a way not permitted by the zoning ordinance. For instance, if Alice owns a lot in a residential zone and wants to open a small grocery store, she'd need to apply for a use variance.
An area variance, on the other hand, allows a deviation from the physical requirements of the zoning ordinance, like setback lines or height restrictions. If Bob wants to build his house closer to the property line than the zoning ordinance allows, he'd need an area variance. To get a variance, the property owner typically needs to show that strict application of the zoning ordinance would cause undue hardship, and that granting the variance won't harm the public welfare.
It's a balancing test that gives local zoning boards some flexibility. Now, let's move on to recording statutes, which we discussed in another "Listen and Learn" episode. These laws govern how property interests are documented and prioritized. They're crucial for providing notice of property interests to the world. There are three types of recording statutes - race, notice, and race-notice. In a race jurisdiction, whoever records their interest first wins, regardless of notice.
In a notice jurisdiction, a subsequent purchaser without notice of a prior unrecorded interest will prevail. And in a race-notice jurisdiction, a subsequent purchaser must both lack notice and record first to prevail. Let's consider an example: Owen sells Purpleacre to Alice on January 1st, but Alice doesn't record the deed. On February 1st, Owen fraudulently sells Purpleacre again to Bob, who has no knowledge of the sale to Alice and immediately records his deed.
In a race jurisdiction, Bob wins because he recorded first. In a notice jurisdiction, Bob wins because he was a subsequent purchaser without notice. In a race-notice jurisdiction, Bob also wins because he both lacked notice and recorded first. Poor Alice is out of luck in all three scenarios. This illustrates why it is so important to record your interest promptly. Next, let's talk about adverse possession, which we covered in another "Listen and Learn" episode.
This is a doctrine that allows someone to gain title to land by possessing it for a certain period of time, even if they don't actually own it. To claim title by adverse possession, the possession must be: open and notorious, exclusive, hostile [without the true owner's permission], and continuous for the statutory period [which varies by state, but is often around 20 years]. Here's an example: Charlie builds a fence that accidentally encroaches two feet onto Diana's property.
If Charlie maintains this fence for the statutory period and Diana never objects, Charlie might gain title to that two-foot strip through adverse possession. It's worth noting that some states require the adverse possessor to have paid property taxes on the land, and some require the possessor to have acted in good faith. Always check the specific requirements in your jurisdiction. Finally, let's discuss constructive eviction, which we covered in Episode 93.
This concept comes up in landlord/tenant law. It occurs when a landlord does something, or fails to do something, that seriously interferes with the tenant's use and enjoyment of the property, effectively forcing the tenant to leave.
For a tenant to claim constructive eviction, they generally need to show, [1] a substantial interference with their use and enjoyment of the property; [2] the interference was caused by the landlord; [3] the tenant gave notice to the landlord and allowed a reasonable time for the problem to be fixed; [4] the tenant vacated the property within a reasonable time.
For instance, if a landlord refuses to fix a broken heating system in the middle of winter, making the apartment uninhabitable, this could be grounds for constructive eviction. The tenant would need to notify the landlord, give them a chance to fix it, and then move out if the landlord fails to do so. Now let's think about how these concepts interrelate. Zoning laws can affect property values and uses, which in turn can impact issues of adverse possession or constructive eviction.
Recording statutes play a crucial role in providing notice of property interests, which can be relevant in adverse possession cases or in disputes over property rights. When you're studying for an exam, try to think about these interconnections. A single fact pattern might involve multiple issues. For example, you might see a question where someone is claiming adverse possession of a strip of land, but there's also a zoning issue about how that land can be used.
Remember, the key to success on the bar exam is not just knowing the rules, but being able to spot issues and apply the rules to complex fact patterns. Practice, practice, practice. As always, I encourage you to review the full episodes on each of these topics for more detailed explanations and examples. And don't forget to test yourself with hypotheticals. They're the best way to ensure you really understand how to apply these concepts.
That's all for our overview of property regulation and transfer. If you enjoyed this episode of the Bar Exam Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We'd really appreciate it. And be sure to subscribe so you don't miss anything. If you have any questions or comments, please don't hesitate to reach out to myself or Alison at lee@barexamtoolbox.com or alison@barexamtoolbox.com.
Or you can always contact us via our website contact form at BarExamToolbox.com. Thanks for listening, and we'll talk soon!