Commonly Confused Property, Torts, Agency and Ethics Rules: Recording Acts, Easements, Authority, Strict Liability and Privilege

Joint tenancy versus tenancy in common

Easements versus covenants

An easement gives a right to use another's land and is an interest in land. A covenant is a promise about the use of land, enforceable at law by damages or in equity by injunction. Real covenants run with the land at law when the parties intended it, there is privity, the covenant touches and concerns the land and there is notice. Equitable servitudes need intent, notice and touch and concern, but no privity in the same way.

Race, notice and race-notice statutes

Under a race statute, the first to record wins, whatever they knew. Under a notice statute, a subsequent purchaser for value without notice prevails over an earlier unrecorded interest, whether or not they record first. Under a race-notice statute, the subsequent purchaser must be without notice and must record first. Work through who bought when, who paid value, who knew, and who recorded.

Vested versus contingent interests

A remainder is vested if it is given to an ascertained person and there is no condition precedent other than the natural end of the prior estate. It is contingent if the taker is unascertained or a condition must first be satisfied. This matters because the Rule Against Perpetuities applies to contingent interests and not to vested ones.

Negligence versus strict liability

Negligence requires duty, breach, causation and damages, and focuses on unreasonable conduct. Strict liability applies to abnormally dangerous activities, wild animals, and defective products, and does not require fault. The tell in a fact pattern is that the defendant took every reasonable precaution and the plaintiff is still harmed. That is a strict liability question, and negligence would fail.

Actual versus apparent authority

Actual authority comes from the principal's manifestations to the agent, express or implied. Apparent authority arises from the principal's manifestations to a third party, which lead the third party to reasonably believe the agent is authorized. A principal may be bound by apparent authority even when the agent had no actual authority.

Attachment versus perfection

Under UCC Article 9, a security interest attaches when value is given, the debtor has rights in the collateral and there is a security agreement or possession. Perfection is what makes the interest effective against third parties, usually by filing a financing statement or by taking possession. Attachment governs rights against the debtor, and perfection governs priority against others.

Attorney-client privilege versus confidentiality

The privilege is an evidence rule that protects certain confidential communications between client and lawyer from compelled disclosure in a proceeding. The ethical duty of confidentiality is broader, covering all information relating to the representation, whatever its source, and it applies outside court. Some information is not privileged and is still confidential, and each has separate exceptions.