Property I Outline
Property I Outline
First Possession Theory: first come first serve. Depends on plentiful resources.
Explains how property rights came about, but not why we should protect the first
owner
Labor Theory: (John Locke) You are entitled to what you work for. When you mix
your own labor with something that is un-owned (i.e. natural resources), you gain
property rights as a result
Utilitarian Theory: recognize property in order to maximize the overall happiness of
society, promotes the welfare of all members, NOT individual happiness
Liberty Theory: a stake in society, has important & salutary effect on citizens
relationship with the state, facilitates democracy, provides economic stability
Personhood Theory: property is necessary for an individuals personal
development. Property over time becomes a part of your self.
o 1 of the justifications of Adverse Possession
Legal Positivism: property exists only to the extent that it is recognized by the
government (fairness is irrelevant)
o Johnson v MIntosh ~ Johnson unable to obtain rights of land traded from Indians
because the government said so)
Natural Law Theory: idea that certain rights naturally exist as a matter of
fundamental justice (little impact on modern PL)
Property rights can arise from the first possession of an un-owned thing
o Pierson v Post: Mere pursuit of a wild animal on uninhabited land does NOT give
the pursuer a right to, or a property right in, the wild animal. animal property
rights require occupancy
Hypo 1: Post shoots a deer and grazes its ear. The deer is stunned but not
hurt.. Pierson grabs the deer and puts it in a sack. Post arrives while the deer
is still stunned. Who is correct? Pierson is entitled to the deer.
Hypo 2: Posts dogs chase a fox into a cave. Before Post gets there, Pierson
shoots the fox and mortally wounds it. Post arrives minutes later. Which is
correct? Pierson is entitled to the fox.
Hypo 3: Post nets a wild rabbit, paints Property of Post on it, and sets it free.
Pierson shoots and kills the rabbit. Which is correct? Pierson is entitled to the
rabbit.
Hypo 4: Post owns a pet macaw. Post allows the bird to fly in the uninhabited
woods near his home and the bird always returns home to Post. Pierson sees
the bird in the woods, and captures it. Who gets it? Post. The animal is not
wild
Hypo 5: Post keeps a pet fox that he has raise since it was a cub. Post allows
the fox to roam, but it always returns to Post. Pierson captures Posts fox. Who
gets it? Piersonfoxes are wild animals.
Hypo 6: Clarisse and Percy both are hunting raccoons in a dense, wooded
forest. Percys hunting dogs have scented a raccoon, and they pursue it over
the course of a mile as the raccoon races through underbrush, climbs trees,
and leaps from limb to limb. Before Percy can kill the raccoon, Clarisse arrives
and shoots the raccoon, killing it. Under what circumstances would Percy be
most likely prevail in a claim to recover the raccoon?
o a. Percys hunting dogs have chased the raccoon up a tree.
o b. Percys dogs have wounded the raccoon, laming it so that it is
unable to walk.
o c. Percy has shot the raccoon, injuring its tail
o d. Percys first shot has injured the raccoons tail and, at the moment
Clarisse arrives, Percy has sighted the raccoon, and is on the point of pulling
the trigger.
Rule of Creation: law vests title in the person who creates an entirely new thing
o White v Samsung ~ Samsung ran an ad that had a robot resembling Vanna
White. She claimed they violated her intellectual property rights. Samsung used
her identity. We want to protect this (Labor, Personhood)
o Right of Publicity: Common Law~ may be pleaded by alleging (1) the
defendants use of the plaintiffs identity; (2) the appropriate of the plaintiffs
name or likeness to defendants advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.
Hypo 1: Mellow Mushroom wants to hire Blake Bortles to promote its
restaurants. Due to his recent selection as a first round draft pick for the
Jaguars, Mr. Bortles agent informs Mellow Mushroom that Mr. Bortless fee for
product promotion is $1 million. Mellow Mushroom is not willing to pay that
amount. Instead, Mellow Mushroom hires a tall, lean actor with an athletic build
who resembles Mr. Bortles. The television commercial features the actor
throwing a football, driving an Audi (the car company Mr. Bortles endorses),
and posing wearing teal and black. Mr. Bortles brings an action seeking an
injunction to prevent Mellow Mushroom from airing the commercial. Based on
these facts, and presuming Mr. Bortles brings his suit in a jurisdiction with
common law right of publicity identical to Californias common law rule, how
should the court rule? A. The injunction should be granted because the
television commercial is designed to associate Mellow Mushroom with Mr.
Bortles in violation of Mr. Bortless right of publicity
BUNDLE OF STICKS
~Property law is a dynamic process, not a static set of rules!
~Do not have to be consolidated, not an indivisible bundle!
RIGHT TO TRANSFER:
o Majority Approach: Property is freely alienable. But the law can restrict who,
what, how much, and the way you transfer property. The scope is sometimes
limited due to public policy.
RIGHT TO EXCLUDE:
o Majority Approach: If you hold title, you may exclude anyone from
entering upon it. Want to avoid self-help.
Jacque v Steenberg Homes, Inc. ~ Steenberg uses road through Jacques
property w/o Jacques consent. Even though there was no measurable harm to
property, Jacques harm was that his right to exclude was violated.
Punitive damages awarded.
o Trespass Doctrine ~ used to bring an action by a property owner when a party
enters property
(a) intentionally/voluntarily
(b) without privilege/consent/invitation
(c) damage NOT necessary to be liable
Common Law ~ any unwarranted entry is trespass, intent is not necessary to
prove
o EXCEPTION: NOT absolute! There are exceptions, i.e. necessity, visitors
State v Shack ~ Farmer barred visitors of the migrant workers. Fundamental
human rights cannot be denied on the basis of property law
Hypo 1: Several migrant workers living on a farm decide to hold a
birthday part for their co-workers. They invite a few friends over from a
nearby town.
o (a) the farmer can prevent the friends from entering, and if they do, it
is trespass
o (b) the farmer cannot prevent the friends from entering
Hypo 2: Donald Trump owns a vacant apartment building in Jacksonville.
A group of homeless people enter the building and being living there as
squatters. Under State v Shack, are the homeless people guilty of
trespass? The homeless people are trespassers. Even if it is
January and freezing outside.
Hypo 3: Trader Joe owns a coffee bean farm in the hypothetical
jurisdiction of Beantown. Trader Joe employs workers on his farm. Three
labor union representatives seek to enter Trader Joes property to
convince the workers to unionize to improve their working conditions.
Trader Joe is opposed to labor unions. Based on the holding in State v.
Shack (the migrant worker case), which is the best answer?
o a. The union representatives have an implied statutory right of access
to enter the property.
RIGHT TO USE/POSSESS:
o Traditional Rule: Absolute right to use your prop in any manner. You have the
right to the sky above & land below.
o American Rule: Use your own property in a manner that does not injure another
persons property. Regulated by ordinances, statutes, easements.
o Exceptions:
Spite Fence Doctrine ~ landowners cannot erect an unusually high
fence/structure along property line for the sole purpose of annoying his
neighbor. Not recognized in all states!
Must show that acted out of malice and that the structure is actually
useless
Sundowner, Inc. v King ~ Motel built useless structure to get back at
neighboring motel. Sign had little to no value and cost them more than it
was worth. Cast shadows on neighboring hotel.
Nuisance Doctrine ~ A way to balance competing landowners rights; used to
resolve land conflicts. MUCH broader than spite fence; no malice requirement,
may restrict useful conduct. Five elements:
1. Intentional
2. Nontrespassory
3. Unreasonable (gravity of harm outweighs utility)
4. Substantial interference w/
5. The use and enjoyment of the plaintiffs land
Prah v Maretti ~ solar panels interfered w/ by neighbor building home. Old
rule was pro-development, didnt place value on sun. New standards:
promote general welfare, sunlight more prized, policy of unhindered
development no longer in harmony with needs of society
VERY FACT SPECIFIC! BE CAREFUL!
Comparing Prah case v Sundowner: Prah did not build home out of
malice, King did!
Doctrine of Prior Appropriation ~ the first user to appropriate the
resource has the right of continued use to the exclusion of others
Hypo 1: In 2010, Carrie Underwood built a new home located across the street from
the ocean in Jacksonville Beach, Florida. Large windows provide beautiful ocean
views from every room in the house. Tim McGraw now decides to build an oceanfront
home in Jacksonville Beach, his hometown. He purchases a lot on the ocean that is
directly across the street from Carries house. Tims home will partially block Carries
ocean view. Based on these facts, which of the following is correct?
o a. Carrie can prohibit Tim from building a home that will block Carries
ocean view because Carries home predates Tims home.
o b. Carrie can prohibit Tim from building a home that will block Carries
ocean view only if Tim is locating the home in such a manner as to
block the view because of spite. (doesnt apply, no malice)
o c. Carrie cannot prohibit Tim from building a home that will block
Carries ocean view unless Carries ocean view is completely blocked
o d. Carrie cannot prohibit Tim from building a home that will
block Carries ocean view unless Carrie can prove Tims home
is a nuisance.
RIGHT TO DESTROY:
ADVERSE POSSESSION
REAL PROPERTY: rights in lands and things attached (i.e. buildings, fences, trees)
An occupant obtains title to real property through adverse possession if the
occupants possession is (1) actual, (2) exclusive, (3) open and notorious, (4) adverse
and hostile, and (5) continuous (6) for the statutory period.
A occupies Bs land for a long enough period of time while meeting certain
conditions, A acquires title to Bs land without his consent.
~REQUIRED ELEMENTS TO BE PROVEN:
(1) ACTUAL: physical use in the same way a reasonable owner would
(2) EXCLUSIVE: cannot be shared with true owner OR general public; guests are
fish in the pond and to gather firewood on Pondacre. T, who lives nearby,
occasionally walks across Pondacre when he drinks too much and gets lost on
his way home to Discheveledacre. Does the use of Pondacre by B, C, and T
disrupt As exclusive possession? No.
o Hypo 2: What if, instead, O, the true owner of Pondacre, fishes in the pond
once per week, and hunts birds on the land when they are in season? Yes.
o Hypo 3: Carol and Dana owned neighboring homes in a rural subdivision. The
backyards were unfenced and covered by wild grass. Over a 10 year period,
Dana watered and mowed a 20 foot wide strip that was actually part of Carols
lot. Carols children played on the strip occasionally. Should Dana prevail on a
claim of adverse possession? No, because the use was not exclusive Carols
children continued to play on the disputed parcel
(6) FOR THE STATUTORY PERIOD: established by statute; typically 5-40 years.
Tacking: when 2 or more successive occupants meeting the statutory period, the
latter occupant can add the two time periods together most jurisdictions require
privity: when one occupant transfers his rights by deed
o Do not confuse this with a succession of trespassers! There is a
difference between a squatter and a person who obtains color of title
o Howard v Kunto ~ Kunto purchased land from previous owners, all thought he
land & house was Kuntos. Kunto tacked on prior owners length of possession
with his to meet the 10 year statutory requirement.
o Hypo 1: Ann occupies Olivers land for 6 years. Ann then tells her friend Beth:
You can be here if you want, but Im leaving. Beth occupies the land for 5
more years. Assume the required statutory period for adverse possession is 10
years. Can Beth tack her possession onto Anns possession to meet the 10 year
requirement? No, because there is no reasonable connection between Ann
and Beth under Howard v. Kunto. There is no privity between Ann and Beth
they are merely successive trespassers
o Hypo 2: Alex works for AP Corp. and, as an employee, occupies land for 5
years. Alex quits, and is replaced by a new employee, Taylor. Taylor occupies the
land for an additional 5 years in the capacity of an employee of AP Corp. In a
state with a 10-year period, has AP Corp. acquired title by adverse possession?
Most likely yes. An entity most likely can adversely possess land through its
agents. Alex and Taylor both are adversely possession the land as agents of AP
Corp.
o Hypo 3: Carl occupies Olivers land for 2 years. Carl then tries to convey the
and to his sister, Dana, but the deed Carl uses is invalid. Dana occupies the land
for 9 more years. Assume the required statutory period for adverse possession
is 10 years. Can Dana tack her possession onto Carls possession to meet the
10 year requirement? Yes, because there is privity between Carl and Dana
(the deed). A technical defect in a deed should make no difference in the
outcome
o Hypo 4: In Howard v. Kunto, how would the Court have ruled if the Kuntos and
their predecessors had occupied the beach cottage for only 6 summers in 10
years?
a. The Kuntos would prevail because they used the property as
a reasonable owner of a beach cottage would use it
Disabilities: Statutory period for AP is tolled (paused) when the owner is not
capable of protecting his interests due to a disability. The period for AP can be
extended for disabilities!
o ex. imprisonment, lack of mental capacity, minority (under 18), out of state
residency, military service
o Majority Approach: States provide a limited period of time after the
disability ends (i.e. 5 years after disability ends)
o Majority Rule: A disability extends the statutory period ONLY IF the
disability existed at the time the adverse possession began.
o Minority Approach: the statutory period does not begin to run until the
disability ends
o Hypo 1: Charlie bought a beach house in 2000. By 2010, Charlie was no
longer residing there. In 2011, his estranged brother Alan began adversely
possessing the beach house. The statutory period is 10 years. Assuming
Alan meets all other elements, when is the earliest time that Alan can claim
title by adverse possession? 2011 + 10 year SOL = 2021
o Hypo 2: Assume the same facts as Problem 1. Also assume Charlie is
declared mentally incompetent in 2010 and remains so until 2020. The
statutory period is 10 years, but an owner under a disability may bring suit
within 5 years after his or her disability ends. What is the earliest year in
which Alan claim title by adverse possession? 2020 (disability ended) + 5 =
2025
o Hypo 3: Assume the same facts as Problem 1 except also assume that
Charlie remains in the mental health facility and incompetent indefinitely.
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What is the earliest year in which Alan can claim title by adverse
possession? Never!
o Hypo 4: Assume the same facts as Problem 1. Also assume Charlie is
sentenced to serve 15 years in prison starting in 2010. In 2012, while in
prison, Charlie is declared mentally incompetent. He is released from prison
in 2025 and is declared competent in 2026. In what year can Alan claim title
to the beach house by adverse possession? 2025 (when FIRST disability
ended) + 5 = 2030
o Hypo 5: Owner C is 10 years old in 2000. D begins adversely possessing Cs
land in 2000. C dies in 2003. H inherits the land. The normal period for
adverse possession is 10 years, but an owner under a disability may bring
suit within 5 years after the disability is removed. What is the earliest time
that D can claim title by adverse possession? 2010 (death ends all
disabilities)
o Hypo 6: Owner C is 10 years old in 2000. D begins adversely possessing Cs
and in 2000. C dies in 2003. H (who has been mentally incompetent since
2002) inherits the land. The normal period for adverse possession is 10
years but an owner under a disability can bring suit within 5 years after the
disability is removed. When is the earliest time that D can claim title? 2010
(Hs disability doesnt matter, cannot tack disabilities, Cs death ended all
disabilities)
FINDERS
(
Finder vs. Landowner
typically awarded to
Majority Approach to Finders: a finder beats out everyone except the true owner
AND any prior possessor
o Hypo 1: I drop my ring, Michelle finds it and puts it in her pocket. Unfortunately,
Michelles pocket has a hole, so the ring falls out and lands in the elevator. Later,
Andrew gets in the elevator and finds the ring. If Michelle sues Andrew, does
Andrew have to give the ring back to Michelle? Yes!
o Hypo 2: Peyton is out jogging through Metropolitan Park. While he is jogging, he
loses his Rolex. Eli, while walking through the park the next day, spots the Rolex
and, seeing no one around, puts it in his pocket. After wearing the watch for about
a week, Eli is robbed at gunpoint by Tim, who takes the watch from him. A month
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later, Tim loses the watch, and Archie finds it. Please list who has a claim to the
watch, from strongest to weakest: Peyton, Eli, Tim, Archie
Four categories of found chattels (personal possession; property other than real
estate)
o (1) LOST
o (2) MISLAID
o (3) ABANDONED
o (4) TREASURE TROVE
(1) LOST: owner unintentionally & involuntarily parts with it; doesnt know where it is
Finder acquires only the right of possession, hold property for the benefit of true
owner
EXCEPTIONS:
o 1) Trespasser: trespasser-finder does not secure possession, goes to
locus in quo
o 2) Highly Private Locus: owner of locus in quo would acquire
possession, i.e. a home
o 3) Employer-Employee: surrenders rights of possession to the
employer
(2) MISLAID: owner voluntarily and knowingly places it somewhere, but then
unintentionally forgets it
GENERAL RULE: Chattel belongs to the owner of the locus in quo, NOT the
finder!
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(3) ABANDONED: owner knowingly relinquishes all right, title, and interest to it
(4) TREASURE TROVE: owner concealed it in a hidden location long ago; usually
limited to gold, silver, coins, currency
Majority Approach: Most jurisdictions reject the treasure trove doctrine
entirely and give such property to the owner of the land where it was found
Law of Shipwrecks: Discovery of sunken ships filled with treasure ~ salvage
law or finder law applies.
Salvage Law: provides finder with a reward, NOT ownership
Finders Law: provides finder with ownership
Applies only when the ship is abandoned!
o Trover: a common law action where the seeks damages for the wrongful taking
of personal property ( these are
o Replevin: lawsuit to recover possession of personal property
obsolete today!)
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BAILMENTS
o Finder of LOST or MISLAID property does not have unqualified ownership, but is a
bailee
o Law of Bailments: the rightful possession of goods by one who is not the owner
o Three basic types of bailments
(1) Bailment for Mutual Benefit ~ those for the mutual benefit of both the
bailor and bailee
i.e. restaurant guests hands key to valet, etc.
bailee has a duty to take reasonable care of the property (i.e.
responsible for damages)
(2) Bailment of Sole Benefit of Bailee ~ those for the primary benefit of the
bailee
i.e. neighbor borrows farmers tractor
bailee has extraordinary duty of care (i.e. returning in the same
condition he received it in)
(3) Bailment for the Benefit of the Bailor ~ those for the primary benefit of
the bailor
i.e. homeowner leaves dog with neighbor to watch
bailee is only liable if the property is damaged because of gross
negligence or bad faith
o Under Law of Bailments, finder is obligated to:
(1) keep the chattel safe (#2 above)
(2) return it to the prior possessor on demand
GIFTS
Gift: the immediate transfer of property rights from the donor to the donee without
any payment/consideration
4 Types:
o (1)
o (2)
o (3)
o (4)
1) Inter Vivos Gifts: ordinary gift of personal property that one living person makes
to another (birthday gift) I will give you the painting but I want to keep it until I die
IMMEDIATELY EFFECTIVE
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IRREVOCABLE
Gruen v Gruen ~ Father wrote son letter gifting him a painting, but wanted to
hold onto it (life estate). Father died, mother wanted painting. Rule: As long
as the evidence establishes an intent to make a present and
irrevocable transfer of title or the right of ownership, there is a
present transfer of some interest and the gift is effective immediately.
Hypo 1: Oscar calls Paul into bedroom, points to gold pen on desk. Oscar
declares, I give you my pen. Has Oscar made a valid inter vivos gift? NO.
Oscar did not deliver the pen. When manual delivery is practical, delivery must
be physically transferred from donor to donee to establish donors departure of
dominion and control over the pen.
Hypo 2: Pointing to his bedside drawer, Oscar declares, I want you to have
my drawer and everything inside it. Oscar hands Paul a key that unlocks the
drawer. Inside are a diamond ring and the title to Oscars brand new Ferrari.
What items were delivered to Paul? Drawer only. Constructive delivery (i.e.
giving the key to the drawer) is only permissible when actual delivery in
impossible. Drawer was right there, could have delivered manually.
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Engagement Rings:
MAJORITY: conditional gift
MINORITY: inter vivos gift (non-revocable)
Elements:
o Donative Intent based on the contemplation of marriage
o Voluntary delivery
o Acceptance
o Revocable if the condition (marriage) is not satisfied
Jurisdictional Approaches:
o Fault: Courts will consider whos at fault before returning the ring
o No Fault: Ring is returned to the donor regardless of fault
Albinger v Harris ~ & D had troubling relationship, P wanted ring back and D
refused to give it. EXCEPTION RULE: A gift is a transfer of personal property
made voluntarily and without consideration. When clear and convincing
evidence demonstrates the presence of the essential elements of donative
intent, voluntary delivery and acceptance, the gift is complete and the
Montana Supreme Court will not void the transfer when the giver experiences a
change of heart.
4) Causa Mortis: A gift of personal property made by a living person in
contemplation of death
Elements:
(1) Donative Intent (made in contemplation/fear of death)
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(2) Delivery
(3) Acceptance
(4) Donors anticipation of imminent death and ACTUAL death
from the peril anticipated
o REVOCABLE anytime before death, AND if donor does not die from
anticipated peril
o Most states automatically revoke if donor does not die
Brind v International Trust Co ~ Old lady thought she would die from
surgery, wrote letter giving property in anticipation of death from surgery. Did
not die from surgery and did not rewrite letter. Not an effective gift causa
mortis. Rule: A gift causa mortis is subject to the conditions (1) that it
must be made in contemplation, fear or peril of death; (2) the donor
must die of the illness or peril which he then fears or contemplates,
and (3), the delivery must be made with the intent that the title shall
vest only in case of death
^^This was the old view
MODERN VIEW: Gift is effective at the time it is made, but may be revoked
depending on the circumstances and, in most states, is automatically
revoked if the donors does not die!
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family, J.R. says, Louella, I want you to have my antique desk and all the
money in the top drawer. J.R. died the next day. Under traditional
common law principles, to what is Louella entitled?
a. nothing.
b. the desk, but not the money.
c. the money, but not the desk.
d. both the desk and the money
Suicide: Can a person contemplating suicide make a valid gift causa mortis?
Earlier cases held no, citing public policy reasons
Modern trend is that a gift causa mortis will be upheld if the gift is made
in contemplation of suicide and the donor completes the act
ESTATES
o Estate: One does not own Blackacre. They merely hold an estate in Blackacre.
o Can have a present possessory interest in the estate OR
o Can have a future interest in the estate
o Hypo 1: O grants his parcel of land to A for life, then B. A has the right to
possess the land during her lifetime (an ESTATE), and B has the right to possess
it once A dies (a FUTURE INTEREST). Both have legally enforceable rights in the
land, just possession at different times.
o How to transfer an estate or future interest?
o Transfer by Deed: a living person may transfer real property by deed
Transfer is called a conveyance (to convey)
Terminology: Grantor conveys the interest to the Grantee
o Transfer by Will: Property of the decedent may be transferred by will.
Does NOT convey property until death!!!
Terminology: Testator/Testatrix devises the interest to the devisee
o Transfer by Intestate Succession: Person who dies without a will, property
will be distributed according to state statutes, usually to closest living relatives
Transfer is called intestate succession
Terminology: Property descends by intestate succession to the heir
State will typically distribute property in order as follows:
(1) Issue & Surviving Spouse
o Issue: lineal descendants (children, grandchildren)
o If surviving spouse, split equally between issue & spouse
(2) Parents & their issue (aka siblings)
(3) Ancestors & Collaterals
o Ancestors: grandparents
o Collaterals: aunts, uncles, nieces, nephews
(4) Escheat no living relatives, property belongs to the state
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o Rules of Construction:
If the language of a deed or will is ambiguous, the court will interpret
it in accordance with the transferors INTENT
If the intent cannot be determine, the court will apply the rule of
construction: legal principle that breaks the tie
o Two types of estates:
o (1) FREEHOLD ESTATES
Fee Simple
Absolute
Determinable
Life Estate
Fee Tail
o (2) NON-FREEHOLD ESTATES
Term of Years
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o Life Estate Pur Autre Vie: Life estate measured by the life of someone other
than the person who is in possession
In the conveyance: O to A for the life of C.
When life tenant conveys her interest: O to A for life. Then A conveys her
interest in the property to B. Now B has a life estate pur autre vie
measured by As life. When A dies, Bs interest ends.
What are the duties of the life tenant?
Law wants to balance the interests of the life tenant and the future possessor
o Open Mines Doctrine: Life tenant may NOT extract minerals/resources from
the land unless those materials were being harvested at the time the life
estate began
o Doctrine of Waste: Imposes a duty on the life tenant to use the property in a
manner that does not significantly injure the rights of the future interest
holder!
Common Law: ANYTHING which in any way altered the identity of the
land was considered to be waste (either beneficial or detrimental)
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FUTURE INTERESTS
A future interest is a nonpossessory property right that may become possessory in
the future NO immediate right to possession However, has a present, legal right
o FIVE future interests
o In the Grantor:
(1) Reversion
(2) Possibility of Reverter
(3) Right of Entry
o In a Third Party:
(4) Remainder
Vested, Subject to Divestment, Subject to Open, Contingent
(5) Executory Interest
In the Grantor:
(1) Reversion Follows an estate that ends naturally
o A grantors future interest following an estate that ends naturally (life estate, fee
tail, and term of years)
o Hypo 1: O to A for life.
A has a possessory interest in life estate
O has a future interest because he did not convey everything he owns,
so O has a reversion
o Reversions are freely alienable, descendible and devisable
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Possessory Estate
In a Third Party:
(4) Remainder Waits patiently for the prior estate to end naturally
o When a grantor conveys an inherently limited estate (fee tail, life estate, term of
years) and ALSO conveys the future interest that follows it!
o Any future interest that only can come into present possession
immediately upon the natural termination of the prior interest
o Hypo 1: O to A for life, then to B.
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Hypo 1: O to A for life, then to B and his heirs, but if B fails to turn
21, then to C and his heirs. B is 18 years old.
o then to B and his heirs creates a remainder. But what kind?
o B will DEFINITELY get the possession when A dies. So the
remainder is vested.
o But there is a condition subsequent that may allow Bs
remainder interest to be divested by C.
o So B has a vested remainder subject to divestment
MUST remember to identify the state of the future interests title once it
becomes possessory (i.e. remainder in FSA, FSSCS, FSSEL, etc.)
Hypo 2: O conveys to B for life, then to D, but if D does not
survive B, then to E.
o B has a life estate
o D has a vested remainder subject to divestment
But what kind of VRSTD?
then to indicates an executory limitation
o D has a vest remainder subject to divestment in fee simple
subject to executory limitation
o E has an executory interest
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o Step 3: Must that triggering event occur within the perpetuities period
(21 years), if it is to occur at all?
Is there a measuring life which will provide a guaranty that the future
interest will either vest or not vest within that persons life + 21
years?
o Step 4: If the triggering event can occur outside of the perpetuities period,
strike the future interest
Strike that future interest and restate the title AFTER striking it
Hypo 1: O to Johnson and his heirs so long as the land is used for agricultural
purposes, and if not so used, then to Wilson and his heirs.
o 1-Is the future interest a CR, EI, or VRSO?
Yes, executory interest
o 2-What event triggers the vesting of Ws remainder?
When the land stops being used for agricultural purposes
o 3-Must J stop using the land for agr. purposes within 21 yrs, or at all?
Is there a measuring life (someone mentioned in the grant) which
provide a guaranty that the future interest will vest or not within that
persons life + 21 years?
NO. This conveyance is invalid! It violates the RAP.
o 4-Strike the future interest and restate the title
Johnson has a possessory estate in fee simple determinable
O has a possibility of reverter in fee simple absolute
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Ask whether there is ANY possibility that the future interest could vest outside
the 21 years
If you can identify a scenario where the interest could vest after 21 years of a life
in being, then RAP has been violated!
To do this, Create, Kill and Count
o (1) Create someone in whom the interest could vest
By creating this person after the conveyance, he cannot qualify as a
life in being for purposes for the perpetuities time period
o (2) Kill everyone who was alive at the time the interest was created
By killing everybody who was alive at the time the interest was
created, we take care of all the possible lives in being so we do not
have to worry about identifying the right measuring life
o (3) Count 21 years
If it is possible (no matter how outlandish) that the future interest
could vest, but only after the 21 year period, then RAP has been
violated
o Hypo 1: O to A for life, then to As first child to reach age 25. A has 2
children, B (age 23) and C (age 20).
State the title: A has a life estate. As first child to reach 25 has a
contingent remainder. O has a reversion.
Which is subject to RAP?: As first child to reach 25s cont. remainder
Create: X, new child of A
Kill: Kill everyone else, O, A, B and C
Count: Count 21 years. Is it possible that Xs future interest will
vest, but only after the 21 year period?
o Yes, X could reach 25 AFTER the 21 year period, so this
conveyance violates the RAP!!!!
Strike and restate title: A has a life estate in FSA. O has a reversion.
o Hypo 2: O to A and his heirs so long as alcohol is not sold on the land, then
to B and his heirs.
Title: A has a fee simple subject to an executory limitation. B has a
shifting executory interest
What is subject to RAP?: B getting the land when alcohol is sold on
land
Create: X, an heir of A; and Y, and heir for B
Kill: Kill A, O and B
Count: Is it possible that Ys interest could vest after 21 years?
o Yes, A could die and As heirs could sell alcohol after 21
years, so this violates the RAP!!!
Strike and restate title: A has a possessory interest in FSD. O has
possibility of reverter.
o Hypo 3: O to A for life, then to B and her heirs if B reaches age 25.
Title: A has a life estate. B has a contingent remainder
What is subject to RAP? B reaching 25.
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RULE: If the condition upon which the vesting of the future interest is predicated is
expressly tied to a named and living person, then the interest will not violate RAP
Valid: Olivia conveys to Alex for life, then to Brad, but if Brad uses
the land for a tavern, then to Charlie.
Valid: Olivia conveys to Alex for life, then to Alexs children who
reach 18 years of age.
Valid: Olivia conveys to Alex for life, then to Bonnie for life, then to
Alexs children then living.
Valid: Olivia conveys to Alex for life, then to Brad for 20 years, then
to the person Alex has named in his will to receive Alexs residence.
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o 6. The holder will not be identified until the death of someone merely
described but not named
Void: Olivia conveys to Alex for life, then to Alexs first child for life,
then to whoever is the President of the United States. Alex has no
children.
Valid: Olivia conveys to Alex for life, then to Brad (who is Alexs first
child) for life, then to whoever is the President of the United States.
BASICALLY:
o A future interest is VOID if:
1. It is in a 3rd party grantee, and
2. It is a contingent remainder, an executory interest, or a vested
remainder subject to open, and
3. It might still exist and still be contingent or open longer than 21
years after the death of the last person alive at the time of the
conveyance
o An interest is VALID if:
We know for sure that it will do one of the following within the
perpetuity period (within 21 years after the death of everyone alive at
the time of the conveyance):
Vest and close, or
Fail
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Each has right to use and possess the whole parcel even if his fractional interest is
smaller than the interests of the others
i.e. O to A, B and C.
o B conveys her interest in A
o A now has 2/3, C has 1/3
o C has as much right to use the land as A
Modern trend: presumes that a grant to multiple transferees creates a tenancy in
common unless the instrument indicates otherwise
FAVORS MARKETABILITY
Words of Conveyance: and
to Martin and Ryan
to Martin, a undivided interest in my home
to Martin, Ryan, and Greg as tenants in common
o each own an undivided 1/3 interest, unless otherwise state, law presumes
equal shares
o If Martin dies, his devisee or heir would step in and own Martins 1/3
interest
o Joint Tenancy: 4 Unities- time, title, possession, interest
O to A and B as joint tenants with right of survivorship
Both have undivided right to use and possess the whole prop.
BUT each joint tenant also has a right of survivorship
When A dies, As interest in the estate is removed, and B automatically becomes
the SOLE OWNER
This makes the estate unable to be devisable or descendible
Common Law: Joint Tenancy is created only when 4 unities are present
Time: all JT must acquire tenancy at the same time
o If A and B obtain interest on different days, the unity of time is absent
Title: Must acquire title by the same instrument
o If A and B receive their interests by different deeds, unity of title is missing
Interest: Must have the same shares in the estate, equal in size and duration
o If A receives an undivided 2/3 interest, and B an undivided 1/3 interest,
theres no unity of interest
Possession: Must have an equal right to possess, use and enjoy the whole
property
IF ANY OF THE UNITIES ARE MISSING, A TENANCY IN COMMON IS CREATED
Hypo 1: O attempts to create a joint tenancy in A, B and C by conveying interest
to A one day, and the next day conveying a 3/8 interest to B and a 1/8 interest to C.
The unities of time, title and interest are missing. Therefore, the conveyance of a
joint tenancy has failed and A, B and C are tenants in common
Transferring Interest
32
James v Taylor
Court of Appeals of Ark 1998 (p. 378)
Parties
Facts
-: Euras grandchildren
-: Euras last surviving child
-Eura Mae Redmon conveyed her three children jointly and
severally, and unto their heirs, assigns and successors forever
with the grantor retaining a life estate
- 2 of the children died
- the remaining child filed a complaint asserting that her mother
intended to convey the property to the grantees as joint
tenants, so that if one dies, the remaining children get the
33
property
-This would make appellee sole owner by virtue of her brothers
deaths
-the s opposed the complaint stating that the language
conveyed a tenancy in common among the grantees, which
would leave 2/3 of the property to them
-s state that the language is ambiguous and absent
expressed intent to convey a joint tenancy, a tenancy in
common is presumed
History
Issue
Rule of Law
Holding
Judgment
Reasoning
COMMON LAW: favored joint tenancy b/c right of survivorship helped eliminate fractional interests
MODERN: law presumes tenancy in common, absent express language to the contrary
COMMON LAW: If wording is unclear, court may ignore evidence of the grantors actual intent and
focuses on the actual language
MODERN TREND: focuses more on the grantors intent and less on formulaic language
2) Severance
A joint tenant can end the tenancy simply by conveying her interest to a third party
o Ex. if A and B are joint tenants, and A conveys her interest to C, the joint tenancy is
severed; B and C are now tenants in common
Do leases or mortgages severe the joint tenancy??
34
Tenhet v Boswell
Supreme Court of California
Parties
Facts
History
Issue
Rule of Law
Holding
: Hazel Tenhet
: Boswell
-Raymond Johnson and owned a parcel of property as
joint tenants
-W/o s knowledge or consent, RJ leased the property to
for 10 years
-RJ died shortly after the execution of the lease
- is seeking to establish her SOLE right to possession of
the property as the surviving joint tenant
-Dismissed, appeals
(1)Whether the partial alienation (lease) of RJs interest in
the property effected a severance of the joint tenancy?
(2) Whether takes the property unencumbered by the
lease?
A lease is not so inherently inconsistent with joint
tenancy as to create a severance, either temporary or
permanent.
A joint tenant may, during his lifetime, grant certain
rights in the joint property without severing the
tenancy. But when such a joint tenant dies, his
interest dies with him.
(1) The lease here did not operate to severe the joint
tenancy, and sole ownership of the property is therefore
vested in upon her joint tenants death by operation of
her right of survivorship
(2) The lease of the joint tenancy property expires when
the lessor dies
Judgment
Reasoning
35
So what can sever a joint tenancy? ~must act in a manner that clearly expresses an intent
to sever
o Conveyances: JT is severed when one JT conveys his interest to a third party
o Leases: In most jurisdictions, a lease entered into by one JT does NOT sever the lease
and the other JT is NOT bound by the lease
3) Partition
: Ark Land
: Harper (Caudills)
-s owned land for nearly 100 years
-Prior to 2001, the land was owned exclusively by Caudills
-in 2001, purchased some property interests from
several Caudill family members, now having a 67.5%
undivided interest
- wanted to purchase the rest of the land so that they
could extract coal from the land
-s did not want to sell, so filed a complaint seeking to
History
Issue
Rule of Law
36
Holding
Judgment
Reasoning
o Two types:
Partition in kind: physically divide the land up based on their shares
preferred method
Policies favoring partition-in-kind:
o
Partition in sale: sell the land and divide the proceeds up by their respective shares
37
can be a harsh result for the cotenant(s) who oppose the sale
these statutes should be used narrowly and sparingly because they interfere with
property rights
o Common Law PREFERRED partition-in-kind
o Modern trend: partition-by-sale
Quiz:
C
B; Katniss conveyance severs the JT
C; if missing a unity, makes it a tenancy in common; doesnt destroy it
A; jointly and severally is ambiguous, so makes it a TIC
C;
D; bank can get to them because it is BOTH of their debts
Ten years ago, Harry, Eve, Ronald, and Lela became owners of Greenacre as joint tenants.
Greenacre consisted of a four-bedroom house on a two acre lot on a hill overlooking the ocean.
Harry and Eve were a married couple, as were Ronald and Lela. Harry and Eve gained their
interests in Greenacre with the idea that it would be their retirement residence. They worked
and lived in a neighboring state and have not visited Greenacre these past ten years. Ronald
and Lela immediately took up exclusive possession of Greenacre and have remained there ever
since. Five years ago, Harry conveyed all his interest in Greenacre to his mistress, Matilda. Early
last year, Eve died in a car accident and Lela mortgaged her interest to her brother, John. This
jurisdiction has a five year statutory period for adverse possession of land and follows the lien
theory of mortgages. Who owns Greenacre?
A
B
RonaldandLelaasjointtenants.
MatildawithanundividedinterestasatenantincommonwithRonaldandLela;andRonaldandLelawithan
undividedinterestastenantsincommonwithMatildaandasjointtenantswiththemselves.
Correct.Harry'sintervivosconveyancetoMatildaseveredhisinterestinthejointtenancy.Matildabecameatenant
incommon(ofHarry'sinterest)withtheotherconcurrenttenantsbecausetheunitiesoftimeandtitlewere
destroyed.Eve,Ronald,andLela'sjointtenancywitheachothercontinuedsincetheirunitieswerenotdisturbed.
WhenEvedied,herparticipatoryinterestinthejointtenancywithRonaldandEvewasremoved;RonaldandEve
38
Ten years ago, Harry, Eve, Ronald, and Lela became owners of Greenacre as joint tenants.
Greenacre consisted of a four-bedroom house on a two acre lot on a hill overlooking the ocean.
Harry and Eve were a married couple, as were Ronald and Lela. Harry and Eve gained their
interests in Greenacre with the idea that it would be their retirement residence. They worked
and lived in a neighboring state and have not visited Greenacre these past ten years. Ronald
and Lela immediately took up exclusive possession of Greenacre and have remained there ever
since. Five years ago, Harry conveyed all his interest in Greenacre to his mistress, Matilda. Early
last year, Eve died in a car accident and Lela mortgaged her interest to her brother, John. This
jurisdiction has a five year statutory period for adverse possession of land and follows the lien
theory of mortgages. Who owns Greenacre?
nowholdajointtenancywitheachother.Therefore,Matildahasanundividedinterestasatenantincommon
withRonaldandLela;andRonaldandLelahaveanundividedtenancyincommonwithMatildaandanundivided
ajointtenancywiththemselves.
C
Matilda,Ronald,andJohnastenantsincommon,eachwithanundivided1/3interest.
Matildawithanundivided1/3interestasatenantincommonwithRonaldandLela;andRonaldandLelawithan
undivided2/3interestastenantsincommonwithMatildaandasjointtenantswiththemselves.
Landlord/Tenant Law
A) Creating the Tenancy
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Race
Color
National Origin
Religion
Sex
Disability (handicap)
Familial Status
Blindness & Ancestry (WV law)
Civil Rights Act of 1866: Difference between this and the FHA is that CRA
covers only racial discrimination and is NOT LIMITED to just dwellings!
You can potentially violate these separately or at the same time
2014
2014
Lease/License
License: A personal privilege to use the land of another for some specific
purpose
Minimal rights
Lease: Transfers the exclusive right of possession to the tenant
Extensive rights
Delivering Possession
Policy reasons:
landlord should know status of possession, can evict
landlord should know whether prior possessor is there properly or
improperly
tenant receives less than he bargained for if he must go forward with the
lease and bear the costs of legal proceedings to get them
Keydata Corp. v United States ~ had not vacated the premises by specified
date, s sent letter terminated the lease due to failure to surrender property
o Hypo 1: LL and T enter into a lease for a parcel of vacant land. T pays the
security deposit and first months rent when the lease is signed. T then discovers
the land is landlocked and T has NO access to the land. Which of the following
statements is true in a jurisdiction that follows the English Rule? T can
successfully sue LL for the return of the security deposit and first months rent
because under the English Rule, LL is required to deliver actual possession.
o Actual Eviction: when LL or holdover tenant excludes the tenant from the entire
leased premises. Actual eviction terminates the tenants obligation to pay rent
(2) What about when third parties interfere with the enjoyment?
o General Rule: A tenant cannot base an action for a breach of the
covenant of quiet enjoyment on the actions of third parties
o
o
o
o
o
Recognized in almost all states
Usually a defense to an eviction for failure to pay rent
Majority Rule: Applies only to residential leases
What is habitability?
Some states apply a general standard: LL must maintain the premises in a clean,
safe, and fit condition suitable for human habitation
Key Points:
o IWH is implied in every residential lease
Does not have to be expressly stated
o IWH CANNOT BE WAIVED BY THE TENANT!!
If a lease contains a provision stating that the tenant waives the IWH,
the provision is void against public policy
Wade v Jobe ~ Basement Sewage Case ~ Jobe was mother of 3 kids, faulty
plumbing led sewage and water buildup in basement, foul odors & no hot water.
o Rule: Tenants obligation to pay rent is conditioned upon Landlord fulfilling
his part of the bargain
o Payment of rent by T and Landlords duty to provide habitable premises are
dependent covenants
Damages:
o Special available when, as a foreseeable result of LLs breach of IWH, T
suffers personal injury, property damage, relocation expenses, or other
injury
o General recovery in the form of:
rent abatement or reimbursement to T
calculation of fair market value as warranted vs. fair market value of
unit in present condition
percentage diminution
Occurs whenever a tenant transfers the right of possession to all the premises for
the full time remaining on the terms of the lease
Privity
Assignment
Sublease
Consent Requirement
o (3) Silent Consent Clause: Lease might require Ls consent, but contain
no standard to guide Ls decision.
If Silent:
Majority Rule: Sole Discretion standard applies
Minority Rule: Commercially reasonable standard applies
o ANALYSIS STEPS:
o Step 1: Does the lease address the tenants right to assign/sublease? Lease
will:
Say Tenant cannot assign/sublease
Say Tenant needs LLs consent first
Be silent in which case the default rule will apply (free to do
whichever)
o Step 2: If lease says LLs consent is required, what standard must LL use?
Sole discretion standard: LL can deny consent for whatever reason
Majority Approach
Reasonableness standard: LL may refuse consent only if
commercially reasonable
Silent standard: Consent required but clause is silent as to the
standard
Majority at this point says use Sole Discretion
o Assignment:
o Original tenant/assignor is no longer liable to LL under privity of estate
o Assignee is directly liable to LL under privity of estate
o Original tenant (assignor) will remain liable under privity of contract
Novation: When landlord releases the original tenant from liability
o Sublease
o Original tenant/sublessor is still liable to LL under POC AND POE
o Sublessee is liable to the Sublessor under POC and POE
o Sublessee and LL have NO privity whatsoever
o Sublessee NOT directly liable to LL ONLY liable to Original Tenant
Abandonment:
A tenant is consider to have abandoned this premises if he:
(1) vacates the premises
(2) without justification
(3) without intent to return; and
(4) defaults in the payment of rent
Security Deposits
Most states have adopted laws or administrative rules that regular residential
security deposits
Surrender: Landlord AND tenant mutually agree to terminate the lease prior to
the expiration date
Eviction:
Landlord seeks to retake possession of the premises due to a default by T