Best Property Outline

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PropertyOutline

I. Acquisition of Propertyi. Property is a bundle of rights and relationships

1. Include right to exclude, transfer, us it2. Created by law

ii. What is property?

1. Possession2. Rights of possession and enjoyment are exercised3. A thing you own land, laptop, etc.4. The laws view

a. Property is actually a set of rights that relate to thingsb. The rights exist among people in regards to things they

claimiii. Legal positivism

1. Property rights only exist if the law recognizes and enforcesthem

2. Dominant view

3. The constitution is a legal positivism document4. Johnson case Native American tribe doesnt have the power to

convey the land because the law of U.S. doesnt recognize theright to convey

iv. Kinds of things that cannot be property1. Value things that dont have value

a. Land contaminated by toxic waste2. Scarce (limited in availability)

a. Dont have to be rare or scarceb. Ex: laptops, trees, etc.c. Land it is likely that things that are scarce at first will be

treated as propertyv. Basic categories

1. Personal propertya. Tangible visible, touchable kind of objectb. Intangible intellectual property, stocks & bonds, contract

rights, licenses2. Real property (land and anything attached to the land)

a. Usually have rights a reasonable height above & below theland

b. Includes mineral rights, water rights, etc.vi. Property Rights

1. If you own something you have the right to:a. Possess and useb. Sell it, or transfer (rights of transfer) (alienability)c. Right to exclude

2. Are these three rights absolute? Limited?a. Limited generally based on social interests (policies)b. Alienability ability to freely transfer

i. Courts are interested in stability of titles

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ii. Making productive use of landiii. Assuring that land transfers are fair

vii. Kinds of limitations on exclusion1. Safety2. Easement by necessity

a. Dont want land to be land locked3. Cant exclude everyone from property

viii. Limits on rights to transfer

1. Liens on restrictions on title2. Bankruptcy cant sell or give away land3. Transfer cannot be conditioned upon race, religion, etc.

ix. Limitations on right to possess and use1. Restrictions such as historic districts

a. Zoning2. Dont have to be in possession to owe property

a. Can also convey rights to othersb. Landlord/tenant lawc. Rights can be divided by time

i. Future interests life estates

d. Rights can be divided among various peoplex. Acquisition of property

1. Ways can acquirea. Discoveryb. Conquestc. Purchased. Inherit it/gifte. Capturef. Find propertyg. Adverse possession can squat and can acquire property

by squattingh. Creation

2. Possible property rightsa. No property Indiansb. Common ownership grazingc. State ownership state ownsd. Private ownership individuals

i. Primarily private ownership system3. Theories

a. First possessionb. Labor theoryc. Utilitarianismd. Personhood

4. Occupancy taking possession of unowned things is the onlyway to acquire ownership of those things.

5. Conquest taking possession of enemy territory through force,followed by formal annexation of the defeated territory by theconqueror

a. First Possessioni. Acquisition by Discovery

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a. Discovery sighting or finding of unknown or uncharteredterritory. Usually accompanied by a landing and symbolictaking of possession. Title must be perfected within areasonable time for effective occupation

1. Johnson v. MIntosha. Deal was 1st in time if you were European

i. First European nation to claim gets the rightsii. In essence they also have the right to conquer

b. Where does title come from?iii. Chain of title from Europeans to U.S.; grants from

Europeansc. Marshall thinks that to really be in possession you must:

iv. Make changes on land and improve it somehow1. Says that Native Americans were

hunter/gatherers entirely but where did welearn to farm/plant corn

2. Meaning of possession here is a culturalartifact

3. Native Americans dont have title because

they are not Europeansd. According to Marshall, American was both discovered &

conquerede. Reasons in Johnson why right to own (Theories)

a. First-in-time being there 1st gives you rightsi. No particular reason for justification/no

ethical reasonf. Even though the plaintiffs came into the possession first

so they were first in time, the court ruled that the NativeAmericans did not have the right to convey the land

g. Just because you are first in time doesnt mean youhave possession.

ii. Lockes Labor Theory adding labor gives you rightsa. One owns his own labor & when his labor is joined with

something that is his own, then it is his property the laborer hasremoved the thing from the common state nature placed it in

b. Whats wrong with this theory?i. Only works with first in time

1. Ex: tenant of landii. Once possession has been established doesnt make

sense1. Ex: pg. 14 flower boxes

a. Must so increase the value as makes since togive that person ownership

b. If A no ownership B must pay A for laborc. Adverse possession is influenced by labor theoryd. First in time still important

i. Capture wild animals unowned until do something tocapture

1. Also applied to water/natural resources

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iii. Utilitarianism using law to achieve certain social purposesiv. Personhood expression of the selfv. Pierson

2. Traditional Rule (Pierson) have to capture or actually take intopossession for the animal to be property

3. Rule of Captureh. Wild animals not owned until you capture themi. Majority use scholars definition of capture

j. Capture mortally wounda. Have to either kill it, wound it or trap it to where

you have controlb. One obtains property rights in wild animals by

killing or catching them or by so wounding ortrapping them that they are within certain controlby the hunter

c. To preserve peace and order to have certainty inthe law

4. The animal must be in your possession5. Majority rule first possession; certainty in peace

k. Dissent in Pierson first pursuitl. Both opinions are first in time just different firsts

vi. Young v. Heihens fish in large net with big gap, under the rule inPierson plaintiff did not have possession because the fish could haveswam out of the gap

vii. State v. Shaw here the opening was small enough that fish couldhardly ever swim back out

6. Plaintiff had possession because the fish were under a certainamount of control by the fisherman

viii. Capture or possession varies in context of the situationix. Ghen v. Rich

7. Court looks at previous cases and industry customm. Precedent cases established/adopted industry custom

rule8. What would be the result in Ghen if the Pierson rule was used?

n. Because the whale was actually dead it seemed thatalthough he did not physically have possession he stillhad possession because he had killed the whale

9. Do we always want to use industry custom?o. While it is good for the industry it may not be good for

society as a whole, so no we dont always want to useindustry custom

p. Ghen had placed the whale under sufficient control bykilling it and capturing it according to custom and usageof trade thereby creating a property interest in thewhale

x. Keeble v. Hickeringill10. Social policy encourage fair competition between

competitors

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q. Court we arent going to let someone to competeunfairly

11. See note 2 pg. 28-31a. Ratione soli refers to the conventional view that an owner

of land has possession constructive possession, that is of wild animals on the owners land; in other words,landowners are regarded as the prior possessors of anyanimals ferae naturae on their land, until the animals take

off12. If you have a situation that could use either first in time or

Keeble go with Keeble13. Fair competition, constructive possession and relativity of

title are to discourage trespass14. Because if someone is so efficient in their trade then they

should reap the benefits of it which in turn benefits societybecause they are furnishing the markets of the nation

xi. General Rule: trespasser who captures wild animal on land of anothermay have no rights as against the landowner even if landowner neverhad actual possession or control and the trespasser does

15. Goal: to deter/ prevent trespassing16. Discourages self-help because it can lead to breaches of

the peacexii. Once it escapes its wild rule

17. If wild animals escape from a possessor, the possessorloses his rights and animal is subject to the rule of capture

18. But possessor doesnt lose his title if the animal has thehabit of returning to the possessor (animus revertendi)

19. The fact that the animal is not native to the area wouldgive the hunter notice that the fox probably belonged tosomeone else

xiii. Dont own wild animals until you capture them20. Capture mortally wound the animal or bring them into

your physical possessionxiv. Popoff v. Hiashi (Barry Bonds Ball)

21. If a person undertakes significant but incomplete steps tocapture an object but is stopped by the unlawful acts of another,they have a pre-possessory right to the object that at least willsupport an action for conversion

xv. The Right to Ones Person22. Moore v. Regents

r. Conversion interfering with ownership or rights ofpossession; therefore Moore has to prove that its hisproperty

s. Law of accession t. The doctors actions were willful and substantially

increased the value of Moores cells but Moore wouldstill have a right to the original value of his cellsv. The doctors actions would have to have not been

willful

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b. That value discounted by the probability that the trueowner will return

c. Subrogation5. Hannah v. Peel

a. General rule: usually objects found within a house areawarded to the landowner not the finder

i. Landowner has constructive possessionb. Objects found embedded in the soil on private land go to

the landowner6. McAvoy v. Medina

a. Object found in public place (and not on floor) will betreated as mislaid, not lost, and the locus owner has abetter right than the finder.

b. Expanded rule: finder of lost property has rights against albut true owner or a prior possessor

c. Finder of mislaid property acquires no rights in general, ifits found in a public place will be treated as mislaid

d. Finder of abandoned property is entitled to keep ite. Except that owner of locus may have rights in some

jurisdictions e.g. if its private not public, if object is inground, etc.

7. If the discoverer is a trespasser, such trespasser can have noclaim to possession of such property even if it might otherwisebe considered lost

ii. Acquisition by Adverse Possession1. The theory and Elements of Adverse Possession

a. Claim of title means adverse claiming the right to theproperty

i. In essence you are just saying Im claiming, I haveno document but Im claiming the property

b. Color of title means claiming a right to the property basedon a written instrument (like an invalid deed or will) ORunder a defective judgment or decree

i. In essence you need some sort of paper saying youhave a claim to the property

ii. There is something wrong with the writteninstrument

c. To make out adverse possession you must showi. Cultivated or improved the landii. Protected by a substantial enclosureiii. Used for the supply of fuel or of fencing timber

d. Elementsi. Actual entry producing exclusive possession that is

1. Open and notorious2. Adverse or hostile under claim of right3. Continuous & uninterrupted for the statutory

periode. Adverseness

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i. Objective test: A uses the land as an owner would,without true owners permission

ii. Good faith test: A believes she has a rightful claimiii. Aggressive trespass: A knows she has no rightful

claim and intends to take the land anywayf. Rule of thumb

i. Use the property as the average or reasonable ownerwould do given the location and nature of the land.

g. Encroachment doctrinesi. Doctrine of agreed boundariesii. Doctrine of acquiescenceiii. Doctrine of estoppel

h. Mistaken improversi. If the encroachment is innocent

1. Order conveyance of the land at fair marketvalue to the improver OR

2. Give landowner the option to buy theimprovement at fair market value

3. If the encroachment is trivial, court may give

no relief4. But if its substantial, court may order removal

in spite of improvers good faithii. If encroachment is intentional most courts will order

removal no matter how costly.i. Van Valkenburgh v. Lutz

i. Was there a substantial enclosure?1. Majority no Says that piled up brush is not

good enough2. Facts

a. He built Charlie a home of some sorti. They stated that they knew this

was not their propertyb. He built a chicken coupec. Used this property for gardening

cultivating the propertyi. Court says that sense you only did

a garden patch that it was notenough

ii. He didnt cultivate the entire lotd. Built a garage that encroaches on this

propertyi. He loses because he thought this

was actually on his own propertyii. He admitted in the prior suit that

the VVs owned the propertyii. Dissent - yes

1. Procedural problem says that majorityoverstepped their bounds they basically didtheir own fact finding

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2. The statute didnt say that you had to cultivatethe entire property

3. The purpose of the cultivation requirement: togive the owner notice of an adverse claim andto delimit to which the property to which theclaim related

a. The dissent says that Lutz did enoughbecause all the neighbors knew that it

was Lutzs gardensb. The statute only requires that you use

the property as a true owner would and atrue owner would not be required tocultivate the entire property

4. Under our statute he doesnt have to havecolor of title all he has to do is enough to showthat he is claiming the land

a. Mr. Lutz stated that the VVs in the priorsuit

b. By the time he stated that the dissent

says that he had already been there longenough to establish adverse possession

c. This statement doesnt actually decidethe issue

d. If he had obtained title by adversepossession he already has real propertyinterest and a good title and he cant justgive that up because he says otherwise

j. The Usual Common Law Elementsi. Actual entry producing exclusive possession that is

1. Open and notoriousa. Giving notice to the true ownerb. It cant be secret or hiddenc. Except in Mannillo you dont have to

prove that the owner had knowledge thatyou were on the land

i. Generally you have to dosomething that should give himnotice

2. Adverse or hostile under claim of righta. Adverse or hostile establish that you

are claiming against the true owneri. You arent there with the true

owners permissionii. You are asserting a claim against

b. Three basic approaches for adversei. The objective test the state of

mind of the adverse possessordoesnt matter we are

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concerned with the objectivereasons

ii. look at the actions of the adversepossessor

iii. advantages: you can just look atwhat hes done

iv. The good faith test I thought Iowned it

v. dwindling majorityvi. you have to have some form of

rightful claimvii. we want to reward good faith we

dont want to reward trespassersviii. Example: you have a defective

deed but you dont know it. Canyou still win using the good faithtest? Yes

ix. Subjective tests are harder toprove

x. Aggressive trespass I knowits not mine but Im going totake it

xi. Actually only shows up in a fewcases

xii. problem: you are encouragingtrespass, to steal land; you arerewarding bad faith

xiii. Is sort of subjective because youhave to show that you knew itwasnt your land but went anyway

xiv. To determine which approachis best it depends on thesituation

xv. Purpose of adverse requirement -Rewarding good faith people

3. Continuous and uninterrupted for the statutoryperiod

a. Use it as a true owner would use thatkind of property for the required period

i. Purpose: alerting the true owner ofyour adverse possession

4. Rule of thumb: use the property as the averageor reasonable owner would do given thelocation and nature of the land

ii. You have to enter onto the property and then use itas a true owner would use it

1. It depends on the property what would anormal owner use this property for?

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2. Whatever a normal owner would do, is whatyou would have to do

3. Why do you have to establish entry?a. It triggers the statute of limitationsb. It gives notice

iii. Exclusive you have to exclude the neighbors to theextent that you are establishing some claim; youarent sharing

1. You have to establish that you are making anexclusive claim to the property

2. The true owner would have to use it as his ownto shop adverse possession

k. Mannillo v. Gorskii. Sources

1. Comes in most states from statutes oflimitation for recover of property combinedwith case law

ii. Purposes1. To quiet titles

2. Tendency is toward short periodsiii. Elements for adverse possession (typical)

established at common law1. Actual entry producing exclusive possession

that is:a. Open and notoriousb. Adverse or hostile under claim of rightc. Continuous & uninterrupted for the

statutory periodiv. General rule of thumb

1. Do what a reasonable person would dov. Adverseness

1. Objective test: A uses the land as an ownerwould, w/o true owners permission

2. Good faith test: A believes she has a rightfulclaim

3. Aggressive trespass: A knows she has norightful claim and intends to adversely possessit

vi. Encroachment doctrines1. Doctrine of agreed boundaries2. Doctrine of acquiescence3. Doctrine of estoppel

vii. When we are talking about an encroachment, theencroacher has to knowingly go over the line

1. Disadvantagesa. Rewards those who encroach property

purposefullyb. You might be inclined to lie to the court

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c. Setting a rule that encourages lying tothe court, the court is not thrilled withthis

viii. Open and notorious issue1. Obviousness and notoriousness is a problem

with encroachments2. The court requires (limited to encroachments

upon the boundaries) land owner has to have

actual knowledgea. In essence we arent going to start the

statute until then3. The court with respect to hostility, said that

subjective standards were too difficult todetermine

4. For openness and notoriousness the courtsubstituted a subjective test

a. When the owner gained actualknowledge

ix. Mistaken improvers

1. If the encroachment is innocenta. Order conveyance of the land at FMV to

the improver Orb. Give the landowner the option to buy the

improvement at FMVc. If encroachment is trivial, court may give

no reliefd. BUT if its substantial, court may order

removal in spite of improvers good faith2. If the encroachment is intentional, most courts

will order removal no matter how costlyx. General rule about unrecorded possession title

1. Anyone who buys Bs property will take title forthe 3 feet that is adversely possessed of Asproperty

2. You should have the land surveyed when youbuy land

3. General rule if you are going to buy propertyyou are on inquiry notice you have a duty tofind out what is going on and if you dont youmight not get title if some of your property isadversely possessed

a. Some states require that you have to paytaxes to adversely possess property

l. Notes, Questions and Problemsi. The court in Mannillo says that in the case of minor

encroachments, the owner of the land must haveactual knowledge thereof in order for the adverseclaimant to satisfy the notoriety requirement

ii. Kline v. Kramer

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1. The doctrine of agreed boundaries providesthat if there is uncertainty between neighborsas to the boundary line, an oral agreement tosettle the matter is enforceable if theneighbors subsequently accept the line for along period of time

a. Here we are assuming that the neighborshave talked to each other and agreed on

something2. The doctrine of acquiescence provides that

long acquiescence though perhaps for aperiod of time shorter than the statute oflimitations is evidence of an agreementbetween the parties fixing the boundary line

a. Only different from agreed boundaries isthe neighbors havent talked to eachother. They have agreed through theiractions

3. The doctrine of estoppel comes into play when

one neighbor makes representations about (orengages in conduct that tends to indicate) thelocation of a common boundary, and the otherneighbor then changes her position in relianceon the representations or conduct

a. The first neighbor is estopped to denythe validity of his statements or acts

b. Estoppel has been applied when oneneighbor remains silent in the face ofexpenditures by another that suggest thelatters notion of the boundarys location

i. When Joe sees Alice building theaddition but doesnt stop her or sayanything

iii. The modern tendency, as Manillo indicates, is to easethe plight of innocent improvers in that case, byforcing a conveyance (at market value) of land fromthe owner or the improver

1. Only if this wont seriously burden/harm thetrue owners

2. A variation is to give the landowner the optionto buy the improvement

a. This is what the court ends up deciding inthis case.

2. The Mechanics of Adverse Possessiona. Howard v. Kunto

i. A claim of adverse possession is not defeatedbecause the physical use of the premises isrestricted to summer occupancy

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1. This is continuous and exclusive enough tohave a claim of adverse possession

2. If this is a summer home and you use it duringthe summer then you have title

ii. The Kuntos satisfy the statute because of the tackingiii. What do you have to show? Privity

1. Privity there has been some sort of legalrelationship between the prior owners and the

current owners and this property2. We have legal relationships to this property all

the way down the linea. And if you have privity you can tack the

periods of possession together3. Therefore the Kuntos have privity

iv. Was the possession open and notorious?1. The general rule is that you have to do a

survey for purposes of real world practice2. Could you argue that their possession was not

open and notorious?

a. If it was open and notorious that theywere there, the deed was the hidden part

v. Privity requires a voluntary transfer therefore B hasnot been there long enough

vi. You have to have privity between the adversepossessors; if there is no privity then you cant tack

1. If A had voluntarily left then the statute startsover

a. If he is kicked off by the true owner thenhe would have to get back on the landand start over

vii. General principle you have to enter against theowner to make a case

1. You must have privity of tacking if multipleowners

2. Privity is.a. All that is required is transferred

possessionb. You must have voluntarily left the

property for privity to workviii. Life estates and remainders you can convey

property to someone for their life only and then haveit go to someone else after they die

1. The person who takes possession after the lifetenant is a remainderman

ix. Main rule once you enter against the owner of theproperty then subsequent transfers of the propertydo not affect the running of the statute of limitations

1. You have to enter against all the owners of alegal interest in land

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x. When land is adversely possess by a series of peopleno one of whom occupies the land for the statutoryperiod, though all of them taken together do

xi. Disabilities1. In every state the statute of limitations is

extended if specified disabilities are present2. A disability is immaterial unless it existed at

the time when the cause of action accrued.

And after the words, such person you shouldinsert, as a result of judicial construction, thewords or anyone claiming from, by, or undersuch person

3. The running of the statute will be tolled incertain situations where the owner has adisability

4. At the time A takes adverse possession theowner has to be a minor, insane, or imprisoned

a. Disability has to exist at the time of theadverse possessor enters.

b. It is only the first disability that matters5. See problems at pg. 143

xii. Personal property1. It is possible to adversely possess personal

property with the same elements of land butthe period for the statute of limitations to run isusually shorter

a. But a thief cannot be an adversepossessor

b. The adverse possession would mostlikely occur when an innocent partypurchases in good faith the propertyfrom the thief

i. Normally the statute beginsrunning when the good faithpossessors takes possession

ii. Some states though say that thestatute doesnt start running untilthe original owner gains knowledgeof who has the property who theadverse possessor/good faith buyeris

c. Notable exceptions with respect toNative American artifacts

i. You cannot adversely possessNative American artifacts

ii. The Native American GravesProtection and Repatriation Act of1990 title by adverse possessiondoes not give the possessor a

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right of possession under theRepatriation Act

xiii. Adverse possession against the government1. Adverse possession does not run against the

government. The state owns its land in trustfor all the people, who should not lose the landbecause of the negligence of a few stateofficers or employees

2. A few permit adverse possession againstgovernment land on the same terms as againstprivate land. Others permit it only ifpossession continues for a period much longerthan that applied in the case of private lands.Still others permit it only against governmentlands held in a proprietary.

iii. Acquisition by Gift1. What is a gift?

a. Transfer of property without consideration orcompensation, that must be voluntary and you have to

give some immediate effect to the doneeb. Immediate voluntary transfer of property without

considerationc. Terms

i. Donor person giving the giftii. Donee person getting the gift

d. 2 types of giftsi. Causa mortis

1. The donor expects to die immediately; one ofthe parties anticipates dying in the near futureand if he doesnt it can be revoked (donoranticipates imminent death)

2. The standard rule is that the gift isautomatically revoked if the donor doesnt die(revocable)

3. Death has to be imminent it can be weeks oreven months ahead but not Im going to diesomeday

4. It cannot be made in advance of suicide5. It is a substitute for a will6. If the donee is already in possession of the

property, there must be a redelivery to effect avalid gift causa mortis but not if the gift is intervivos

7. The modern trend is to enforce the decedentsintent even if there is evidence of some failureto comply with the wills act formalities, so longas there is clear and convincing evidence ofdonative intent

ii. Inter vivos

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1. 2 living parties neither expecting to dieimmediately

2. Irrevocable when madee. Elements of a gift

i. Delivery1. To transfer property you must make a physical

delivery of the gift2. Requires some kind of symbolic transfer

requires subjective acts3. 3 types of delivery

a. Actual handed overi. Some kinds of things you cant

actually hand overii. Some things are not handable

because they arent tangibleb. Constructive

i. Handing over a key or some objectthat will open up access to thesubject matter of the gift

ii. Key will allow you to open theactual object

iii. Hand over something that givesyou access and control to the thingbeing given

c. Symbolici. Handing over something symbolic

of the property givenii. Usually a writingiii. Keys can be symbolic as well as

constructived. General rule if you can hand it over you

should; you should make actual deliveryif you can

ii. Intent to make presently effective gift1. Intention can be established by oral evidence,

by a writing or inferred from action of donor2. It has to be meant to take effect presently,

cant be meant to take effect in the futurea. Has to have present effectb. Engagement rings

i. Current rule is that there is animplied condition that the marriagehappens and the court wont giveeffect to the gift if that doesnthappen and the donor gets the giftback

iii. Acceptance1. If the gift has value it is presumed that you

accept it

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2. The law has long required that to make a gift of personalproperty, the donor must transfer possession to the donee withthe manifested intention to make a gift to the donee

a. Both intention and delivery must be presentb. Intention to make a gift may be shown by oral evidence,

delivery requires objective acts3. If manual delivery is not practicable because of the size or

weight of the object, or its inaccessibility, constructive or

symbolic delivery may be permitted.a. Constructive delivery is handing over a key or some object

that will open access to the subject matter of the of the giftb. Symbolic delivery is handing over something symbolic of

the property given4. The traditional rule of gifts is: if an object can be handed over it

should be5. Scherer v. Hyland

a. The court stated that it would find a constructive deliveryadequate when the evidence of donative intent isconcrete and undisputed, when there is every indication

that the donor intended to make a present transfer of thesubject matter of the gift, and when the steps taken by thedonor to effect such a transfer must have been deemed bythe donor as sufficient to pass the donors interest to thedonee

b. Some states have statutes providing that symbolic deliveryby a writing is always permitted.

6. Newman v. Bosta. The court is of the opinion that the bureau and any other

article of furniture, locked and unlocked by any of the keysgiven to the plaintiff, did pass and she became the ownerthereof

i. Only the stuff her keys will unlockb. The furniture in her room were inter vivos gifts they were

given during her lifetimec. The gift he makes on his death bed is a causa mortis giftd. If Van Pelt had lived this gift would have been revoked

7. Gruen v. Gruena. There is not any reason to require a donor making a gift of

a remainder interest in a chattel to physically deliver thechattel into the donees hands only to have the doneeredeliver it to the donor

i. They say this evidence is no better than the letters, itis a ridiculous formality

ii. The painting is not actually changing hands, it is thefuture interests that are changing hands

iii. What if Victor had just said orally, Im keeping a lifeestate and you get a remainder interest?

1. This would not be enough, you have to havethe letters to show the symbolic delivery

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iv. This is the more modern approach we know whatVictor wanted and we are going to bend the rules alittle bit to make sure that his wishes are carried out

b. Acceptancei. Because plaintiff did not rely on this presumption

alone but also presented clear and convincing proofof his acceptance of a remainder interest in the Klimtpainting by evidence that he had made several

contemporaneous statements acknowledging the giftto his friends and associates, even showing some ofthem his fathers gift letter, and that he had retainedboth letters for over 17 years to verify the gift afterhis father died

1. This was presumed acceptancec. If Victor had wanted to give Michael the complete

ownership of the painting and not reserve a life estate,could he have done so by a letter sent to Michael atHarvard?

i. No he would have to deliver the painting to Michael

1. This would have been a present interest andmore than likely the court would have said thatVictor would have had to make a presentinterest

d. I give you the Klimt when I die Would this be a validlifetime gift? It would not. The letter is a will. It shows nointention to give Michael any rights now, but only whenVictor dies. As a will, the instrument is not valid unlessproperly executed as a will, with witnesses.

i. Here all he has done is say Im going to give you thiswhen I die, he is trying to substitute for a will but it isnot valid

ii. Michael has no legally recognizable interest heree. I give you the Klimt painting, reserving possession for my

life this gives Michael a present ownership interest in thepainting, with possession postponed until Victors death.

i. This being a present interest Victor would have tomake actual delivery

ii. But if this was oral this wouldnt be symbolic theletters show the symbolic delivery

II. Estates Freeholdsa. Possessory Estates

i. Up from Feudalism1. All land titles ultimately come from the crown

a. Feudal pyramid king, tenants in chief, knights (lords)peasants

i. The people below give the king things or duties inorder to obtain title, and he also provides protectionfor people reporting up the chain

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1. All the possessors of the land below aretenants and do not own the land

ii. Everyone in this system is sort of a tenantiii. Everyone at one level is sort of a lord to the ones

belowiv. Cannot pass property on without the kings

permission2. Creation of estates

a. Deedb. Trustc. Willd. Intestate succession

3. Classifying estatesa. Freehold? Nonfreehold? (present estates)

i. Now these are landlord tenant relationshipsii. Freehold

1. Fee simple lasts forever2. Fee tail lasts until the blood line runs out3. Life estate lasts until the death of the current

possessoriii. Nonfreehold estates, not true possession but a pretty

broad right of possession1. Can exclude others from the land but cannot

create waste.ii. The Fee Simple

1. A fee simple may endure forever; a life estate, for the life of theperson; a term of years, for some period of time measured bythe calendar

2. Fee simple absolutea. You cannot freely convey your property, by will, in

contestacyb. Most common kind of land ownershipc. What we are generally think of as owning landd. How to create a fee simple absolute

i. to A and his heirsii. to A gives A fee simple absolute ownership; title

and possession1. Right to current possession, right to transfer

titleiii. and his heirs get nothing

1. A gets a fee simple absolutee. Preferredf. Right to use, exclude, transferg. No future interesth. Fee simple: intestate succession

i. Issueii. Ancestorsiii. Collaterals

i. If the words dont follow the rule, A gets a life estate

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3. Inheritance of a Fee Simplea. Heirs

i. If a person dies intestate (without a will) thedecedents real property descends to his or her heirs

1. Heirs are persons who survive the decedentand are designated as intestate successorsunder the states statute of descent

a. People who exist if you dont leave a will

b. We are going to restrict this to peoplewho exist when you dont have a will

2. A living person has no heirs (yet)a. We dont know who the heirs are until

the person they are going to inherit fromis dead

3. If there is a conveyance to the heirs of A, aliving person we do not know who will takeuntil A dies and As heirs are ascertained

a. You dont know who is going topredecease them

ii. A spouse was not an heir at common law1. Today in all states the surviving spouse is

designated as an intestate successor of someshare in the decedents land; the size of theshare often depends on who else survives

iii. Classes of kindred are usually preferred as heirs inthe following manner: first issue, then parents; and ifnone, then collaterals

b. Issue first people to collecti. If the decedent leaves issue, they take to the

exclusion of all other kindred1. The word issue is synonymous with

descendants2. Issue does not refer to children only but

includes further descendants3. The distribution is made among the decedents

issue per stirpes (by the stocks), whichgenerally means that if any child of thedecedent dies before the decedent leavingchildren who survive the decedent, such childsshare goes to his or her children by right ofrepresentation

ii. Children share equallyiii. Until 1925, the rule of primogeniture applied to most

of the land in England.1. The eldest son inherited the land.2. Children now share equally

iv. A child born out of wedlock was filius nullius, thechild of no one, and could inherit from neithermother nor father at common law

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1. Today a child born out of wedlock inherits fromthe mother and, if paternity is acknowledged orproved, from the father

2. Today, in American states, adopted childreninherit from their adoptive parents andsometimes from their natural parents as well.

c. Ancestorsi. By statute parents usually take as heirs if the

decedent leaves no issueii. Parents

d. Collateralsi. All persons related by blood to the decedent who are

neither descendants nor ancestors are collateral kinii. This includes brothers, sisters, nephews, nieces,

uncles aunts and cousinsiii. If a decedent leaves no spouse, no issue, and no

parents, the decedents brothers and sisters (andtheir descendants by representation) take in alljurisdictions

e. Escheati. If a person died intestate without any heirs, the

persons real property escheated to the overlord infeudal times

ii. Now such property escheats to the state where theproperty is located

iii. If no next of kin could be found, the personalproperty of an intestate went to the crown under theprinciple of bona vacantia (goods without an answer)

iv. Today such property goes to the statev. If someone dies without any heirs, then the land

escheats to the statevi. But if you have no heirs and a will the state does not

get your land4. At early common law a fee simple was created by the grantor

conveying land to A and his [or her] heirsa. The words and his heirs inserted in a conveyance,

indicated that As interest in the land was inheritable by hisheirs, but such words did not give As prospective heirs anyinterest in the land

b. As son would inherit the land from A if A still owned theland at his death, but As son had no interest during Aslifetime

c. and his heirs as words of limitation, which define theestate granted to A, with a fee simple

d. the words to A are words of purchase, identifying A asthe grantee, and the words and his heirs are words oflimitation indicating that A takes a fee simple

e. But it is no longer necessary to put words of inheritance ina deed in any state

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f. Statutes and judicial decisions now provide that a grantoris presumed, in the absence of words indicating otherwise,to transfer the grantors entire estate

iii. The Fee Tail1. Created to keep land in the family2. Basically an estate that will descend to lineal descendants of the

grantee from generation to generation3. Magic language to A and the heirs of his body

4. Can possess and use, but not waste5. Could transfer only life possession now can covert to fee simple

by deed6. Cannot pass by will7. Accompanied by a reversion or a remainder8. Only used in Delaware, Maine, Maryland, Rhode Island9. A fee tail, like the fee simple conditional, is an estate in land

created by a conveyance to A and the heirs of his bodya. The fee tail descends to As lineal descendants (heirs of the

body) generation after generation, and it expires when theoriginal tenant in fee tail, A, and all of As descendants are

deadb. When As bloodline runs out and the fee tail ends, the land

will revert to the grantor or the grantors heirs by way ofreversion or, if specified in the instrument, will go to someother branch of the family

c. Every fee tail has a reversion or a remainder after it10. Is there any reason we should study the fee tail?

a. If no one in Delaware, Maine, Mass. And Rhode Island thenwe dont have to spend that much time on this

b. Just know what it is and what happens (the highlightedstuff) for the exam

11. Today the fee tail can only be created in Delaware, Maine,Mass, and Rhode Island

a. In these states, a fee tail tenant can convert a fee tail intoa fee simple by a deed executed during life, but cannot barthe entail by will

b. The fee tail has been replaced by the life estate as adevice for controlling inheritance

iv. The Life Estate1. Words of creation to A for life

a. Life tenant can convey his life estate to someone elsei. This is a life estate based on the life of the original

grantorb. How many estates (interests) have to be created by a life

estate?i. 2 life estate and the remainderii. A gets a life estate, B gets a fee simple absolute

c. Can possess or use, but not wasted. Can transfere. Accompanied by a reversion or remainder

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i. Problems with transferring life estate1. Dont know how much to pay them and you

lose it when the grantor diesf. Today most life estates are created in trustg. A conveyance to A for life gives A a life estate that lasts

for the duration of As lifei. A can transfer his life estate to B, in which case B has

a life estate pur autre vie that is, an estate that is

measure by As life span, not Bsii. If B dies during As lifetime, the life estate passes to

Bs heirs and devisees until A diesiii. Every life estate is followed by a future interest

either a reversion in the transferor or a remainder ina transferee

2. White v. Browna. Holographic will handwritten willb. Unless you expressly give instruction that something is

more than a fee simple absolute then it will be determinedto be a fee simple absolute

c. Because the intention of the testator is to be ascertainedfrom the language of the entire instrument when read inthe light of surrounding circumstances

3. The objections to restraints on alienation are mainly foura. First such restraints make property unmarketableb. Second, restraints tend to perpetrate the concentration of

wealth making it impossible for the owner to sell propertyand consume the proceeds of sale

c. Third, restraints discourage improvements on landd. Fourth, restraints prevent the owners creditors from

reaching the property, working hardship on creditors whorely on the owners enjoyment of the property in extendingcredit

e. Restraints on alienation have traditionally been classifiedas disabling restraints, forfeiture restraints, and promissoryrestraints

i. A disabling restraint withholds from the grantee thepower of transferring his interest

1. This is the type of restraint Lide tried to leave2. We dont allow this on fee simple absolute3. We want land to be alienable and for people to

be able to transfer itii. A forfeiture restraint provides that if the grantee

attempts to transfer his interest, it is forfeited toanother person

iii. A promissory restraint provides that the granteepromises not to transfer his interest

iv. A promissory restraint, if valid, is enforceable by thecontract remedies of damages or an injunction

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f. The restatement (2nd) of property, donative transfers ch. 4(1983), generally treats all these restraints alike when theyare imposed on a fee simple

i. The Restatement provides that an absolute on a feesimple is void

ii. The Restatement provides that a partial restraint isvalid if, under all the circumstances of the case, therestraint to be reasonable in purpose, effect, and

duration4. Waste

a. The law of waste can become relevant whenever two ormore persons have rights to possess property at the sametime or consecutively

b. The central idea of the waste concept is that A should notbe able to use the property in a manner that unreasonablyinterferes with the expectation of B

c. The law of waste uses property that fail to maximize thepropertys value

d. Two general categories

i. Affirmative waste arising from voluntary acts1. Liability results from injurious acts that have

more than trivial affectsa. Doing something that substantially

impairs the property2. Injurious has meant acts that substantially

reduce the value of the property in question but with some exceptions

3. Special rules with minerals and timbera. If you were doing it before or if it would

be a good way to manage the landii. Permissive waste arising from a failure to act

1. Essentially a question of negligence failure totake reasonable care of the property

e. Melms v. Pabst Brewing Co. established that life tenantscan make substantial alterations or even demolish astructure when conditions change, provided the value ofthe remainder is not diminished by these actions

v. Leasehold Estates1. Leasehold estates are nonfreehold possessory estates

a. Leasehold tenants do not have seisinb. The freeholder (landlord) as still seised of the land even

after he had granted a term of years and given up physicalpossession to the leasing tenant

c. When a lease is involved, the landlord holds seisin; thetenant merely has possession

d. Modern leasehold estates include the term of years, theperiodic tenancy, and the tenancy at will

e. The term of years was the most important of thesevi. Defeasible Estates

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1. Fee Simple Defeasiblea. To categorize defeasible fees must look at the language of

the grant and who holds the future interestb. A defeasible fee simple one that may last forever or may

come to an end upon the happening of an event in thefuture

c. Two types of fee simple defeasiblei. Fee simple determinable fee simple so limited that

it will end automatically when a stated eventhappens (FSD)

1. Sometimes called a fee simple on speciallimitation, indicating that the fee simple willexpire by this limitation if it occurs

2. FSD is created by language connoting that thetransferor is conveying a fee simple only untilan even happens

3. Words that merely state the motive of thetransferor in making a gift do not create adeterminable fee

4. Every FSD is accompanied by a future interesta. In the ordinary case the future is retained

by the transformer, O in the aboveexample, or his heirs, and called apossibility of reverter

b. The possibility of reverter may beexpressly retained or, as in the aboveexample, arise by operation of law

c. It arises by operation of law because Ohas transferred less than his entireinterest in Blackacre when he creates adeterminable fee in the school board

5. Includes words of durationa. To A and her heirs so long as.b. To school board, its successors and

assigns while used for schoolpurposes.

6. Possibility of reverter7. Ends automatically when condition occurs8. Two interests

ii. Fee simple subject to condition subsequent a feesimple that does not automatically terminate butmay be cut short or divested at the transferorselection when a stated condition happens (FSSCS)

1. Created by a conveyance of a fee simple,followed by language providing that the feesimple may be divested by the transferor if aspecified event happens

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2. The future interest retained by the transferorto divest a FSSCS is called a right of entry (alsoknown as a power of termination)

a. It may be expressly retained or it may beimplied if the words of the instrument arereasonably susceptible to theinterpretation that this type of forfeitureestate was contemplated by the parties

3. Includes words of conditiona. To A and his heirs, but if.b. To school board, its successors and

assigns provided that.4. Right of entry5. Does not end automatically when condition

occurs holder of right of entry must exercisethe right to terminate the FSSCS

iii. Essential difference between FSD and FSSCS1. The Boards fee simple may be cut short if O

elects to exercise the right of entry, but it is

not automatically terminated when the statedevent happens

a. Unless and until entry is made, the feesimple continues

2. The difference between language creating adeterminable fee and language creating aFSSCS is extremely subtle, but millions ofdollars have turned on this difference inlanguage

3. An FSSCS is not automatic, the grantor willhave to do something to get the land back

d. Mahrenholz v. County Board of School Trusteesi. The court thinks this is a fee simple determinable

1. Because it says only that it is a FSDii. Consequences of a classification of FSSCS and FSD

1. Transferability then could not transfer duringlife, but now you can

2. Adverse possession and when the statute oflimitations starts to run

a. FSD SOL starts running when thecondition is broken

i. Here if condition was broken schoolcould have obtained adversepossession

b. FSSCS SOL shouldnt start running untilgrantor tries to enter

3. Liability for rent assuming condition had beenbroken and it had been a FSD the school wouldhave started to owe rent when conditionbroken

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a. FSSCS dont start to owe rent untilgrantor tries to enter

e. Consequences that might result from classification as a feesimple determinable with a possibility of reverter ratherthan a fee simple subject to a right of entry

i. The most important situation relates totransferability of the future interest the problem inthe Mahrenholz case

ii. At common law a possibility of reverter and a right ofentry descended to heirs upon the death of theowner of such interests

1. Neither interest was transferable during life2. A possibility of reverter was not transferable

during life because it was not thought of as aproperty interest you could transfer but as amere possibility of becoming an estate

3. A right of entry was not transferable because ittoo was not a thing; rather it was thought ofa special right in the grantor to forfeit the

grantees estateiii. In most American states the possibility of reverter

and the right of entry, like other property interests,are transferable inter vivos

1. This is the modern trend2. The common law rule the interests are not

transferable inter vivos except to the owner ofthe possessory fee (called a release)

iv. In another situation where different legalconsequences might flow from the fact that thepossibility of reverter becomes possessoryautomatically whereas a right of entry requires apositive act by the grantor to terminate the feesimple, adverse possession is involved

1. The statute of limitations starts running on thepossibility of reverter as soon as thedeterminable fee ends

2. In many states the statute begins to run on theright of entry when the condition occurs

f. Conditions imposed by the grantor in creating defeasiblefees must be distinguished from covenants (promises)made by a grantee

i. A condition is much more onerous than a covenantii. If a condition is breached, the land is or may be

forfeited to the holder of the future interestiii. A covenant is a promise by the grantee that a

specified act will or will not be performediv. If a covenant is breached, the promisee may sue for

an injunction or damagesb. Future Interests

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1. Future interests, which confer rights to the enjoyment ofproperty at a future time

2. Future interests recognized in our legal system are:a. Interests retained by the transferor, known as:

i. Reversionii. Possibility of reverteriii. Right of entry (also known as power of termination)

b. Interests created in a transferee, known as:

i. Vested remainderii. Contingent remainderiii. Executory interest

3. Future interest gives legal rights to its owner4. Although future interest does not entitle its owner to present

possession, it is a presently existing interest that may becomepossessory in the future

5. Future interest the right to enjoy property at some future timea. Created by a deed, trust, or willb. Interests retained by transferor

6. It is a real interest, but it is just not possessory

ii. Future Interests in the Transferor1. Reversion

a. The earliest future interest to develop was a reversioni. If O, a fee simple owner, granted the land to A for

life, the land would revert (come back) to O at Asdeath. Os right to future possession is called areversion. If O dies during As life, Os reversionpasses under his will or to his heirs, and at As deathwhoever owns the reversion is entitled to possessionof the land

ii. A reversion is the interest remaining in the grantor,or in the successor in interest of a testator, whotransfers a vested estate of a lesser quantum thanthat of the vested estate which he has.

iii. The hierarchy of estates determines what is a lesserestate. The fee simple is a greater estate than a feetail, which is a greater estate than a life estate,which is a greater estate than the leasehold estates.

iv. Because reversions result from the hierarchy ofestates, they are thought of as the remnant of anestate that has not entirely passed away from thetransferor

1. Hence all reversions are retained interests,which remain vested in the transferor

v. When a reversion is retained, it may or may not becertain to become possessory in the future

1. Example 1a. If O conveys to A for life, what happens

when A dies?i. It reverts back to O

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2. Example 2vi. At common law a reversion was transferable during

life and descendible and devisable at death. Itremains so today

vii. Example1. O to A for life2. L to T for 2 years3. O to A for life, then to B and her heirs if B

survives A2. Possibility of Reverter

a. A possibility of reverter arises when an owner carves out ofhis estates a determinable estate of the same quantum

i. A possibility of reverter can be retained when a lifetenant conveys his life estate to another,determinable on the happening of an event, but thecases, almost without exception, deal with carving afee simple determinable out of a fee simple absolute

ii. A possibility of reverter is a future interest remainingin the transferor or his heirs when a fee simple

determinable is created.3. Right of Entry

a. When an owner transfers an estate subject to conditionsubsequent and retains the power to cut short or terminatethe estate, the transferor has a right of reentry

iii. Future Interests in Transfereesa. A remainder or executory interest cannot be retained by

the transferor; these interests are created only intransferees.

i. Once created, a remainder or executory interest canbe transferred back to the grantor, but the nameoriginally given the interest does not change

b. Interests that go off to a third party, they will not go backto the grantor

c. Introductioni. The earliest form of a remainder was a future

interest in a transferee that is certain to becomepossessory upon the expiration of the prior estatecreated at the same time

1. Example: to A for life, then to B and her heirsii. In the case of the vested remainder above, the

transferor has decided at the outset who is to takethe property upon the life tenants death

1. A contingent remainder permits the transferorto let future events determine this question

iii. A remainder is a future interest that waits politelyuntil the termination of the proceeding possessoryestate, at which time the remainder moves intopossession if it is then vested.

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1. A remainder is a future interest that is capableof becoming possessory when the prior estateends.

2. If at the time the future interest is created, it isnot possible for it to become possessory uponthe termination of the prior estate, the futureinterest is not a remainder

iv. The executory interest developed to do what a

remainder cannot do: divest or cut short thepreceding interest

1. An executory interest is a future interest in atransferee that can take effect only bydivesting another interest

2. The difference between taking possession assoon as the prior estate ends and divesting theprior estate is the essential difference betweena remainder and an executory interest

2. Remaindersi. Go to a third party transferee

ii. Created by some instrument as prior possessoryestate

iii. Capable of becoming possessory when prior estateends naturally

1. There cannot be a time gap between a priorestate ending and the remainder

b. Vested remaindersi. A remainder is vested if (1) it is given to an

ascertained person and (2) is not subject to acondition precedent

ii. A remainder is vested if it is created in anascertained person and is ready to becomepossessory whenever and however all proceedingestates expire

iii. Given to born, ascertained personiv. Not subject to a condition precedent other than the

natural termination of the preceding estatev. Indefeasibly vested

1. Holder is born and ascertained and there is nocondition

2. To A for life, then to B and her heirsvi. Vested remainder subject to divestment

1. Born, ascertained person but2. Subject to a condition subsequent

a. Example 8:i. The condition is that B must

survive Aii. 3 grants: life estate to A, vested

remainder in a fee simple absolutefor B, and

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b. To A for life, then to B and her heirs, butif B does not survive A to C and his heirs

vii. Vested remainder subject to open1. the remainder is going to a class of people2. at least one member of class is born,

ascertained, but there may be more3. Example: To A for life, then to As children and

their heirs where A is still alive and has one

child, Bviii. About vested remainders

1. A remainder may be indefeasibly vested,meaning that the remainder is certain ofbecoming possessory in the future and cannotbe divested

a. Example 32. A remainder may be vested but not certain of

becoming possessory. It can be vested subjectto being divested if an event happens

3. A remainder created in a class of persons is

vested if one member of the class isascertained, and there is no conditionprecedent.

4. The remainder is vested subject to open orvested subject to partial divestment if later-born children are entitled to share in the gift.

a. Example 45. A remainder is contingent because its takers

are ascertained.a. Example 5

6. A remainder that is contingent because it issubject to a condition precedent.

a. Example 5b. Example 6

ix. Go to a 3rd party transfereex. Created by same instrument as prior possessory

estate.xi. Capable of becoming possessory when prior estate

ends naturally.c. Contingent remainders

i. A remainder is contingent if (1) it is given to anascertained person or (2) it is made contingent uponsome event occurring other than the naturaltermination of the preceding estates.

ii. In the latter situation the remainder is said to besubject to a condition precedent

iii. In either situation the remainder is not now ready tobecome possessory upon the expiration of thepreceding estate.

iv. Given to person who is not born or ascertained OR

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v. Contingent on some event other than the naturaltermination of the preceding estate, i.e., subject to acondition precedent.

vi. Example 51. Contingent because cannot be ascertained

until B diesvii. Example 6

1. Contingent because B has to survive A

2. It is a condition precedent because it is part ofthe grant

a. If it is written write in between thecommas

viii. Example 71. Contingent because if the remainder in B vests,

the remainder in C cannot, and vice versaa. What happens if A forfeits his life tenancy

and loses it?i. Here it would revert back to the

original grantor, O

ii. O would hold it until A dies andthen B would get the property

ix. Examples1. To A for life then to the heirs of B where B is

alive2. to A for life, then to B and her heirs if B

survives A3. To A for life, then to B and her heirs if B

survives A, and if B does not survive A to C andhis heirs

x. The nature of a remainder can change ascircumstances change

d. Fine line between a vested remainder and a contingentremainder

3. Executory interestsa. An executory interest is a future interest in a transferee

that must, in order to become possessory,i. (1) divest or cut short some interest in another

transferee (this is known as a shifting executoryinterest), or

ii. (2) divest the transferor in the future (this is knownas a springing executory interest)

b. Executory interests are part of the fee simple familyi. In this case when the condition occurs the land is not

going back to the grantor it is going to a third partyc. Executory interests for most purposes are now treated like

remaindersi. They dont make the distinction so much now

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d. What are called executory interests today are intereststhat would have been void at law prior to the statute ofuses because they violated the two rules stated above.

e. The effect of the Statute of uses was to permit the creationof a new estate: a fee simple subject to an executorylimitation.

i. This is a fee simple that, upon the happening of astated event, is automatically divested by an

executory interest in a transferee.ii. Such a fee simple can be created either in

possession or in remainder1. Example 142. Example 15

f. Executory interests are ordinarily treated as contingentinterests, because they are subject to a conditionprecedent and do not vest until they become possessory.

g. Back defeasible feesi. Executory interests might be created to follow those

interests, rather than a possibility of reverter or a

right of entry.ii. A possibility of reverter or a right of entry can be

created only in the transferor; an executory interestcan be created only in a transferee

iii. If the transferor wants to create a future interest in atransferee after a defeasible fee, it will necessarily bean executory interest.

1. Example 162. Example 17

c. Co-Ownershipi. Common Law Concurrent Interests

1. Types, Characteristics, Creationa. Tenancy in common

i. Have separate but undivided interests in theproperty; the interest of each is descendible and maybe conveyed by deed or will

ii. There are no survivorship rights between tenants incommon

iii. Each tenant in common owns an undivided share ofthe whole

1. They each have a complete ownership right insome fractional share but they have rights topossession of the entire property, undivided.

iv. Both parties have a right to possessionv. Can be transferred by deed or will

1. Each cotenant can convey their portion withoutpermission of the other cotenants

vi. There arent any magic words1. All you have to do is convey or devise2. This is the default

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3. Property passed on by intestate succession totwo or more people

vii. What happens when one of the tenants dies?1. The interest passes to whoever would be

entitled to it through will, etc.viii. Undivided fractional shareix. Possessionx. Freely alienable

xi. No right of survivorship1. Rights both parties have a right to possession

a. Each entitled to the entire propertyxii. Partition availablexiii. Presumption in favor of it.

b. Joint tenancyi. Have the right of survivorship, the outstanding

characteristic of a joint tenancy1. When one dies the survivor takes all2. Each owns the undivided whole of the

property; this being so, when one joint tenant

dies nothing passes to the surviving jointtenant or tenants

ii. By a common law fiction, joint tenants together areregarded as a single owner; each tenant is seised permy et per tout (by the share or moiety and by thewhole).

1. When book says not transferable, you cantransfer it but it is not a joint tenancy anymore;it becomes a tenancy in common

iii. Undivided fractional shareiv. Right of survivorshipv. Inter vivos transfer severs itvi. Cannot transfer by will or intestacyvii. Partition availableviii. Have to have four unities essential to joint tenancy

1. Time the interest of each joint tenant must beacquired or vest at the same time.

2. Title all joint tenancy must acquire title bythe same instrument or by a joint adversepossession. A joint tenancy can never arise byintestate successor or other act of law.

3. Interest all must have equal undivided sharesand identical interests measured by duration.

a. Courts dont require them to have toabsolutely equal.

4. Possession each must have a right topossession of the whole. After a joint tenancyis created, however, one joint tenant canvoluntarily give exclusive possession to theother joint tenant. (The unity of possession is

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essential to a tenancy in common as well;none, of the other three unities is.)

ix. If the four unities do not exist, a joint tenancy is notcreated; instead, a tenancy in common is created.

x. If the four unities exist at the time the joint tenancyis created but are later severed, the joint tenancyturns into a tenancy in common when the unitiescease to exist.

1. Joint tenants can change their interests into atenancy in common by a mutual agreementdestroying one of the four unities

2. Any one joint tenant can convert a jointtenancy into a tenancy in common unilaterallyby conveying his interest to a third party; thissevers the joint tenancy as between the thirdparty and his cotenants because it destroysone or more of the unities.

3. Which unities are destroyed if a joint tenantsells part of the land?

a. Titleb. Time someone will have an interest

that was not created at the same time asthe other owners.

xi. The point of creating joint tenancies is to avoidprobate

xii. Joint tenancy is an estate planning tool because itlets the property go directly to the survivor withouthaving to go through probate

1. But it does get you out of estate taxesxiii. Variation in states as to the magic words

1. But generally, to A and B as joint tenants incommon, will work.

xiv. Judicial partition a court will either physicallypartition the tract of land into separately owned partsor order the land sold and divide the proceedsamong the tenants if they cant agree on what to dowith the property

1. Partition in kind physically divide the property2. Partition in sale sale the property and divide

up the proceedsxv. For their joint lives is not good enough to establish a

joint tenancyxvi. Avoidance of probate

1. A joint tenancy is the practical equivalent of awill but at the joint tenants death probate ofthe property is avoided

2. Probate is the judicial supervision of theadministration of the decedents property thatpasses others at the decedents death: the

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probate court appoints an administrator orexecutor who collects the decedents assets,pays debts and taxes, and distributes orchanges title to the property to thebeneficiaries.

3. Probate is costly4. A joint tenancy avoids probate because no

interest passes on the joint tenants death.

5. Under the theory of joint tenancy, thedecedents interest vanishes at death, and thesurvivors ownership of the whole continueswithout the decedents participation

6. A joint tenancy cannot pass her interest in ajoint tenancy by will.

a. Inasmuch as the join tenants interestceases at death, a joint tenant has nointerest that can pass by will.

7. Congress has provided that when a joint tenantdies, his share of the jointly held property is

subject to federal estate taxationxvii. Unequal shares

1. One of the four unities of a joint tenancy isequal shares

2. It is increasingly ignored by courts in situationswhere it

3. If A and B take title as joint tenants and Afurnishes one-third of the purchase price and Btwo-thirds, and the parties intend the proceedsfrom sale of the joint tenancy property to bedivided one-third and two-thirds if sold duringtheir joint lives, a joint tenancy is created, and,if the property is sold, the court will divide theproceeds according to their intent

4. In most states joint and survivor bank accountsare owned by the parties during life inproportion to the net contributions by each.

c. The tenancy by the entiretyi. Can be created only in husband and wifeii. The tenancy by the entirety is like the joint tenancy

in that the four unites (plus a fifth the unity ofmarriage) are required, and the surviving tenant hasthe right of survivorship

iii. Husband and wife are considered to hold as oneperson at common law

1. They cannot separately convey even half of it;they cannot at alone for a partition.

2. They do not hold by the moieties; rather, bothare seised of the entirety, per tout et non permy.

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iv. Neither husband nor wife, acting alone, has the rightto judicial partition of property held as tenants by theentirety

1. Divorce terminates the tenancy by the entiretybecause it terminates the marriage, which is arequisite for a tenancy by the entirety; absentsome agreement to the contrary, the partiesusually become tenants in common

v. Right of survivorshipvi. Not alienable except by bothvii. Partition not allowedviii. Terminated by divorce or deathix. One party cannot unilaterally do something with one

part of the property1. They are considered to have to act as one

x. Minority kind of interest few states still have thesexi. Most states say that creditors cannot go after one

partys property1. Husband has a gambling problem but creditors

cannot go after this property.xii. Must be married at the time they took title to have a

tenancy by entirety2. Severance of Joint Tenancies

a. Title theoryi. Mortgage severs because title passes to mortgagee

destroying the unities (minority)b. Lien theory

i. Mortgage does not sever because mortgagee justgets a lien, title does no change hands (majority)

c. Riddle v. Harmoni. Problem is that she didnt go through a straw. She

conveyed directly to herselfii. You cant have unities of time and title and this is the

reason for the strawiii. The original title holder is still holding the title.iv. An undisputable right of each joint tenant is the

power to convey his or her separate estate by way ofgift or otherwise without the knowledge or consent ofthe other joint tenant and to thereby terminate thejoint tenancy.

1. If a joint tenant conveys to a stranger and thatperson reconveys to the same tenant, norevival of the joint tenancy occurs because theunities were destroyed.

2. The former joint tenants become tenants incommon

v. California became a pioneer in allowing the creationof a joint tenancy by direct transfer

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1. Under authority of Civil code 683, a jointtenancy conveyance may be made from a soleowner to himself and others, or from jointowners to themselves and others as specifiedin the code

vi. A universal right of each joint tenant is the power toaffect a severance and destroy the right ofsurvivorship by conveyance of his or her joint

tenancy interest to another person.vii. Courts says more efficient for the legal system to not

have to have the middle person, the straw1. So they are going to allow her to sever the joint

tenancy by conveying to herselfviii. The court does not address whether the joint tenant

actually CAN do itix. This is the modern approach, that you dont have to

use a strawx. Just letting a joint tenant convey in their will, will

defeat the purpose of a joint tenancy, to avoid

probatexi. There is no notice requirement under the present law

for the other joint tenant to know about theseverance.

d. A tenancy by the entirety, which cannot be severed byunilateral action of one spouse, gives the spousesassurance that the survivor will take the property, unlessboth spouses act to destroy the survivorship rights.

e. No sufficient evidence of the order of death, UniformSimultaneous Death Act provides that one-half of theproperty is distributed as if A survived and one-half as if Bsurvived. Suppose that A and B are killed while riding in acar struck by a train. When witnesses arrive, there are nosigns of life in A; B is decapitated and blood is gushingfrom her neck in spurts.

i. No evidence of who died first, so they diedsimultaneously, therefore one-half of the property isdistributed as if A survived and one-half as if Bsurvived.

ii. If A murders B, Uniform Probate Code provides thatthe murder severs the joint tenancy and converts itinto a tenancy in common. The killer loses his rightof survivorship in the decedents share.

iii. Murderers do not get the half of the dead spousef. Harms v. Sprague

i. When any real estatesubject to an encumbrancepasses by joint tenancy with right of survivorshipthe surviving tenantto whom the realestate.passes, takes it subject to the encumbrance

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and is not entitled to have the indebtedness paidfrom other real or personal estate of the decedent.

ii. The voluntary or involuntary destruction of any of theunities by one of the joint tenants will sever the jointtenancy

iii. This court adheres to the rule that a lien on a jointtenants interest in property will not effectuate aseverance of the joint tenancy, absent the

conveyance by a deed following the expiration of aredemption period

1. If Illinois perceives a mortgage as merely a lienon the mortgagors interest in property ratherthan a conveyance of title from mortgagor tomortgagee, the execution of a mortgage by ajoint tenant, on his interest in the propertywould not destroy the unity of title and severthe joint tenancy

iv. The court went on to say that the mortgagor is theowner for every other purpose and against every

other personv. A joint tenancy is not severed when one joint tenant

executes a mortgage on his interest in the property,since the unity title has been severed.

vi. There are two different theories about what amortgage creates

1. Title theorya. Mortgage severs because title passes to

ME destroying the unities (minority)b. Old traditional view

2. Lien theorya. Mortgage does not sever because ME just

gets a lien, title does not change hands(majority)

i. The court adopts the lien theoryii. Gradual trend to this theory

vii. If joint tenancy would not have been severed thenthe other brother would have gotten the propertythrough survivorship

viii. Statute of limitations1. By this statute the court wants to preserve the

lien2. They wanted to make sure lenders get their

money back.g. A number of states have enacted in recent years providing

that divorce converts a joint tenancy between the formerhusband and wife into a tenancy in common

h. It depends on how clearly the agreement is written, youhave to be very clear in the language of the agreement tosever the tenancy.

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i. How might you make it clear?i. Agreement has to say in writing we intended jointly

to sever the right of survivorship3. Joint Tenancy Bank Accounts

a. True joint tenancy O may intend to make a present gift toA of one-half the sum deposited in addition to survivorshiprights to the whole sum on deposit

i. Payable on death O may intend to make a gift to A

only of survivorship rightsii. Conveyance O may intend that A only have power

to draw on the account to pay Os bills and not havesurvivorship rights

b. An account expressly giving A survivorship rights only is inreality a will; As name is put on the account solely for thepurpose of passing the property at death.

c. If O wants a convenience account, what O really intends isan account owned by O with a power in A to draw on theaccount during As life

i. With a joint tenancy account, the bank is safe in

paying all the money on deposit to any joint tenantor to the survivor

d. The joint tenancy account is an all-purpose accounti. The agreement signed with the bank, providing that

the account belongs to the survivor, is, in moststates, not controlling

ii. It does not determine the realities of ownershipbetween the joint tenants

e. A majority of jurisdictions holds that the surviving jointtenant takes the sum remaining on deposit in a jointaccount unless there is clear and convincing evidence thata conveyance account was intended

i. The burden of proof is placed upon personschallenging the surviving joint tenant

f. In most jurisdictions during the lifetime of the parties thepresumption is that the joint account belongs to the partiesin proportion to the net contribution of each party.

g. Either joint tenant can sever at any time and a cotenantcan sever by conveying rights to him or herself.

h. Whether a mortgage will sever a joint tenancy depends onthe mortgage theory the state follows.

4. Relations Among Concurrent Ownersa. In Swartzbaugh v. Sampson each tenant owns an equal

interest in all of the fee and each has an equal right topossession of the whole Neither a joint tenant nor atenant in common can do any act to the prejudice of thiscotenants in their estate.

i. By definition each tenant is entitled to possession ofthe entire parcel of land yet he cannot exercise that

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possession without coming into conflict with thereciprocal right of his cotenant

b. The rules governing co-ownership should also distribute ina fair manner the benefits and burdens of co-ownership.

c. Partitioni. The action is available to any joint tenant in

common; it is unavailable to tenants by the entiretyii. Can be done by voluntary agreement or if tenant in

common or joint tenancy can go to court and ask fora partition

iii. Partition in kind- divide up the land equally accordingto their shares; physically divide up the land

iv. Partition by sale sale the land and divide up theproceeds according to the shares of the parties

v. You dont have to have a specific reason to ask forpartition

vi. Delfino V. Vealencis1. It has long been the policy of this court, as well

as other courts, to favor a partition in kind over

partition in sale2. It is clear that a partition by sale should be

ordered only when two conditions are satisfied:a. (1) the physical attributes of the land are

such that a partition in kind isimpracticable or inequitable; and

b. (2) the interests of the owners wouldbetter be promoted by a partition by sale

c. Since our law has for many yearspresumed that a partition in kind wouldbe in the best interests of the owners,the burden is on the party requestingpartition by sale to demonstrate thatsuch a sale would better promote theowners interests

3. The courts remaining observations relating tothe effect of the defendants business on theprobable fair market value of the proposedresidential lots, the possible loss of buildinglots to accommodate the defendants businessand the rerouting of a proposed subdivisionroad, which may have some validity, are notdispositive of the issue.

a. It is the interests of all of the tenants incommon that the court must considerand not merely the economic gain of thecotenant, or a group of tenants.

b. The trial court failed to give dueconsideration to the fact that one of thetenants in common has been in actual

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and exclusive possession of a portion ofthe property for a substantial period oftime; that the tenant has made her homeon the property; and that she derives herlivelihood form the operation of abusiness on this portion of the property,as her family before her has for manyyears.

c. A partition by sale would force thedefendant to surrender her home and,perhaps, would jeopardize her livelihood.

4. Since the property in this case may practicablybe divided, and since the interests of allowners will better be promoted if a partition inkind is order, we conclude that the trial courterred in ordering a partition by sale, and that,under the facts as found, the defendant isentitled to partition of the property in kind.

vii. The modern practice is to decree a sale in partition

actions in a great majority of cases, either becausethe parties all wish it or because courts areconvinced that sale is the fairest method of resolvingthe conflict.

viii. In Ark Land v. Harper partition by sale, the courtnoted, can work hardship on owners unwilling to sellbecause they have emotional attachments to theland, as in the case of a homestead; money alonecannot compensate for the sentimental losses thatsale would entail.

1. The fact that the economic value of theproperty as a whole would be less if it werepartitioned in kind is relevant but notdispositive, especially in cases of longstandingownership coupled with emotional ties to theland.

ix. There is considerable evidence that partition saleshave worked to the disadvantage of poor blackfarmers who own heir property so-called becauseblack farmers, perhaps distrustful of the legalsystem, commonly die intestate.

x. Partition obviously has much to do with fair andequitable treatment of the interests of cotenants

1. The court does not necessarily take intoaccount the fact that a cotenant alreadypossesses land next to the property whenpartitioning the property

2. The courts will not play favorites among thecotenants.

d. Sharing the Benefits and Burdens of Co-Ownership

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i. Spiller v. Mackereth1. The general rule that in absence of an

agreement to pay rent or an ouster of acotenant, a cotenant in possession is not liableto his cotenants for the value of his use, andoccupation of the property.

a. Since there was no agreement to payrent, there must be evidence which

establishes an ouster before Spiller isrequired to pay rent to Mackereth.

b. Majority rule is that there is not duty fora cotenant to pay rent

c. If you take possession you have a right tobe there unless you oust one of the othercotenants

d. Encourages cotenants to use the land butincurs cost of ouster

e. Majority rule: none unless ouster occursf. Minority rule: cotenant in possession

must pay rent.2. Ouster is a conclusory word which is used

loosely in cotenancy cases to describe twodistinct fact situations for adverse possess are(1) the beginning of the running of the statuteof limitations for adverse possession and (2)the liability of an occupying cotenant for rentto other cotenants.

a. The two fact situations require differentelements of proof to support a conclusionof ouster.

b. If you do something that starts therunning of the SOL for adversepossession or something that wouldmake you liable for rent, denying theother cotenants entry and use then youwould be ousting the other cotenants

3. Adverse possession requires a finding that thepossessing cotenant asserted completeownership of the land to support a conclusionof ouster.

4. Before an occupying cotenant can be liable forrent in Alabama, he must have denied hiscotenants the right to enter.

a. Simply requesting the occupyingcotenant vacate is not sufficient becausethe occupying cotenant holds title to thewhole and may rightfully occupy thewhole unless the other cotenants asserttheir possessory rights.

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b. Court says locks were only to protect hismerchandise.

5. Mackereths only attempt to prove ouster isshowing that Spiller put locks on the building.

a. There is no evidence that Spiller wasattempting to do anything other thanprotect the merchandise he had stored inthe building.

b. There is no evidence that eitherMackereth or any of the other cotenantsever requested keys to the locks or wereever prevented from entering thebuilding because of the locks

c. There is no evidence that Spiller placedlocks on the building without evidencethat he intended to exclude the othercotenants, is insufficient to establish hisliability to pay rent.

6. She would have had to show up and tried to

get in the building and then if he turns herdown he has ousted her.

7. Minority viewa. If you are in possession and you are the

only one in possession then you have topay rent to the other cotenants.

b. Avoids the whole ouster question but itmay keep people from seeking partition

c. Co-ownership is not a legally efficientway to own property and they dontwant to discourage partition becausepartition invokes a more efficient use ofthe land

8. To have an ouster she needs to actuallyphysically try to use the building.

ii. Generally, cotenants are not fiduciaries with respectto each other. Each cotenant is expected to lookafter

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