Condensed Property Outline

8/4/2019 Condensed Property Outline

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I. Original Acquisition

Original AcquisitionFera naturae: when you capture animal (deprive it of its liberty, take occupancy) in

wild, its yours(mere pursuit is NOT occupancy.(Pierson had possession of the animal since he captured it)

Actual physical possession is the best possession. To have property rights over animals (possession)exclude others.Ratione Soli: by right of the soil, anything on your land is yours

When there is a violent or malicious act to a persons occupation, profession, orlivelihood, there is a cause of action.(Keebles trade was shooting fowl, so Hickeringill interfered by intending to shoot gun)

Trespassers cannot obtain ownership of an item on anothers land.(Post was hunting for the fox uninhabited land, so no trespass)

Regaining Possession of Wild AnimalsAnimus Revertendi: disposition to return, person must return animal when it is

captured alive or escapes

Right to retain possession, not to regain possession. Once animal regains naturalliberty, you no longer have possession

First in time, first in linefirst person to catch the animal owns it. However, if there is indication of ownership (tag on ear, comes when called),

ownership is regained.

II. Nature of Property Rights: Rights against Others

Right to exclusivity is fundamental property right Property ownerdoes not have to give up any part of land to help neighbor.

Refusing to incur miniscule cost to prevent huge waste is fine.(Jacques v. Steenberg Homes: Jacques did not need reason to exclude transport of motor homeacross his property).

Law of capture (based onfera naturae): whoevercaptures (produces) gas from land firstowns it. In the ground, its in its natural state & belongs to no one.Anderson v. Beech: Beech injected oil into reservoir under Ps prop lost ownership by injecting into ground

Percolating waters:ooze from the surface w/out defined channel English Rule: owner has absolute right to do what he wants w/all percolating

waters (above & below)

American Rule:owners use cant unreasonably injure others Unreasonable = resale, waste, negligent/malicious use

Finley: Ds quarry ruins Ps land b/c of excess water. Cant recover under either theory.

Support: Lateral support: right to have land supported by adjacent land. Subjacent support: right to soil underneath prop for support (only land, not h2o)

Navigable-in-fact: If river can be used for commerce/transport travel, easement is allowed onriver and its banks (if necessary?).

Doesnt have to be navigable whole year; just enough for trade/trans.


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2Adirondack League owns part of river. SC (D) has right to travel down river b/c nav-in-fact

Navigable-in-law: waters dedicated to public use, including right to fish

III. Property Rights against the Regulatory State

Property right (ownership, title): govt. enforces your exclusive right to the property Police power: govt. power to make regulations for the body politic in public interest

Constitutional Clauses that Protect v. Govt. Takings: Contract Clause: no law can be made that impairs the obligation to contract. Due Process Clause: No person shall be deprived of property w/out due process

Economic DP: if law has any rational basis to help public, ct. wont overturn Takings Clause:

Nor shall private property be taken for public use, w/out just comp. Just compensation: full market value b/w willing buyer and seller

Leaves open possibility of taking land for private use Tests

Two-part test:1) Substantially advances a legitimate state interest

2) Doesnt deprive owner of economically viable use

State can destroy ones property to save other property of greater public valueMiller: State can order P to cut down red cedar trees to prevent disease from spreading

Even if regulation has a negative impact on land, that isnt necessarily a taking. A taking is when it is taken too far

PA Coal: Statute went too far (aka taking) when made it commercially impracticable for D to mine (andhe had a right to do so by deed)

**If all value (90% or more) is taken by regulation, then it is considered a taking whichrequires compensation. **

Publilc Nuisance Exception: govt. can take for interference w/public welfare/safetyLucas v. SC Coastal Council: SC Act is a taking barred P from erecting homes on two pieces of beachfront

property. State agrees, and argues for public nuisance exception.

IV. Finders Rights

Finder is treated as owner against the whole world, except the true owner.Armory found the jewel so its his, even though he gave it to a jeweler to see what stones value is.Hannah (P) finds brooch in Ds house. Ct. determines it belongs to Pb/c D owned the house but didnt possessitso he didnt possess brooch.

Elewes: Boat on land which owner leased to tenant who is digging hole (& discovers). Boat = ch. (landowner) Chattelnot included in lease landlord recovers b/c first in time Part of soil/real estate (fixtures lights, pluming, cabinets, ect) included in lease

Hierarchy of entitlement to possession: True owner Earliest known possessor other than true owner 2nd earliest known possessor, 3rdearliest known possessor

English Rule: Prefers earliest known possessor (includes unconscious possessors) Prefers owner of locus in quo (owner of the place) as earliest known possessor

Exception: public/semi-public places Finder wins, owner does not have possession of everything on his land.

Bridges: Guy finds purse on shop owners floor right when they open it is apublic/semi public place finder gets it (first in time).


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3If $ was behind counter, owner wouldhave possession & thats different.If shop had been locked overnight, shop owner = possessor.

American Rule: Only conscious possession counts(Homeowners didnt know they had $, so Hurley would get) Prefers the finder Exception: trespass

When finder is a trespasser not possession

New York Rule: American rule on steroids Stronger preference for finder, exception being if it is a crime. Courts usually dont split ownership claims too complicated. Categories of property:

Abandoned:owner no longer wants to possess, voluntarily relinquished all rights.Benamin: Humbach think $ in airplane wing carefully tied & placed there = abandoned (not mislaid)

Lost:owner unintentionally & involuntarily parts w/possession Mislaid: owner voluntarily &intentionally puts somewhere & forgets.

Owner of locus in quo preferred person might remember where left itMcAvoy: P finds purse in Ds barbershop. Real owner never found. Ct. rules belongs to D.

Treasure trove:owner conceals coins or currency. Must be hidden really long. Distinction b/w lost & mislaid property eliminated. Possession/title to finder.

Hurley (P) finds $ hidden in pipe in Ds home. Ct. says not distinction.

V. BailmentsPossession of chattel is transferred from bailor to bailee for limited purpose

BAILMENT: transfer of possession (contract) Elements:

Physical event Requires intent of bailee

Bailee cant be forced, must agree

Intent manifested by exerting dominion and control (excluding others/poss.) Must know what you are exerting control over Eg. Borrow sugar in a cup to bake a cake

Sugartransfer of title; Cuptransfer of possession equaling bailmentHumbach:When a person takes possession of a container, they are taking responsibility for its contents.

Samples v. Geary: P puts fur piece in jacket & gives to coat check. Humbach says they were responsible coat= container, fur piece = contents

Bailees intention to possess is what counts (Coat check boy did not intend to possess the scarf thing)

Negligence Level of care to prove negligence determined by props APPARENT value

Peet v. Roth Hotel:Hotel loses ring when left @ desk & doesnt realize its value. Ct. holds them toordinary care what ordinary man would think in same situation. Holds hotel liable.

Rebuttable presumption of bailees negligence (acceptance of bailment + loss) Bailor: property bailed & not returned in good condition Bailee: loss did not result from his negligence (used ORDINARY CARE) Bailor: bailee is at fault (negligent)

Noworta:Ps cabinets were destroyed by fire a t Ds office (D was fixing them).Bailor (P) would prove cabinets bailed and not returned in good condition, Bailee (D) can rebut by showing that he did not cause the harm D sucessful If bailee (D) succeeds burden shifts back to bailor to show fault.

If bailee is negligent, liable for ACTUAL value of property Strict Liability

Strict liability for conversion (bailee refuses to return property)


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4 Can be a converter even if the property is accidentally taken If bailee does something outside scope, bailor not required to take back

Strict liability for misdelivery Bailee gives goods back to 3rd party rather then bailee

Categories of Bailments: Sole benefit of bailor: must demonstrate gross negligence(lesser standard of care)

Gratuitous bailment

Reciprocal benefit: ordinary negligence Sole benefit of bailee: must demonstrate slight neg. (higher standard of care)

TRANSFER OF TITLE (gift, sale, ect.) Elements:

Non-physical (ideational) Requires intent of transferor/transferee Any objective manifestation of intent: donthave to know what youre control.

Against a wrongdoer, possession is title. Wrongdoer cannot defend an action for conversion/damage to property by saying

that bailee is not the true owner.

Jus Tertii: right of a third person. Wrongdoer cant defend by claimingjus tertii(Eg. I lend my car to Jenny and go to England. Bobby gets into an accident w/her and claim hedoesnt have to pay Jenny b/c its not her car. Since he is wrongdoer, possession is title).

VI. Adverse Possession

I. Adverse Possession Fundamentals of Adverse Possession

Emerged from Medieval Concept of Seisin:Seisin:Possession of land coupled w/claim of right to be there indefinitely or for life

Person who takes possession of land Can be owner or AP

Only person who can sue trespassersTrue owners have right or re-entry (right to get back on land)AP gets his rights by just taking possession

Rights against everyone besides true ownerEven when S of L is running (NY is 10 years)

True owner can sue AP by right of re-entryAP can sue any trespasser by right of entry

Disseisor:person who has removed a right from person who has seisin. Has right toentry by lawsuit.

WrongdoersAP is treated as the true owner by wrongdoers

AP treated as true owner while S of L is running, too.Wrongdoer cannot force an AP to prove he is true owner (Winkfield)

Action in ejectment: an action to recover possession (put P in possession)

Acquisition by Conquest: English Rule (OLD): had to occupy land to have possession Modern Rule: A person who has constructive possession (dont actually have poss.

but court pretends they do) can bring action for trespass. To establish Constructive Possession:

1) Must own property2) No adverse possession of land


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5Gillepsie: D brings action against P who lives 20 miles away and owns land that D wants to cut down.Ct. holds P does not have constructive possession.

ELEMENTS:1) Actual possession of the land2) Open and notorious:possession is not secretive; apparent

Must raise a flag and show the world

Ordinary owner using reasonable, ordinary care would notice AP

Using cave NOT open & notoriousSewer lines usually ARE open & notorious

AP has no duty to tell true owner he is ownerLawrence (husband) continues to live on land for 20 years after wife dies. He never tells anyone that theland was supposed to go to the town. Ct holds that fine, b/c his possession was open & notorious.

3) Hostile & under claim of right:possession must be w/ frame of mind of ownerMust be adverseAGAINST true owner as opposed to under true owner

Cant be subservientPresumed if other elements establishedHumbach: Objectively manifested intention is all that counts (actual intent doesnt have to be hostile

Humbach: NO requirement that owner know about possession ANDNO requirement that AP actually know/intend that poss. = adverse

Doesnt matter what AP was thinking just that he was ACTING like the true ownerwould act in the circumstancesNome 2000: Ds activities of building cabin, picking berries, having fence constituted AP on northernpart ofland. Using trails & picking up litter on southern part wasnt AP).

Requisite hostility depends onnature of the landEwing paid taxes & brought action for ejectment on gravel lot. He acted like true ownerdidnt need to erect a fence or anything b/c of the nature (gravel of the lot)

Three views (Lawrence v. Town of Concord):Majority: Hostility is presumed if person acts like true ownerHonest Mistake Doctrine (Maine Doctrine):

AP under a mistaken belief is not hostile NO APGood faith Rule:

AP in bad faith cant obtain possession AP must show occupation (of real property) by demonstrating:

Usually cultivated Improved Protected by substantial enclosure

Birnbaums = AP over small parcel land behind their prop maintained grass/flowers & had fence

4) Continuous:possession for 1 period Doesnt require 24/7Measured by what is normal for the land in question (eg. Seasonal use)

Rays overall preservation of cottage, in virtual ghost town, demonstrates occupancy. Easement by prescription has less stringent continuous requirement

Bovas use path across Ds property seasonally = prescriptive easement

5) Exclusive: one party in possessionWhile AP may have primary possession, owner may take actions for short period of

time resulting in shared possession. Affects APs continuity.Court prefers true owners where there is conflict

PURPOSE: To protect true owners from stale claims**Constructive possession follows title unless when theres an adverse possessor**


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II. Tacking Fundamentals of Tacking

To tack onto a prior APs possession, the successor must show that there was a transfer and that the periods of possession were consecutive

AP2 gets credit for AP1s possession Must be privity of estate (legal relationship to the land):

1) Transfer by Deed2) Transfer by Will3) Transfer by Inheritance

No tacking when: AP2 ousts AP1 AP1 abandons property and AP2 takes possession Chain of AP broken by owners ejectment action

Examples of TackingIf Blackacre was possessed in 1990 by AP, title will ripen in 2011 (if S of L 21 years).

1) In 1995, O transferred conveyed her interest to O2.

This right of entry has 16 years left on it, due to AP that began in 1990. 2) What about change in AP? In 1994, AP transfers his interest to AP2.

Gets credit for APs possession until 1994 pick up here AP left offAP takes possession in 1985 from O. In 1995, B takes possession when AP on vacation. WhenAP returns, B refuses to leave. AP just moves away, knowing there is nothing else he can do. IfB remains in possession, when will she acquire title?

AP has right of entry against B and right of ejectment against B 3) NO privity of estate one AP ousting another no transfer of interest

21 years from when cause of action accrues (2016) 4) AP brings action as soon as B takes possession.

If AP acts like true owner and brings action relatively quickly, regains poss.

5) AP on vacation for 6 months and B takes possession. AP returns and brings ejectmentaction. Is 6 months too long for AP to maintain continuous possession?

Probably. AP can abandon his claim on the land before title accrues. Exceptionto idea that you cant abandon title to real property.

6) AP comes back 8 years later and sees B in possession. Brings action v. B and wins. AP not acting like true owner. So S of L starts over.

III. Tolling Fundamentals of Tolling for Disability

Gives extra time to some classes of people to bring ejectment action Statutory Interpretation:An action to recover the title to or possession of real property shall

be brought within twenty-one years after the cause of action accrued, but if a person entitled to bring theaction is, at the time the cause of action accrues, within the age of minority or of unsound mind, theperson, after the expiration of twenty-one years from the time the cause of action accrues, may bring theaction within ten years after the disability is removed

Cant get title by AP against government (S of L doesnt run) Two Periods:

General Period: 21 years Begins when cause of action accruesAP takes possession

Disability Period: 10 years Begins after disability is removed

**Disability must have existed at time cause of action accrued


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7 Disability includes:

Minors, mental incapacity, imprisonment, military service Rules about the periods:

Basic Rule: where disability exists when AP takes possession, time toBring an ejectment action will expire either at end of S of L (21 yrs)or tolling period, whichever ends later.

Either period could end after the other, depending on situation

Entire 10 year period will not be added to 21 year period. If disabilityexists for 21 years, person will get ownership after 21 years.

But, good portion of disability can be added on to 21 years. Ifdisability is removed after 19 years, there would be 8 years addedonto the 21 years.

21-year period is never shortened. Shortening would make it evenharder for disabled person to lay claim.

Problems for Tolling for Disability Stevens Hypos (SOL 10 years, Tolling Period 5 years):

1) X takes possession of Blackacre in 1990. In 1992, Blackacre is transferred (from a

person with no disability) to Y, who is 3 years old. X's title will ripen in 2000. Tolling will not occur because the owner's disability did not exist at the time X

took AP. Y was NOT owner in 1990 title transferred in 1992. Only matter ifowner at TIME of AP had disability.

2) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y,who is 17 years old. X's title will ripen in 2000. The normal statute of limitationsbegins to run in 1990, when X takes possession.

Tolling occurs because the disability existed when X took possession. Tolling period begins in 1991, when Y is 18 years old. Both the normal SOL &

tolling period run concurrently. The 5 year tolling period will end in 1996, fiveyears after it began in 1991. The normal SOL ends later, in 2000. Thus, the

date the normal SOL ends is the time when title ripens and Y's right of re-entryexpires.

3) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y,who is 5 years old. In 1998 (when Y is 13), Y's guardian sells Blackacre to Z, whohas no disability.

This sale marks the removal of the disability and starts the tolling period (Thetolling period would also begin if Y had reached the age of majority. Tollingbegins when the disability is removed.).

Tolling occurs because the disability existed when X took possession. X's title will ripen in 2003

The normal SOL and the tolling period run concurrently. So, the SOL

starts in 1990 and runs for 10 years until 2000. However, the tollingperiod begins in 1998 and runs for five years, ending in 2003.

Thus, because the tolling period ends later than the normal SOL, theend of the tolling period marks the time that X's title ripens and Y'sright of re-entry (right to bring an ejectment action) expires.

4) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y,who is 6 years old. Y continuously owns the property.

X's title in Blackacre will ripen in 2007. The normal SOL expires in 2000. However, Y does not reach the age of majority until 2002. When Yturns 18, the disability is removed and the tolling period begins. The


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8tolling period runs for 5 years and ends in 2007.Thus, because the tolling period ends later than the normal SOL, the

end of the tolling period marks the date that X's title ripens and Y'sright of re-entry expires.

Hypos (SOL 21 years, Tolling 10 Years):O owns Blackacre in 1975 and AP takes adverse possession onJuly 1, 1975. When does AP

Acquire possession title in each of the following scenarios? 1) O is insane on July 1, 1975 and dies intestate in 1980. H is his heir w/no disability

Disability period begins in 1980, ends in 1990 General Period ends in 1996 AP acquires title in 1996

2) O is insane on July 1, 1975, and dies intestate in 1995. H is heir and has no disability. Disability ends 2005 (10 years after O dies in 1995) General Period ends in 1996 (21 years after AP in 1975) AP acquires title in 2005

3) O has no disability & dies intestate on July 3, 1975. H (heir) is 6 at Os death. General Period ends in 1996 (21 years after AP in 1975)

No Disability Period because O did not have a disability on July 1, 1975 (i.e.when AP began).Just matters if owner at time of AP had disability. Since Oowned it at time of AP and didnt have disability, there is no tolling. H didntget it until 2 days after AP.

AP acquires title in 1996 What if O had died on June 30, 1975 instead???

General Period ends 1996Here, H has possession BEFORE AP takes possession. So his disabilityIS accounted for.

So, he would reach the age of majority until 1987 (disability ends)and tolling would begin then. Thus, it would not end until 1997.

AP acquires title in 1997 4)O is insane on July 1, 1975, and dies intestate in 1995. H, his heir, is two years old at

the time of his death. General Period ends 1996 Cant tack disabilities

Just matters if owner at time of AP had disability. He did, but he died.Since H was not the owner at the time of AP, there is no tolling

IV. Mesne Profits Fundamentals of Mesne Profits

Profits captured by the AP between the start of possession and the lawsuit Any value derived from the land (i.e. fair rental value) Owner can bring trespass action to recover from AP

Action in ejectment first, then action for trespass to recover mesne profits Two standards of damage:

1) Mesne value: value accrued; 2)Damage done to the land BUT, if title has ripened by AP, there is nothing he can do no mesne profits

VII. Gifts:


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Transfer of an interest of property without consideration

1) Elements:1) Donative Intent

In praesenti:present intent, not in future2) Delivery (Actual or Constructive)

Core meaningtransfer of possession is necessary (dominion & control) If both parties maintain dominion & control, then NOT valid gift Gift w/out delivery is just gratuitous promise that isnt enforceable.

Delivery through Intermediary If intermediary is agent of donor, gift complete upon delivery to recipient If intermediary is agent for donee, then gift is complete upon delivery to inter. What about if you dont know who intermediary is agent for?

Donor decides who the intermediary is the agent to. (Int. usually equally close to both OR donor will die while gift possessed by int.)

Usually depends on the degree of donative intent If the court finds sufficient donative intent, will normallyfind that the intermediary is acting for the donee.

If the court does not find sufficient donative intent, willnormally rule that intermediary is acting for the donor.

Sometimes its not easy to give donee dominion and control (eg. horses)Irons: Dad gives son a horse but NO delivery b/c he doesnt act like he owns it & exert dominion &control over it (eg. hand over bridle, make it known to everyone else)

When actual delivery is easy & doesnt happen, likely that no donative intent If delivery is b/w family living together, delivery requirements are altered

Cannot expect donor to move something out of the house Constructive delivery: not actual delivery, but treated as actual delivery b/c

strong evidence of donative intent AND a shifting of predominant dominion & control If actual delivery inconvenient, then expressing donative intent AND giving

donee the means to access counts as delivery. Example is key to a box: Donnee needs exclusive dominion & control for gift to take effect Opening container must occur before death, unless inconvenient or

unusual circumstancesChecks

Delivering check DOESNT meet delivery requirement, but DOES showdonative intent.

Check must be cashed for delivery to be completed3) Acceptance

PRESUMED unless person rejects

Constructive Delivery Hypos: 1) O hands a key to a safety deposit box to A and says, There are 100 shares ofIBM stock in

this box, and Im giving them to you now. A did not open the boxuntil after Os death. Is thegift valid? YES, valid gift.

2) O, on his deathbed, tells his nephew, Theres a ring over on the dresser that I want you tohave. Nephew goes over and picks up the ring. Does he have to give it to O, so that O canactually deliver it to the nephew? NO, gift is valid upon nephew picking up the ring.

3) Suppose O died before nephew picked up the ring


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10 Then there is not a valid gift because dead donors do not have donative intent

4) If the ring was in the dresser across the room, and O only gave his nephew the key to thedresser, and then died. there would not be a valid gift because actual delivery was practical

5) If the key was to a safety deposit box across town, then constructive notice would havebeen appropriate and a valid gift would have been made

6) Uncle gives nephew a key to safety deposit box, but retains one himself. Uncle continues to

access the box until he dies. Can nephew claim a valid gift upon Uncles death? NO. Since both parties maintained dominion and control,there was no valid gift,

and nephew was not entitled to the contents 7) FINAL EXAM QUESTION: Giving someone a treasure map is not the same as giving

someone a key because the donor still has access to the treasure (analogous to the 2 key sits)***If both parties maintain dominion & control, then there is not a valid gift***If actual delivery is relatively inconvenient, then expressing donative intent AND giving donee themeans to access counts as delivery

II. Types of Gifts1) Inter Vivos

Gifts are made by donors who expect to live for awhile Ordinarily not revocable Inter vivos gifts give future interest to donee immediately

Gruen gave son future interest in painting & retained life estate. Ct. holds its inter vivos.

Person on deathbed can make inter vivos gift. Depends on intent of donorintent for it NOT to be revocable

Newell given ring by friend on deathbed. Newell insists he take ring back when doesnt die. When heactually dies, Bank refuses to give back to Newell. Ct holds it is inter vivos since not meant to be revoked.

2) Causa mortis Gifts made by donors in fear of death from existing disease or impending peril Allows for gifts with conditions subsequent b/c its revocable

Assumed that deathbed gift is causa mortis, unless evidence of intent of irrevocability3) Testamentary gifts Gifts made by wills(not enforced until 1540s Statute of Wills) Requirements:

Must be in writing Must be subscribed by the testator Must be witnessed by 2 or 3 persons

Upon writing a will, the future beneficiaries gain NO legal rights (until death) Therefore, the testator can change or revoke the will at any time

Testamentary gifts give NO future interestdoesnt commence until death

VIII: The Estate System

Types of Estates, classified by Potential DurationGreatest Duration1) Fee Simple Absolute:potentially perpetual duration

Defensible Fees: Conditions attached to Fee SimpleEstate is set up to expire or be divested (cut short) if a specific event occurs Commonalities: 1) terminate by specific event, 2) terminate before line of heirs runs out

a) Fee Simple Determinable: upon termination, land goes back to grantorb) Fee Simple on Condition Subsequent:c) Fee Simple on Executory Limitation: upon termination, land goes to 3rdpar.


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112) Fee Tail3) Life Estate4) Term of Years5) Periodic Tenancy:Leaseholds that last week to week, month to month, etc.6) Tenancy at WillLeast Duration

FEE SIMPLE TERMINATES LAND GOES TO FUTURE INT.Determinable automatically grantor possibility of

reverterCondition Subsequent grantors election grantor right of re-entryExecutory Limitation automatically 3rd party executionary

interest

Breaking it Down:

1) Fee Simple Absolute Fundamentals of Fee Simple Absolute

Duration: Potentially perpetualAll other estates are carved out of it

All other estates are called particular estates Estate of general inheritability

Descends to line of heirs Esheat: when line of heirs runs out, escheats to state

Typical Creating Words: to A and his heirs Stating purpose of the conveyance in deed DOES mean that interest in land

terminates once the purpose is over (majority) Minority: no language of reverter= fee simple absolute (minority

Station Associates: land granted, demised, released, and conveyed. Didnt say what would happen when

ceased to be used as life saving station. Ct. followminority

no specific lang re reverter = fee simple abs.

1a) Fee Simple Determinable Fundamentals of Fee Simple Determinable

a.k.a. fee simple on special limitationDuration: Potentially perpetual(potential for termination)Key Feature: the special limitation

The limitation does not have to be related to the land itself Typical Creating Words:

To A and his heirs + words of duration Words of duration: during, while, until

Examples To X and his heirs so long asthe land is used for agricultural purposes To X and its successors and assigns whilethe land is used for school. To X and her heirs whileCordvilleremains an unincorporated hamlet. To X during the timethat he takes care of me. To X for 10 years, oruntilbreach of covenant, whichever is first.

Right to repossess:Possibility of reverter:possibility that possession might revert toGRANTOR if specific event occurs

Generally (in many states, including NY), you dont need specific language aboutreverter as long as there is specific language about duration Exception: North Carolina (as shown by the aboveDare Co.)


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1b) Fee Simple on Condition Subsequent Fundamentals of Fee Simple on Condition Subsequent

Duration: Potentially perpetual Key Feature: the condition subsequent

1) Specific Event occurs2) Grantor chooses to exercise his right or re-entry & take possession

Typical Creating Words:

To A and his heirs + words of condition + words of re-entry (not automat)Words of Condition: on the condition that, provided, but for, ect. Examples

To X and his heirs but ifthe land used for non-agricultural purpose, grantor may re-enter. To X and its successors and assigns on the conditionthat land used as school. To X and her heirs provided Cordville remains an unincorporated hamlet. To X for life but all rights to land return to me @ my choice when he stop taking care of me. To X for 10 years; in the event, however, that there is a breach lessor may immediately or

as soon as practicable, resume possession.

Right to repossess: right of re-entry or power of termination (waivable):possibilitythat possession might revert to GRANTOR if specific event occurs

Must be exercised through judicial process

Right of entry is governed either by a special statute of limitations OR otherwisethe statute of limitations of ejectment

Courts today will generally look at the whole document, along with all of relevantfacts and circumstances

Courts Hierarchy of PreferenceFee Simple AbsoluteFee Simple on Condition Subsequent

Right of Re-entry can be waived, and thus forfeiture is easier to avoidFee Simple Determinable

Differences b/w:

FEE SIMPLE DETERMINABLE FEE SIMPLE ON COND. SUBS.

Possibility of Reverter Right of re-entryAutomatic Requires election

Forfeiture non-waivable Forfeiture waivableWords of duration Words of condition, re-entry

Holdover PCDG is ok Holdover PCDG is not ok

2) Fee tails

Fundamentals of Fee TailsCAN be conveyed, but CAN NOT be conveyed in a way that cuts off the heirs

(unlike fee simple)Thenconveyors heirs will still inherit the land upon the conveyors death

Words of Conveyance: To A and the heirs of his body To A and the heirs male ofhis body To A and the heirs female of his body To A and the heirs of his body

Estate of special inheritancelineal descendants only (not collateral heirs)

Lineal = children, grandchildren, great grandchildren, etc.Grantor retainsreversion or remainder(if required heirs run out, the land goes back to


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13the grantor which is likely since its only lineal heirs)

Considered obsolete today

3) Life Estates Fundamentals of Life Estates

Limited to the life of the individual Life estatepur autre viea life estate for the duration of a third partys lifetime

Ex. to A for the life of B If A dies before B, Then nobody has a right topossession. So, whoever takes possession cannot be ousted. Once B dies, theland reverts to the grantor

Life estates are NOT estates of inheritance (no heirs)DOCTRINE OF WASTE (applies just to LE?):right of future interest holder to

receive the land as thepresent interest holder did. Ordinary wear and tear acceptable. Voluntary Waste:cause the waste yourself by affirmative action (cutting trees)Permissive Waste:permitting premises to decline by not taking care of them

The tenant has to make ordinary repairs, but does not have to makeextraordinary repairs (eg Must fix pluming, window, ect.)Estate of Jackson: Before she dies, hail storm damages house. Permissive waste she had

a duty to take care of hail damage during her life.Ameliorative Waste: making positive changes to the property; however onepersons improvements is anothers waste & future should get same state as pres.Failure to pay taxes on life estate can give rise to cause of action in waste

NOT revocable (license is) Intent of testator, based on entire language of will & characteristics of

conveyance, dictates interest beneficiaries will receiveEstate of Kinnert: Deceased lets adopted sons occupy house for rest of lives, as long as dont leave formore than 60 days. Ct. holds although it looks like license, its determinable life estate b/c of intent

D claims wasdevise transfer of REAL ESTATE by will (wants inheritance taxes) P claims willbequested license:

Bequest: transfer of personal property by will

License:privilege to live on land & do certain acts, but not exclusive possession Reservation: carves out a new interest for the grantor (eg. easement)

Common law (Humbach hates): grantor can ONLY reserve interest for himself, not 3rd party(rule in NY)Humbach: should be able to have reservation in 3rd party.Nelson grants Irene Parker life estate, then future interest to Daniel. Problem Nelson drafted deed as though life esta

already existed. Ct. follows Humbach rule can have3rdparty reservation trying to follow intent of grantor.

II) Future Interests Fundamentals of Future InterestsFive Kinds of Future Interests

Following a fee simple defeasible estate: Possibility of reverter (retained by transferor) Right of re-entry (retained by transferor) Executory interest (retained by someone other than the transferor)

Following a lesser (particular) estate: Reversion (retained by transferor) Remainder (retained by someone other than the transferor)

Reversion: if grantor of life estate doesnt specify who gets interest when life estate personRemainder: future interest in someone other than transferor that must take effect, if at all,


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14immediately upon thenaturalexpiration of aprecedingfreehold, particularestate.**

CONTINGENT: remaindermans right to immediate possession is subject tocondition precedent.

B doesnt get possession unless something happens first Three ways to be contingent:

To unascertained persons Remainder to Bs 1stchild to reach 21, and his or her heirs

To unborn persons Remainder to Bs next born child and his/her heirs

Subject to occurrence of some specified event Remainder to B and his heirs if B marries C

Conditions: Condition precedent:pre-condition that must occur before possession Condition subsequent: something whosafter the fact occurrence

that will cut off (divest) right to present/future interest

Vested subject to divestment VESTED: remaindermans right to immediate possession w/out preconditions

B takes w/out further ado, once life estate ends All remainders except contingent remainders remainderman is born,

ascertained, and no specified even need occur before possession. Other terms:

Shifting Interest:future interest created to give property to 3rdparties Springing Interest:future interest created to cut off a grantors reversion on

the occurrence of some event. Possession directly following grantors poss. Contingent Remainders cant spring out ofterm of years (vested rem. can)Statute of Uses Allowed for springing and shifting executory interests

To A and his heirs, but if liquor is served on the property, to B and his heirs

After Statute of Usesthis conveyance creates a fee simple onexecutory limitation in A, and a shifting executory interest in B

IX: Statute of Uses & Rule against Perpetuities

I) Statute of Uses Goal: to get rid of the uses (via trusts?) and to eliminate trustees

Wants to turn trustees estates into NA & create bare legal titles in beneficiaries Method: To execute the uses, i.e. convert the equitable interests into legal interests

It transferred the legal title to the beneficiaryPrimary impact: converts equitable springing & shifting interests into legal executory

interests, makes possible to create exec. interests for first time(void before under the Rule) Result: the creation of trusts

Trust:Allows you to split the title of the property into two parallel and simultaneous titles legal title and equitable title.

Trustee gets LEGAL TITLE Beneficiary gets EQUITABLE TITLE

**Trustee just has duty of ownership, beneficiary gets benefits Point is to evade certain legal consequences arose to get around restrictions on land use (e.g. for benefit of

wife & clergy) Wording

To A for the use ofBTo A for the trust ofB


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15

II) Two Doctrines now Obsolete b/c Rule against PerpetuitiesRule in Shellys Case

Two Conveyances:I. To A and his heirsII. To A for life, remainder to As heirs

How it was read:Read II the same as IA gets a fee simpleNo contingent remainder to heirs

Why is it now obsolete? Doctrine of Worthier Title

Idea is that title is worthier if it is inherited rather than purchasedWills

If a transfer by will is the same as what would have been inherited, then the will isinvalid as to that point and the transfer is made through inheritance(passing through will is considered purchase in the law)

Inter vivos grants:To A for life, remainder to Os heirsA gets a life estateO gets a reversionIf Os heirs ever take, they take through inheritance from O

Why is it now obsolete?

III) Rule against PerpetuitiesAcontingent interest is void if it does not vest within a life in being + 21 yearsGoal: to prevent dead hand control & to get rid of contingencies remaining open too

long/prevent land from being tied up for long periods of time**Most important doctrine for people to control land after it has been transferred

How to approach a problem: Look at the TIME of the conveyance Is there any possible way that the future interest will not vest within allotted time?You must KNOW the interest will vest w/in life in being + 21 years

Measuring life can be anyone grantor, tenant, or person capable ofproducing members of a class

Class gift: class must be closed must be IMPOSSIBLE to addnew people to the class on the date that the trust closes.

Three doctrines to avoid Perpetuities problem:*Some courts modify the Rule by these techniques*:

Wait & See Doctrine: although may theoretically violate RAP, court should wait & seeif it actually violates it

It it doesnt violate it, its cool If it does, court will save it by adjusting age contingency

** Court takes this approach here Abolishing All or Nothing Rule w/respect to class gifts Implied Savings Clause: court will insert savings clause so that gift is effectuated as

near as possible to donors intent.Estate of Anderson: Educational trust created for 25 yrs to nieces/nephews, then to Howard (now 53).Contingent interest void

Class is openb/c unascertainable whos in class (25 yr window where you dont know howmany nieces will be born or die years 21 -25 can still be born/die

Whatwould make it vest? If Howard died < 25 years and could be determined who heirs are


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16 RoP designed to carry out testators intention applies wait & see doctrine

Symphony Space: D sold SS (non-profit) for tiny amt w/multi-conditional buy back option. P defaulted, D tried to get it backpurchase option void under RAP b/c option (multi-conditional buy back) is exercisable/open for more than 21 years voidHUMBACH HATESstrict application RAP

HyposA has one childx who is age 2

1) To A for life than to As first grandchild and his heirs

Void: Grandchild could be born more than life in being +21 years dont know when/ifgrandchild will be born

2) To A for life then to As eldest child to survive him and his heirsValid: At the moment of As death, we know who has the interest

3) To A for life then to As first child to reach age 18We may not know which child will be the first to reach 18 within As lifetime

If X is the first child to reach age 18, then he could be the measuring lifetime If X is not the first child, but another child is the first to reach age 18, then that otherchild would reach 18 at the most 18 years after As death.

Valid A is a measuring life if A dies now, X will reach age 18 in 16 years, which is less than

21 years. Thus, interest would vest in life in being (A) + 21 years

4) To A for life then to As first child to reach age 25Void A is not measuring life if A dies now, X would reach age 25 in 23 years, which is

more than 21 years after his death. Thus, soonest the interest could vest is A + 23 years X is not measuring life X could have kid reach age 25 more than 21 years after his

death5) To A for life then to As first child, now alive, to reach age 25

X is the only child alive at the time of conveyance, so he is the only one who can take6) To A for life then to As children who reach age 25 and their heirs

Class Gift All or Nothing Rule: all the members of the class must have valid interests, or

nobodys interest is valid

Void. We may have to wait more than 21 years after X and As deaths to find out if achild reaches age 25.

When dealing with a corporation, theres no life in being at all, and so the Rule boilsdown to merely 21 years.

Fee simple on executory limitation to a corporate body, rather than a human being,The executory interest will usually be void if there is a chance it will vest later than21 years after the conveyance.

You best do something to create a life in being, so that the Rule AgainstPerpetuity wont apply

7) To A for life, then to As widow for life, then to As eldest surviving child Void. Could be a different widow that wasnt born yet at time of conveyance

X: Leasehold Estates

I) Introduction to Leasehold EstatesNON-FREEHOLD ESTATES:

Greatest Duration4) Term of Years:on or before a definite date5) Periodic Tenancies:from month to month, year to year, ect.6) Tenancy at WillLeast Duration


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17

Breaking it down:4) Term of Years Fundamentals of Term of Years

On or before a definite datewhen term ends, tenancy ends Usually, maximum term is 99 years Created by a demise: landlord demises interest to the tenant

Creates a term and a reversion Landlord = reversioner Tenant = termor

Statute of Frauds (1677):If the lease is for over a year, it must be in writing per SOF otherwise its voidOral leases for more than year becometenancies at will

Eg. Oral lease for 15 months not valid for ANY period b/c TAWVoid doesnt mean void only means the duration clause would be void

Provisions other than duration will be enforced within TAWNo additional notice is required (you get your notice when you start)Holdover Tenant or Tenant at Sufferancetenant who possesses > term of years

Landlord can bring a trespass action OR hold tenant to a new term

5) Periodic Tenancies Fundamentals of Periodic Tenancies

Indefinite in duration Created by:

Express agreement Implication upon a VOID lease(S of F)

Key Features:One long continuous tenancy (not discrete terms)

Weekly, Monthly, yearly

The reservation period determines the kind of tenancy, not payment per.(eg. We have yearly reservation, but we pay month to month)

Required notice to terminate: one term at end of previous termMust be definite & unequivocal28 Mott Street:Must be in STRICT compliance w/statutory guidelines landlord did notstate date landlord elected to terminate

At least one term beyond when the notice is given Eg month to month tenancy requires one month notice BUT, year-to-year tenancy requires SIX-month tenancy

May be terminated only at end of a period need both term and periodrequirements to make notice valid

Improper notice ineffective termination Eg: Suppose a tenancy from month to month beginningNovember 15

Earliest possible termination? January 15th As of November 16, the next period ends on Dec 15, but thatsless than a month away, so it is not within the notice period

Therefore, the earliest termination is January 15 th

Tenancy at will becomes periodic tenancy when rent paid/received on weekly,monthly, yearly, ect. basis.28 Mott StreetNever arrive at agreement & tenant moves in. Pays under yearly reservation &


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18pay bi-monthly. Landlord gives 30 days notice, tenant brings action. Tenancy at will periodictenancy.

6) Tenancy at Will Fundamentals of Tenancy at Will

Lasts as long as either landlord or tenant desires. No set duration. Both parties haveright to terminate at will (so you just have to have 1 persons will? Garrish?)

Often by statute, reasonable notice to quit or vacate must be givenGarner v. Gerrish: Lease to D said start date until date of tenants choice. Tenancy at willnoduration in will & tenancy goes on for as long as either party chooses (but I thought it was terminatedby either party as any time?)

Summing Up: Life estates measure by someones lifetime Term of years are set to terminate on a specific date Tenancy at will can be terminated by any part at any time

Fundamentals ofTenancy at Sufferance Created when tenant wrongfully held over Endures only until landlord evicts or elects to hold over to another term. Landlord still entitled to rent from tenant at sufferance.

II) Landlord & Tenant Landlord-Tenant Relationship, Landlord Breaches, Tenant Breaches:

1) Landlord & Tenant RelationshipDual relationship leases have both property and contract rights

Privity of Contract:Legal Relationship based on PromisesLandlords promise to allow possessionTenants promise to pay rent

Privity of Estate:Legal Relationship based on Ownerships Landlordconveys possession to Tenant, for whole term Rent isreservedby Landlord, captured by Tenant for Landlord

(Like selling the cow but reserving the milk) Doctrine of Quiet Enjoyment (privity of contract or estate?)

Right to quiet use & enjoyment of premises w/out interference from L Enjoyment by means of possession Applies to both residential & commercial leases Implied promise by landlord for quiet enjoyment

Principle of overlap rights and duties in basic rent-possession relationshipStrange Results that come about b/c of the interplay of the 2 privities

Non-payment of rent no common-law forfeiture(Privity of estate blocks the K remedy of non-performance)

Eviction extinguishes rent obligation But eviction requires ouster by:

Landlord Paramount title holder

Actions of 3rd parties, accidents no effect on rentsT as owner bears risks of ownership T has ejectment action against 3rd party

Independence of Covenants (covenant = promise in deeds/leases)


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19 Promises in lease are INDEPENDENT not dependent on perf. of otherpartys promise (unlike K law)

Usually overlap is indistinguishablebut sometimes privities become unraveled

Assignment: conveyance of leasehold forfull term of the lease The basic relationship:

T1 (assignor) assigns lease to T2 (assignee)

Assignee (T2) takes tenants position in the Landlord/Tenant position and theoriginal Tenant is no longer in any relationship (sort of)

T2 and L are in privity of estate (b/c the ownership changes b/c its for good) So no chain of payment, b/c T2 now has ownership Assignee (T2) liable on covenants that run w/the land 3 things:

Intent to run with the land Touch and concern the land, about the use of real estate Privity of estate (always privity in estate b/w L & T)

T2 and L are NOT in privity of KL and T1 remain in privity of K, but do not remain in privity of estate

T1 is like co-signer if T2 does not pay rent, T1 will have to payTri-City: Mere fact that landlord contents to assignment does NOT release T1 from

paying; must have clause that explicitly says it like here.

L could sue either, but T2 would have primary obligation to pay (poss)If T2 didnt pay, T1 could sue in subrogation to get reimbursed

Majority: if tenant abandons, he is still liable for rent. Minority: if tenant abandons, NOT liable for rent

Tri-Cities abandon property. Minority rule not obligated to rent.

Novation: L and T2 make new lease T1 is off the hook and T2 has all the responsibilities in both privities

Subletting:reversion (or right-of reentry) back to leasorACS: 2-day reversion is a sublease

New L/T relationship: Landlord Tenant SubtenantSubtenant becomes tenant of orig. tenant, aka T1 is prime tenant & landlord to subt.Prime tenant (T1):

Remains in privity of estate and K w/landlord B/c Im going to have a chain of payment to Rosa (Nicole me Rosa) Privity of estate is very valuable

Retains a reversion interest in land being transferredPrime landlord:

Can refuse subtenants rent He has no relationship w/subtenant

Traditional Rule: landlord can withhold consent to sublet for any reason, if it is notspecified in lease

Modern Rule: impose standard of reasonableness for w/holding consent???Julian: Landlord will not allow sublet of upstairs apt. Modern rule landlord cant w/hold consent,unless its reasonable.

2) Landlord Breaches Evictionsevers the privity of estate & privity of K

Cancels the obligation to pay rent Two Kinds Actual eviction or Constructive Eviction

Constructive Eviction: landlord makes the premises untenantable Breach of duty by landlord


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20 Notice Tenant abandons possession

Need full abandonment (not partial) (Moes Pizza) Rent obligation ceases

Blackett successfully brings constructive eviction claim b/c bar playing music too loud.

Case turned on fact that landlord owned premises & bar was his tenants.

Implied Warranty of Habitability: lessor is responsible for the quality of the product

Main Exchange (traditional): Rent Possession Lessor NOT obligated to make repairs, unless it was written into lease

Main Exchange (modern): Rent Possession + Services

Reasons for Implied Warranty of Habitability: Custom, usual practice, practical necessity centralized repair & service responsibility Residential T must rely on L for upkeep Legal Theories:

Requirements of law are implied into lease Intention of parties: livable

Standards of habitability (Park West)

Housing codes (substantial violation = prima facie evidence) Suitable for purpose for which leased (residence) Threats to tenant health & safety More than de minimis More than merely not perfect or non-aesthetic

Implied Warranty of Habitability CANNOT be excluded from lease Remaining problem: independence of covenants

Javins/Park West Solution Treat leases like ordinary contracts BUT Ks dont work b/c two K principles contradict each other:

Material breach by one party excuses the other

Acceptance of a defective performance eliminates the excuse

BETTER SOLUTION

Conveyance Theory Courts abhor forfeiture Anybody who has breached can cure it by $ if the violation can

be cured by $, the court should relieve it against forfeiture. As a result, tenants can w/hold their rent w/out much fear of eviction!

Modern Rule: Mutual/ Dependent covenants landlord breach is a significantinducement = tenant can disregard his obligations

Traditional Rule: independent covenants (so are covenants dependent or ind????)Wesson: D notifies landlord of leaky roof and after 4 th repair, still not fixed. No constructive eviction, but can

get out based on theory of mutual covenants landlord didnt fix roof which directly interfered w/his business(significant inducement), so D could disregard his obligations

3) Tenant Breaches (Rules of Mitigation) If T wants to terminate early

Surrender Traditional View Landlord can accept or reject the surrender

Abandon (wrongful) IfT wrongfully abandons, L may:

1) Do nothing & hold tenant for full rent2) L accepts proffered surrender and L can relet for own account to new T

Tenant gets off free**NOTE: 1 & 2 cant be done together


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213) Notify T that L is entering & reletting on Ts account (Holy Properties)

L rents the property as an agent for T and T will be responsible for anyshortfall/deficency

What about if T attempts to relet w/o notification? Emerging law is that L HAS OBLIGATION TO MITIGATE (find new T)

In K law, there is no duty to mitigate**Depends on what state your in if there is a duty to mitigate

Holy Properties follows traditional rule no duty to mitigate landlord can collect full rent. It = acceptance of proffered surrender Exception: survival clause

L allows surrender but then acts as Ts agent. If relet is for less than Ts rent,then T is liable for the difference

Note the difference: L sues for rent as it accrues (estate; no mitigation) L sues for damages, for anticipatory breach (mitigation required)

Other Possible Rule: If T abandons possession w/out justification, L must make reasonable efforts to

relet (aka MITIGATE)

Criticisms of this rule not ordinary K law to require mitigation of this sort

XI. Concurrent Ownership

I. Background of Concurrent Ownership Two or more people having right to possess land at the same time

(1) Tenancy in Common(2) Joint Tenancy(3) Tenancy by the Entirety Community Property Civil Law Doctrine, only applies to 8/9 states (CA, TX)

Each owner has an undivided right to possess the entire parcel**Martin: One couple had 7/8 interest, other has 1/8. Couple w/7/8 rents to others. BOTH coupleshave right to possess whole, AND have to share income they receive from 3

rdparties.

II. The Different Types of Concurrent Ownership TENANCY IN COMMON

Each co-tenant has an undividedpart interest in the property Can hold different shares; doesnt have to be equal (eg. 7/8 v. 1/8) Can hold different interests/estates (eg. A =life estate & B = a fee simple)

**Modern rule presumption of Tenancy in Common** (ct. likes heirs) Interest is inheritable/conveyable will, deed, inherited via intestate succession

If A or B dies, that ones heirs will get 50% Can rent the interest you have ConveyanceO conveys Blackacre to A and B

JOINT TENANCY Each co-tenant has an undivided equalinterest in the property Right of Survivorshipwhen 1 tenant dies, other(s) have automatic right of succ. The Four Unities

Time interest in joint tenants must be created at the same time Titleinterest in both tenants must be created by same instrument (eg deed) Possession both joint tenants must have complete right to possession Interest both joint tenants must have identical interests


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22 Eg. 2 people undivided 1/2s; 3 people undivided 1/3s

Can convey interest, but then it becomes a tenancy in common NOT devisable/inheritable

Conveyance: To A and B as joint tenants (Majority Rule) (NY), OR in some states

Downing: Words joint tenancy W/OUT right of survivorship is enough.

To A and B as joint tenants w/rights of survivorship

Often used as a will substitute Traditional Rule presumption of Joint Tenancy

Courts disfavorb/cpasses to other tenant, not deceaseds heirs.Rudesurprise could happen if people didnt know they created joint tenancy.

TENANCY BY THE ENTIRETY Only possible betweenhusband & wife Like joint tenancy Automatic right of survivorship Each has an undivided equalinterest

Not devisable, inheritable, conveyableNeither party can unilaterally convey

Interests of each are indestructible(actually, are destructible by divorce) Conveyancepresumptively created if married(Prario v. Novo)

UNLESS, it specifically says its a joint tenancy or tenancy in commonNote: If you think youre married but youre not joint tenancy

Solutions for disputes about use of concurrent tenancy/disposition: Management Agreement better solution Partition:

Voluntary Compulsorythe court carves up the property

Doesnt usually work by dividing up the actual property, but rather thecourt will order a sale and then divide up the proceeds

Goal of sale partitions is equity Guaranteed way of getting lowest price for your property!

Humbachs HYPOS A & B are tenants in common. B dies.

A and Bs estates as tenants in common A & B are joint tenants. B dies.

A owns the entire estate. Is a tenant in severalty (sole owner after a joint tenancy isextinguished)

A & B are joint tenants. A conveys her interest to X. B & X are tenants in common

If a joint tenant conveys his interest to a third party, then the third party andremaining joint tenant would be tenants in common Conveyance of a joint tenants half severs the joint tenancy and converts it into a

tenancy in common After the above conveyance, B dies.

X & Bs estate are tenants in common A, B, and C are joint tenants. A conveys her interest to X.

B & C continue to be joint tenants of the 2/3 interest (1/2 each), and are tenants incommon with A, who has a 1/3 interest

A, B, and C are joint tenants. A conveys her interest to C C has a 1/3 tenancy in common


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23 B & C have an undivided 2/3 interest as tenants in common with C, and B&C are joint

tenants of the 2/3 interest (1/2 each) If B dies

C gets Bs of the 2/3 interest, and thus owns the entire parcel If C dies

B gets Cs of the 2/3 interest, and Cs heirs get the undivided 1/3 as tenants incommon

III. Marital Stuff Creditors & Tenancy in the Entirety:

Two rules (states almost split 50/50) Creditor cant get anything b/c neither spouse can convey his share Creditor can get levy against one persons interest, but its not desirable

b/c then he has to share it w/the other personSawdo v. Endo:Fraudulent conveyance where dad tries to convey his interest to son aftercar accident to protect from creditors.

Who owns the wedding gifts? Historically, the wedding presents all belonged to the wife

Today, the couple probably owns the gift equally However, it is the donative intent of the giver that really counts

Common Law Rule (and actually still the rule): In a marriage, each spouse is on his/her own footing with regards to property,UNLESS theres been specific intent of donating to the other

Husband & Wife Seisin jure uxoriswomen could be owners, but seisin would be held by husband Married Womens Act overturned the hold common law ofseisin jure uxoris

Following is abolished by it: Dower: Gave surviving wife a life estate in 1/3 of all lands of which husband

was seized at any time during coverture

Curtesy: Life estate in all freeholds provided issues was born alive Dower & Curtsey have been abolished in favor ofStatutory Share: Gives surviving spouse a right to or 1/3 of the husbands estate

irrespective of what the wills says Is career marital property?

Nature and extent of the contribution by the spouse seeking equitabledistribution, rather than the nature of the career, should determine whethercareer is marital property.Elkus did contribute to his wifes success as a singer, so he is entitled to equitable distribution

IV. Community Property

Civil law doctrine (borrowed in many common law jurisdictions) Exists in 9 western states (i.e. TX, NM, AZ, CA, WA, ID Basic notion: Everything shared 50-50 Acquired during marriage as:

Earnings Income from community property Proceeds from community property (sale of community property)

Community property, UNLESS Separate Property: Owned before the marriage Acquired by gift, inheritance or devise Income from separate property (except ID, LA, TX)


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24Control:

Head and master rule Husband owned controlsole decision making power

14th AmendmentMid 80sHead and master rule was found unconstitutional

When community property is brought into a non-community property state, it becomestenancy in common.

XII. Concurrent Ownership

Incorporeal Interests: interests that do NOT give a right to possess Easements Real Covenants Equitable Servitudes

I. Intro to Easements Fundamentals of Easements

Incorporeal interest Right to make limited use of land, rather than general right of use to possess

Most common =the right of way (i.e. driveway over a parcel of land) Easement for pipes or other conduits To Fishing, hunting, take turf, take firewood

Profits a prendre(Profits) Benefits for the taking Right to go on someones land and take something

from soil (i.e. mineral, timber, oil, goal, coal, ect). Easements dont have to be adjacent to the land they are benefitting Terminology:

Servient Tenement: land subject to/burdened by the easement

Dominant Tenement: land that gets the benefit of the easement Appurtenanceof the dominant tenement: part of the rights of dominant tenement; Easements in gross: not a subsidiary right, but the whole entire property right in

itself (personal right of E-owner) Kinds of Easements:

Affirmative right to go onto someones land to do something Negative right to prevent the subservient owner from doing something

Light and air Blocking a view Natural easements

Licenses distinguished

License = revocable; Easement = IRREVOCABLE license Personally indicates license (or easement in gross) Factors to look at when considering easement v. license:

1) Created by warranty deedsuggesting an interest in real property2) The word grant is used

License: word permit is used3) Specific words of inheritance were used4) No rights of revocation are withheld

Cooper v. Boise Church(Church allowed to put up electric sign on Ps land license) License b/c:

Price paid was nominal


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25 Not practical to have an easement for a large neon sign Person who granted the right was not the true owner

II. Creation of Easements Types of Easements:

Express language in deed (the normal way to create easement)

Implication in a deed Prescriptionadverse possession equivalent Easements by estoppel (aka executed parol licenses) (Mund v. English) Easements in invitum

Breaking it down Express language in deed (the normal way to create easement)

Express grantBrown v. PA Central (RR stopped operating & abandoned their right of way. Ct. holds its an easement

when an easement is abandoned, its extinguished.

Express reservation: someone conveys land to someone else & retains easement over

the land conveyed Personally is consistent w/license HUMBACH says easement in gross

Simmons v. Abbondandolo (Seller sold portion of land & reserved an easement Ct held itwas license (not assignable/limited duration). HUMBACH = easement in gross.

Implication in a deed Implied grant (Grantee gets easement upon transfer) Implied reservation (Grantor keeps easement upon transfer) Has to be a specific deed that implies the easement(cant be implied out of nothing)

Based on Prior Use Prior use ( = quasi-easement) Apparent (& continuous)

Continuous: must look like permanent use Apparent: something about servient parcel that shows use is being

madeat time of conveyance Driveway, car tracks, etc Underground use (i.e. pipes) can be based on manholes, ect.

VanSandt v. Royster(P not aware of sewer line when he bought property).Something can be apparent but not visible.

Necessary Reasonably necessary for implied grants favors grantee

Grant should be construed to give bargain to grantee Strictly necessary for implied reservationsfavors grantor

Seller trying to impose on buyer (wants to retain a right) Courts more hostile towards

By Reference to a Subdivision Map When deed describes property conveyed by referring to a subdivision

map that shows streets Streets appurtenant to the lots are implicitly able to be used by the

owners of the lots Majority Rule can use ALL of the streets on the maps NY Rulecan only use most direct route

By necessity Proof of severance


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26 Must show WHEN your land went from common ownership to ind.

Absolute necessity at time of severance When dom. & servient were severed, it was absolutely necessary Boat access does not cut off claim of absolute necessity.

Morrell v. Rice (Land accessible by boat. No easement was ever created). Ct.says there is easement by necessity. HUMBACH says necessity should have beenviewed from TIME of CONVEYANCE.

No interruption of necessityInterruption of necessity cannot be revived

Prescriptionadverse possession equivalent Adverse actual user

When both parties use driveway for entire SOL, each has obtained an easement andis acting under claim of right. Its not permissive.Paxson v. Glovitz (Glovitz built fence in middle of shared driveway. Since both parties occupied forfull SoL (previous owners had easement), each acquired easement by prescription).

Continuous & uninterrupted Under claim of right (not subordinate) Without knowledge & Acquiescence of servient owner

Exclusive

Easements by estoppel (aka executed parol licenses) (Mund v. English) A license created by words alone (parol) that has somehow been effected by being

executed Normally, easement only valid in writing (SoF). Oral easements only valid as long as

grantor wishes licenses. BUT, if in reliance on the permitted use, the licensee makes improvements (spends

money, etc), THEN, estoppel applies and the right to use becomes irrevocableeasement by estoppel.

Reliance must be reasonable.

Mund v. English (Son & mom install well on moms prop and share construction costs. Son builds house.Equitable estoppel b/c made valuable improvements (build house) in reliance on well.

Easements in invitum Easements by force Created when someone goes ahead and takes it Also known as private eminent domain Two Approaches:

Disproportionate Hardship concerns: court imposes an easement on onesland for another b/c he needs it very much.

Different (Minority?) Approach: court will allow owner to stay, as long as

he pays fair $Goulding v. Cook(Ct. orders Gouldings to move septic tank in Cooks yardmin rule)

III. Scope of Easements Fundamentals of Scope of Easements

Generally determined by the language of the deed Can easements be relocated unilaterally? Davis v. Bruck, Lewis v. Young

General Rule: No. Creation of an easement is for a specific location. Canonly be moved if mutually decided.

Minority Rule (NY): Yes. Can unilaterally relocate the easementif itdoesntburden the other party (or easement owner?).

Scope of easement presupposes that needs of dominant tenement will change and


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27scope can expand to meet those needs

Appurtenant easements have definite dominant tenement owner cannot addonto dominant tenement (aka cant add a piece of land to it)

Increasing the physical burdens on an easement do not count as misuse of easement.

IV. Real Covenants

Fundamentals of Real Covenants

Runs w/the land; attached to the land (like easement) Three requirements to distinguish from personal covenant:

1) Intention to run w/the land Binding upon and inures the benefit of__ and his successors Orange v. Rockland: Absence of covenant is not dispositive if it

benefits the land to whom it is made, there is a presumption that it is valid.2) Touches & Concerns:can only affect the person as applied to the land

Ways it can touch and concern: Physical Effects Test if it physically effects the land, it touches &

concerns Economic or practical approach if performance of covenant

effects value/use of land, it touches & concerns Two biggest problems:

Can an affirmative covenant touch & concern? YES (most states) Covenant to pay money touch & concern? YES.

B/c it affect the way the land is being used Eg. Community associations

3) Privity of Estate: whoever owns land from time to time, bound by covenant MAJORITY: vertical and horizontal Minority: just vertical

Vertical Privity (successive)continuous lawful succession, proveall the links in the chain of the title

NO vertical privity when you have an AP Horizontal Privity (simultaneous)deed b/w covenator & covenate

(Mally v. Hannah) Only have to show this property derives from the originalgrantor and party burdened shows that his property derived from original granteewho took land subject to restrictive covenant

HUMBACH: DONT need NOTICE

Power: Gives people total flexibility of K law to control future uses of land

especially for negative control over future uses of land(pvt land use planning)

V. Equitable Servitudes

Three requirements to make equitable servitude enforceable:1) Notice

Actual Constructive: once a deed is recorded, all subsequent deeds contain

covenant (dont have it written out, but purchaser is deemed to have notice) Buyer claims his title under a deed that is under the covenant

**This has made covenants very useful very easy to get all the propertyunder a covenant b/c only have to have it in one deed

2) Directive chain of title rule3) Obnolescene

Tulk v. Moxhay (Facts: Owner to Lester Sq transfer to buyer who must keep as park. Buyer sells to


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283rdparty who knows about covenant but claims he doesnt have to abide by it).

Equity attached to property if you have notice of the equity, and you buyproperty, you are also bound by the equity (cant profit from own breach)

VI. Termination of Easements Fundamentals of Termination:

Express Agreement By prescription:if owner of servient land blocks the easement, and easement owner

does not bring an action in time, then he will lose his right to sue By abandonment most

Mere non-use does not extinguish an easement Abandonment: non-use coupled w/conduct inconsistent w/making future use

Objective manifestation of intent Eg. RR stops using easement & takes up tracks & sells them Central Orgeon (Easment for hunting &fishing that hasnt been used in 30 years).Mere

non- use doesnt extinguish their right to the easement.

Condensed Property Outline

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