Outline Property Rules

7/31/2019 Outline Property Rules

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PROPERTY OUTLINE

I. Natural deposits to the soil are not movable objects, but part of the soil, and thus

belong to the owner of the soil.

o Doctrine of Accretion- The gradual addition to land by naturalcauses, as a river adds soil to riverbank.

o Occupancy-The taking possession of a thing that belongs tonobody with the intention of becoming its owner.

II. Occupation or possession of lost or abandoned property requires the actual

taking of the property by the finder with the intent to possess it.

o To acquire occupancy over a thing, a person must both intend toexert exclusive control over it and actually do so.

o Intent and actual possession must occur together. Intent topossess (using buoys to mark the wreck) is not an act of

possession)

III. The finder of lost property has a title superior to all but true owner (Armory)

Establishes Prior Possessor Rule- achieves several social goals1. It protects an owner who cannot prove that he is the

true owner.

2. It protects the individuals who entrust goods to otherswhich promotes social welfare

3. It protects the expectations of prior possessors, whoexpect to prevail.

4. It promotes peaceable possession (were priorpossession not to prevail, individuals might begin to

steal property hoping the law would protect them)

A. When lost property is found in a shop that is open to the public, the finders claim

to the property is still greater than that of all but the true owner, including the shop

owner


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B. However, where a person has possession of land with a manifest intent toexercise control over it and the things on it, he has possession of anything found

on that land, and thus has a claim superior to that of the finder

Detinue- Action to recover an item from a person who acquiredit lawfully, as by finding, but who then kept it without right.

Ownership of a house does not include possession of lost property found there if the

owner has not occupied or had prior control over the house.

IV. The finder has no title to property that is mislaid. The right of possession of

mislaid property belongs to the owner of the premises where the property is found,

and that right is superior to all but that of the true owner

When mislaid, the shop owner has a duty to safeguard the property until the true

owner returns, therefore the finder can never gain title.

A. The classification of property as lost or mislaid depends on what the facts and

circumstances of the case indicate about the intent of the owner and how the

property came to be where it was found

Five types of personal property:1) Abandoned- The owner has intentionally discarded it

2) Lost Property- Property which the true owner has

unintentionally left in some location unknown to him.

3) Mislaid Property- Property which the owner intentionallyplaced where he could return for it, but then forgot where

that was

4) Embedded Property- it has become part of the earth (likepottery)

5) Treasure Trove- Treasure Found; money, coin, gold,silver, plate, or bullion that was hidden by an unknown

owner and later found

The court merged treasure trove into lost, and embeddedinto mislaid.


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A.A bailment is created when the owner of a thing allows another to lawfullypossess it for a time.

I. Control and Possession, a Matter of DegreeA. The degree of control and possession a customer delivers to the operator of

an enclosed, attended parking garage and the expectations of the parties

suffice to create a bailment. A bailment relationship makes the bailee

responsible for delivering the thing bailed to the bailor undamaged

A bailment for hire was created and proof of nondelivery therefore entitled the P to

the statutory presumption of negligence

To overcome this presumption, the bailee must prove that the lost did not result

from his negligence and even if he does, the bailee only succeeds in removing the

presumption and shifting the burden back to the bailor.

Bailments may be voluntary or involuntary and voluntary bailments may be for hire,

otherwise coupled with an interest, or gratuitous

A voluntary bailee, whether for compensation or gratuitous, has an absolute duty to

deliver the thing bailed to the right person.

Good faith or innocent mistake will not excuse delivery to the wrong person

Involuntary bailee, has no duty to care for the thing bailed or to deliver it to the right

person as long as he does not exercise any dominion over it and in good faith

Bailment- The transfer of possession of personal property, without a transfer of

ownership, from one person (bailor) to another (bailee) for a particular purpose,

which leaves the bailee responsible for returning the thing bailed in good condition

When two non-owners are competing against one another for control of an item ofproperty, some courts hold that the one who first acquired possession has a right to

retain that possession against the other.

1) This is true even if the property is wrongfully obtained (such as whenit is obtained while trespassing, though there is dispute as to whether

the rule applies to thieves


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Possession is 9/10 of the law

B. A handful of other courts have ruled differently, holding that in order to

recover the value of personal property from a party who unlawfully converts it for

his own benefit, a suing party must show both title to possession of the property. In

other words, a non-owner will not be able to recover, even if she was the first to

have possession of the property.

An action for trover can only succeed if the P has good title to the converted

property

Trover-A common law c/a through which damages are sought for the wrongful

conversion of personal property; the usual measure of damages in an action for

trover is the value of the converted property

Trover allows the recovery of value of the property as if the converter had

purchased it from the original owner

Yhe doctrine of adverse possession allows a person who has long-term possession

of real or personal property to gain a title to the property that is good against the

true owner.

1)To gain title by adverse possession (called limitation title), certain elements must

be present HAVEC

1.) Continuous- possession that is more than sporadic, though not

necessarily constant depending on the circumstances

2.) Actual- a person cant simply claim that property belongs to her, but

she must actually possess it

3.) Hostile-possession taken without permission of the true owner

4.) Visible (notorious)- possession that is visible to the true owner if he orshe takes the time to look.

5.) Exclusive- APer must act as the true owner and exclude all those who

do not have his permission to enter the land

All of these must be present for the duration of a period of time

established by the statute of limitations


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In replevin actions involving the conversion of art the discovery rule is more

appropriate means of determining ownership than the doctrine of adverse

possession.

Bona Fide Purchaser- A person who buys something for value w/o notice that

another person has a legitimate claim to the property and/or that the sellers title is

defective

Discovery Rule- A rule of law under which a c/a for replevin does not accrue until

the injured party discovers, or by exercise of reasonable diligence and intelligence

should have discovered, facts which form the basis of the c/a

o Tacking- the accumulation of consecutive periods of possession byparties in privity to each other.

In the majority of cases, adverse possession is used to gain title to real property. The

doctrine is occasionally used in cases involving chattels, and at least one court has

held that title to intangible interests, such as rights to a song, can be acquired by

adverse possession

When the SOL for an action for replevin of property has run, the original owner of

the property cannot circumvent the statute by physically repossessing the

converted or taken property.

One could not determine where the cave extended by entering alone (only a survey

can) and is therefore not notorious

o quiet (to make secure or unassailable by removing disturbingcauses or disputes) his title

Customarily use now satisfies the requirement of continuity and there need be only

a reasonable connection between successive occupants to tackClaim of Title- In the law of AP, possession of land while claiming it as ones own.

One way of expressing the requirement of histile or claim of right.

o Color of Title- The appearance of title. A claim founded on awritten instrument, or a judgment, or a decree that is for some

reason defective and invalidresults in shorter SOL


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o Constructive AP under Color of Title- if a claimant goes into actualpossession of some portion of prop under color of title, he is

deemed to be in Ap of the entire property described in the

instrument.

o Predecessor in Interest- The person who has possessed or ownedland before the current occupant or owner

o Privity- a relationship between two people of quality so as to havelegal consequences

o Privity of Estate- In the law of AP, that relationship betweensuccessors in interest that is required for tacking

o Squatter- one who has possessionDoctrine of Color of title helps you create a shorter title

If I have a deed and your only ap 5 acres color of title can give you full title we

want to clear the title of all 10 acres

State of mind as an element? Majority view = irrelevant 4) Color of Title: what is it? How does it affect AP? (2 ways)

The doctrine of title by accession (equitable doctrine) holds that a person who

either converts anothers personal property or performs labor on another persons

real property which benefits the owner can gain title to the converted property if

certain requirements are met

The doctrine applies where the trespasser has, in good faith, expended his own

labor on the property and the circumstances are such that it would be grossly unjust

to permit the other party to receive the full benefit of that labor with nothing being

paid to the laborer

1) The nature of the converted property was different enough from that of the

original property that the original timber could not simply be retaken2) There was such a great disparity in value between the standing timber and the

hoops that D had made that it would have been unfair to allow the p to take the

hoops in payment for his lost timber


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A. When it would be not grossly unjust to permit the other party to receive thefull benefit of the labor, such as when there is no great disparity in value

between the pre-conversion and post-conversion property, the doctrine of

accession does not apply

II. Improvements Built Upon Anothers Land

A. Where an occupant has, in good faith, made improvements to real propertyprior to eviction (such as the building of a building on the land), he is

permitted to sue in equity for the value of those improvements

o According to some, an occupants right in equity to compensationfor improvements made prior to eviction applies only when he is a

D in a lawsuit, and therefore does not give him the right to

reimbursement by way of direct suit against the owner unless the

owner has engaged in some type of fraud

Doctrine of Confusion of Goods: Note p. 196

-fungible means everything looks the same, (marbles, grain, guns

sometimes)I mixed my grain with your grain. Does accession work?

-no you do not lose title, we are going to put the burden on you todetermine how much goes to each person. We put the burden on the

commingler if it was in bad faith (strict rule)

I. A bona fide purchaser is a person who buys property from a seller with no noticethat a third person, not the seller owns the property

A. The general rule is that the title remains in the true owner, not the bonafide purchaser, since no one can convey better title than he has.

B. There are, however, many exceptions to this rule. Title to property sold toa bona fide purchaser will shift from the true owner to the BFP where:

a. The owners conduct estops him from asserting title against the bonafide purchaser (entrusts something to a normal seller)


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b. The owner is a beneficiary of the property which held in trust, suchthat the owner has only equitable title, and the trustee had legal title,

which he conveyed to the BFP

c. The owner was fraudulently induced to sell his property to a personwho then sold it to a BFP, since the owner conveyed voidable title to

the defrauder and that the title became absolute when the defrauder

sold it to the BFP and

d. The transaction falls under the UCC which gives good title to a goodfaith purchaser for value even if the seller has only voidable title

II. Equitable estoppel and statutory estoppel are defenses available to a BFPconfronting a claim by the true owner.

A. Equitable estoppel precludes a party from denying any material fact whichhe has induced another to rely upon

a. Thus, if an owner clothes another with indica of ownership orapparent authority to sell his property, equitable estoppel will

preclude him from denying the others ownership or authority to

sell, and he will not be able to recover against the BFP

b. However, merely transferring possession of property to another,without more, is insufficient to induce reliance by a BFP and

therefore does not create estoppel.

B. Statutory estoppel may arise under the UCCs entrustment provision.When an owner entrusts his goods to a merchant who deals in goods of

that kind, this gives the merchant power to transfer all of the owners

rights to a buyer in the ordinary course of business

a. A buyer in the ordinary course of business is a purchaser in goodfaith who buys from a merchant dealing in goods of that kind. Apurchaser of a work of art is not purchaser in good faith if he is

indifferent as to the sellers status as an art merchant and his

authority to sell the work of art.

III. Voidable Title


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A. The UCC allows a person with voidable title to pass good title to a BFP forvalue even if that person acquired the goods through a bad check or

through fraud criminally punishable as larceny.

B. However, more particularized statutes may impose other requirementsthat prevent good title from passing to a BFP. For example, under a

certificate of title statute, a person with only voidable title cannot pass

good title to a motor vehicle to a BFP if he does not have a title certificate

because until he has the certificate, his voidable title is not perfected

Sheridan Suzuki Inc. v. Caruso Auto Saleso Buyers Beware: State law may prevent a BFP from

taking good title to a car if the seller has no title

certificate

o Abrogate- To annul or set asideo Perfect- To make valid and effective, free from legal

defects

Chapter 12. Donative Transfers (Gift Law)

I. Future Gifts Invalid: The intent, or promise, to donate (give) a giftlaterisinvalid without more.

II. Gift Requirements: A gift is valid if:A. Accompanied by an instrument of gift, andB. Made with (proven) intent to make a gift. (The property need not be

delivered at that time, if there is a reasonable and satisfactory excuse.)

In re Cohno A dying mans birthday gift locked in his companys vault is

valido Promises to give gifts later are usually unenforceableo Executrix: Female executor (person who administers a dead

or bankrupt persons estate, or remaining possessions)


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o In Re: In the matter of. Used to introduce cases in certainspecialty courts

o Probate: Matter of handling a dead persons will and estateo Surrogate: the judge in probate courto Testator: Person who leaves a will, or otherwise transfers

property, usually after death.

III. Gifts Effective After Donors Death: Donors may make living gifts while reservingthe right to keep the item during their lifetime

Gruen v. Grueno Gift of painting only after donors death is valido Donors may give an item now, but keep it for their lifetimeo Inter Vivos [Gift]- between the living Gift made while the

person is still alive

o Life Estate: Right to property for the persons lifetimeo Remainder: Right to acquire property after its current owner

dies.

o Special Term: An extra session of court, outside its normalschedule

o Testamentary: By will, i.e., after the donors death.. The issuehere is that, if this gift is ruled testamentary (as opposed to

inter vivos), then it is invalid for failure to follow a wills

formalities.

IV. Deathbed Gifts Valid Without Will: A gift causa mortis(gift in contemplation ofdeath) is usually made by a dying person. It is valid without a formal will, but

only if it meets strict requirements.A. A gift causa mortis is valid if it is:

1. A gift2. Of personal property3. Made in imminent expectation of death,4. By a competent donor,


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5. With the intent6. And upon the condition that the property should belong to the

donee if:

1. The donor dies,2. The donee accepts,3. The delivery is actual, unequivocal, and complete during

the donors lifetime, wholly divesting the owner of control,

AND

4. The donor dies of the anticipated peril.B. The gift must be returned to the donor if:

1. The donor survives,2. The donor changes his mind before dying, OR3. The donee dies before the donor.

Foster v Reiss Dying womans note to ex-husband to take

property she stashed in the house they share is

not valid delivery (overruled in part)

Courts recognize gifts made in anticipation ofimminent death without formal wills.

Defeasible: For property, that which will notnecessarily pass to another, or which may not

pass if certain conditions arise

Donatio Causa Mortis: Same as gift causamortis, the slightly more modern term

Gift Causa Mortis: Transfer of chattels by aperson expecting to die soon, which may be valid

without a formal will.

Legacy: Gift by willC. Imperfect Delivery: Some courts impute constructive delivery if:

1. Donative intent is proven by concrete, undisputed evidence,


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2. The donor intended to transfer possession immediately, AND3. The donor took steps he believed sufficient to effectuate transfer

Scherer v. Hyland (N.J)o Suicidal womans endorsement of check to

boyfriend is valid under circumstances

o Some Jxs allow constructive delivery for a giftcausa mortis

o Ad Litem: For the litigationo Administrator: Person appointed by the court to

represent the estate of people who die leaving

without leaving wills

o Per Curiam: By the court Collective court opinionnot ascribed to any single judge.

o But See: Woo v. Smart (VA)

o Dying mans personal check is not valid gift causamortis until accepted by bank

V. Engagement Rings: What happens when a suitor gives a wedding ring, but thewedding is called off?

A. Fault-Based: Some jurisdictions courts decide the issue based on whowas responsible for the engagement failing

B. Modified No-Fault: In others, the groom is entitled to his ring back only ifhe did not break off the wedding

C. No-Fault Approach: In some states, engagement rings must be returned tothe donor anytime the marriage does not occur

Lindh v. Surmano No fault approach in PN

Chapter 13: Historical Development of Estates Doctrine

-tenure- land that residents owed various specified services to the king


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-Escheat- reversion of uninherited land to the state

-State and federal law provides that, if a landowner dies without suitable

heirs, his property escheat (reverts to ownership of) the state or federal

government. (So if you own land, make a will

-Usually in such cases the state need not pay inheritance tax on the land

In re OConnors Estateo Nebraska inheritance tax laws inapplicable to escheato When landowners die without heirs, their land reverts to

the government

o Escheat: To [have land] revert back to the state, if its ownerdoes not leave it to capable heirs

o Fee: the ownership in lando Probated: Litigation in probate (will/inheritance) courto Reversion: Right to reclaim property, granted to another

for his lifetime, upon the holders death

o Tenure: [archaic] Duties required of vassals (landholders)in old England as a condition of keeping land granted to

them by the Crown (e.g. providing soldiers or money for the

army, harvesting crops, doing housework for the king/lord)

o But see: In re Estate of OBrine

o When personal property escheats to federal government,the state can first collect inheritance taxes

Chapter 14: Freehold Estates

I. The greatest estate in land is the fee simple absolute, which may lastindefinitely, and which, if not sold or passed by will, passes to the owners heirs.

A. Traditionally, to create a fee simple under common law, a deed orconveyance used words to A and his heirs


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1. In modern practice, almost all state have statutes that favor fee simpletitle and give fee simple effect to any conveyance that expresses the

grantors intention to pass a fee simple

2. In a common law jurisdiction, the lack of the words and his heirs in adeed in the chain of title is sufficient to make title unmarketable.

Cole v. Steinlaufo Fee Simple Absolute: The greatest estate in land

someone can have and it can potentially last forever; it

passes to the heirs of the owner if he dies without a will

3. As used in the law of wills and estates, the word heirs is a term of artthat refers to persons who take property under relevant statutes of

descent (usually when a person dies without a valid will); individuals

who take property under a will are not heirs

B. Prior to the passage of the Statute of Wills (1540), English law did notusually allow freehold estates in land, unlike personalty, to be passed by

will.

1. The differences between the treatment of real and personalproperties was accentuated by the jx of the Ecclesiastical Courts over

probate

2. Primogeniture, the idea that a person had only one legal heir (usuallythe oldest male descendent), was the primary rule of inheritance

developed in England.

3. The development of primogeniture tended to prefer passing propertyto successors rather than wives or ancestors, even if the latter were

closer relations than the successors.

C. Under modern statutes, if a person dies intestate (without a will), theproperty will usually be divided by giving half of the estate to a surviving

spouse and dividing the other half between the surviving descendants per

stripes.


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1. When there is a surviving spouse but no descendants, the entire estategoes to the spouse; when there are descendants, but no surviving

spouse, the entire estate goes to the descendants per stripes

2. When there is neither a surviving spouse nor descendants, theproperty passes to the collaterals or ancestors through a statutorily

determined calculation of degrees of relatedness to the deceased

3. Most state statutes provide that someone causing a wrongful deathcannot inherit from the deceased

D. At common law, illegitimate children inherited nothing if their naturalparent died intestate, but modern statutes usually include illegitimate

children to inherit from their mothers and fathers, where the father has

acknowledged paternity or paternity has been proved

II. Although it gives the owner the right to enjoy his or her land and to reap theprofits of its use, the life estate is not inheritable, and upon the death of the life

tenant either reverts to the grantor or passes to the remaindermen named in the

deed.

A. The common law required no special words to create the life estate.1. A will creates a fee simple estate absent express language limiting the

devise to a life estate, since the law (often due to statute) disfavors

forfeitures.

Lewis v Searleso Life Estate: An estate in land that lasts for the duration

of a specific persons life; the holder of the life estate has

a duty to maintain the property in good condition for

the remainderman, the person to whom the propertywill pass at the end of the life estate

o Fee Simple Determinable: A fee simple estate in landthat in the event of a certain, specified occurrence or

action automatically ends and reverts to the grantor


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o Condition: A condition attached to a conveyance of landis language stating that in the even of a certain

occurrence the size, extent or nature of the estate

conveyed will change.

o Limitation: Words of limitation in a will create anestate less extensive than a fee simple

o Testator/Testatrix: Person who has died leaving a will.Testatrix is the female version

2. A will may make a devise contingent upon the devisees marital statusfor legitimate reason, such as the devisees support or protection

Lewis v SearlesB. A life tenant has a fiduciary duty to reasonably maintain her property for

the benefit of the remainderman, so, absent prejudice to the life tenant,

laches will not bar the remaindermans suit for waste

Moore v. Phillipso Waste: Damage to a property beyond normal

depreciation due to a tenants affirmative acts

(Commissive Waste) or neglect of upkeep

o (Permissive Waste)o Remainderman: The person who has the right to a

future interest in land, typically, the person to whom

the land will pass upon the death of a life tenant.

C. In the past, under common law, life tenancies were not inheritable, butnow, a life estatepur autre vie (where the estate terminates upon the death

of someone other than the holder) may be inherited in some cases.

III.Defeasible EstatesA. There are two importantdefeasible estates:

1. The fee simple determinable, which will automatically revert to thegrantor upon the occurrence of a certain event


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2. The fee simple subject to a condition subsequent, which gives thegrantor the right to reenter and terminate the estate upon the

occurrence of a certain event

B. Generally, a court will look at the language of the will or deed to determinethe intention of the parties to create a particular defeasible fee.

1. Where the intent of the parties is unclear from the language of a deed,the court will look to the circumstances to determine the type of

defeasible fee created by the deed.

2. Because of the principle that forfeitures are disfavored, courtsgenerally prefer to interpret an unclear deed as creating FSSCS rather

than an FSD

Oldfield v. Stoeco Homes, Inc.o Fee Simple Subject to a Condition Subsequent: This is a

fee estate under which the grantor may take affirmative

action to have the land forfeited back to him if a certain

condition occurs; it is usually created by using language

such as To A on the condition that. Or To A

provided that

C. By itself, a clause providing that a conveyance is made for certain purposeswill not create a limited estate in a grant of land

Roberts. v. RhodesD. The passage of time alone does not terminate grantors rights or grantees

obligation to perform under a FSSCS

Martin v. City of Seattleo Impossibility: Impossibility of performance may be

advanced as a defense for failure to perform under a K

or deed when a material change in the circumstances

outside the control of the non-performing party or a

change in the law makes it impossible to perform the

terms of the K


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E. A statute of limitations may bar grantors untimely lawsuitto reenter landsunder an FSSCS

Johnson v. City of Wheat RidgeF. A governmental entity that holds a defeasible fee cannot condemn the

grantors reversionary interest and pay merely nominal damages

Leeco Gas & Oil Co. v. County of Nueces

IV.At common law after the year 1285, a conveyance to A and the heirs of hisbody created a fee tail estate, which may be inherited only by specified natural

decedents of the grantee; the fee tail lasts until the holder dies without issue

A. Most state have statutes which abolish the fee tail and make conveyance toA and his heirs into a fee simple in A

B. Where a will conferred a fee simple with the qualification that if granteedied without issue, then the land passed to another, grantee received a fee

tail.

Caccomo v. Banningo Fee Tail: Title to land that can pass only to certain

natural descendants of the grantor; if the grantee dies

without having had natural issue, the title will pass to

the heirs of another (no illegal)

o Disentailment: The process usually created by statute,allowing a person to bar a fee tail and prevent another

person from asserting his rights under the fee tail;

disentailment usually resulted in the creation of a fee

simple absolute in the grantee

o Issue: In the law of wills and property, issue refers tothe natural offspring; in many cases, the term issue is

interpreted to exclude adopted children..

Chapter 16: Concurrent Ownership


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I. Concurrent Ownership in the legal sense refers to two or more persons whoconcurrently have equal rights in real or personal property.

II. Types of Concurrent OwnershipA. Tenants In Common

1. Tenants in Common are individuals each owning a fractional undividedinterest--equal or unequal

2. UndividedInterest refers to an ownership interest where none own anidentifiable segment of the property, and none can assert a paramount

right of possession of any segment.

3. When Disputes arise among tenants in common, available legal remediesinclude partition, leasing and apportioning the rent, or purchase by one

cotenant of the others interest

B. Joint Tenancy1. Joint Tenancy means individuals comprising a single legal entity which

owns the property.

2. JT involves right of survivorshipupon the death of a JT, the survivingJTs own the property.

3. Prior to the 19th century, JT existed, unless there was evidence of a clearintent by the transferor to create a tenancy in common. Today, statutes

often declare that a tenancy in common will be created uncles there is an

intent to create a JT.

4. It is often said that JTs are seised pur my et pur touteach JT is anowner of an undivided interest and an owner of the whole as well.

5. JTs may compel partition, either in kindthrough physically dividingthe propertyby salewith proceeds of the sale paid to the JT

6. JTs may effect a severance of their interestby conveying the interestby deed to another. The grantee becomes a tenant in common, with no

right of survivorship.

7. Four Unities of Joint Tenancy


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1. Unity ofInteresteach has equal undivided interest in theproperty

2. Unity ofTitleeach has derived their interest in the propertythrough the same event, such as a single will or conveyance

3. Unity ofTimethe interests vest as the same time (a limitation toa class will create a JT even if the members of the class come into

being at different times.)

4. Unity ofPossessioneach is seised of the whole estate, not just anundivided interest therein.

C. Tenancy by the Entirety1. Tenancy by the entirety is concurrent ownership available only to a

married couple.

2. At common law, a married woman was subject to the husbands control

and power of disposal of the property of the marital estate. Now, through

legislation and judicial action, husband and wife have equal rights in the

control and enjoyment of their property.

3. Husband and wife are seised pur tout et not pur myneither is an

individual owning an undivided interest. Thus, neither can effect a

severance by conveying an undivided interest and neither can compel a

partition.

III. General Aspects of Concurrent OwnershipA. At common law, JTs were favored. The courts in the US, however, favor the

presumption of all tenants holding jointly as tenants in common, unless

there is a clear showing of an intention to create a JT with the right of

survivorship. In re Estate of Michael

1. Where one seeks the courts assistance in interpreting a deed, the court

will only look to the deed, and will not consider any other evidence, such

as language from a will, to determine the intention of the party.


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B. Cotenants who have mortgage obligations concerning their real propertyare obligated to pay their pro rata share of the expenses. However, if one

cotenant does not pay, and the other prevents the property from being

lost through sale, the nonpaying cotenant retains a right of redemption.

1. A co-tenant who pays more than his share of a debt secured by a mortgage

or other lien on the common property is entitled to

reimbursement (contribution) from his cotenants to the extent to

which he paid their shares of the indebtedness.

Laura v. Christian Constructive Trust: Involuntary trust created by operation of

law where one gains a thing by fraud, accident, mistake, undue

influence, etc., and imposed by a court of equity to prevent

unjust enrichment

Mortgagee: The creditor who possesses the mortgage onproperty, as a lien to secure payment of an obligation by the

mortgagor

Perfect on Appeal: Exercising all steps necessary to pursue anappeal.

2. A cotenant who pays a mortgage or taxes to avoid a foreclosure sale

usually cannot obtain a personal judgment for contribution from

the nonpaying cotenant because the nonpaying cotenant is not

personally liable for the nonpaymente.g., a mortgagee obtains

the property through foreclosure proceedings, rather than

obtaining personal liability against e nonpaying mortgagor.

C. The right to compel partition is an inherent right of JT and TnCD. If a partition suit is filed to terminate a co-tenancy, there must be

accounting.

IV. Creation of Concurrent Estates and Severance Thereof


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A. If two JTs exist, and one transfers his interest to a thirdperson, the JT issevered and a TnC is created between the grantee and the former JT

B. If there are three JTS, and one conveys his interest to a thirdparty, the JT isdestroyed as to the part conveyed, and the third party becomes a TnC

with the other two JTs; however, the latter still holds the remaining two-

thirds as JTs.

C. If three or more JTs exist, the conveyance by one JT to another joint tenantdoes not sever the entire joint tenancy; the grantee remains a JT as to his

original interest but becomes a TnC as to the interest conveyed by the

grantor JT.

Jackson v. OConnell Master: A quasi judicial officer who has been appointed to help

the judge and court, by acting as a referee, hearing officer,

person who resolves discover issues, or makes calculations,

etc.

Quitclaim Deed: a deed that conveys real property but withoutwarranty of title and without covenants

Severance of JT: conduct by a JT that destroys the JT andconverts it into a TnC without right of survivorship

D. In an action for reformation of the deed (as opposed to judicialinterpretation of a deed), if clear and convincing evidence exists showing

that the grantor intended for a deed conveying real property to contain

language concerning JT with right of survivorship, but such language was

absent due to the scriveners negligence, the deed can be reformed to

include the omitted language.

Matter of Estate of Vadney Reform a Deed: Referring to reformation of a legal document

wherein the court orders the document modified according to

the parties intent, usually based upon fraud or mistake


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Clear and Convincing Evidence: Evidence that provessomething by more than a preponderance of the evidence but

less proof than beyond a reasonable doubt.

E. The express language often used to create JT estates is: as joint tenantsand not as tenants in common.

1. Some courts hold that a deed from the grantor to two grantees containing

the phrase, as joint tenants, and not as tenants in common, to

them and their assigns and to the survivor, and the heirs and

assigns of the survivor forever conveys a JT, and not a joint life

estate to the grantees with a contingent remainder in fee to the

survivor.

Palmer v. Flint Bill of Complaint: a written petition submitted to the court

requesting certain relief from the defendant

Granting Clause: The language in a deed or other documentthat expresses the transfer of an interest

Habendum Clause: Also called a to have and to hold clause,and referring to that portion of a deed that describes the

interest granted and any conditions relating thereto

2. However, other courts hold that a deed conveying property as joint

tenants with full rights of survivorship and not as tenants in

common does not create a JT, but instead joint life estates

followed by a contingent remainder in fee to the survivor.

Jones v. Green Inter Alia: Latin for among other things Moiety: A small segment of an interest, half or less than half Per Contra: Latin for by contrast


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Per Curiam: an opinion by the whole court, rather than onejudge

Reversible Error: An error that is significant enough topossibly cause prejudice to a party so as to require the reversal

of a judgment

F. Whether a mortgage severs a joint tenancy depends upon the particularjurisdiction

1. If a jurisdiction treats a mortgage as a lien, the execution of a mortgage by

one of two JTs will not sever the JT

1. However, if the jurisdiction treats a mortgage as a conveyance of title,then a severance will result

2. In those jurisdictions that treat mortgages as a lien, a mortgage upon real

property executed by one of two JTs in not enforceable after the death of

that JT.

People v. Nogarr Condemnation: An action by the government to determine if

property should be declared for public use upon reasonable

compensation to the owners of the property

Doctrine of Equitable Conversion: Where equity acts to makethat which ought to be done; for example, real property will be

treated as personal property in order to acknowledge transfer

of real property based upon written agreement to sell, but

where party dies before title is transferred

Justice Pro Tem: Pro tem is the abbreviation for protemporeLatin, for the time beingand as applied to

justice refers to appointing one to act temporarily as a justice

G. A divorce alone does not sever a JT estate


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1. The provisions of a divorce property settlement agreement may, however,

convert a JT into a TnC

Mann v. Bradley Administratrix: A female administrator who is appointed to

handle the estate of one who dies intestate

Sin Qua Non: without which not

H. Murder1. In some states, murder by one JT of another JT severs a JT

Duncan v. Vassaur Bona Fide Innocent Purchaser for Valuable Consideration: One

who purchases property in good faith, for valuable

consideration and without notice of any defect in title

Judgment of the Pleadings: Deciding the case as a matter of lawbased upon the allegations contained in the complaint

2.Other states have contrary views, such as:

a. A murderer is deprived of the entire interest except for a lifeinterest in one-half;

b. A murderer is entitled to keep all the property;c. A murderer holds upon a constructive trust to the extent of the

computed value of one-half of the property as of the date of the

victims death for the period of the victims expectancy;

d. A murderer is chargeable as constructive trustee of the entireproperty for the benefit of the victims estate;

e. A murderer is chargeable as constructive trustee of one-half of theproperty for the benefit of the victims estate;

f. By the murder, the JT has separated and terminated and on-half ofthe property should go to the heirs of the murdered person and the

other one-half to the murderer, or to his heirs, when deceased


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V. Condominiums ( she said dont worry about condos for the exam)

Bonus Material

Support of Land

Under theories of strict liability and negligence, adjoining landowners have aduty to provide lateral support to each others land

Noone v. Price

o Strict Liability for removal of lateral support is limited to land thatwould be subside while in its natural state

If the land subsides from removal of lateral weight of a building, the adjacentlandowner is only liable in cases of negligence

o Adjacent lateral support may be removed provided that artificialsupport, such as a retaining wall, is provided to replace such support

o The duty to maintain the artificial support becomes a covenant thatruns with the land

Drainage.

Courts apply three different rules: (Armstrong v. Francis Corp):

1) Common Enemy Rule: A landowner has the unrestricted right to rid his landsof surface waters, without liability for harm it may cause others

2) Civil Law Rule: A landowner who interferes with the natural flow of surfacewaters so as to cause an invasion of a neighbors interests in the use and

enjoyment of his land is subject to liability to the other

3) Reasonable Use Rule: A landowner is legally privileged to make alterations tothe natural flow of surface water until there is an unreasonable interference

with a neighbors use of his land. Courts look a the following factors:

a. The utility o the possessors use of his land


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b. The degree of harm that resultsc. The foreseeability of harm that resultsd. The feasibility of alternatives

Damnum Absque Injuria: A loss or damage without injury

Surface Water: Water coming from rain, snow, and streams that spreads over the

ground or collects in pons as opposed to stream water that runs in defined channels

Rights to Water

1) Water in Watercoursesa. A riparian landowner may use all the water in a stream to satisfy

natural needs for water, such as thirst. But for artificial needs for water,

such as manufacturing and irrigation, it is up to a jury to decide on a

case-by-case basis how the water should be divided

b. In Colorado and other western states, the first appropriator of waterfrom a natural stream for a beneficial purpose has a prior right to the

water to the extent of the appropriation

Coffin v. Left Hand Ditch Co. Patent: A grant of government land, including the official

certificate granting the land.

2) Groundwatera. Under the rule of capture, landowners may pump as much

groundwater as they want without liability to neighbors who claim that

the pumping depleted their wells.

Sipriano v. Great Spring Waters of America Inc. Groundwater: Water that has percolated through the soil and

does not flow in an underground stream or a defined channel.

b. In western states, where the ground is more arid, courts usually applythe reasonable use doctrine or an appropriation rule


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Outline Property Rules

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Transcript of Outline Property Rules