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Property I Outline Kiel Fall 2012

I. Overview of Property Law The Bundle of SticksA. What does it really mean to own something?1. Rights among people that concern things.2. Property consists of a package of legally recognized rights held by one person in relationship to others with respect to something or other object.3. What you own are legally enforceable rights regarding the property.4. Two aspects of property: 1) rights among people, 2) that concern things.5. Legal Positivism rights, including property rights, occur only through the government.6. Natural Law Theory the role of govt. was to enforce natural law, not invent new law this theory has diminished.B. Property Law as ownership of a bundle of rights1. Title (the sticks of your bundle)2. Promotes stability, Productivity, Alienability3. The most important sticks are (however, not necessary for property).a. Right to excluderight to exclude others from use or occupancy of a certain thingb. Right to transfer right to transfer the holders property rights to othersi. Transfer may be during ones lifetime or at death.ii. There are restrictions to transfer cant transfer any way you wish.c. Right to possess and use Have the right to use land how you want i. However, there are ordinances that restrict how you can use your land.i. Ex. If home is a historical structure, law may prevent owner from destroying it.ii. You can release your right to possess and hold and still have property rightsi. Ex. give a 10 yr. lease. C. Competing Interests Private Owner vs. Public Interest1. Property owners both hold rights and owe duties. 2. Law wants to promote the public interest. a. Ex. law requires one to preserve the habitat of an endangered species this would limit property rights, but it is a duty the property owner owes to public.3. Property rights are a balance b/w owners rights and societys rights.D. Primary Topics of Property Law1. How is a property right acquired? How do you get that first stick?2. What can an owner do with something acquired? What can the owner not do? What other sticks do you get?3. How does an owner dispose of some or all of her sticks?4. What happens to an owners property rights (sticks) when she dies?5. How often can or should the government/law interfere with property rights.E. Who Owns the Watch?1. Critical Facts: P lost watch in city park, placed posters around area with reward for watch while, lasted about two weeks and gave poster to coworkers, 33 years later, D finds watch in park. Defendant kept watch. Found in a public place. P sees D wearing watch and demands back.2. Narrowing Questions: a. Was finder on notice? nob. 33 yrs. Passed.3. Remedial Questionsa. Finder made investment into watch.b. Finder labored in finding watch.4. A Rule? Rules?a. We want to encourage finding so as to keep the property active. We encourage finders fee so that the property continues to be used and it encourages rights of loser.b. Finder is keeper against whole world accept original owner.c. Loser keeps possession so long as he is acting diligently to find.d. Finders keepers losers weepers.

F. The Competing Interest of the Private Property Owner and the Public Interest1. Right to include: you have a right to allow others to enjoy your property.a. Limitations: you cannot invite a fugitive, cannot treat poorly, cannot force, and cannot hold in custody. Limitations are for public interest intentions2. Right to exclude a. This is the competing interest between society and property owners.b. If you dont want someone on your property, you have a right to exclude them.c. You can still own property and not have a right to excluded. If you have an easement on your property that legally allow people to use it.e. Might rent to a tenant therefore releasing right to exclude.3. Jacque v. Steenberg Homes Mobile Home Punitive Damages Trespassa. Facts Steenberg intentionally trespassed on Jacque property. Steenberg asked to use a path on Jacques land. Jacques repeatedly refused, excluding him. Steenberg used it anyway. Jacques sued Steenberg for intentional trespass. Steenberg argued that no compensatory damages had been proved and that no punitive damages could be set without compensatory. i. Facts that drove opinion: Intent, conduct, reprehensibility, purpose, and necessity.ii. Conduct of Jacques actually excluded D.iii. Intent of Steenberg maliciousiv. Reprehensibility the D was to blame for his malicious actionv. Purpose Steenburg did this for his own commercial purpose as opposed to public/humane purpose.b. Holding: Crt ruled in favor of Jacques, jury awarded $1 nominal and $100,000 punitive to Jacques. Appeals ct. overruled the punitive. Supreme ct. decided punitive could be allowed in this situation so as to prevent continuous trespass.c. Damages and Remediesi. Nominal damages purpose is to acknowledge the violation of rights.ii. Compensatory damages purpose is to make P whole from damages.iii. Punitive purpose is to punish and make example of rights violator.d. Rule: With regards to intentional trespassing of land, there need not be compensatory damages to have punitive damages.e. Court decided that actual harm to rights was done in removing the stick from Jacques it was a 100,000 stick.f. Public Policy: Protecting the right to exclude.g. Effects on Jurisdiction of this Case: i. Mental State of Owner- Matters least. This stick matters regardless of the owners state.ii. Intent This could have been softened. By eliminating the permission requests and Steenbergs notice of desire, mental state of owner could have been effected iii. Necessity Was this a necessary measure. The mobile home could have been sold w/ price mark-ups.iv. Purpose - Ambulance? Public Service that depends on time. This changes the jurisdiction recognized as a public service purpose is different not privateh. NARROW RULE: i. Punitive damages could be awarded when there is an unnecessary trespass and does not serve public service. This is extremely narrow.i. BROAD RULE: i. Punitive damages may be awarded in the case of intentional trespass even where no compensatory damages are awarded.j. What mattered in Jacque, the mental state and actions of the property owner, Rights Violator they knew what they were doing, Purpose, Necessity.4. State v. Shack Migrant Workers Rights Trespass Casea. Facts: P, farmer, employs migrant workers, housing them on his property as part of compensation. Ds work for nonprofit corps funded by gov. agency providing health services and legal advice/ representation for these migrant workers. Both D representatives entered Ps property together to provide services on behalf of the migrant workers. P confronted and requested his presence with a group consultation. D declined stating they have the right to see the men in the privacy of their living quarters and without Ps supervision. P sued D for trespassing. Held: The Ds invaded no possessory right of the farmer-employer, not liable.b. Tedescos stick are thrown out, unlike Jacques.--> bc Human rights trumps property.c. Contrast with Jacque : i. State dealing with public. Jacque, the privateii. Rights are relative. iii. Intent: the doctor and lawyer had same intent as Steenberg to trespass.iv. Purpose: to help migrant workers. Necessity here court ruled it was necessary while Steenberg was not necessary.d. A property right is not absolute, but inhibited by society, for the promotion of the best interest of others who operate within society. Human cannot be used as a shield to block human values.e. An employer may not deny the worker his privacy or interfere with his opportunity to live with dignity like other citizensf. Public Policy: Getting aid to migrant workersg. Shack Factors Property Owner; Rights Violator rights are relative (owners dont supersede workers rights AND right to exclude can be shrunk; purpose; necessity.h. A critical determinative fact. Hypothetical if the workers did NOT live on the land, it would NOT be a necessity that the Ds visit the workers, and now it is trespassing.

II. Acquisition of Property: A. First Possession1. Acquisition by Capture Title to Wild Animalsa. General Rule: i. You must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title. ii. First person to capture or kill gains title. (formalist approach)iii. Pierson recognizes a hunter who actually kills or captures a wild animal, and immediately has possession of it, acquires title. It also suggests that the mortal wounding of an animal by one not abandoning his pursuit may constitute capture.iv. Rule: Freddy can give good title assuming that he captures or mortally wounds the fox before the pursuing hunter does. i. Under Pierson v. Post, title to a fox is not obtained until the fox is mortally wounded even if a hunter has been pursuing the fox for a significant amount of time and expending significant effort. ii. Policy Reason Rule: This rule provides greater certainty in assigning title to wild animals, such as foxes, and encourages more efficient fox hunting, and minimizes quarrels.b. What to Consider when creating an Acquisition Rulei. Productivity Want to encourage use of formally title less things.ii. Predictability/Stability we want stability in our society therefore we want predictable laws.iii. Fairness and equity whether something is fair or not.iv. Creativity find right balance b/w encouraging people to be creative and allowing ability to exploit creativity.v. Conservation preserving of thingsenergy.

c. Acquisition Rules How to assign titlei. Labor Theory we want to reward the person who does the work.i. Good because it encourages people to do work.ii. Bad because it might encourage too much work conservation problems.iii. Bad because it might breach the right to exclude.ii. Possession theory Ive got it, its mine. First person to take occupancy or possession owns it.i. Bad because it could encourage the waste of natural resources. If it is first come first serve, then it would encourage people to use up as soon as possiblebefore others can.iii. Its my land Theory/site theory i. If animal is on your land it is your animal usually this rile needs to be accompanied by another rule like you capture it.iv. Labor+ pursuit theory People are entitled to the property produced by their labor. i. Labor plus pursuit is idea that I did work and am still doing the work so I own it. ii. Ex. you might not have captured it but are still working.iii. This discourages laziness.v. Custom Theory: whatever the areas custom is the rule. Ghen v. Rich

d. Pierson v. Post The Fox Hunting Casei. Post, , was hunting for a particular fox. Pierson, , was hunting for the same fox. Knowing they were both hunting for the same fox, Pierson deliberately, in the sight of Post, killed the fox. Lawsuit on action of trespass. Held: In favor of , had no property right to the fox, merely a game of pursuit. ii. Mortal wound approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective manifest intention to seize the animal (i.e., not just for the enjoyment of the chase iii. Rule: Pursuit alone not enough to acquire titlePursuit + Mortal Wounding=Owneriv. When looking at acquisition rule consideration, it is to determine who killed or captured providing stability.v. socially useful enterprisemajority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain from labor of first person)vi. Other reasoning: keeps the peace, decreases litigation (the end of the hunt is an objective measure, so we know where the law stands-less suits), clear and easy to administervii. Dissenting opinion encourages labor plus pursuit theory saying that the goal is to kill foxes and labor + pursuit encourages killing more. This is a fairer rule, but harder to apply b/c what does constitute pursuit?e. Capture by Custom Rules:i. Capture by custom means even though Ghen did not take immediate possession of the carcass and in fact left the area, he did not abandon his pursuit. In Ghen the court said, the fisherman does all that is possible to do to make the animal his own, that would seem to be sufficient.ii. Ghen v. Rich The Whale Hunting Caseiii. Rule: When a hunter catches an animal according to established custom, title to the animal is acquired.iv. P is a whale hunter and has shot the whale in question. A local whale-hunting custom stands that the whale hunter attaches a waif to the whale, the whale corpse floats to shore, and the local town identifies the whale hunter identified by the waif - of the surfaced corpse. D has purchased the whale in question at an auction from another who found the whale on the shore. P sues D. Issue: Whether the whale is considered the property of P under the local custom usage. Held: Yes, the whale is Ps property. based on custom theory of industry.i. Reasoning: In this case, whale hunter had already marked and shot the whale. This custom provides a more distinguishable marking of ownership - people who find the whale killed by hunters would contact hunters and would receive payments in return.v. Custom recognized as basis for property right when: (1) its application is limited to those working in the industry (2) custom is recognized by whole industry (3) requires of the first taker the only possible act of appropriation (4) necessary to survival of industry (5) and works well in practicevi. Custom is bad when: (1) formulated for the benefit of the industry but not society as a whole (2) may be dangerous to those employed in the industry (3) wasteful of a resource (i.e., the whales that floated out to sea and werent recoveredvii. Public Policy: keeping the industry running. If a fisherman does all that is possible to make whale his own he owns that whale.f. Comparing Ghen and Pierson:i. The holding is no different in either case: Pursuit + Mortal Wounding.i. They both endorse labor + pursuit. ii. Difference is custom and policyi. Pierson Based on policy. (At time they were wanting to kill foxes.)ii. Ghen Custom based on whale industry. Court does not necessarily want to kill as many whales as possible, but if the custom is as such, this is the rule. No ownership of wild animals just because they are on your land.g. Review Acquisition of Title and the Law of Capturei. Blackletter lawi. Acquire title with pursuit + mortal wounding. The law of capture. This varies by animal.ii. The Role of Custom i. In Ghen v. Rich, it is a binding role. ii. In GENERAL, it is a persuasive authority. The industrys interest and the publics interest may not be in line.iii. The Role of Policy i. The policy underlies the rule. ii. State v. Shack underlying policy: Protect the rights of migrant workers. Have to violate Shacks right to exclude. iii. Ghen v. Rich Whale industry keeps the overall Mass. Economy intact.

2. Acquisition by Creationa. Intellectual Property1) Law of Creation if you are the first to create something, then you have title.2) Balance the desire to promote creations, by granting monopolies, by balancing the desire to promote competition, by limiting those monopolies.3) Constitution Art I, Sec 8, Clause 8 Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.4) Patents inventions.i. Must be patentable subject, utility, novelty, and non-obviousnessii. Exclusive right for 20 years. After 20 yrs, passes into public domain.5) Copyrights expression of ideas. original words of authorship fixed in any tangible medium of expressioni. Must be original, work of authorship, and fixation.ii. Books, stories, songs, computer code (debatable).iii. Protects original and independent creations. Not necessarily novel. iv. Lasts, typically, 70 years after the death or author of creator. Longer, but more limited.v. Exceptions Defense of Fair Use If using fairly a copy of a book or article, this can be used.i. Allows reasonable use of copyrighted material without the owners consent1. Purpose and character of use, nature of the copyrighted work, amount and substantiality of portion used in relation to whole, and the effect of the use on the potential market 6) Trademarksi. Requirements: distinctness, non-functionality, and first use in tradeii. Words or symbols used to indicate a source. (Coke bottle, Mickey vs. Marty Mouse).iii. Protection prevents others from using similar marks only where confusion would result.b. Property Right in Publicityi. Elvis v. ElvisThe Using Elviss Name Casea) Facts: P and D are non-profit organizations disputing over their respective rights to use Elvis Presleys name as part of their corporate names. P filed an unfair competition action against D to dissolve it and prevent it from using Elvis Presleys name. Elvis Presleys estate intervened on behalf of D, asserting that it had given D permission to use Elvis Presleys name and that it had not given similar permission to P. Issue: Whether Elvis Presleys name and image entered into the public domain upon his death or if the Right to Publicity holds that his name and image are descendible to his estate.b) Rule/Held: The right of publicity is descendible under Tennessee law.c) Reasoning:a) Right of Publicity An individuals right to capitalize upon the commercial exploitation of his name and likeness and to prevent others from doing so without his consent.i. Right to Include Right to Licenseii. Right to Exclude Right to Protect.b) Recognizing that the right of publicity is descendible recognizes: i. That an individuals rights of testamentary distribution is an essential right;ii. One may not reap where another has sown; iii. Consistency with a celebritys expectation that he is creating a valuable capital asset that will benefit his heirs upon his death; iv. The value of the contract rights of persons who have acquired the right to use a celebritys name and the likeness; v. Will further the publics interest in being free from deception with regard to the sponsorship, approval or certification of goods and services.c) Encourage Creativity Balance between protecting creativity with future celebrities, and also protecting an overabundance of creative usages of Elvis name.d) Protection of Society/Community Protects city where Elvis made his fame (Memphis Int. Airport v. NY Int. Airport).c. Zacchini v. Scipps Human Cannonball Case1) Rule: The right to publicity is a property right, you can exclude people from taping/broadcasting your entire act without payment or consent.2) Facts: Petitioner Hugo Zacchini had a human cannonball act which he performed at various venues. During August of 1972, he was performing his act at the Geauga County fair at Burton, Ohio. On August 30th, Zacchini noticed a freelance reporter from Scripps-Howard Broadcasting videotapped. Zacchini asked the reporter not to film his act. The reporter did not film Zacchini's act that day, but did film him the next day. The footage taken by the reporter was about fifteen seconds long, sufficient to capture Zacchini's entire act. Holding: The First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer's entire act without his consent, nor does the Constitution prevent a State from requiring broadcasters to compensate performers.d. A Dissent on the Right to Publicity a. White v. Samsung The Vanna White Look-A-Like CaseFacts: D features advertisement of game show with P resemblance. P sues D for infringement of IP rights. Issue: Whether false representation meets a violation to a celebritys right of publicity. Held in favor of P.i. Rule: extended protection to a celebritys identity or personaii. Overprotection vs. Under-protection1. Danger of Under-protection If there is no right, there is an overuse problem. 2. Danger of Overprotection You strangulate creativity. Making one have to get permission from every landowner to get land.b. Dissent: Claims the majority opinion creates a new and broader property right, in which there is an overprotection of IP. Its now a tort to REMIND the public of a celebrity.i. Concerned that the next time there is a game show, V. White is going to sue any blonde wearing an evening gown. She does not own the right of that plot.

B. Subsequent Possession1. Acquisition by Finda. Goals of the Law of Find:i. Get property back to the rightful ownerReturn to True Ownerii. Reward honestyiii. Ensure propertys use productivityiv. Predictability want people to know whats going to happen and what to dob. Remember the Watchc. Rules:i. The finder of property, though he does not acquire absolute ownership, may keep it against all but the rightful owner. Armory v. Delamirieii. Finder has possession and title over everyone but the true owner. Hannah v. Peeliii. The finder of mislaid property acquires no rights in that property, rather the site owner retains possession over all but the true owner. McAvoy v. Medina d. Three classification of found property:i. Lost property a. Rule: Title goes to the finder (finder has title over the whole world but the owner)b. Because the wallet was found on the floor (and not on a stand), it is considered lost property. Bailey v. Hawkesworth. c. Rule: Lost property goes to the finder because there is less likelihood that the true owner will approach the site owner seeking to reclaim the lost property.ii. Mislaid property a. Title goes to the site owner (best chance of being recovered by the true owner) Exception to Finders Keepers Rule.b. Rule: The finder of mislaid property acquires no rights in that property, rather the site owner retains possession over all but the true owner. McAvoy v. Medina c. If wallet found on stand, then mislaid.iii. Abandoned propertya. title goes to the finder (finder has title over the whole world, including the ownerb. Rule: Essentially, abandoned property is title-less and the first-in-time to discover/capture it gains title to it.iv. Treasure Trovea. Treasure trove is gold, silver, currency, or something that is intentionally concealed by an unknown owner for safekeeping in a secret location in the distant past. Because this watch is buried under the ground, the title of the watch would be awarded to the landowner either treating it is an object embedded in the soil or mislaid property.b. Property buried in Neighbors yard: Freddy cannot give good title to the watch unless Freddy had permission to be on his neighbors property, the watch does not belong to his neighbor, and his neighbor does not know about the watch. The facts do not indicate that Freddy had permission to be searching on his neighbors property (but neither do they indicate that he did NOT have such permission). Typically, a land owner has constructive title to personal property on his or her land. Trespassers cannot obtain good title simply by finding lost items on someone elses property this is to discourage trespassing/scavenging onto others property.e. Armory v. Delamirie Finders Keepers of Jewel in Chimneyi. Facts: P, a chimney sweepers son, found a jewel and brought to D, a goldsmith, to determine the value. D tried to offer money so that he could keep the jewel. P filed a tort to recover property against D. Issue: Whether the jewel belonged to P, the finder. Held: P may recover the property. ii. Armory Rule: The title of the finder is as good as against the whole world but the true owner. Finders Keepersiii. Exception: Objects left in a private home or public place are generally awarded to the owner of the premises.1) For public place, you must determine whether the property is lost or mislaid.f. McAvoy v. Medina Finders Not Always Keepers of Money in Barbershop Mislaidi. Facts: P, shopper, finds wallet/money in shop of D, barbershop. P asks D to advertise the lost money, no one claims the lost money. P files tort against D to recover money. Issue: Whether the money belonged to P, and whether this money was considered a find or a voluntarily item left behind? Held: Store keep the wallet. ii. Rule: The wallet on table is not to be treated as lost property. This property was voluntarily placed on the table in Ds shop. It is mislaid property which is an exception to the finders keepers rule.(i) Relevance of Place of Finding(ii) Relevance of Circumstances of Lossg. Hannah v. Peel: Lost Brooch Casei. Facts: Plaintiff, who was a soldier staying in the house owned (but not occupied) by Defendant, found a brooch and then gave the brooch to the police who later, after not finding the rightful owner, gave the brooch to Defendant, who then sold the brooch.ii. Holding: Plaintiff gets money for brooch bc D never resided in the house. It was lost property.h. Objects found in Private Home or Public Place1) Usually awarded to the owner of the premises.i. Mislaid or Abandoned1) Public place is determined by decided whether the property was lost (Accidently left by owner) or mislaid (intentionally placed somewhere and then forgotten).2) Lost property goes to the finder, and mislaid property goes to the owner of the premises.

2. Acquisition by Adverse Possessiona. Theory and Elementsi. Rules:1) Def: Adverse possession is essentially the acquisition of title by theft. It is meant to reward individuals who are making use of property that is not otherwise being made productive by true owners. 2) Rule: In order to establish adverse possession, an adverse possessor must possess anothers real property (a) actually and exclusively, (b) openly, visibly, and notoriously, (c) hostilely, (d) continuously, and (e) for a long enough period to satisfy the relevant statute.3) Policy Rule: AP seeks to reward individuals who are making productive use of property by removing title from title holders who are sleeping on their rights by both not being productive with their property and not acting to eject trespassers (the adverse possessor). In addition, AP helps ensure that the reality on the ground is reflected in the actual holding of title.4) Co-tenancy and AP: Typically, it is not possible for one cotenant to adversely possess against another cotenant. This is because the hostility element is absent. Because each cotenant has the right to 100% full enjoyment of the property regardless of the size of their share of the co-tenancy, possession of the property is not properly described as hostile.a) Ouster Rule: The property being adversely possessed in this situation is Tobys right of full enjoyment of the property held as tenancy in common with Stanley.5) If a landowner does not bring action to eject an adverse possessor within the statutory period, the owner is thereafter barred from bringing an ejectment action.6) A way of transferring land interest from one owner to another without the consent of the first owner.ii. Requirements of Adverse Possession Title by TheftAn adverse possessor must show:1) Actual and Exclusive Possessiona) Rule: Actual and exclusive possession is required to start the clock of adverse possession. Until an adverse possessor is actually on property, he or she cannot be making productive use of the property.b) Actual occupation of the property during the statutory period must be clear and convincing to acquire title by adverse possession. Van Valkenburgh v. Lutzc) You have to actually possess in same manner as true owner (Actual), and not at the same time as the true owner (Exclusive) Majority Approachd) Triggers the start of the adverse possession clocke) Minority Approach claimant must cultivate, improve, enclose, etc.2) Open, Visible, and Notorious Possessiona) Rule: Open, visible and notorious possession is required to put the true owner on notice that another individual is possessing his or her property. Without notice, the true owner cannot be said to have slept on his or her rights in failing to eject the trespassing adverse possessor.b) In Ouster question with co-tenant compare adversely possessing right of full enjoyment v. adversely possessing the actual property.i. Once ousted, you are on notice that you are being adversely possessed.c) Also meant to trigger the start of the clock, but for a different reason: unless you are open and visibly there, must be able to be seen by the true ownerd) Cant be sneaky and do hidden activities Make certain the true owner has notice that his property has been invaded.e) Possessors Burden to Make Possession Open: Puts the burden on the possessor to know it and put the owner on notice or if the possessor trespasses accidentally, then the possessor risks losing his/her improvement.3) Hostile or Adverse Possession Under Claim of Righta) Broad Rule: Hostile possession is required in order to ensure that a true owner is not lulled into losing his or her property to an adverse possessor who was present with permission.b) Claim of Right There to assure that you are not there with the permission of the true owner long term tenant cannot be an adverse possessor bc he has permission by ownerc) 3 Competing Jurisdictions Regarding Hostility:i. Objective Test Actions1. Rule: does not look into adverse possessors state of mind, but rather looks to the possessors objective acts to determine if they are the acts of a fee simple holder.2. State of mind is not a factor; Actions must appear to be that of an owner. (Majority Approach) Reflects reality.3. You can do it by accident or intentionally.ii. Good Faith - Subjective Test 1. Rule: which requires that an adverse possessor be unaware that the property being possessed belongs to someone else2. Policy Rule: A good faith jurisdiction rewards the accidental adverse possessor in the name of fairness.3. Under GF, claiming not to own the land defeats the hostile element. Valkenburgh v. Lutz4. Minority Approach Rationale: Protect accidental encroacher. Look at GORSKI Stair case5. Policy Flipside: Do not want to reward a thief.iii. Intent to Take Opposite of Good Faith1. Rule: Which requires that an adverse possessor be aware that the property being possessed belongs to someone else2. Policy Rule: An intent to take jurisdiction rewards the aggressive adverse possessor in the name of productivity. 3. Know that the land is not yours4. Subjectively intend to take title from the true ownerd) Boundary Disputes Mistake Boundariesi. Majority: Objective Test bc he occupied strip of land without owners permission and met all elements then he is A.P. ii. Minority Maine doctrine A.P. must intend to claim title to all the land up to a specific line whether or not it is the true boundary.iii. EXPAND FROM BOOKe) Hostility in Co-tenancy/Ouster in Co-tenancy complicates furtheri. In the cotenancy context, there would be no reason (nor any right/ability) of a cotenant to eject another cotenant who is enjoying the property. Thus, to recognize adverse possession in such a situation would frustrate the purpose of the hostility requirement by allowing a property holder to lose property through adverse possession to an adverse possessor who actually had permission (a right, even) to be on the property.ii. Exception: There is an exception however to the general rule regarding the inability of cotenants to adversely possess against one another. That exception is where one cotenant has denied the presence of the cotenancy and is behaving as a sole property holder. This most typically occurs when one cotenant ousts another cotenant from possession. (See requirement for ouster)iii. Application: Fact that this is an adverse possession among cotenants complicates this factor. Stanley has permission to be on the property since he has a right to full enjoyment of the whole as a tenant in common. However, he does not have permission to exclude Toby, which is the behavior that triggers the adverse possession clock. iv. In an intent to take or objective jurisdiction, there is no doubt that Stanleys behavior is hostile he has excluded Toby from entering or enjoying property that Toby has a right to full enjoyment in. He has done so with the changed locks, the locked fence, and the refusal to respond to Tobys letter. In a good faith jurisdiction, Stanleys behavior is not hostile, since he is taking property in bad faith.4) Continuous, Uninterrupted Possessiona) Rule: Possession must be continuous in order to give the true owner the maximum possible notice that his or her rights are being possessed by another. If possession were not required to be continuous, then adverse possessors could come and go and true owners may never be aware that they had a cause of action to eject the trespasser.b) Rule: Continuous possession does not require permanent 24/7 possession, but rather requires possession in the manner of a usual owner of similar property. Howard v. Kunto Summer Vacation Homec) Ouster Argument:i. Argument for not continuous for required time: left and abandoned property. He voluntarily left propertyii. Argument for continuous for required time: Left sufficient physical materials in house, planning on coming back, put locks on door so still demonstrating the right to exclude. Also he left to pursue career like a typical owner - knew that when conveyed. Still had to pay taxes/mortgage. Just away temporarilyd) Ought to be there and behaving like a typical owner woulde) Seasonal Use (Can be considered A.P. if this is the same as avg. user)f) Abandonment (Intentional Abandonment - A.P. is broken)g) Exception: Tacking i. Continuous possession established by tacking periods of possession by predecessors in interest voluntarily giving this interest.ii. Successive periods of adverse possession by different persons may sometime be combined together to satisfy the statutory duration requirement. Tacking is permissible only if the people are in privity with each other (by deed). Howard v. Kuntoh) Interruption by True Owner (If the owner interrupts the A.P. by reentering with intent of regaining possession, continuity is broken. Obj. test used.)5) Possession for the Statutorily required perioda) Statutes require possession to be a certain length of time before adverse possession can be achieved. b) Policy Reason Rule: This is needed because although adverse possession seeks to reward productive use of property, it does so by having true owners forfeit their property; as a matter of policy and stability, that forfeiture should not happen too fast.c) In this jurisdiction, the amount of time required for adverse possession is 5(or #) years.iii. Reasoning for Adverse Possession Doctrine1) Stability Sleeping Theorya) We have adverse possession in order to punish land owners for not doing anything with their land i. Sleeping on their rights2) Productivity Earning Theorya) This person is making use of the property, we like that, lets award them with title 3) Quit title (but not too quickly)iv. * Remember Ouster of Co-tenants can start Adverse Possession Clock!v. Personal Property and Adverse Possession1) General Rule: Title to Personal Property may be acquired by Adverse Possession. Majority View holds that cause of action accrues when the owner knows, or reasonably should know through exercise of due diligence, where the goods are.b. Van Valkenburgh v. LutzFacts: , Valkenburgh, purchased lots 19-22 of a subdivision in Yonkers, NY in 1937. The Lutz family began using a portion of the land that bordered their property since 1920. The Lutzs had done the folling to/on the land. *built a one-room living structure *cleared brush and lumber *utilized a pathway through the land & more. Mr. Lutz admitted that he knew the land was not his. P claimed his right to the land over D. P was awarded a right of way over the traveled way but was ordered to remove his items off the properties.)i. Rules: :Actual occupation of the property during the statutory period must be clear and convincing to acquire title by adverse possession. Van Valkenburgh v. Lutz1) Claiming not to own the land defeats the hostile element. Valkenburgh v. Lutz2) Cultivation of the whole property is not required as a claim for adverse possession. Dissent in Valkenburgh v. Lutzii. The factors analyzed:1) Statutory Period: 15 years in this case. (Lutzs meet that amount of time.)2) Actual Occupation: a) Majority: Majority says no. The majority opinion says that he was in the back portion and was not utilizing the land as a whole. b) Dissent: Who said you have to look at the land as a whole. Dissent says physical presence is actual.3) Hostilitya) Majority: Applies Good Faith. Not hostile. Mr. Lutz admitted that he knew the property was not his and he even agreed to take his stuff off the land after the Van Valkenburghs purchase.b) Dissent: Actions speak louder than words. Mr. Lutz took the property as his own and improved it. He further used the property to provide for his family as if it were his own land. c. Mannillo v. Gorski The Encroaching Stairs CaseFacts: P seeks an injunction against an alleged trespass upon their lands against D. D entered in possession of lot in 1946 under agreement to purchase, with actual conveyance of lands in 1952. In 1946 and 1953, D made renovations to the house, including modifications to the size with a stair design extension. P acquired title to land adjacent to Ds lot in 1953. D admits the steps and concrete walk encroach upon Ps land by 15. D claims a title by adverse possession.i. P is claiming there was no Intent to Take Maine Doctrine ii. Court says- Rewarding intentional wrong-doers and punishing accidental wrong-doers.iii. Holding: Remanded to determine owners Actual Knowledge: If there is no easy way to determine encroachment, only if the owner actually knows that the minor encroachment exists will the encroachment meet the open and notorious element. Court uses CT Doctrine Objective Test.iv. The Trouble with Small Encroachmentsa. Balancing Burdensb. Owners Burden to Monitorc. Possessors Burden to Make Possession Open Know where the boundaries are and make it so open and notorious as to keep it open and notorious. - If you do it by accident, you risk access to accidental taking.- Earning theory Burden on Adverse Possessor. ***- Punishment/ Sleeping theory Burden on Owner.***v. Holding: Whether the owner had Actual Knowledge of the 15 encroachment if so, this satisfies the open and notorious element.a. In a case of an minor encroachments, actual knowledge can make what is unopen, open. Or, a third person can provide that open knowledge to the owner and thus it becomes open and notorious.vi. What to do with mistaken improvers (like Gorski)?a. The court in this case determines that if the minor encroachment is difficult tobe removed (including very costly to P) and insignificant to owner then the court can force a sale. Remands for that determination. vii. Why do we have adverse possession, when it may seem that it hurts large landowners?a. It rewards people who put land to use i.e. small home, person been living for years on a large ranch.b. As a landowner, you have rights/sticks, but you also have a responsibility to survey land and ensure no one is living, adversely possessing. c. There is a high bar to fit the criteria for adverse possession several elements to meet.d. Common when a sale is pending: Small encroachments, probably frequently -- i.e. fences encroaching boundaries, etc.d. Howard v. KuntoThe Summer Home Adverse Possession CaseFacts: Case concerns lots A-G. Kunto thinks he owns C but actually owns D because his deed actually describes D but he took possession of C. Kunto does to Howard and says Ill give you the appropriate deed. Everybody has one deed for the house down. Kunto has not lived in the house for the statutory required time but he and his predecessor have, so if you put the two together, they satisfy the statutory requirement. Howard, seeing an opportunity, sues and gets title to the land that Kunto is living on. Issue: Continuity of possession/The Summer Home Problemi. It matters in an adverse possession context what everyone else is doing with the property? Is everyone else using it as summer property.ii. The Courts Answer Bc of tacking/privitySo Kunto adversely possesses.iii. Hypos: campsites and out-of-season use 1) What if the Kuntos have not permanent structure a campsite, tent, etc., everyone else has houses? This could be called summer Vacation USE instead of summer vacation HOME. 2) What if the Kuntos build the campsite in the winter Kuntos counsel could change Description to Seasonal Usage.a) Howards counsel could then dispute based that if everyone else is there during the summer and all they see is the empty lot, then the Kuntos winter stay could be considered un-open and not notorious. b) Ruling will likely be in favor of summer usage only, as the adverse possession theory rules in favor of what the other occupants are doing.3) What if Kunto occupies in the winter months only, but have a permanent structure? a) In this case, although they are only residing in the winter months, they have continued existence of the improvements on the land and beach area, constituting uninterrupted possession within this rule Howard v. Kunto, b) Continuous possession does not require human presence. A continuous structure can suffice. Lutz case rules that possession can be taken not just from a home structure, but an enclosure, i.e. a fence.

3. Adverse Possession of Chattels - Personal Propertya. Differences between real property and personal propertyi. Personal property can be hidden, real property cannot. ii. Makes the open and notorious rule of adverse possession a more difficult rule to establish for personal property.iii. If the item is hidden, there is no question of its openness.iv. If item is not hidden, it is open and notorious, OKeefe will lose.b. Replevin: an action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it c. Majority of states: statute of limitations starts when the adverse possessor obtains possession of chattel. Unlike in Okeefe that starts upon discovery.d. Rules: The statute of limitations for a claim of adverse possession begins when the original owner discovers the dispossession. OKeefe v. Snyderi. Discovery Rule- a limitations period does not begin to run until the plaintiff discovers (or reasonably should have discovered) the location of the chattel 1) Will only apply when due diligence of the true owner has been proven 2) Think about good faith adverse possessor will not know that he needs to put original owner on notice/publish in paper unlike that of a bad faith adverse possessor.ii. Courts have a variety of options when deciding when the statute of limitations begins to run:1) Discovery of the current possessor2) Discovery of the loss of the chattel3) The loss itself4) Current possessor locates the true owner 5) Date of public display6) Current possessor refuses to return to the true owner7) Current possessor goes public8) Date true owner stops diligently searching9) Discovery of the chattel e. OKeeffe v. Snyderi. Facts: P, painter, seeks replevin of 3 paintings from D. P alleges ownership of the paintings which were stolen from a NY art gallery. D asserted he was a purchaser for value of the paintings, he had title by adverse possession, and Ps action was barred by the expiration of the 6 year period of limitations pertaining to an action of replevin.)ii. Georgia OKeefes story Claims paintings are stolen in 1946. Reports the theft in 1972. 1975 the paintings are spotted in another art gallery.iii. Snyders version Good Faith Purchaseiv. History If there is theft here, there can be no title by adverse possession. App. Ct. also says element of open and notorious has not been completed by D, thus clock did not start running.v. Court rules she needs to know more than its gone, but also needs to know where it is the Discovery Rule- the clock starts running upon knowing they are gone AND needs to know where it is. The amount of due diligence proves the importance of the missing item.1) Failure of Due Diligence will not always cause you to lose case If you can prove even with all due diligence, that you still will not find the property. Example: Only if person has hidden the painting.vi. When Does the Statute of Limitations Begin to Run? An Openness Question1) Majority View holds that cause of action accrues when the owner knows, or reasonably should know through exercise of due diligence, where the goods are.vii. OKeeffe and the problem of the Good Faith Purchaser1) Two Innocent Parties Innocent Loser vs. Innocent Purchaser2) What happens when you purchase from thief? If you purchase from a thief, you cannot get good title.3) Court states, if purchasing from a thief, no good title, if you are a good-faith purchaser and purchase from someone who has voidable title, voidable title is title that is not quite right, but not quite wrong.viii. Summary: Voidable Title and Good Faith Purchasers P.801) General RULE:A purchaser gets title identical to the title held by the seller.a) General Rule. A seller of personal property cannot pass on better title than he or she posseses, even to a bona fide purchaser.b) Puts heavy burden on the buyer to investigate the validity of the sellers title and deters policy goal of theft!c) For instance, if the seller is a finder and has title against the whole world but the true owner, then that is what the purchaser gets. 2) EXCEPTION: Where the seller has voidable title, the seller has the power to transfer good title to a good faith purchaser for value (also known as a bona fide purchaser). a) There are two instances in which the voidable title exception typically appears:i. When the seller has obtained the goods by fraud (bounced check, trickery, etc.) and sells to a good faith purchaser; and ii. When the seller has been entrusted with the goods by the true owner (art gallery, consignment shop, etc.) and sells to a good faith purchaser. b) To be a bona fide purchaser, a buyer must both (1) pay valuable consideration (2)believe in good faith that the seller holds valid title.c) These exceptions protect the title of the bona fide purchasersd) In painting question where, A gives fraud check of 1.5 to B(original seller). Then A sells to C for $1 Mili. Yes, the result could have been different because having paid $1 million, it is clear that C paid valuable consideration. The question then turns not on whether C is a good faith purchaser, but rather whether A had voidable title. In the event that A had void rather than voidable title, then no matter how much C had paid, C could not gain good title; however, if A had voidable title, then C is likely to be awarded the painting having paid $1 million

Adverse Possession to Real Property

ElementPurposePrimary QuestionPotential Answers

Actual and Exclusive PossessionActual ensure that possession is truly happeningExclusive ensure that adverse possessor is not sharing land with true owner (a lulling concern).Is the adverse possessor actually possessing as an owner? Actual possession only satisfied with regard to land actually used (Lutz) Actual possession satisfied so long as adverse possessor uses as an ordinary owner would use similar land (Lutz dissent) Actual possession may be satisfied by construction of an enclosure (statute cited in Lutz)

Open, Visible, and Notorious PossessionPut true owner on notice that her land is being adversely possessed. Starts the clock on the statute of limitations for ejectment.Has the owner been sufficiently put on notice? For large encroachments on and obvious improvements to the land, objectively open and visible possession can satisfy this element by putting a reasonable true owner on notice For small encroachments, actual knowledge on the part of the true owner of the adverse possession may be required to achieve notice (Mannillo)

Hostile PossessionPrevent adverse possession by trickery. Protects owners from losing land after being lulled into believing no claim of right to the land would be made by an adverse possessor.What is the required state of mind of the adverse possessor to achieve hostility? Is that state of mind satisfied? Objective state of mind is irrelevant; look only to the actions to determine if adverse possessor was acting hostilely to true owners rights (Conn. Doctrine; Mannillo) Good Faith only the good faith adverse possessor will be rewarded (Lutz when referring to shed and garden) Intent to Take only the truly hostile possessor will be rewarded (Maine Doctrine; Lutz when referring to garage encroachment)

ElementPurposePrimary QuestionPotential Answers

Continuous PossessionEnsure that only an adverse possessor that has earned title over a number of years will be rewarded by adverse possession doctrine.

***REMEMBER TACKING/PRIVITYIs the possession either objectively continuous or of the nature of an ordinary owner of similar land? Objectively continuous possession (uninterrupted human presence) can satisfy this element regardless of what an ordinary owner of similar land would do Possession during the period and/or for the amount of time that an ordinary owner would possess similar land can satisfy this element (Howard) Possession of a nature (such as building a permanent summer home) similar to that of an ordinary owner of like land can satisfy this element

Possession for the Statutorily Required PeriodExtinguish the right of ejectment of the true owner.

**REMEMBER TACKING/PRIVITYHow long has the adverse possessor been present? Begins on date all adverse possession elements are achieved Tacking may be allowed when a subsequent adverse possessor is in privity with a previous adverse possessor this allows subsequent adverse possessor to include possession of previous adverse possessor in determining whether required time has been met (Howard)

4. Acquisition by Gifta. 2 parts to complete an acquisition by gift: acquisition of title and conveyance of titleb. Elements:i. Intent of the donor1) May be explicit or implied2) May be shown by oral evidence3) The best evidence to show intent is some sort of deliveryii. Delivery to the donee1) Actual Actually handling over of the object.2) Constructive Handing over a key or some object that will open up access to the subject matter of the gift. Havent given the object, but have given the key to get the object. [i.e. Key to unlock bureau(Newman v. Bost), Ability to get the item, brand a cow]3) Symbolic Handing over something symbolic of the property given. Given something which is NOT the actual gift, but symbolic of the gift. i.e. letter.4) Historical rule - If it is possible to actually delivery, then you MUST actually delivery. Possible is grey.5) Evolving Rule: Constructive delivery is adequate when the evidence of donative intent is concrete and undisputed, when there is every indication that the donor intended to make a present transfer of the item, and when the transfer is deemed sufficient by the donor to pass the interest. 6) Purpose(s) of Delivery Requirement Emphasizes the feeling of giving it away. Proof of intent. A way of showing without any question that there was intent to give the item. Prima facie proof that there was a gift. A way of protecting the donee.iii. Acceptance1) Person receiving the gift must accept2) Assumed in most cases where there is a gift that has some valuec. Rules:i. To constitute a donation causa mortis, there must be an intention to make the gift and delivery of the gift. Newman v. Bostii. Constructive delivery is permissible when the donors intent to make the gift is clear, and where the items intended to be given are not present, or if they are present, they must be incapable of manual delivery because of size or weight. Newman v. Bostiii. When the item is present and capable of manual delivery, manual delivery is required. Newman v. Bostiv. A valid gift becomes effective as long as there is a present transfer of rights (not required to be willed), even if there is not a present transfer of the object (no physical delivery). Gruen v. Gruen v. A party may give a future interest in chattels as a gift while reserving the life estate in himself. Gruen v. Gruend. Examples (Problems P. 158- #1. i. O owns a pearl ring. While visiting her daughter A,O leaves the ring on the bathroom sink. After O leaves, A discovers the ring. When A telephones O to tell her of the discovery, O tells A to keep the ring as a gift. Has O made a gift to A? 1) Yes, It is a gift when left on sink, person says keep the ring, she keeps the ring.ii. Can O change her mind next day and require A to return the ring. -- A gift cannot be revoked.iii. It is a gift when A finds ring, gives back to O, O gives to A as gift, A accepts by wearing, trying on, O keeps to resize, O dies wearing ring. Witness of delivery by friends will prove this gift. --- A gift cannot be revoked.iv. It is not a gift when O promises to give ring to A when she dies. This is legally enforceable as a promise; there is no symbolic delivery to constitute the gift. The only way to make a gratuitous promise enforceable is to put in a will.v. An engagement ring does not need to be kept by the donee, this gift is CONDITIONAL upon acceptance of the marriage. Legally, the ring is kept by the person who does NOT break up the engagement.e. Newman v. Bost Life insurance policy in bureau draweri. Facts: On his death bead, intestate gave keys to P, who was his live-in maid for 10 years after his wife's death. He said the house was to be hers and pointed to all the furniture and said that was to be hers as well. Locked in one of the drawers was a life insurance policy for $3000. Intestate's administrator, D, sold some household property for $200, and took the $300 in insurance on the piano, and the $3k insurance policy. P sued to recover. Held: Should have bee manualy delivered/no evidence of intent!f. Gruen v. Gruen Giving Painting to son after deathi. Facts: P seeks a declaration that he is the rightful owner of a painting which he alleges his father, now deceased, gave to him. He concedes that he never had possession of the painting but asserts that his father made a valid gift of the title in 1963, reserving a life estate for himself. Ps father wrote a series of letters to P stating that he would give him the painting for his birthday but that he wished to retain the possession of it for his lifetime.1) Ps father retained possession until he died in 1980. D, Ps stepmother has the painting and refuses to turn over to P.ii. 2 Distinct Present Ownership Sticks1) Title & Possession Common for one person to hold both sticks, but they are two different sticks. 2) Title: Present and Future right3) Possession: Present and Future right4) Gruen is about a person wanting to give the stick of Title, but keep the stick of possession. Present and future right to title, future right to Possession 3 sticks total. Court is trying to figure out if this can be done.iii. 2 Distinct Temporal Ownership Sticks1) Ownership Now & Ownership Latera) Present right to title.b) Future c) Life Estates and Remaindersiv. Held: As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.1) The Courts standard for Intent: The court is saying you do not actually have to give the physical painting, but you do have to give the title now!2) Delivery - Letters constitute a symbolic delivery of the title to the painting. Actual? No, there is not a deed to the painting, and there is not a need to actually deliver the painting and then take back the painting. 3) Acceptance: When a gift is of value to the donee, the law will presume an acceptance on his part. The title has value.

III. Chapter 3: Possessory EstatesA. History/Overall: right to property now1. Free Hold Estates: The law traditionally recognized six basic types of estates: three freehold estates (fee simple, life estate, defeasible fee) and three nonfreehold estates (term of years tenancy, periodic tenancy, and tenancy at will). Today we view freehold estates as forms of owning land, while nonfreehold estates are merely forms of leasing land.2. Why is a system of estates necessary?a. Strong desire to turn the abstract into the tangible title of property is a very abstract idea. b. Need for Consistency/Uniformity we need uniformity so transfers can happen more easily. You need to know what transferring title means so people dont have different ideas.3. Why did this system come about?a. Rise of Heritability the ability to inherit propertyb. Rise of Alienability ability to give away or dispose of property.c. Rise of Transferability allows private transactionsB. The Possessory Estate: 1. Modern law recognizes only certain types of estates that are equated with ownership, traditionally called free hold estates. If the language of a deed, trust, or will creates a freehold estate it will be deemed to be one of the following:a. Fee simple absolute (fee simple);b. Fee simple determinable;c. Fee simple subject to a condition subsequent;d. Fee simple subject to an executory limitation;e. Life estate absolute (life estate);f. Some form of defeasible life estate; org. Fee tail (not common anymore).2. Creations of Estatesa. Estates and their accompanying future interests originate in two main sources: Deeds and wills.b. Certainly estates and future interests can arise from trusts, but inevitably either a deed (if an inter vivos trust) or a will (if a testamentary trust) is employed to transfer the property into the trust.c. Similarly, estates and future interests that already exist may be transferred (but not created) through intestate succession (law of the State providing for the inheritance of property from a person who dies without leaving a will).i. Example: O holds a fee simple absolute in Brownacre; he wants to create a present estate in P for the duration of Ps life and a future interest in Q that matures into a present estate when P dies. O could accomplish this goal by executing a deed that immediately conveys Brownacre to P for life, and then to Q and his heirs. Or O might execute a will that (effective upon Os death) devises Brownacre to P for life, and then to Q and his heirs.3. Classifying Estates: Relevance of classification system it is strict because it has to be uniform. Whether something ends up being fee simple or life estate is a big deal (White v. Brown).4. Duration of Estatesa. The technical distinction between the three basic free hold estates is based on duration.i. Example: A fee simple is potentially infinite while a life estate only lasts for the lifetime of a particular person.b. Each type of estate creates different rights and duties in its holder:i. The fee simple stands alone as the largest bundle of permissible property rights, unencumbered by any future interest. 1. By definition, all other freehold estates are accompanied by a future interest in another person, and the rights of the estate owner are accordingly diminished.a. Example: A holds a life estate in Greenacre, someone else must hold the right to possession of Greenacre after As death. As rights over Greenacre are limited by this future interest. For example, A cannot destroy the productive apple orchard on Greenacre b/c this would permanently interfere with future enjoyment of the property and therefore constitute waste.C. Fee Simple 1. Characteristics: a. Roughly corresponds to the laypersons understanding of ownership.b. Rule: An estate in fee simple absolute is the largest estate permitted by law. It invests the holder of the fee with full possessory rights, now and in the future. The holder can sell it, divide it, or devise it; and if she dies intestate, her heirs will inherit it. c. Lasts Rule: The fee simple has an indefinite and potentially infinite duration. i. Ex: If O holds this estate it may endure forever. It does not end if O conveys it to another person; nor does it end if O dies. Rather it endures over time, being transferred in multiple transactions by wills, deeds, or intestate succession to perhaps an infinite number of new owners.ii. The theory that a fee simple might end is more theoretical than real. In theory at least it might be terminated by escheat. Ex. Suppose O dies without leaving a will (in other words intestate) and leaves no legal heirs who are entitled to his property under the rules governing intestate succession. Under these circumstances his fee simple absolute is transferred to the state by operation of law, a process called escheat. iii. In a few states escheat is seen as ending a fee simple. However, in the majority of states the escheat process simply transfers a continuing estate to the state as a new owner.2. Creation:a. Under the older common law approach, a fee simple estate could be conveyed only if a precise legal formula was used this reflected the laws early preference for life estates. Unless the correct language was used to convey a fee simple it would be considered a life estate.b. Modern American law assumes that an owner normally intends to convey the entire estate rather than a lesser estate. This produces a preference for the fee simple.i. Today the words to A and his heirs still belongs solely to A these words tell that a grantor intended to grant more than a life estate. Example: O holds fee simple absolute in Greenacre, and executes a conveyance to A. Unless O uses language that clearly evidences his intent to create a lesser estate, his conveyance will be construed as transferring fee simple absolute to A. Ex: If O grants Greenacre to A, A receives fee simple absolute.b. Rights and Duties of Estate Owners:a. Rule: Fee simple absolute provides an owner with the maximum quantum of rights recognized under American Law.i. Ex: H, an unmarried man owns fee simple absolute in Greenacre, consisting of ten acres of apple orchards. By definition no one has future interest in the property, and thus H owes no duties to other interest holders. Hs rights are affected by various utilitarian restrictions imposed to benefit society as a whole.b. What are Hs (fee simple holders) basic rights?i. Entitled to the use of Greenacre forever ii. As a fee simple owner, she has the right to do with it as she pleases, including dividing it and selling it as she has done here. Fee simple holders like Meredith typically have the right to exclude others from their property. i. Servitude Exception: However, one exception to the right to exclude occurs when another entity holds a servitude entitling it to utilize the property in some way. iii. Entitled to Sole possession of Greenacre, which generally allows him to exclude all other persons from the land. i. Can include/exclude strangers from his propertyii. Exception: A wide range of nonpermissive entries is sanctioned by the law (e.g., police officers may enter in pursuit of a fugitive). a) State v. Shack: Supreme Court extended this principle by holding that employees of publicly-funded health and legal services organizations could enter a farm to meet with workers living there despite protests of employer-owner.iv. May transfer rights in Greenacre (sell all/partial, lease, will it)i. H may convey his estate by deed to whoever he wishes; alternatively, H may devise his rights by will to the devisees of his choice. In either case, H can opt to transfer either all or part of his land.a) Example: H could grant a life estate to his sister with a reversion.c. Technical Terms:i. Heirs: If a person dies intestate (without a will) the decedents real property descends to his or her heirs. Heirs are persons who survive the decedent and are designated as intestate successors under the states statute of descent. No one is heir of the living; a living person has no heirs (yet). i. If there is a conveyance to the heirs of A, a living person, we do not know who will take the land yet.ii. Spouse: Today in all states the surviving spouse is designated as an intestate successor of some share of the decedents land; the size of the land often depends on who else survives.a) Example: The surviving spouse may only take if the decedent leaves one child, 1/3 if 2 or more children, and all if decedent leaves no children, no more remote issue, and no parent. iii. Preference for Classes of Kindred: under modern statutes of decedent preference is usually: first issue; if no issue, the parents; and if none then collateral.ii. Issue: Where the decedent leaves issue, but no surviving spouse, the issue takes the entire estate. Issue is synonymous with descendent. i. Ex. O has 5 children before her spouse dies; O then dies intestate, survived by all 5 children. Distribution of Os estate is simple each receives an equal share 1/5ii. Ex 2: When O dies she is survived by only 4 of her 5 children (ABC and D) and by 2 grandchildren (F and G) who are children of her deceased fifth (E). The share of a predeceased child typically goes to his or her issue, if any, by right of representation. Thus, here A, B, C. and D each receive a 1/5 share of the estate. The share that would have belonged to E is equally divided b/w F and G, each receiving 1/10 interest.iii. If a child is born out of wedlock inherit from mother and if paternity is proven from father.iv. Adopted child inherits form adopted parents and natural parents.iii. Ancestors: By statute the parents usually take as heirs if the decedent leaves no issue. iv. Collaterals: All persons related by blood to the decedent who are neither descendents nor ancestors are collateral kin. This includes brothers, sisters, nephews, nieces, uncles, etcIf no spouse, no issue, and no parents brothers and sisters take after that.v. Escheat: If there are no heirs the property goes to the state where property is located.D. Life Estate1. Characteristics: Future Interesta. Life estate is a freehold estate whose duration is measured by the lives of one or more specified persons not fixed period of time but cant last longer than the life.b. Substantial difference: duty to life estate holder to NOT WASTE LAND bc someone else has future interest. See law of waste below.c. It can discourage productivity bc someone might not want to put money into land since it could revert backd. Can only alienate what you havee. Thus, a life tenant can transfer his estate to others, with the caveat that, no one being able to transfer more than he has to begin with, the third parties right to continue using property end with the original life tenants life.i. Ex: A grant to B for Bs life creates a life estate in B for as long as she lives. B as holder of the life estate is called the life tenant.ii. Ex: The duration of life estate may be measured by the life of a person other than the grantee (To B for the life of C) called pur autre vie.f. The life estate is the smallest of 3 freeholds.g. The life estate is most commonly encountered in the family gift.i. Ex. W owned a farm and wanted to support her aged sister S and to ultimately give to Ws grandchildren W might devise a life estate in the farm to S followed by a remainder in Ws grandchildren. The modern life estate is an equitable estate, usually created to facilitate a family gift in trust. 2. Creationa. There is no traditional usage of words required to create a life estate. Thus to A during her lifetime, to A for the term of her life, and to A for life are all life estates.b. It can be implied by the language of the conveyance:i. Ex: O transfers To B when A dies. A has a present interest, held in a life estate, implied from the words of limitations when A dies.c. Rule of Construction: Ambiguous language in a conveyance by a grantor holding fee simple (e.g., to b) is judicially interpreted as transferring Fee simple Absolute. look at grantors intent. White v. Browni. White v. Browna) TN Supreme Ct. construed a will that provided: I wish Evelyn White to have my home to live in and not to be sold. Concluding that this sentence did not clearly state the intent of the testatrix, the court held that it devised a fee simple estate. b) Thus, today the holder of fee simple estate can create a life estate only by using language that clearly reflects this intention (e.g., to B for life or to B for his lifetime). In this case, because she did not say to Evelyn and then to whomever, then it goes to the grantor or grantors estate.d. Steps court takes when faced with an ambiguous willi. Try to discern the intent of the grantorii. Rules of construction- Tell us in a statutory context, how do we interpret a statute? 1. Presumption against partial intestacy- If some of the things are conveyed in a will, then all of the things are conveyed in the will 2. Presumption against partial devise of real estate- if its unclear whether someone has given a fee simple or something less than a fee simple, it is presumed that the intent was to give a fee simple a) Fee simple is best for productivity and alienability, so it is assumed that intent of the grantor was to uphold this b) If intent is clear, the rules of construction do not applyiii. Alternative rules of construction 1. When you have conveyed something once correctly, and you convey something wrong elsewhere, then it is assumed the wrong conveyance was done purposely 2. Give effect to every word of a conveyance. Dont strike portions of the conveyance, especially when it was marked with importance. iv. Grantor or testator conveys her full interest in the property unless the intent to pass a lesser estate is clearly expressed or necessarily implied by the terms of the deed or will. White v. Brown3. Accompanying Future Interesta. By def. whenever a life estate is created a future interest also arises. b. Ex. If O, holding a fee simple absolute in Greenacre, conveys to A for life, he has granted A less than the sum of his property rights. Os resulting right to possession of Greenacre upon As is called a reversion. But if O creates a future interest in a third party, it is called a remainder. 4. Rights and Dutiesa. Right 1:The life tenant is entitled to the use and enjoyment of the land, including any rents and profit. But, the life tenant cannot commit waste.b. Right 2: Life tenant has restricted right of transfer. A life tenant may transfer(possession of the land for the duration of the life estate) but nothing more. (see below)c. Duty: Law of waste you own some duty to the future interest holders to not waste. Cannot make value of future interest holders go downi. Rules:1. Triggered whenever two people have sticks with regard to the same property2. One person cannot use the property in a way that unreasonably interferes with the expectations of other interest holders 3. The law of waste is necessary because the present interest holder has no incentive to preserve the property for future generations since her interest will ultimately be terminated (i.e., she doesnt get to devise it to heirs) and the future interest holder wants the property preserved but has no legal right to the property at present (and therefore cannot stop wasteful behavior)4. Policy Reasoning: The law of waste seeks to balance the interests of present and future interest holders. The law seeks to allow present interest holders to make productive use of their property while at the same time recognizing the legitimate expectations of the future interest holder5. Reasoning: Grantors Intent: The law of waste rests on the idea that the grantors intent is to have the future interest holder take the land in approximately the same state as the land was initially given. Therefore, the general rule is that activity in existence at the time of conveyance is allowed to continue, even if it depletes the lands resources; activity not in existence at the time of conveyance that would deplete the lands resources is not permitted6. Courts seek to determine and follow the grantors intent where possible.7. Counter Argument: If goes against grantors intent, you can say that there were unforeseen circumstances. Also not allowing harvesting, prevents productive use.ii. If there is a competing interest bw the future interest holder and present interest holder?1. Court has to determine whose interest winsa) Look at Type of behavior- is it truly waste?b) Look at the nature of the property itself- is it farmland, commercial property?i. If the life estate holder is behaving as a true fee simple holder of similar property then it is less likely to be called wastec) Look at the nature and certainty of the interests i. Likely length of the estate- is the life estate holder 80 or 20 years old?ii. How certain is it that the future interest holder is going to get the property? iii. Example: If T has a life estate in the apple orchard, Greenacres, she is entitled to harvest the apples or not to harvest them, as she chooses; but T cannot chop the trees down, for this would be considered waste.iv. Affirmative/Voluntary Waste: occurs when the life tenant actively changes the propertys use or condition, usually in a way that substantially decreases the propertys value. -- A court will enjoin affirmative waste.v. Permissive Waste: life tenant fails to prevent some kind of harm to the property -- ordinary repairs, the pay interest on debt, to pay taxes.vi. Open Mines Doctrine: Sets out rules applicable to natural resources. A life tenant may mine or remove minerals (and keep profits) if the grantor had opened the mines or began the removing before granting life estate. The presumption is that the grantor intended the life tenant to continue using the property as the grantor had been using. Life tenant cannot start mining or removing if none was done before unless consented by future interest holders. vii. Economic Waste: Occurs when the income from the property is insufficient to pay the expenses the life tenant has a duty to pay: ordinary maintenance, real estate taxes, interest on mortgages, and in some jurisdictions insurance. The life tenant can bring action to sell property if economic waste occurs. d. Restraints on Alienation: (see restraint on alienation section below)i. A life tenant may transfer what he or she has possession of the land for the duration of the life estate nothing more. Thus, while a life tenant in theory might lease, mortgage, or even convey his or her interest, the land is bound by these transfers only for so long as life estate endures.ii. The normal life estate cannot be devised or inherited. iii. Hypo: What if T owns a life estate measured by the life of U. If T dies before U Ts life estate continues and may be transferred to others.iv. Exclude you can exclude people with life estatev. Objections to restraints on alienation:1. Make property unmarketable2. Tend to perpetuate the concentration of wealth by making it impossible for the owner to sell property and consume the proceeds of sale 3. Discourage improvements on land 4. Prevent the owners creditors from reaching the property, which is a working hardship on creditors who rely on the owners enjoyment of the property in extending credit vi. Classification1. Disabling restraint withholds from the grantee the power of transferring his interest 2. Forfeiture restraint provides that if the grantee attempts to transfer his interest, it is forfeited to another person3. Promissory restraint provides that the grantee promises not to transfer his interest a) If valid, is enforceable by the contract remedies of damages or an injunction vii. An absolute restraint on a fee simple is void viii. A partial restraint (limiting conveyance to certain persons or time limit on the restraint) is valid if, under all circumstances of the case, the restraint is found to be reasonable in purpose, effect, and duration. Restatement (Second) of Property ix. An absolute disabling restraint on a life estate is void, but a forfeiture restraint is valid. e. Right to sell: The life tenants right to sell his or her interest is often illusory because its value is uncertain and speculative. i. Rules: A court of equity has the power to order a judicial sale of land affected with a future interest and an investment of the proceeds where this is necessary for the preservation of all interests in the land. Baker v. Weedon1. When the court orders a sale of land, the proceeds of the sale are held in a judicially created trust. Baker v. Weedon2. The beneficiaries of the trust are the persons who held interests in the land, and the beneficial interests are of the same character as the legal interests which they formally held in the land. Baker v. Weedon3. The court has jurisdiction to order the sale of land to prevent waste. Baker v. Weedon 4. The Baker court embraced a new rule: Such a sale would be proper if necessary for the best interest of all the parties. Most states have adopted this rule. So now if it is necessary to preserve the estate or if in interest of all the parties.ii. Ex. Ts life estate in greenacre may be very valuable (If T lives 50 more years; or worthless (If T dies tomorrow).iii. What if the life tenant wishes to maximize the value of the interest by forcing sale of the affected land over the objection of the remainder men?iv. Baker v. Weedon (Economic Waste Case)a) Facts: The Appellee, Anna Plaxico Weedon is the life tenant of a piece of property that was once used as a farm, but is no longer farmed for agricultural use due to a highway bypass that runs through the land. The land is appreciating in value due to the development of the surrounding area. The Appellee wishes to sell the property to provide adequate income for the rest of her life, as she can no longer farm the land. The Appellants hold a future interest in the land and do not wish the land to be sold, as it will be worth a great deal more in the future. Weedon not allowed to sell bc not in everyones best interest. P sought a judicial decree that would 1) order the sale of the fee simple absolute over the remaindermens objections and 2) recognize her life estate in the proceeds. b) Prior Miss. Decisions authorized sale only where necessary to preserve the estate. 5. Evaluating Life Estatea. Today the legal life estate has been overtaken by the trust.b. As Baker shows, the legal life estate is relatively inflexible.c. If an owner creates a life estate in trust (equitable life estate), the trustee holds legal title and can accordingly take appropriate steps to protect all parties against changed circumstances. E. Defeasible Estates ends upon an event of defeasancea. Def: A defeasible estate is subject to a special provision that may end the future estate prematurely if a particular future event occurs. b. Types of Defeasible Estatesi. Fee simple Determinable;ii. Fee Simple subject to a condition subsequent; and iii. Fee simple subject to an executory limitation.**Two basic distinctions are used in categorizing a defeasible fee: Who holds future interest? Is the defeasance language expressed in words of time or words of condition?c. Presumption: Where the granting language is so ambiguous that the above guidelines are unhelpful, most courts will construe the estate as fee simple subject to a condition subsequent to avoid forfeiture. While the fee simple determinable causes automatic forfeiture when the stated event occurs, the fee simple subject to a condition subsequent presents only the risk of forfeiture.1. Fee Simple Determinablea. Created using words of time i. During, while, so long as ii. Ex: W owns fee simple absolute in Silveracre and grants to City for so long as Silveracre is used for a park. This conveyance creates a fee simple determinable estate in City. b. Lasts: ends automatically upon the event of defeasance, immediately giving the transferor the legal right to possession. c. Accompanied by a future interest possibility of reverter.d. Mahrenholz v. County: the grant of land to be used for school purposes only; otherwise to revert to Grantors herein was held to create fee simple determinable. The appellate court reasoned that the term only indicated an intent to give the landonly as long as it was needed no longer.2. Fee Simple Subject to a Condition Subsequenta. A fee simple where the granting words are followed by a limiting condition in favor of the transferor. b. Created using Words of conditioni. On the condition, But if, provided, howeverc. Future interest held by the transferor: right of entry. d. Lasts: does not automatically expire when the triggering condition occurs. Once the condition occurs, the future interest holder has the power to take affirmative action to end the estate. If the holder fails to exercise this option, the estate continues. i. Example: W holds fee simple absolute in Silveracre and grants to City, but if land is not used as a park, W may re-enter and retake the premises. If City uses Silveracre as a park for 10 years and then builds a sewage plant, the Citys estate does not automatically end. Instead, W merely has a right to end the Citys estate, which W may or may not choose to enforce. Until W acts the City estate continues.e. Today physical re-entry is no longer necessary in US. In some states, the future interest holder can end the estate simply by giving formal notice to the estate owner; other states require that the future interest holder file an ejectment or quite title action.3. Fee Simple Subject to an Executory Interesta. A fee simple estate that automatically expires when a stated event occurs (like fee simple determinable), but gives the right to possession to a transferee third party (unlike fee simple determinable).i. Example: O conveys Silveracre to City, but if the land is not used as a park, then to Z and his heirs.ii. Here the future interest owned by Z is an executory interest, which will automatically divest or cut short the Citys estate if the park use ceases, without any affirmative act by Ziii. A conveys To B while she lives in Midtown. If B doesnt live in Midtown at time of conveyance, then A holds FSSEL and B holds executory interest

4. Consequences of the Distinctions:a. Differences b/w FSD and FSSCS:i. Liability for rent1. Once a fee simple determinable automatically expires, the former estate owner has no legal right to possession and is liable to the new owner for the fair rental value of the land.2. FSSCS has no rent liability until the future interest holder takes affirmative action to end the estate.ii. Commencement of the statute of limitations period for adverse possession. 1. Once FSD ends, continued possession by the former estate owner starts the adverse possession period.2. FSSCS period does not start until interest holder takes affirmative steps because the estate continues until then.iii. Applicability of equitable defenses.1. Sometimes equitable defenses like waiver and estoppel are used to bar future interest holders from terminating FSSCS.2. Since FSD ends automatically usually inapplicable. b. Difference between FSD and FSSELi. FSD: When x happens the grantor or estate takes the fee simple immediatelyii. FSSEL: When x happens the 3rd party gets the estate immediately c. Mahrenholz Rules:i. The type of interest held governs the mode of reinvestment with title if reinvestment is to occur. Mahrenholz v. County Board of School Trusteesii. If the grantor had a possibility of reverter, he or his heirs become the owner of the property by operation of law as soon as the condition is broken. Mahrenholz v. County Board of School Trusteesiii. If he has a right of re-entry for the condition broke, he or his heirs become the owner of the property only after they act to retake the property. Mahrenholz v. County Board of School Trusteesiv. Upon a grant of exclusive use followed by an express provision for reverter when that use ceases, courts have agreed that a fee simple determinable, rather than a fee simple subject to a condition subsequent is created. Mahrenholz v. County Board of School Trusteesd. Rights and Duties of Estate ownersi. The owner of a defeasible estate generally has virtually the same rights and duties as an owner of the parallel absolute estate, except that he or she cannot commit waste. ii. Allows grantors to keep their claws in the property they owniii. Use (or not) with restrictionsiv. Alienatee. Courts and Defeasible Feesi. American courts have traditionally been hostile toward defeasible estates. Part of this has to do with the concern for free alienation of land.ii. Property held in defeasance is often difficult to sell, lease, mortgage, or transfer.iii. Limits alienability iv. Limits productivity if this land would be better used for a casino then a school, and there is a condition on it for school there is a productivity problem.v. Limits autonomy ex. to A so long as A does not smoke ciggs. These would be personal controls that limits present interest holders autonomy. Courts dont like 2 limit autonomy.vi. Courts Hate Forfeitures defeasible fees are filled with forfeitures. Ex. if someone builds a casino and that ends estate that causes a forfeiture. A forfeiture is when someone is not compensated for their work they just lose it. Losing an interest you had without any compensation whatsoeverf. Mechanisms to limit scope of defeasible estates:i. Require precise language to indicate a clear intent to impose a condition on the estate.ii. Rules of construction- if there is any ambiguity whether it is a defeasible fee or a fee simple with a covenant, it will be ruled a fee simple with a covenant iii. Rules limiting duration of defeasible estates. statutes encourage avoidance of using them.

Possessory Estates ChartTypePossessory InterestHow CreatedDurationFuture Interest in Grantor or Grantors EstateFuture Interest in 3rd Party Grantee

AbsoluteFee SimpleTo A.Forever.None.None.

AbsoluteLife Estate1. To A for life 2. To A for Bs life (for someone elses life) (O has kept reversion) 3. To A for life, then to B (A gets life estate, then B takes remainder)4. To a for life, then to B for life, then to C (A=life estate, B= Remainder in life estate, C=remainder in fee simpleLength of a Specified Life. (they gave some sticks use now, title now, possession now)Reversion future interest.(Sent back to Grantor by law if Grantor is dead, passes along to grantors heirs.)Remainder: FI that grantor give to some third part grantee.(This is written out in will.)

DefeasibleFee Simple Determinable1. Words of time. 2. To A so long as. used for school purposes3. While, 4. during

Ends automatically upon event of defeasance occurring.Possibility of Reverter.(There is NO time limit to the possibility of Reverter, unless the deed-holders claim time limit of adverse possession.)None.

DefeasibleFee Simple Subject to a Condition Subsequent1. Words of condition. 2. To A on condition that.3. but if, provided, howeverUntil affirmative step by future interest holder after event of defeasance (Non-automatic.)Right of Entry. (There is NO time limit to the right of entry.)None.

DefeasibleFee Simple Subject to a Executory Limitation1. Gives it to 3rd party2. To A while then to B3. To A on condition that then to C4. A conveys to B while she lives in Midtown 5. Words of time and condition arent relevant bc still going to 3rd partyEnds automatically upon event of defeasance occurring.None.Executory Interest.

IV. Chapter 4 Future Interests A. Introduction1. A future interest is a right to receive possession of property at a future time. Future interest gives legally recognized rights to its owners it is a presently existing property interest2. Remainders (Vested and Contingent) follow life estates; remainders become possessory automatically upon the expiration of the life estate3. Rule of Construction: Courts interpret ambiguous remainders as vested, not contingent.4. Future Interest Recognized in our legal System:a. Interest retained by the transferor:i. Reversionii. Possibility of reverteriii. Right of reentry (power of termination)b. Interest created in transferee/ Remainders:i. Indefeasibly Vestedii. Vested remainder subject to divestmentiii. Vested remainder subject to openiv. Contingent remainderv. Executory Interest5. Classifying future interests after a life estate: a. If the first future interest created is a contingent remainder in fee simple, the second future interest in a transferee will also be a contingent remainderb. If the first future interest created is a vested remainder in fee simple, the second future interest in a transferee will be a divesting executory interest 6. Ex. To A for life, then to B and her heirsa. B has a present legal right he can sell or give away her remainder. She can enjoin A from committing waste. She can sue a third party who are injuring the land or claiming hostilely.b. If B dies during As life Bs remainder will be transmitted to Bs heirs or devisees.B. Future Interests in the Transferor1. Reversion: Life Estatea. When an owner carves out an estate deemed smaller than the estate he holds, he retains a future interest called a reversion.b. Example: O conveys blackacre, to A for life. As life estate is smaller than Os fee simple absolute because life estate is shorter in duration than fee simple O fails to convey entire estate.i. O does not have to take any ac