Property Outline Complete Cav Fall 2013 2

8/13/2019 Property Outline Complete Cav Fall 2013 2

1/28

Final, quiz, midtermProperty I Outline Cavalieri Fall 2013

POLICY CONCERNS IN PROPERTY LAW

LIBERTY Freedom to do anything with the law with

regarding to property and using it.

What are you allowed to do and what cant

you do? Example: I own a dog, but I am notfree to kill my dog.

EQUALITY AND

REDISTRIBUTION

How much are you allowed to accumulate?

How much stuff can you have?

If you have a lot, can we take some away (ie

public purposes?) Under what circumstances

could that happen (i.e. Constitution giving

authority for gvt to take prop in some

instances, imminent domain).

EFFICIENCY The law should seek the most economicalway of operation.

What is the least costly, most efficient way to

use the stuff?Economics:-maximizing land values-maximizing return from natural resources-lowering transaction costs-we want land to be used fruitfully-promoting fair competition

FAIRNESS &

RESPONSIBILITY

How one uses his land with respect to the

effect on the surroundings.

Can I use my stuff in ways that causes harm to

others? In what instance?Fairness:

-meeting expectations

-balancing outcome for all parties

-putting burden on lowest cost avoider (kind of ties in

with economics in a way)

-rewarding first in time (but not always, see: nuisance)

-general fairness to those who act in good faith (ex:

good faith improver of another's land)

ACCESS When a landowner allows access tooutsiders and then terminates access.

I.e. law of easements, can state require me to

grant access to someone else? What kind ofaccess? Under what circumstances and why?

ADMINISTRABILITY Law is easy to follow and clear withpredictable outcomes.

Ability to predict how the rule will work in the

future. Can we make laws that are easy to

follow and help people align their behavior?

Examples: Speed limit 35mph as opposed to

not too fast. Or you must disclose mold in

selling house vs. must disclose mold that is

7 part particles/mm continuous in air.

JUDICIAL

ECONOMY

Law makes it easier for judges to resolve,

can deal with probs quickly through

administrable laws that are clear-cutanswers to issues. Establish rules that

judges can interpret and not waste their

time on.

Example: habitability requires that a house

can be habited by a reasonable person vs.

House must be heated to 65 degrees. A rulethat everyone can predict that the crt will do,

and an economical use of judicial resources.-making judicial decisions more efficient andeasier and establishing bright line rules while stillallowing flexibility

PART II WAYS OF GETTING PROPERTY

Action to Quiet Title : lawsuit in order to establish a party's title toreal property against anyone and

everyone, and thus "quiet" any challenges or claims to the title.
http://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Real_property


2/28


FIRST

POSSESSION

First in time, first in right; the person who gets

there first has possession of the property.

Types: Discovery, Capture, Creation.

Discovery Gives exclusive title to those who madeit. Discovery is superior to the right of

occupancy.

Discovery gives a person the best title to that

property, and is the closest thing a person can have

to absolute ownership. The theory is that the

discoverer has the best title because she was the

first in time.

Whether a person is a

discoverer

Title is relative, rights are interpreted in

terms of competing claims.

Is open to manipulation. Possession is a legal

conclusion, as demonstrated when European

settlers occupied the new world and considered

tribes mere occupants because they didnt think

they were using the land correctly.

Acquisition byConquest/Capture

Applies to fugitive resources and wild

animals.

Mere pursuit of an animal does not give legal right

to pursuer, must have control to possess.

Fugitive property Movable like wild animals, oil and gas. Belong tothe owner of the land, and are part of it, so long as

they are on or in it, and are subject to his control;

but when they escape, and go into other land, or

come under anothers control, the title of the

former owner is gone & resume as common

property.

Two characteristics

of acq. by capture

Unowned, with no specific owner. And fugitive-

they are mobile.

Ferae Naturae Wild animal Person must kill or mortally wound it to takecontrol.

A person becomes

owner of a wild

animal/fugitive

resource

By capturing the animal and reducing it

to possession.

1. Mortally wounding the animal

2. Catching the animal in a cage/trap

3. Grabbing the animal & securing with hands

The prospect of

capture

No matter how likely to succeed Is not enough.

Domestic Animals The inclination to return suggests domestication.

Constructive

possession

When one is using land for profit They have constructive possession of the future

property interest.

(Keeblercase, shooting guns near duck decoy)Labor Theory Person who adds value to the property acquires

interest in title.

Constructive

possession & trespass

Deer example O and T are neighbors. T sees deer on Os property,

goes over and shoots the deer, brings it home,

illegal. O was not in actual possession but had

constructive possession.

Escape If a wild animal escapes and resumes natural

liberty, original owner loses his property right.

Once again unowned and 1stto capture is new

owner.


3/28


Marked Animals If an animal is marked, crt will allow

owner to maintain title.

Custom and usage within an industry (whale) can

be used to determine ownership of property.

Policy of marked

animals

To foster industry for the public good. Otherwise

no person would engage in the fruit of its labor.

ACQUISITION BY

CREATION

A person who creates property is a first possessor.

Most common way to create property is through

copyright or patent because it gives you protection

as to the whole world.

Intellectual

Property

Interests of public are weighed with

private property rights

Example: life saving drugs are important,

silk/perfume not important. Access to life saving

drugs trumps private property rights.

Copyright Must be registered, takes 2 years. Gives exclusive right to sell, publish or reproduce.Icea must be original, concrete, useful. Does not

protect against any person who independentlycreates identical or similar work product.

Quasi Property hot news INS vs. AP No property right in news collected, but an interestin it. D did not take Ps property but took Ps

interest. Policy: having the news industry benefits

the public, informs them, worthy of protection.

Imitation Cheney vs Doris Silk If you cant copyright, imitation is allowed. Policy:silk patterns not important public policy concern,

Generics & Imitation Smith vs. Chanel Imitation is the lifeblood of competition. Generics

can be taking a free ride but they are for the public

good, ultimately copying benefits consumers.

Policy: different strengths of property rights need

to be considered. Also, generics didnt kill the

industry (Chanel is still around).

Property in Ones

Persona

A celebritys right of publicity is

tangible personal property.

This protects people from losing benefit of their

work in creating a recognizable persona or identify.

Right of publicity can be assinable at life,

capacitable at death.

Right of Publicity

includes

Name, likeness, signature voice.

RoP can include White v. Samsung appropriation. But too much protection can cost

the rest of us, hinders public creativity. Must strike

a balance between publicity rights vs. public policy.

Property in ones

person

When human tissue leaves the body no personal

property rights to it. Even if the cells are used to

create a cell line that is of great commercial value.


4/28


PART II WAYS OF GETTING PROPERTY

SUBSEQUENT

POSSESSION

Occurs when a person comes into possession of

prop that is already owned by someone else.

Includes prop that is lost & found.

Theory of subpossess.

Title is relative. A persons rights as to propertyare understood in relation to anothers rights in

the same piece of property.

Hierarchy of Property

Interests

Who has the best/worst title for:

1. Mislaid

2. Lost

MISLAID: True owner > Locus Owner > Finder and

LOST: True owner > Finder > whole world (includes

subsequent finder)

Mislaid Property True owner unintentionally misplaces property.i.e. wallet left on counter at Target.

Theory of Mislaid True owner will go back to where the property wasintentionally placed to retrieve it, so the Locus

Owner has right of possession.Property left on

surface?

Final exam tip given at lecture Surface means mislaid but one could reason the

property as lost/mislaid for the following reasons...

Policy for mislaid The finder acquires no rights because we wantproperty to end up in the hands of the true owner,

which is more likely if finder has no rights.

Lost Property Owner doesnt know whereabouts. I.e. wallet onfloor at Target.

Theory of Lost True owner wont go looking for it, finder nowacquires possession rights.

Abandoned Property Owner intentionally relinquishes his rights to the

property and has no present desire to retake it.Theory for Abandoned Finder acquires best title and becomes the true

owner.

Determining Lost vs.

Mislaid vs. Abandoned

Where was the owner when she lost the property?

What was she doing? How did the finder find it?

What did the finder do after finding it?

Trover vs. Replevin Trover: sue for $ of prop, Replevin: sue to compel

return of prop.

Treasure Trove CL held that finder of treasure trove got to keep it

regardless of where it was found. ML has

abandoned because encourages trespassers, now

belongs to landowner.


5/28


BAILMENTS Defined as: The rightful possession of personal property by one who isnot the true owner.

Created by 2 steps (1) Delivery of physical control of the chattel AND

(2) Baileesintent to exercise that control.

Four elements of a bailment The baileemust:

i) Physically possess the property;

ii) Knowingly possess the property;iii) Know exactly what is possessed; and

iv) Consent to the possession.

Example: Car with valet. Laptop in back.Valet responsible for bailment (car). Not for laptop, not responsible for

loss because didnt know it was there at delivery.

Four questions to analyze if a

bailment exists

1. Are requirements satisfied?

2. If so, what is the scope? What items of personal prop

are part?

3. What is the standard of care for protection?4. What is the standard of care for redelivery?

3 Kinds of Bailments 3 1. Voluntary by K2. Voluntary w/o K (measuring cup)

3. Involuntary bailment implied by law (finder of lost prop)

Voluntary by K When owner (bailor) gives to bailee his property. I.e. laundry

mat, coat checking at restaurant.

Voluntary Without an Express K Lending a rake to a neighbor.

Involuntary Bailment When goods are found, the finder becomes the bailee with

respect to the true owner.

Duties of Bailee 2 (1) To protect chattel with legally prescribed duty of care

(DoC)(2) return chattel upon demand or when purpose

completed.

Sole benefit of bailor Bailee must exercise slight diligence and will not be liable unless

s/he is grossly negligent.

Mutual benefit of bailor & bailee Bailee must exercise reasonablecare and is liable if s/he is

negligent.

Sole benefit of bailee Bailee must exercise great diligence and is liable if s/he is only

slightly negligent.

Voluntary Bailments Duty of Care

to return

chattel

Where the bailee either sells the chattel or returns it to the

wrong personthe bailee is traditionally liable for conversion

and will be held to a strict liability standard.Involuntary Bailments Duty of Care

to return

chattel

Near strict liab for mis-delivery is less justifiable when

involuntary bailment created by operation of law, where bailee

may not know identify of the bailor.

1. Progressive crts have adopted a neg standard.

2. Less progressive juris maintain strict liab.

Mistake of value Mistake of value is irrelevant. Took control = bailment.

Not Bailments Sales- ownership passes.

Leases- limited ownership and full possessory ownership.

License/custody- limited right to use and control, bailment must

include control.


6/28


ADVERSE

POSSESSION

Makes it possible for a wrongful possessors use of prop to blossom

into rightful ownership.

Theories Earning, Sleeping, Reliance, Quiet Title, Judicial Economy

Earning Theory Reward the adverse possessor for beneficial use of the property.Sleeping Theory Punish the true owner for sleeping on his rights & not making

beneficial use.

Reliance Theory A.P. recognized in order to benefit third party reliance. Peopledepend on use. We want people to do biz and interact with person

in possession.

Quiet Title Dispute resolution mechanism. Settles disputes when titles arecontested.

Judicial Economy Evidence weaker with time so we dont haveto rely on fuzzyevidence.

Elements of A.P. (4) Entry, Open & Notorious, Continuous, Adverse

1. Entry Must have actual entry giving exclusive possession to trigger SoLException to entry Constructive Adverse Possession- A.P under color of title (faulty

writing)

2. Open &

Notorious

A.Possesor cannot hide/conceal the use. True owner must be able

to reasonably discover the adverse use.

3.Continuous For statutory period.

Exception to continuous Actual continuity not required, just consistent use with the property

and for its purpose (summer homeevery summer, continuous

req met)

4. AdverseUnder claim of right (without owners permission) and against true

owners interest.

States of mind for

Adverse

Good Faith- Due to factual mistake, possessor thought she owned

the land.

Bad Faith- Knew she wasnt rightful owner, requires aggressive

trespass.

Objective- Majority. Adverse possessors SoM irrelevant. All that

matters is claims are in conflict with owners interest.

Color of Title Possessor purchased land with faulty writing , method of clearingup title when ownership is in doubt via constructive possession.

Tacking A. Possessors may tack a predecessors time in order to satisfycontinuity. Must be in privity with prior adverse possessor

(voluntary transfer).Disability If true owner is disabled at the time CoA accrued the SoL is tolled

(or paused). Common situations are imprisonment, mental

incapacity, or minor.

Oral agreement on a

boundary

forms a new boundary.

Acquiescense If true owner acts as tho a line is the boundary (mowing the lawnalong a line) for an extended period (not yet period req. by ad.

poss.) it becomes the new line (informal indifference).


7/28


GIFTSGratuitous, voluntary transfer of property without payment or

consideration. Valid gifts are irrevocable.

Gifts can be Inter vivos, testamentary, causa mortis

Theory of Gifts Rooted in the idea that society favors the free alienability ofpersonal property because we want it to end up in the hands of

people who are going to use it most efficiently, & we dont want

people to hoard goods.

Gift Inter vivos elements 3 Donative intent, delivery, acceptance.

Intent Donor must have present intent to make irrevocable gift, & mustmanifest a clear intent. Can do this by express writing or oral

declaration.

Delivery The donor must deliver the prop to the done in order to make avalid gift.

Theory of Delivery Donor to feel wrench of delivery and law requires manual (actual)delivery when practical

When actual delivery not

possible, 3 types permittedConstructive, Symbolic, Delivery in Writing

Constructive Delivery Donor provides something that will give done control over the item

or will provide item, provide access. (i.e. key to car)Symbolic Delivery Donor gives something symbolic of gift. (i.e. photo of the car)

Delivery in Writing Donor delivers item in writing, writing gives sufficient identify &description of item being gifted. (i.e. I give you my red Jeep.

Example: Person leaves

bracelet, says via phone I

always wanted you to have

it anyway.

Statement is enough for intent. But even if had present intent,

didnt actually deliver but would be cumbersome to go get it and

hand it back, unreasonable and unnecessary.

Acceptance Donee must accept gift. So long as it has value we presumeacceptance, unless evidence that recipient rejected gift.

Conditional gift Person makes gift on basis of some condition. I give you this watch

provided the horologist can fix it Acceptable if no evid. of fraud.(If exam has engagement ring, argue the facts: parties expectations,

value of ring, circumstances of falling out, who is to blame).

Gift Causa Mortis Made in anticipation of donors death, will substitute.

Causa Mortis Additional

Requirements

Must be made facing imminent death (abstract fear of dying not

enough). Must actually die. Can be revoked before death.

Example: I give my nurse

everything in this room.

Desk has life insurance

policy.

Causa mortis, couldnt get up so impossible to do anything else

besides point. But should have been in writing. Did he deliver just

furniture or what furniture contained? Who was beneficiary of

insurance policy?

Estoppel Quasi-K. One party makes representations, other party has to haveformal reliance on the other partys word.

Doctrine of Mistaken

Improvers

Trivial encroachments with accidental improvements. If improver

makes innocent change, encroached upon party may be able to

receive monetary incentives for the land.

A land purchaser is typically regarded as on notice as to the official boundaries asdefined by the counties.


8/28


PART III: CONCURRENT INTERESTS & MARITAL PROPERTY

CONCURRENT

OWNERSHIP

Exists when 2 or more people own the same property at the same

time.

Theory Built around legal fiction in which two people can occupy at thesame time, & dispute resolution regime to resolve fighting between

two parties.

Three types TIC, JT, TBE

TENANCY IN

COMMON

Two or more with no ROS. Each has separate but undivided interest

in the prop, interests are not physically divided. Each has right to

occupy the whole.

TIC additional rules Default conveyance by ML. Each share is alienable, descendible anddevisable. Unequal shares are fine but must be in writing.

JOINT TENANCY Separate but undivided interests, key feature is right ofsurvivorship.

JT - 4 features Time- Interests created at the same time.Title- Acquired by the same instrument or joint A.P.

InterestEach must have equal undivided shares & identical

interests, as measured by duration.

Possessioneach has right to possess the whole.

JTSeverance If any of the four unities are destroyed, JT severed. The severedunity becomes TIC.

Methods include mutual agreement, conveyance to 3rdparty, use of

strawman (CL), sale, partitionJT- Mortgage Lien theory & title

theory

Lien Theory- Majority. Execution of mortgage doesnt sever JT.

Title Theory-Minority. Severs JT because it is conveyance of title.

JT- Lease CL held that a lease severed conveyance. Today most juris hold that

it does not.

JT- Death If one dies other has ROS. If both die simultaneously, of each

interest passes. If one JT murders another, severed by operation of

law to avoid unjust enrichment.

JT- Bank Accounts Can be created to make a present gift of undivided interest in the

account, to use survivorship as will substitute (POD accounts), or as

convenience. Crts will determine the intentions of the depositor.

TENANTS BY THEENTIRETY

Same as JT, requires time, title interest and possession. Butbetween married people

TBE special rules Cannot unilaterally sever or convey interest- both must agree.Creditors- MC Hammer- cant touch this because neither can

transfer interest w/o others approval.

Termination Death, divorce, conveyance by both.

Government Claims IRS can reach a TBE interest even though creditors cant.


9/28


RIGHTS &

OBLIGATIONSCONCURRENT

OWNERS

Partition Equitable action whereby a crt will divide up a concurrentestate.Remedy for either TIC or JT. If co-tenant seeks, crt will divide

the property according to the separate interests.

Partition in Kind Physical division of the property into separate tracts of land.Favored over sale because sale is an extreme exercise of power, ust

first consider emotional attachments that exist in the property.

Partition by Sale Monetary division where crt sells prop and divides proceeds accordingto respective interests.

Used when partition in kind is impracticable or inequitable because of

physical attributes of land, or better remedy for owners because

physical separation reduces value.

Oweltry Alternative to sale. One co-tenant compensates the other, in cases

where one gets more valuable part, or partition by sale yields higher

price because one co-tenant made valuable improvements.

Ouster When one co-tenant denies another co-tenant access to concurrentlyheld prop. Other situation- beginning of Adv. Poss.

Rents Majority: Cotenant cannot collect rents unless ousted. OR

A agreed to pay B the share OR

A stands in fiduciary relationship to B

Minority: A must make an accounting to B for Bs share of reasonable

rental valueRents from 3rdParties A co-owner who receives rents from 3rdparty is obligated to account to

his cotenants for those rents and share them pro rata.

Profits from Land Same rules as rent, but of cotenant permanently removes an asset

from the land it must be accounted for to other cotenants for

reduction in value.

Accounting for Costs of

Ownership

Each is responsible for proportionate share of mortgage, taxes, repairs,

maintenance.

One Cotenant can compel

another to

Pay their share of mortgage / taxes if that cotenant needs

reimbursement for having paid a larger share.

Repairs No obligation with voluntary repairs, cannot force reimbursement

without prior agreement. Minority- necessary repairs reimbursed ifnotice given.

Improvements No obligation to improve, impoving cotenant cannot compel

reimbursement for value added except for cases of partition or by way

of deduction from rent owed to the other owners.

Implied Fiduciaries None unless voluntarily assumed, or one cotenant acts to gain

advantage of title via foreclosure sale. Some juris- familial

relationships.

Adverse Possession Not applicable unless one owner gives absolutely clear notice that he

claims exclusive and sole title.


10/28


MARITAL

INTERESTS

2 systems English- based on feudalism, where ownership was given to the spouse

that acquired the prop. Womans legal personhood exchanged from

her father to her husband.

Continental System- French/Spanish based on community prop.

Spouses are a marital partnership.

Common Law System Extinct but aspects exist. Upon marriage a woman lost all legal controlover prop to her husband, but acquired some inchoate property rights-

lifetime support from her husband and dower.

Dower Widow had a 1/3 life estate of each of her husbands freehold estatesthat were decendible. Once attached only removed by wifes consent.

Predecessor of spousal elective share.

Curtesy Upon marriage, husband acquired life estate in wifes prop,

MODERN COMMON LAWAltered by statute. H & W have separate prop, ownership given to the spouse who

acquires it.

I.e. House titled to one

spouse only

Belongs to the one spouse.

Divorce Equitable distribution by statute.Prof skills & degrees States split over how to treat increase in earning capacity obtained during marriage.

Some say marital prop (NY). Some states (CO) say not property & no division. Others

take middle (NJ) requiring benefited spouse to reimburse for the support supplied.

Rationales for prof skills A degree is personal and earned solely. Alternate: The supporting spouse invests in theothers degree through labor, $ instead of stock market, etc.

Rights on death Elective Share- substitute for dower.

Modern Elective Share If surviving spouse was written out of the will, entitled to elect statutory share 1/3 to 1/2.

Does not apply to life insurance, JT (ROS trumps), inter-vivos gifts. Has to renounce will.

COMMUNITY PROPMarriage is a partnership of equals, prop acquired during marriage belongs to

communally. Includes personal prof purchased with earnings, profits.

I.e. House titled to one

spouse only

Doesnt matter, belongs to both.

Exceptions Separate prop acquired prior to marriage, during legal separation, or by gift, devise,inheritance.

Commingling If separate and comm. prop mixed, becomes community unless one spouse can showotherwise by preponderance of evidence. Three approaches

Inception of Right Character of property is fixed at the inception of legal right to possessionTime of Vesting Some states hold that the character of the prop is determined when title passes.

Pro-rata apportionment Some states hold that the % of the purchase price paid prior to marriage est. the portionof the prop that is separate; remainder is comm.. prop.

Management H & W have equal management powers. Neither spouse, acting alone, can convey theirinterest to a stranger.

Divorce Each spouse entitled to half of comm. prop, all of their separate prop.

Death interest of deceased spouse disposed of according to will. No modern elective share.

Creditors rights Debts incurred during marriage presumed to be community obligations, subject toseizure.


11/28


FUTURE INTERESTS QUIZ NOTESConveyance Interests Answer & Explanation

To A so long as no alcohol the premises are not

used for sale of beer, wine or liquor, and if beer,wine, or liquor is sold on the premises O retains aright to re-enter the premises. Subsequently Aopens a restaurant that serves several dishes cookedwith wine or flamed with brandy, Sun. brunch offerscomplementary glass of champagne. 11 years laterB wants to buy, advise B.

A has?

If sold to B?

A = FSD / FSSCS, not selling alcohol its

complementary.

If sold to B- advise not to have a bar, orcheck SoL in jurisdiction.

To A and her heirs, but if Blackacre is used for anypurpose other than agricultural purposes, then O hasthe right to re-enter and take possession of the land.

State of titleat CL?

O had FSA, gave A FSSCS. O now hasRoE.

Same as last prob, but some years after the

conveyance, A begins construction of severalresidences on Blackacre. O has died and devisedher entire estate to B.

What is the

state of titlein Blackacreat CL?

B = RoE, must exercise.

To A and her heirs so long as Blackacre is used forresidential purposes only.

What is thestate of titlein Blackacreat CL?

FSD

Same as last prob, but some years after theconveyance, A begins construction of a factory onBlackcare. O has died and devised her entire estateto B


B has title in FSA.

To A and her heirs on condition that if Blackacre is

used for any purpose other than agriculturalpurposes, then to B.

What is the

state of titlein Blackacreat CL?

FSSEL, conditional language but 3rd

party.

Same as last prob, but some years after theconveyance, A begins construction of a factory onBlackacre. B has died and devised her entire estateto C.


C, FSSEL, automatic forfeiture

To A and her heirs. A promises, on behalf of herheirs and assigns forever, that Greenacre shall beused solely for agricultural purposes.

What is thestate of titlein Greenacreat CL?

A has FSA. But has covenant,enforceable by injunction and $D, notforfeiture.

What is a reversion? Goes back tooriginalgrantor,automatic atterminationof lesserestate.

O conveys vested estate smaller than heowns, he retains this future interest.Example: O has FSA, gives A L.E. = Ohas reversion.

Reversions are divisible & decendible.

What estates can a reversion follow? FS > FT > LE > ToY

3 Interests retained by transferor? Reversion, PoR, Right of entry

3 Interests created in a transferee? Vested Remainder, Contingent remainder,Executory Interest

What is the difference between shifting and Shifiting divests a 3rdparty, Springint


12/28


13/28


To A and B for their joint lives, then to the survivorin fee simple. Is the remainder vested orcontingent?

A & B have?

Survivor has?

A & B have, joint life estate.

Survivor has: contingent remainder inFSA

To A for life, then to As children who shall reach

21. As oldest child, B is 17. Is the remaindervested or contingent?

A has? B

has? O has?

As otherkids?

A has LE, B has contingent remainder in

FSA (could have condition precedent), Ohas reversion if no kids reach 21. Asother kids have CR in FSA.

Prev. prob. B subsequently reaches 21. A has? Bhas? Asother kids?

B has VR in FSSEL, As other kids haveshifting executory interest.

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

B&C have?

If B does notsurvive A, O

has?

B&C have alternative contingentremainders. If B survives A, subjects Bsremainder to the condition precedent of Bsurviving A. If B does not survive A, Ohas a reversion.

To A for life, then to B and her heirs, but if B doesnot survive A to C and his heirs.

B has? C andO?

B has VR in FSSEL, C has shifting EI, Ohas nothing.

If after LE is CR, next interest is CR

If after LE is VR, next interest is Executory InterestVR is subject to open, subject todivestment, FSSEL

If there is a pair of CRs, O has CRCROhas

A reversion.

To A and his heirs, but if A dies without issuesurviving him, to B and her heirs.

A has? Bhas?

A has FSSEL, B has shifting EI

To A for life, then to B and her heirs, but if B dies

under the age of 21, to C and her heirs. B is 15.

A has? B?

C?

A has LE, B has VR in FSSEL, C has

shifting EITo A for life, one year later to B and his heirs. O has? B

has?O has reversion in FSSEL, B hasspringing EI

`To A and his heirs one year from today. O has? A? O has FSSEL, A has springing EI

To A for life, then to As children and their heirs,but if at As death he is not survived by anychildren, then to B and her heirs. A is alive and hasno kids.

A has? Askids? B? O?

A has LE, As kids have CR, B has CR.But if not condition subsequent, sets upwhen B can take. O has reversion.

Prev. prob. 2 years later A has twins, C&D. C&D have?B? O?

C&D have VR subject to open, B has EI,O has nothing (once something vests, noreversion)

Prev. prob. Suppose C dies during As lifetime, andA is survived by B & D.

D & C? B? D & heirs of C have FSA. B has nothing(will never vest.)

To A for life, then to such of As children as survivehim, but if none of As children survives him, to Band her heirs. At the time of the conveyance, A isalive and has two children, C and D.

A has? B?C&D? O?

A has LE, B has CR, C&D have CR inFSA, O has reversion.

After life estate, interest is A remainder.

To A for life, then to B and her heirs, but if A issurvived at his death by any children, then to suchsurviving children and their heirs. A the time ofthe conveyance, A is alive and has two children, C

B has? C&Dhave?

B has VR (after life estate, no cond.prec.) C&D have EI in FSSEL


14/28


and D.

To A for life, then to B for life, then to Cs heirs. A,B, C and O are all alive at the time of theconveyance. C is unmarried and has two livingchildren, X and Y.

A, B, C, CSheirs, O?

A has LE, B has VR for life, C hasnothing, Cs heirs have CR, O hasreversion.

To A upon her first wedding anniversary. A is aliveand unmarried at the time of the conveyance. O isalso then alive.

A, O? A has springing EI, O has FSSEL

To A for 10 years, then to such of As children asattiain 21. A and O were alive. A had two children,X and Y, ages 20 and 17.

A, X&Y, O? A has ToY, X & Y have CR, O hasreversion.

What's the difference between a possibility of

reverter and a reversion?

1. Reversions can only follow "particular"estates... POR can only follow FSD2. It's said that possibilities of reverter are"contingent" (i.e., subject to a conditionprecedent)

....while reversions are always "vested."3. Reversions are everywhere freelytransferable. In some states, possibilitiesof reverter cannot be transferred.

A reversion is (4 things)a future interestretained by the grantorto follow a particular estatewhen the particular estate expires

Remainders areFuture interests in someone other than thegrantor.

Remainders can only follow Particular estates such as LE, fee tail andnon freehold estates.

3 subcategories of VRs? Indefeasibly Vested,Vested Subject to Divestment, andVested Subject to Open

Definition of CR? (3 types) 1. a stated event must occur beforepossession2. it is conveyed to unascertained persons3. it is conveyed to unborn persons

Definition of VR?A remainder is vested if theremainderman is:(a) born and(b) ascertained, and(c) no (stated) event need occur beforepossession (except expiration of prior,particular estate).DEFINITION of a VESTEDREMAINDER (short-form): A remainderis vested if it's not contingent.


15/28


To A for 10 years, then to such of As children asattain 21. A and O were alive. A had two children,X and Y, ages 20 and 17. X later attains age 21 andY is still under age 21. A and O are both still alive.

X, Y, O? X has VR in FSSEL or VR subject toopen. Y has EI (dont say VR subject todivestment), O has nothing.

To A for 10 years, then to such of As children as

attain 21. A and O were alive. A had two children,X and Y, ages 20 and 17. X dies when X is age 22and Y is age 19. O is still alive.

X, Y, O? Xs estate has VR in FSSEL, Y has

shifting EI, O has nothing.

To A for life, then to B and her heirs; but if Bmarries Z, then to C and his heirs.

A, B, C, O? A: LE, B=FR in FSSEEL, C=EI,O=nothing (because of comma, no alt.cont. remainders)

O conveys a sum of money to A if she graduatesfrom college. A is not yet enrolled in college.

A, O? A has springing EI in FSA. O has FSSEL

What is the purpose of RaP? Designed to reduce dead hand control,further alienability. Control to deceased

owner but not infiniteRule for RaP? No interest is good unless it must vest, ifat all, not later than 21 years, after somelife in being at creation of. Have to knowif will resolve within 21 years ofmeasuring life.

What interests does RaP apply to? Only applies to interests that arent fullyvested at conveyance: CR, VRSTO, EI,class gift

What isnt subject to RaP? VR in FSA, VR in FSSEL, FI in O (only3rdparties)

Steps to RaP application? 1. Name all interests aand determineif subject to RaP.

2. Determine if the interest mightnot vest within 21 years a life inbeing (perpetuity period).

3. If no validating life, interest isvoide & must strike it fromconveyance. Invalid.

O transfers a sum in trust for A for life, then to Asfirst child to reach 21.

A is the validating life. You can provethat any child of A who reaches 21 will

necessarily reach 21 within 21years of Asdeath. The remainder must vest or failwithin this period; it cannot possibly vestmore than 21 years after A dies. Theremainder is valid.A=LE (no RAP), As 1stchild-CR (RaP,A = validating life, interest is valid.

O transfers a sum in trust for A for life, then to Asfirst child to reach 25. A has no child age 25 orolder.

There is no validating life; the contingentremainder is void. You cannot prove thatAs first child to reach 25 will do sowithin 21 years after As death.CR in As first child to reach 25. Will not


16/28


know within 21 years, invalid, novalidating life. Step 3- cross out As 1stchild to reach 25 and now is, In trust to Afor life. O has reversion.

To A for life, then to B if B attains the age of 30. B

is now 2 years old.

A, B? A has LE, B has CR. Will we know

within 21 years? Validating life is not Ais B. Will know when B dies, interest isvalid. Failure to vest resolvescontingency. We have a named party,sometimes implied party is ok formeasuring life.

To A for life, then to As children for their lives,then to B if B is then alive, and if B is not then alive,to Bs heirs. Assume that A has no children at thetime of conveyance.

A=LE, As kids: CR for life (valid, willknow if it will vest at As death). B:CR(valid life, valid interest) Bs heirs: CR,unascertained condition precedent, valid.

A says A for life, then to As kids who reach 25 Bis 26 yo.

RAP? A is the validating life. This would be aclass gift. B has a VRSTO, Bs possible

siblings have EI. Because of the classgift, would not possibly resolve itselfwithin 21. Invalid. So we would strikeafter to A for life. For RAP, its eitherall good or all bad. Since the possiblesiblings are bad, Bs conveyance is badtoo.

LANDLORD TENANT MIDTERM NOTESLeaseholds

Leasehold = interest in land

Death of LL or T: Common Law says no effect but some crts hold leasehold to be personal, so death is

then terminated.

Tenant holds property Landlord or LL Agent

Leasehold future interest

(reversion/remainder, property goes back to LL or LL agent)

1. Tenancy for Years (Term of Years)Fixed period, easy to surrender, automatic termination.

Lease for a set period of time and expires without notice.

Can last for days or years (dont be confused by the years in term)

Begins at a fixed point, expires at a fixed point without notice

Fixed Period of Time

oCan last days or years. (e.g. 10 days or 10 years)


17/28


oTermination date is certain.

oAlways has an endpoint defined.

Creation

oWritten under SoF if more than a year

oCan be oral if less than 1 year Termination

oIs automatic.

oExpires at a fixed point without notice.

Surrender

oDoes not require formalities

2. Periodic TenanciesContinues for a designated period, no pre-determined end, technical termination: notice required to

terminate

Continues from year to year for periods of time.

Informal lease often created by implication

Example: friend says write a chek for $1K per month, let me know when you leave.

(Death of Landlord or Tenant)

Common law says no effect

But some courts hold leasehold to be personal, so if death occurs then terminated

To leave Periodic Tenancy:

o Any periodic tenancy that is 6 months or more does not require more than 6 months

o Less than 6 months requires 1 full period of notice.

Reforms by Jurisdiction for Period Tenancy

o Policy Rationale:

Reforms are meant to respond to disproportionate power between LL and tenant

o Reform 1- softened year notice of requiring one full period of notice.

Typically says 30 days before end of term.

Example: term by 12/1/13, notice by 11/1/13

o Reform 2- notice given will be effective 30 days later

Many states permid a month to month tenancy at any time after 30 days notice. Example: give notice Oct 2, term ends on Nov2. Pay just 1 extra day, not month.

Periodic Tenancy Creation 3 ways:

o1. By Express Agreement

E.g. L leases to T from month to month

o2. By Implication

Can be an informal lease created by implication


18/28


a. E.g. friend says, write me a check for $1K per month, let me know when

you leave.

o3. By Operation of Law

Tenant Holds Over:

a. Where notice is not given, lease is automatically renewed.b. LL can treat as a new PT on same terms of old lease, or as TaW

Termination- Notice Required

oGoes on until one party gives notice of termination

Either party may give notice to terminate.

oTo leave Period Tenancy: Any periodic tenancy that is 6 months or more does not require more than 6

months notice

Less than 6 months requires 1 full period of notice.

a. E.g. lease began 1/1/13, to terminate on 1/1/14, notice by 6/30/13 or7/1/13. If notice by 7/6/13, term on 1/1/15.

Reforms by Jurisdiction for Period Tenancy

oPolicy Rationale:

Reforms are meant to respond to disproportionate power between LL and tenant

o Reform 1- softened year notice of requiring one full period of notice.

Typically says 30 days before end of term.

Example: term by 12/1/13, notice by 11/1/13

o Reform 2- notice given will be effective 30 days later

Many states permit a month to month tenancy at any time after 30

days notice.

Example: give notice Oct 2, term ends on Nov2. Pay just 1 extra

day, not month.

3. Tenancies at Will

No fixed period

Endures at the will of the parties

Ends at the death of 1 of the parties

Rare

TaW runs into period tenancy ifpayment expected. Doesnt involve payment of money

Creation

oNo fixed period

oEndures at the will of the parties

oRare

oTaW runs into period tenancy if payment expected. Doesnt involve payment of money

oDifficult to get a lease interpreted as tenancy at will; courts may interpret it as a periodic

tenancy

Termination


19/28


oIndefinite renting, ends when:

Terminated by eitherparty or

One party dies

oReciprocal rights: Usually 30 days notice of termination required

4. Tenancies at Sufferance (Holdover)

Arises when tenant doesnt leave

Common law creates 2 choices.

o 1. Eviction + money damages

o 2. New tenancy as a new leashold.

Major jurisdictions say its a periodic tenancy thats implied

Minor jurisdictions say it is a new lease with the same terms.

Arises when T remains in possession after termination of tenancy

The tenancy lasts until T is evicted or L elects to hold over for another term.

oLL can evict with damages, OR

oLL consents and they pay same terms or month-to-month (max new term is one year)

Maj. Of juris say a periodic tenancy created on holdover, but min say a new term

of years created (if holding over on original term of years lease).

Lease tells rights and responsibilities.

If no lease, implied rights, responsibilities and duties.

Lease is set up to be equal power between parties, but most of the time when a lease is formed the tenantcant negotiate, doesnt know their rights by jurisdiction.

Conveyance

Common law English Rule

Under traditional legal doctrine, different from K

Conveyance vs. Contracts

o Policy

The way we deal with land from one to another is special

Concerns property rights

o Last 30-40 years, there has been a softening so that it now resembles K law more.

Increasing movement to exchange promises

Leases now are a fusion between K and leases

Gives rights to tenants and new remedies with certain protections.

Fair Housing Act (FHA)

Addresses how people are treated in the rental and sale of property.

Is not state based.


20/28


Statues must not confliction with the Constitution, but can add weight to constitutional issues.

ADA, CRA and FHA

Is statutory and not constitutional.

o Congress has given power to them by Const. and can regulate housing, commerce among the

states

CRA (Civil Rights Act)

Bared public and private discrimination (not just dwellings

Only concerned with race.

FHA 3604

Exemptions

o Religions orgs in certain circumstances, seniors, 3603

o But big rule is no discrimination

o Ex: single family house sold or rented by owner, if they own

3 or fewer

But if you are in the business of real estate you cant discriminate

So only personal owners

(Freedom of Association Constitutional issue, which trumps FHA)

Cant advertise discrimination

Stereotype threat

o Is deleterious to society and affects the environment

If you discriminate in advertising you lose your exemption

Attorneys, title companies, other professionals can serve small landlords (Mrs. Murphy)who are discriminatory

Small landlords who live on premises with no more than 5 families in rooms/units

If not exempted under 3603

o Cannot refuse to rent/sell based on___

o Cannot advertise preference for

o Cannot discriminate person with handicap if

They pay for reasonable modification

Cannot refuse to make reasonable accommodation

Constitutions

Equal Protection

Statutory enacted

by Congress


21/28


Have to construct new multifamily dwellings accessible to handicap persons

FHA applies to all single family homes owned by private citizens who use a broker & have less than for

homes.

All single family homes owned by corps/partnerships qualify and are under the FHA.

FHA Examples from Book:

Ratios/no. of children. OK

4 people OK

No more than 2 children = not okay

Can refuse rent to unmarried couples, gay/lesbians. But sexual harassment is not okay

HIV/AIDs Status- violation

Direct threat/ harm substantial damage = ok

No schizos with violent tendencies who might damage the property = ok

FHA says smoking not a handicap/disability.

No smokers okay to use if deleterious effects of 2ndhand smoke.

FHA Applies to:

Discrimination is defined as a specific class on the grounds of:

o Race, color, religion, sex, familial status, national origin, disability

o Needs to be on the grounds of a protected class.

States can have municipality ordinances which further define protected classes

o Example: gays & lesbians in SF

No state can nullify the FHA, it is federal law.

Holdovers: Legal vs. Actual Possession

Ex: Hannan v. Dusch

o P leased from D, holdover tenant was still in possession.

English Rule:

o LL has implied covenant to deliver possession

o Only applies on the day that the lease begins

Day 1: T can sue LL

Day 2: T must sue holdovero T can terminate lease and then can sue LL for damages.

Day 1: terminate lease

Day 2: damages (hotel, storage

o Contradicts public policy purpose, no one would willingly contract to a lawsuit.

American Rule:

o T should oust trespassers, LL to deliver legal possession, not actual possession.

o No implied covenant

o Day 1: T must sue holdover for possession and damages.


22/28


Some juris follow American, some English

Subrules for both:

o 1. If you cant takepossession on start date, no obligation to pay rent & may collect damages.

Where entry is delayed, dont have to pay.

o 2. If there is a 3rd

party (holdover) only partially in possession, T can take possession ofremainder and then abate the rent (subtractpart you dont have possession of.)

If lease says nothing about delivery of RoP, goes to default rule in jurisdiction.

To get around, lease can include delivery of possession.

Contracting around default rule:

Default Rules

American rule English rule

RoP (Solution: K around default rules)

Sublease or Assignment

Can have different kinds of promises passed on or retained between the two.

Frequently mislabeled. Most crts will look at what the parties actually did, or look at intentions and

define them as such.

Sublease

o

Anything less than entire interesto Right of Entry is retained, reversion

Assignment

o Entire lease (residual term) is transferred

Denying Assignments

Ex: Kendall v. Ernest Pestana

Majority rule: LL can unreasonably and arbitrarily deny consent to assignment.

o Lessors decision

o Court shouldnt rewrite K (response- making you live up to K)

o Stare decisis

o Lessor should get the benefit from the increased value (should build rent increases)

Minority Rule: LL only may withhold consent for commercially reasonable justification.

o 1. Financial unsuitability rationale (credit worthiness)

o 2. Condition / possibility of harm to premises. Depends on:

Nature of occupancy

Unsuitability

Need for alterations


23/28


o Why minority rule is better:

Modern law disfavors restraint on alienability (efficiency rationale)

We like the property to go from one to another

Promotes good faith & fair dealing (fairness rationale)

We now prefer the K model & feel its a better approach Minority rule is now the dominant rule.

Denying Assignments w Residential Leases

Follows the majority rule from Kendall

Duty to mitigate undermines right to refuse

Holdovers: Self Help

Ex: Berg v. Wiley

Commercial lease for property, restaurant LL locked out T when closed for remodeling

Contract Law says self help ok if:

o LL entitled to possession AND

o Peaceable entry

Modern rule:

o Self help is disfavored.

Self help is only a remedy in the past. Law is more evolved now, must seek judicial

ejectment.

New Model:

o Summary proceedings

o Bars T from raising LLs breach

o Newest rule allows T to bring some defenses

Lease Abandonment / Surrender

Ex: Summer v. Kidel

o Involved abandonment of new lease. D could not get lease because he broke off engagement.

o LL did not lease out, damages were 1+ years of rent.

Rule: Duty to mitigate damages, like K

Surrender:

o T free of obligation to pay rent but only from moment of surrender.

o T must still pay back rent, retrospectively owed

o Takes qualities from K law:

Acts as an offerfrom T: Let out of lease?

Acceptance: Yes from LL

Abandonment:

o Implied offer of surrender

Common Law rule:


24/28


o If you have lease, obligated to pay.

o If you abandon/offer to surrender, no duty to mitigate.

Modern rule:

o Like K law, duty to mitigate and minimize damages.

o Must act with good faith and fair dealing.o Exercise reasonable diligence in mitigation.

Duty to Mitigate

Residential LL can deny a sublease arbitrarily but must mitigate damages.

o Also cannot request back rent from defaulting subtenant.

DtM can fall on either party

Majority rule: T must bear burden to show reasonable diligence

o Reasonable diligence being advertising, showing apt, etc.

o Finding someone to take over your lease.

Minority rule: LL must bear burden to show reasonable diligence

T in default pays expenses incurred in mitigation for LL to find new T.

Residential Leases and DtM

o Should original T wish to transfer lease, LL can arbitrarily refuse.

o But DtM trumps, LL must show due diligence to decrease damages.

Makes it harder to collect unpaid rent.

Shows how conveyance is migrating toward K law

o Any substitute in K law is suitable.

LL cant refuse alternative & hold T liable for total unpaid rent.

Reasonable good faith effort to mitigate damages, if failed then can collect damages on unpaid lease.

o LL who fails to mitigate typically still tries to collect damages But crts say no damages available, therefore no $D

LL could recover difference between agreed rent & avoidable loss.

o Ex: If market for rent changes & price falls, LL gets incidental, consequential damages

$1000 rent previously, now reasonable market cost is only $750. LL gets $250 in $D

If failure to mitigate, LL gets agreed rent X reasonable recovery

DtM is a mandatory rule.

LL Remedy When T Breaches

1. Sue for back rent + damagesa. LL can sue for retrospective rent + $D (e.g. broken window)

2. Eviction

a. Terminate lease & retake possession

3. Anticipatory Breach

a. Repudiated K

b. LL can collect future unpaid rent which cannot be reasonable avoided despite DtM, post

eviction.

c. Doctrine not followed by every jurisdiction.


25/28


d. If T abandons, repudiated contract. Most jurisdictions allow whole & remainder of lease as

collectible.

e. If the jurisdiction says no anticipatory breach (no money damages for retrospective rent) then

the accelerated damage clause overrides anticipatory breach theory.

Protective Devices

Security Deposit

o Supposed to be insurance for unanticipated damages. Problem is T never gets it back.

o But remedy for T who wont leave & wont pay.

o Remedies to T in some jurisdictions:

Requirement to limit amount

Make LL trustee

Hold $ in escrow

Require separate account for security deposit

LL pays interest

Return in 30 days, or itemized list of costs. If not done, then treble damages.

o Once lease is signed, T responsible for damages.

This makes it so T has no incentive to fix anything, doesnt bear costs other than the

security deposit.

o LL often will try to redefine security deposit as liquidated damages or advanced rent.

Accelerated Damage Clause

o In some lease contracts

o When T breaches, entire remainder of the lease is due.

If T pays entire remainder, can continue possession.o If the jurisdiction says no anticipatory breach (no money damages for retrospective rent) then the

accelerated damage clause overrides anticipatory breach theory.

Implied Covenant of Quiet Enjoyment (ICQE)

Refers to: What is the condition the premises need to be in and what does LL owe as per K?

o Covenant = promise

o Implied = goes in all leases

o Quiet Enjoyment = uninterrupted & in an unencumbered fashion

Constructive Eviction

Ex: Reste Realty v. Cooper 1969

o Where ICQE is substantially breached, T has remedy in constructive eviction

Substantial Breach of ICQE=

Act/omission that renders premises unsuitable for purpose


26/28


Significantly interferes w/ beneficial enjoyment

Similar to implied warranty of merchantability in K law

o Cons. Evic.= it is as if T has been evicted BUT

T must abandonwithin reasonable time.

Allows term of rent (must give notice)o Early Common Law:

LL owed no duty after lease. The only breach of ICQE was interference with lease.

o Modern Law:

Has relationship between ICQE and Constructive Eviction.

Breach so bad, as if T was evicted, so T has remedies.

Breach Remedies for Landlord

1. Back rent + $D

2. Terminate lease and retake possession

3. Anticipatory breach (generally disfavored by crts)

a. Only $D = mitigation D (consequential damages)

4. Repudiated Contract

a. LL can collect on the whole lease

b. Only some jurisdictions

c. If allowed, & T has abandoned by offer of surrender / left, repudiated K available

d. Narrow remedy because of requirements

K K K Conveyance = enriched by K law

K

K K

Doctrinal aspects of K law:

Implied warranty of habitability

Duty to mitigate damages

Good faith requirements, etc.

ICQE: Both residential and commercial, but for residential, IWH applies

Substantial breach of ICQE

o You get to invoke Constructive Eviction

o Relieved of rent if T departs within reasonable time.

Major Breach, but less than substantial breach (Illusory: Many people dont

o Invoke dependant covenants, e.g. broken window have $ to sue)

Lesser Breach

o T stays and sues for $D

In exam, explain the above as:

conveyance


27/28


ICQE provides ____, when there is substantial breach this could be resolved by ______. Where there is

major breach ___, and if lesser breach ____. This looks like ___, therefore ___ applies, which would

result in ____.

Illegal Lease Doctrine (disfavored, but theory to contemplate)

If lease had substantial code violation & LL knows, the lease is unenforceable as an illegal K.

o Argument that its against public policy- doesnt live up to rules of the law.

LL only entitled to reasonable rental value of premises. This could be $0 if bad enough.

Implied Warranty of Habitability (IWH)

Runs whole lease period

Covers patent (obvious) and latent (hidden) defects

Implied in every residential lease

Says safe, clean, fit for human habitation Must besubstantialviolation, not minimum.

To make IWH claim

o Must be uninhabitable to a reasonable person standard

If the problem is made by T, claim is not available

o Violation of local housing code

o Violation of health & safety

T must give reasonable time to resolve problemo No hot water for 12 hours? Not available. Weeks? Months? Yes.

Ex: Hilder v. St. Peter

LL premises uninhabitable because of water, lock, toilet, no heat etc.

T stayed 14 months, paid all rent, later sued for $D

Caveat Lessee= renter beware

Under Common Law, T still had to pay unless abandoned for substantial breach under

constructive eviction

IWH is:

o Only residential

o Sometimes doesnt include single family homes

Not adopted everywhere but the modern interpretation

Examples of IWH violations:

o Bed bugs- even though its not a health and safety violation.

o Aircondition

o 2ndhand smoke

Cannot contract around IWH, implied in everyresidential lease.

IWH: Ways to Invoke Remedy

1. Stay, pay & sue for reimbursement

o Acts as rescission and reformation


28/28


2. Stay, withhold rent, when LL sues for back rent T raises IWH breach as defense

o Doesnt relief all rent obligation, but no eviction & crt reforms the K.

o Must give notice

Have LL on notice & with ability to repair in a reasonable time.

E.g. send a letter Defect occurs when withhold occurs

3. Repair & deduct $D (only in some juris)

o Must give notice & time

o E.g. call a plumber, save receipt, deduct $ from rent.

4. Terminate, sue for $D

o In amount of overpayment from date of breach.

o Money awarded = value of premises in defective condition.

Property Outline Complete Cav Fall 2013 2

Documents

Transcript of Property Outline Complete Cav Fall 2013 2