PROPERTY OUTLINE SPRING 2006

I. CONCEPTION OF PROPERTY: Property rights are relative in that someone may have better property rights to X than

another person. o A. Right of a thing good against the world

It is a set of right that you might have with respect to stuff, that is good against certain people in the world.

HYPO: MICHAEL MARKER o B. Bundle of rights [regarding possession of a “thing”]

i. Possessii. Use

iii. Transferiv. Destroyv. Exclude

II. ACQUISITION BY CAPTURE PIERSON v. POST

o Post, fox hunter, was chasing a fox through a vacant lost when out of the blue Pierson killed the fox and took it away.

o RULE: Pursuit alone vest NO property rights. There must be ACTUAL POSSESSION to claim title to fugitive

objects. Physical Possession Mortal wounding Capture

o Therefore, a hunter must either trap or mortally wound an animal in order to acquire title to it.

o See also, Popov v. Hayashi

CARVING EXCEPTIONS TO PIERSON – when actual possession is not reasonable…

o CONSTRUCTIVE POSSESSION & INDUSTRY CUSTOM RATIONE SOLI

If you own the land then you own the wild animal that runs across it.

You constructively possess something by owning the land which it runs upon.

If something is on your land then you own it.

GHEN v. RICH Capturers shoot a bomb lance to the bottom of the ocean,

which leaves an identifying mark on the whale. Since the whale takes 1-3 days to float up to the ocean, whoever finds it can tell who shot it by the identifying marker.

o RULE: Custom & Constructive Possession are exceptions to the rule of actual possession in order to capture wild animal.

Constructive Possession is applied here because of the impracticability of requiring actual possession (i.e., the size of the whale)

KEEBLE v. HICKERINGILL Duck pond decoy case. RULE: Another exception to the general rule of capture,

If the means by which you actually possess an animal involved violent or malicious acts, even though you actually possess you do not have the right to the thing because those violent/malicious acts excepts you from the general rule of possession.

o Moreover, if that other person is doing so for the purpose of earning a living, the person who takes those steps will be able to claim title to the object.

Here, Hickeringill, with malicious intent tried to possess Keeble’s

See also: EDAS v. BRAZELTON Shipwreck case with the boat

POPOV v. HAYASHI o Barry Bonds 73rd Homerun ball. o Not clear if Popov had it in possession, Hayashi, with no

malicious intent on his part picks it up. o COURT HELD: Both men intended to possess the ball at the

time they were in physical contact with it. Both P and D have an equal and undivided interest in the ball.

Subsequently, the ball was sold and the proceeds were divided equally between the parties.

III. ACQUISITION BY CREATION A. INTRO

o i. Policy: Promotes Competition

INTERNATIONAL NEWS SERVICE v. AP AP wants to exclude (INS has no exclusion claim – doesn’t

think AP should exclude their own news) INS wants to be able to sell, use and possess it AP wants all including exclusion.

ESSENTIAL CHARACTERISTIC OF “NEWS”o The news is only news if you get it first

Doesn’t have an identity as news if it comes second.

HOLDING: AP has invested time and resources (organization & expenditure of labor, skill and money) into the creation of the news, it can prevent (exclude) others from copying the news until the commercial value of the news has passed.

o (think about it this way, if the court allowed the copying of fresh news, no news service could every stay in business. PRESERVATION OF THE MARKETING OF NEWS. [policy consideration]

RULE: Acquiring rights to an object by creating it will be respected if its creation is necessary to cause the object to retain all of its essential qualities.

o e.g., INS where newness is required for the news to be the news

MIDLER v. FORD MOTOR COMPANY The usage of Midler’s distinctive voice in the advertisement. RULE: If it’s distinctiveness causes the imitation of the

object to be mistaken for the object itself,

IV. ADVERSE POSSESSIONCourts have long held that when an owner sits on her rights to exclude, and the SOL for challenging the original unlawful entry expires, not only is the original owner barred from asserting the right to exclude, but a new title also springs up in the Adverse Possessor. The AP becomes the new true owner and can now exercise the right to exclude against the entire world, including the original owner

POLICY – What does AP serve? o Discourages true owners [TO] from sleeping on their rights as landowners.

There is nothing inherently wrong with being a passive owner but passivity may generate a social ill.

o Reliance Issues: After being on the land awhile, AP develops an interest in it. o Prospect Theory/Loss of Averment – More demoralizing to AP to take away

what he has had rather than TO not getting back what he has NOT had. ELEMENTS

o 1. Actual An adverse possessor must be in actual possession of the property. Generally, an adverse possessor gains ownership of only so much of a

tract of property as the adverse possessor actually occupies. A. COLOR OF TITLE

o A person enters under color of title when he claims ownership pursuant to a written document, usually a deed, purporting to transfer the property to him, but the document is defective in some manner.

Having COT helps the AP in 2 ways: 1. Reduces significantly the statute of

limitation. 2. The adverse possessor with color of

title who successfully proves an adverse possession claim based on actual possession of a part of the tract of described in the document constituting color of title is deemed to be in constructive possession of the whole tract.

An EXCEPTION to the constructive ownership by color of title rule is that the true owner’s actual possession of a part of the described land negates the constructive possession and the averse possession is limited to the land actually possessed.

o If there is no COT, possession can be shown through (clear & convincing) evidence by:

1. Substantial enclosure (land literally being fenced in)

2. The land is cultivated or improved. o 2. Open and Notorious

This means that the adverse possessor’s use of the property is so visible and apparent it gives notice to the true owner that someone may be asserting an adverse claim to the land.

The AP’s use must be of such character under the circumstances as would indicate to a reasonably attentive owner that someone else might be claiming the property.

o No actual notice to TO is required. o However, if TO has actual knowledge, the open and

notorious element is met even though no one else has reason to know of the adverse claim.

E.g., Building fences, crops or animals might constitute an open and notorious presence.

o 3. Exclusive This means that the AP holds the land to the exclusion of the true

owner. [AP is excluding the TO]o 4. Hostile or Adverse

This means that the AP uses the occupied property without the TO’s permission, and inconsistent with the TO’s legal rights.

1. [minority view] AP acting in Bad Faith o Does subjective intent of the AP matter?

Some courts, who hold this view, have held that mistaken possession does not constitute hostility.

2. AP acting in Good Faitho Some court, will require the AP to be on his

neighbor’s land in good faith, actually believing it to be included in his deed description.

Generally. Subjective state of mind is unimportant and usually will require that TO does not give permission to use the property.

o 5. Continuous This means that a claimant must be in continuous possession for the

entire limitation period. Continuous ≠ uninterrupted Intermittent use usually wont constitute continuous

possession, but seasonal use may be continuous. The possessor must use the property as a true owner would under the

circumstances. *The continuity element focuses on the AP’s time on the property,

rather than on how long the true owner has been dispossessed. EXCEPTIONS TO THE CONTINOUS ELEMENT

o 1. Seasonal Use [see above] o 2. Tacking & Privity

e.g., An AP may sell or give his interest to another person. The purchaser succeeds to the AP’s attributes, including the time the first possessor occupied the property.

This adding of time the first possessor used the property to the time the second possessor used the property is called tacking, which requires Privity.

o Privity occurs by contract of sale, gift, will or other inheritance.

o 3. Disability Many states provide that the SOL for a AP

claim will not run against a TO who is under a disability when the AP commences.

If a TO is under a disability, the SOL will not run against him until the disability is removed. Meanwhile the statute is said to be tolled.

1. Must exist on the date of the AP 2. No tacking of disabilities are

allowed. 3. A person taking from or through the

TO under a disability generally can take advantage of the tolling statute to the same extent as the person w/ the disability.

Infants, minors, mentally ill, legally incompetent, imprisoned, military, or absent from state.

CASESo EWING v. BURNET

P used property for 21 years, also exercised property rights over it, such as, allowing/disallowing people from collecting sand and dirt from it. It was publicly known that he was using the land in such a way and the TO knew of this and did not do or say anything about it. Furthermore, the TO deeded him the land (even though the deed was void because the TO had actually doubled deeded land). Therefore, P had color of title + claim of right. [actual possession, open & notorious, exclusive, hostile, continuous]

V. VALUES SUBJECT TO OWNERSHIP

A. PERSONHOOD o Policy: Promotes social welfare. o ~Acquisition by being alive?

MOORE v. REGENTS Moore wants right to exclude hospital from using his cells

without his knowledge. RULE: Excised human body parts are not property such

that they may support a cause of action for conversion.o Since, P did not retain possession of his body parts

after their removal, he must show an ownership interest in them in order to have a cause of action for conversion.

o Policy: encourages medical research, promotes better usage of property.

NEWMAN v. SATHYAVAGLSWARAN Newman, contests the removal of his child’s cornea tissue

without his consent. RULE: Next of kin have the exclusive right to possess the

bodies of their deceased family members.o These two cases should be reconciled. The courts are trying to preserve two

different interests. In Moore, the social welfare aspect of the hospital’s “better” interest in medical research vs. Newman, protection of due process under the 14th amendment.

B. ART o MOAKLEY v. EASTWICK

RULE: The Art Preservation Act does not apply retroactively to protect artists. [the art work was made before the Act was applied]

An artist is not the owner of the wall on which he paints. C. E-COMMERCE

o Radio injunction granted in TRIBUNE and court upholds grant of summary judgment to PETA against Doughney for service mark infringement and unfair competition in DOUGHNEY.

VI. ESTATES SYSTEM – FORMS OF OWNERSHIP

I. INTERESTS There are 2 types of interests:

o 1. Present Interests: One that becomes vested and possessory at the moment of their creation. [an estate where one has the right to possession now]

o 2. Future Interest: For which an owner must wait until some future time to obtain possessory possession of property.

Estates [a type of land] further classify interests and refer to when and how ownership ends.

o All estates are interests in land.

II. ESTATES There are two types of estates:

o 1. Freehold Estates An estate where the owner, who has seisin, is not subject to any other

owner. Freehold interests originally were those that involved feudal military

service obligations, whereas the lease – a non-freehold estate – did not.

A. Types of Freehold estateso i. Fee Simple Absoluteo ii. Fee Tail o iii. Life Estate

o 2. Non-Freehold Estates An estate where the owner is subject to another, who has seisin.

A. Types of Non-Freehold Estateso i. Leaseholdo ii. Term of Years

III. IMPORTANT TERMS Termination: When does an estate end? Condition Subsequent: The occurrence or nonoccurrence of an event that can cut

short an estate Devisable: if the owner can transfer ownership by will Descendible/inheritable: if the property can pass by the state’s intestacy stattue to

“heirs” if the owner dies without a will. Alienable/Assignable/Transferable: if the owner can sell, give it away during his

lifetime.

IV. PRESENT INTERESTS/POSSESSORY ESTATES A. Fee Simple/Fee Simple Absolute

o The largest package of ownership rights, from which others are carved. o DURATION: An estate with an infinite or perpetual duration.o TRANSER: An owner may devise (i.e., give away at death), descend/inherit,

(if owner dies without a will), or alienating/assigning/transferring (i.e., giving away or selling inter vivos)

o END: There is no inherent end to ownership. o WORDS TO CREATE: “to A and his heirs”; “to A”; “to A, his heirs and

assigns”. B. Life Estate

o The owner owns the property for life. Pur Autre Vie – “a life estate measured by the life of another person.

o DURATION: For the life of the grantee. o TRANSFER: Only one way – inter vivos alienation (a gift or sale)o END:

1. Death of grantee [natural end] 2. If the estate is defeasible, upon the happening (or not happening)

of the condition that renders the life estate defeasible. [“unnatural end”]

3. Possibly, a forfeiture restrainto WORDS TO CREATE: “to A for life”, “to A so long as he wishes to live on

the property”. o Anytime you see a life estate, you know there has got to be more interest in

the thing. REMAINDER

If there is an interest that goes to a 3 rd party (e.g., any person who is not the grantor) Remainder

REVERSION In a reversion, if there is an interest back to the grantor.

Reversiono What are the rights & obligations of a Life tenant?

Rights Exclude others from property May keep income and profits from the use of the land during

the life estate Can transfer the estate to others during the life tenant’s life.

Obligations Pay taxes/Insurance payments Pay mortgages Keep premises in ordinary repair

o What are the rights of the “REMAINDER MAN” 1. Enter the land to make sure that waste isn’t

being committed 2. Remainder man can sue 3rd parties who are

injuring Blackacre or who are claiming title to Blackacre hostilely.

3. TO bring an action against the life tenant for waste.

Affirmative/Voluntary Wasteo The life tenant actively

changes the property’s use or condition, usually in a way that substantially decreases the property’s value.

Permissive Wasteo Akin to nonfeasanceo The life tenant fails to prevent

some harm to the property. Ameliorating waste

o Change in the property by the life tenant that makes the property more productive or valuable. (See BROWKAW v. FAIRCHILD)

Economic Wasteo Occurs when the income from

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.

o C. DEFEASIBLE FEE SIMPLE ESTATES Defeasible means that an estate can come to an end upon the happening of an event in the future.

I. Fee Simple Determinable An estate that would be a fee simple absolute but for a

provision in the transfer document that states that the estate shall automatically end on the happening of an event or nonevent.

“so long as”, “during”, “while”, “unless”, and “until”o With a FSD possibility of reverter.

The chance that the property might return to the grantor if the condition subsequent happened.

II. Fee Simple Subject to Condition Subsequent May hold it forever, but could lose it entirely if the condition

subsequent occurs. “but if”, “provided that”, “on the condition that”,

“provided, however” o The difference between a FSSCS and FSD is that…

FSD ends automatically upon the happening of the condition subsequent

Whereas the grantor of a FSSCS must assert his right of entry (also called “right of reentry” or “power of termination”).

Until the grantor exercises this interest, the holder of the FFSCS owns the property.

If there is confusion between a FSD and FSSCS the courts will look at the document as a whole. In ambiguous cases, the modern preference is for it to be a FSSCS.

RESTRAINTS on the conditions a grantor can use to defease a fee simple:

o 1. Restraints exists. Restraints on alienation are void, but restraints on use are valid.

MOUNTAIN BROWN LODGE v. TOSCANO

Where the court invalidated the condition that the property would revert to O “in the event of sale or transfer by the second party of all or any part of the lot” because it constituted a restraint on alienation, but held that the condition that the property would revert to O “in the event the same fails to be used by the [Lodge], only,” was valid because it constituted a restraint on use.

III. Fee Simple Subject to Executory Limitation [future interest] Takes the same for an either a FSD or FSSCS in that you are

giving something to X provided that he uses it as Y (or unless he doesn’t use it as Y).

o The difference is, instead of O taking back the property, it goes to a third party.

(2) Types of Executory Interests o 1. Springing Executory Interest

An EI that cuts short/divests some interest in the grantor O.

E.g., O to A when A marries B. This is known as “springing” because it

springs out of the grantor’s original grant. o 2. Shifting Executory Interest

An EI that cuts short/divests some interest in another transferee (i.e., not the grantor, O.)

E.g., O to A and her heirs, but if A does not graduate from law school, then to B and his heirs.

o A FSSEL o B Shifting Executory

Interest in Fee Simple. This is known as a “shifting” executory

interest because it shifts from one transferee to another transferee.

IV. FUTURE INTERESTSThere are two main type of future interest: those (1) retained by the transferor/grantor and those (2) created in a transferee.

Future interest retained by the transferor/grantor o 1. Reversion

A reversion is the future interest that is retained by the grantor when the grantor transfers an interest less than the one that he owns. [happens at natural termination]

This stems from the idea that ultimately you MUST give all that you have when you die.

o E.g., A gives B a life estate in room 308. The reversion fills in this gap where when B dies, it goes back to A. This is called reversion to the grantor.

However, if A dies before B then it becomes a reversion from the fee-simple and it would go to the heirs of B.

o 2. Possibility of Revertero 3. Right of Entry [of Re-Entry a.k.a Power of Termination]

2 & 3 deal with defeasibility. Only reversion doesn’t deal with defeasibility.

Future interest created in a transfereeo An interest created in someone, other than the grantor, that is capable of

becoming possessory at the natural termination of a prior possessory estate.o REMAINDERS

In order to be a remainder, 3 elements must be satisfied: 1. Held by a transferee (someone who is not the grantor) 2. Capable of becoming possessory immediately at the end of

a prior possessory estate. 3. It cannot divest any other interest.

o Divest: coming in before a natural death. E.g., O to A for life then to B for life.

Here, A Life estate; B remainder in life estate; O reversion.

There are 2 types of Remainders 1. Vested Remainder

o a. Given to an ascertained person a person who is alive/exists

o b. Is not subject to a condition precedent. A condition precedent is anything other than

the natural termination of the preceding estate. Variations on Vested Remainders

1. Indefeasibly [Absolutely] Vested Remainder o A remainder with no condition subsequent and is not a

class gift subject to open. There is no question that the person designated to get the remainder is going to get it.

E.g., to A for life, remainder to B and her heirs.

E.g., O to A for life, then to B and her heirs. 2. Vested Remainder Subject to Divestment

o A vested remainder may be subject to divestment before it becomes a possessory.

o E.g., To A for life, then to B and her heirs, but if B should fail to graduate from law school, then to C.

A vested remainder where a condition is attached to the vested gift which will divest the gift.

o E.g., O to A for life, then to B and her heirs; but if B does not attain age 21, to C and his heirs.

Here, B has a vested remainder subject to divestment held in fee simple absolute. B’s interest is vested because the divesting condition occurs after the clause granted B her interest; a condition subsequent.

o NOTE: To distinguish a vested remainder subject to divestment v. a contingent remainder:

Condition precedent = contingent remainder Condition subsequent = vested remainder

subject to divestment 3. Vested Remainder Subject to Open

o e.g., O to A for life then to A’s children (C) we assume C is A’s only child.

C has a vested remainder subject to open because A can still have another child with whom C would have to share the remainder.

Fertile Octogenarian Rule

2. Contingent Remainder Must also meet the (3) requirements to be a remainder. A remainder is contingent if:

o 1. It is given to an unascertained person o 2. OR if it is made contingent upon some event

occurring other than the natural termination of the preceding estates.

There are (2) types of contingent remainders o 1. One that will take effect only upon the happening of

an event that is not certain to occur (i.e., condition precedent)

e.g., O to A for life, then to B if she reaches 21, otherwise to C.

A Life estate B Contingent Remainder

o Because the event to occur it not certain to occur.

C Alterative Contingent Remainder O Reversion

o 2. One where the remainder goes to a person who cannot be ascertained at the time of the initial conveyance.

e.g., O to A for life, then to B’s children, where B has no children at the time of conveyance.

A Life estate B’s children contingent remainder O Reversion

V. RULES OF CONSTRUCTION Partial intestacies are disfavored. Stated otherwise, if a will is susceptible of 2

constructions, by one of which the testator disposes of the whole of his estate and by the other of which he disposes of only a part of his estate, dying tetstate as to the remainder, courts prefer that construction which disposes of the whole of the testator’s estate if that construction is reasonable and consistent with the general scope and provisions of the will. Moreover, a construction which results in partial intestacy will not be adopted unless such intention clearly appears.

When in doubt, construe a will in accordance with the intention of the testator. (Of course, this can be very difficult. Moreover, if we employ this rule of construction, we must ask ourselves, as a policy matter, the extent to which we’re comfortable allowing “the dead hand” to control.)

THE RULE AGAINST PERPETUITIES (RAP)o RULE: No interest is good unless it must vest, if at all, not later than 21 years

after some life in being at the creation of the interest. o Interests subject to the RAP

1. Executory Interests 2. Contingent Remainder 3. Vested Remainder Subject to Open

o Time Period The tricky part of RAP is that we have a weird formulation of a time

period: not later than 21 years after some life in being at the creation of the interest.

This means…o If there is any possibility after this time period, after

we take all the set of people who exist right now the last of them die, then count 21 years out, and where the interest is STILL UNCERTAIN TO VEST then that interest will fail the RAP.

We then want to focus on relevant or measure of lives in being… These are lives and beings who can effect IF AND WHEN the

interest VESTS, and this person/s can be anyone named in the conveyance or any intervening generations who are alive at the time the interest is created.

o E.g., To A for life then to B if he reaches 25. To A for life has no RAP application, because

it is a present life estate. Then B if he reaches 25 Is a contingent

remainder which has RAP application. Who is the person whom we will look

at to know if the condition is satisfied? o B.

o If we go back to difference between a LIFE IN BEING and a MEASURING LIFE, a LIFE IN BEING is anyone who is alive at the time the grant had been created. Then the question is, we have a possible pool that is big but we want to focus on MEASURING LIFE, which is anyone who is alive that can effect IF and WHEN the interest vests.

This is B. The measuring period beings at B’s death and

then + 21 years. Since, B is alive, we would have B’s life (who

is the only person in this context who would effect this interest vesting) + 21 years.

Will we know whether B turns 25? YES!

Because we will know, whether or not, when he dies that, he either reached 25 or not, or when he turns 25 it will be vested to him.

o RAP Application Steps: 1. Look for future interest (contingent remainder, executory interest,

vested remainders subject to open and options) 2. For any applicable future interest, check to see if the interest is both

vested and closed. 3. If not every applicable future interest is both vested and closed,

identify necessary factual developments for vesting and closing. 4. Identify all lives in being 5. See if any of the lives in being proves whether the applicable future

interest is certain to either vest or close OR fail within the perpetuities period (that person’s life + 21 years). These are the measuring of lives.

(6). Wait and See Approach SYMPHONY SPACE v. PERGOLA

o [Option: A right to compel sale at a certain price]o Under this approach, discussed in Symphony Space,

an interest is valid if it actually vests during the perpetuities period, irrespective of what might have happened.

VII. CONCURRENT ESTATES We’ve already been introduced to the idea that more than one person, at a single period in time, can have title to a thing. I. There are (3) types of concurrent ownership forms:

1. Tenancy in Common 2. Joint Tenancy 3. Tenancy by the Entirety *Community Property

1. Tenancy In Common Each tenant in common has a separate but undivided trust.

o Separate: in the sense that it is independently descendible, conveyable and devisable.

Since either tenant can unilaterally convey her interest to a third party, property held in tenancy in common can be attached by creditors of each individual tenant.

And since each share is independently descendible, there is no right of survivorship.

o Undivided: in the sense that each tenant in common has the right to possess the whole of the property (although they need not exercise this right)

o Each tenant in such a tenancy in common has an equal right to possess the whole, but their respective share of rents or profits will de determined by their respective percentage ownership.

2. Joint Tenancy Joint Tenancy is exactly like the tenancy in common, except for the treatment of

survivorship. o The Right of Survivorship

A surviving joint tenant automatically acquires the interest of another joint tenant when the other tenant dies.

Technically nothing passes; the deceases joint tenant’s interest is simply extinguished.

Think of this as a gamble… E.g., If I own something in joint tenancy with B, if B dies, I

take his interest. This is a gamble, because if I die first then I lose my rights to the property to B.

o Joint Tenancy requires (4) utilities at the time of creation: 1. Time

Each interest must be acquired or vested at the same time.o The interest must be created simultaneously.

2. Title Each must acquire title by the same instrument or by adverse

possession, never by intestate succession or other act of law (e.g., possibility of reverter)

o The interest of co-tenants must be created in the same instrument (piece of paper). OR if there was no piece of paper, then there must be joint adverse possession.

3. Interest

Each must have the same legal interest in the property, such as a fee simple, life estate, lease, etc., although not necessarily identical in fractional shares.

o Co-tenants must have the same interest that is: each of them must have equal undivided share and also durationally identical interest.

4. Possession Each must have the right to possess the whole.

If any of these utilities is not true then the joint teneancy does not exist.

Severing Joint Tenancyo Traditionally, if the 1st three unities are destroyed in a joint tenancy, then we

say the joint tenancy is severed and a tenancy in common is created.o Each joint tenant has the power to unilaterally to transfer his or her interest

while they are still living, and thus each may have his or her interest attached by creditors.

When such a transfer or attachment occurs, this may have the effect of severing the unities and may convert the joint tenancy into a tenancy in common.

o Joint Tenancy with more than 2 people E.g., If W, X, Y, Z have a joint tenancy and W wants out. The one

who wants out (W) has a tenancy in common with the others (X, Y, & Z)

However, X, Y and Z still retain their joint tenancy. 3. Tenancy by the Entirety

This applies only to married people. Only minorities of states have retained the tenancy by the entirety. Best looked at as a joint tenancy with a 5th unity, which is marriage.

o You still must have the 4 unities along with marriage. In a tenancy by the entirety, there is no unilateral exit option as long as the couple

stays married. o If you wanted to end a tenancy by entirety, but you don’t want to do it by

divorce, they can convey together to a straw person and have that straw person convey back to them as tenants in common.

The difference is that in the case of a joint tenancy, either one of the joint tenants can use the straw person without the other joint tenants consent or even without their acknowledgement.

POLICY: Upholds the entity of marriage, so one spouse doesn’t go behind the others back to severe their interest.

PARTITION Tenants in common or joint tenants with right of survivorship are not obligated to continue a concurrent ownership and they are not required to sell just their interest to separate themselves from the co-tenancy. Instead, the tenant in common or the joint tenant may petition a court to partition the property. (however, neither spouse can seek partition of property held in a tenancy in entirety). A partition action today is statutory in nature although it began as a common law cause of action. There are two types of partitions:

1. Partition in Kind o Courts favor this more.

If offers the least upset to the original co-tenancy and it does not force a person to sell who does not wish to do so.

o In a Parition in Kind, the court divides the property into parcels of equal value; each co-tenant receives a separate parcel.

When fewer than all co-tenants seek partition, they receive separate parcels and the others own the rest of the propert as co-owners.

o When a court cannot partition the property into equal value, the court may order a $ payment from one party to another. (Owelty)

2. Partition in Sale o Constitutes a forced sale of the land, followed by a division of the profits

among the tenants. Delfino: (1) The physical attributes of the land are such that a

partition in kind is impracticable or inequitable. (2) The interest of the owners would be better promoted by a partition in sale.

DELFINO v. VEALENCIS o In this case, the court orders a partition by kind. o The CT Supreme Court found that the effect of

Vealencis’ garbage business on the value of the remaining land was not sufficient to warrant a partition by sale.

o The court must consider all of the tenants in common and not merely the economic gain of a single tenant.

(Here, a partition by sale would force Vealencis to give up her home and would jeopardize her business)

SEVERANCE In some states, when one or more of the four unities of a joint tenancy with right of

survivorship is destroyed, the joint tenancy is said to be severed. o Court will look for some action or relationship that is inconsistent with a

person continuing as a joint tenant or unities to find a severance. Types of Severance:

o 1. Unilateral Transfer Straw-man

o 2. Give a Lease o 3. Grant a Mortgage

This is a claim that someone [usually a bank] has on one’s home. A mortgage is some secured loan where the collateral is someone’s

home. There are two theories of mortgage that operate in different parts of

the country and have operated over the course of history: A. Title Theory

o Where a mortgage conveys legal title to the creditor. o In exchange for the loan you (bank) gets the title/deed.

In the case the borrower defaults then the bank has outright title to the house.

Rare B. Lien Theory

o Same deal, but instead of having an outright title right away, the bank retains a lien on the house.

o A mortgage is a security for a loan. The title remains with the debtor.

HARMS v. SPRAUGEo P and his brother owned some property in a joint tenancy. The brother dies

and the brother’s executor (D) refuses to give title to the land to P, due to a mortgage (which the brother took out and P didn’t know about), in which the lender claimed title to the brothers interest in land as collateral for the mortgage.

o HOLDING: A mortgage does not severe a joint tenancy, unless the loan defaults and the property is seized by the lien holder. A joint tenancy must also retain it’s unity of title.

In this case, the brother never lost title to his interest in the property.

If the brother had defaulted on the loan prior to dying, then Simmons (who loaned the money to D’s brother) would have acquired the brother’s interest in the title.

If P had died and then the brother defaulted, Simmons might have acquired the entire title of the house, since the brother would have acquired P’s interest.

VIII. MARITAL INTERESTS 1. The Common Law Marital Property System

o a. Each spouse takes whatever is not considered “marital property”, so defining what that is becomes very important.

i. O’BRIEN v. O’BRIEN Earning Capacity: Professional degrees are marital property. All property acquired by either or both spouses during the

marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which the title is held = equitable distribution.

The wife in this case only gets what she contributes to the degree.

o *Elkus – In New York, celebrity status is even considered marital property.

ii. MARVIN v. MARVIN Traditional approach as conceiving people as “married”

towards a “contract-based” approach. [This was the case where he compelled his girl to move out.

They weren’t married but they had an oral contract to split up their shit.]

Holding in this case: The courts may recognize the division of their property if they had agreements that made it seem like they were married, IF they had taken the appropriate contractual steps.

2. The Community Property Systemo 1. Each spouse gets half of whatever is classified as Community Property.o 2. If property is ~CPSP (separate property)

3. Migrating Coupleso 1. Initial characterization of the property controls, unless parties agree to

transmute.

IX. LEASES: THE LAW OF LANDLORD AND TENANTAlso known as leaseholds, tenancies, the terms of years or landlord-tenant interests. I. The Lease and the Leasehold Estate

1. Term of Years o A lease that has a fixed time at which it terminates or ends. o Also known as tenancy for years or a term for yearso The Key Characteristic: an advance agreement that the lease will continue for

some designated period. o This can also happen once an event occurs…o A term of years expires automatically at the end of the specified term.

2. Periodic Tenancy o A lease that automatically rolls over for a stated period of time, usually a year

or a month It lasts for an initial fixed period then automatically continues for

additional equal periods until either the landlord or tenant terminates by giving advanced notice.

E.g., a month to month lease. o You can use any amount of time: month to month and year to year is the most

popular but it does not preclude or foreclose other options where any period of duration can be used.

If there is no stipulated length period, the initial term’s length will conform to the frequency of the rent payments.

o The Key Characteristic: it’s ability to renew itself after the specified period. o Termination notice must be given 30 days before (if a year, 6 months before)

This differs based on jurisdiction o May be created by an express agreement, but may also be created by

implication. Implication: when a term of years comes due and the landlord

continues to accept or collect the rent and does not attempt to reenter the premises; in that case, the terms and condition of the lease for the original term are carried over into the new one.

3. Tenancy at Willo A tenancy that last so long as both parties wish it to continue. Either party can

terminate at anytime. The “anything goes” tenancy.

o Why create a tenancy at will? Most people, consciously will not enter into a tenancy at will with

eachother. Most tenancy at will arise by implcation not from an express

agreement. o E.g, T occupies Blackacre with L’s consent, BUT

without an agreement for a period and without an agreement for the payment of rent.

The court will find a tenancy at will based on these facts.

o Although we don’t encounter agreements to tenancy at will, we do encounter an agreement where the lease will be terminable only by one party.

Some states will say there is a tenancy at will and some states wont. 4. Tenancy at Sufferance

o Most authorities on the subject of leasing don’t consider a tenancy at sufferance an “estate in land”

o This arises when someone who used to be in rightful possession of land, wrongfully continues in possession after that right ends.

E.g., if A who had a term of years tenancy in Blackacre which ends on 12/31st, remains in possession of Blackacre on 1/1st thereafter.

A is now a tenant at sufferance which is essentially one step above trespasser.

The landlord then has the choice to (1) evict A or (2) can hold the tenant to a new tenancy.

o Someone who used to be in rightful possession of land, wrongfully continues in possession after that right ends. Is known as a holdover tenant.

o This leaves the sole discretion by the landlord, which seems draconian. But this discourages the tenant from wrongfully holding over.

II. Assignment and Subleases 1. Assignment

o Who is responsible to the landlord? The assignee is responsible to the landlord.

o With an assignment, the assignor transfers the complete remainder of the interest to the assignee. The assignor must not retain any sort of reversionary interest in the right to possess. The assignee’s interest must abut the interest of the next person to have the right to possession. If any time or interest is reserved by a tenant assignor, then the act is not an assignment but instead is a sublease.

2. Subleaseo Less than all your space and/or less than all of your time.

It is not uncommon to, for example, if you have 9 months remaining on your term and you want to sublet for the remainder…you would sublet for 8 months and 29 days.

This is to tell the court that you have intended to sublease and not assign.

o Who is responsible to the landlord? The Prime Tenant is responsible to the landlord and the sub-tenant is

responsible to the prime tenant. 3. How to tell which one is which”

o If the relationship terminates one day before the lease arriangment would have been terminated: sublease.

1. INTENT Look at the amount The conduct of the parties The interactions of the parties

2. FORMALISM Looks at the document See what the parties are trying to get at…

o These two test both, basically, amount to the same thing even though the name is divided into the two tests, they merge.

KENDALL v. ERNEST PESTANA, INC. o In the context of silent consent clauses, in a commercial setting, a

landlord, in order to comply with the Kendall rule, would have to have a commercially reasonable objection to a particular transferee and cannot just arbitrarily deny.

III. The Independent Covenant Model – Cases PARADINE v. JANE

o We move away from this case’s holding where if a party creates a charge or duty to himself, he is obligated to perform in the fact of frustration of purpose.

The rationale here is that if the law rather than a party creates a duty and the party is unable to perform due to frustration of purpose, that duty will be excused. However, the law will not protect a party in his own agreement.

SMITH v. MCENANYo Here, we see some progress away from the independent covenant model.

Brick wall, infringement on the tenant’s use of the property. The tenant stops paying rent and sues for a Breach of Covenant for

failure to repair. J.Holems recognized that the duty to pay rent is a dependent

covenant. This means that it depends upon the other party’s performance

of their side of the bargain. Whereas in an IC, if one fails to perform it doesn’t give the

other the right not to perform. SUTTON v. TEMPLE

III. Extensions of the Independent Covenant Model

We now move from an independent covenant model [if a landlord promises to do something it is completely independent of what the tenant has to do in return] towards a dependant covenant model.

BLACKETT v. OLANOFF o [The loud bar near tenants residence case]

Constructive Eviction A defense available to tenant that builds on the Smith case. An

excuse not to pay rent. Actual Eviction v. Constructive Eviction

This idea that the rule from Smith, that says actual eviction excuses the tenant from paying rent, means that if in a certain fact set there is something almost like actual eviction (i.e., constructive eviction) then that too grounds a claim in the tenants favor that they, the tenant, do not have to pay rent.

o Note: Most of the time, when brining an action for constructive eviction [breach of the covenant of quiet enjoyment], courts will not just accept the idea that the tenant can just stop paying rent and live/be in the space, but will

require that a tenant vacate before stopping to pay rent w/in a reasonable time.

IN RE KERRo The Doctrine of Surrender

This is pro-tenant. This says that when a court finds that the landlord has accepted a

surrender, the tenant is liable for the full amount of rent owed up to the moment of acceptance, but if off the hook thereafter.

MEDICO-DENTAL v. HORTON & CONVERSE o LA building with D’s pharmacy store. o If a covenant is material to the bargain, tenant has walk-away rights.

JAVINS v. FIRST NATIONAL REALTY CORP.o The Warranty of Habilitability

In this case the tenants resided in a 3 story complex in Washington. They didn’t pay the rent in April and the landlord sues. The tenants cite over 1,500 violations of Housing Regulations. Generally. The IWH is non waivable.

It’s implied therefore it does not have to be present in the lease document in order for a court to read it into the lease.

Courts use a reasonableness standard in applying this rule. POLICY: Does this really protect tenants?

SOMMER v. KRIDELo Duty to Mitigate

The landlord has a duty to mitigate tenants damages Therefore, if tenant pays rent but has abandoned the premises

landlord must mitigate damages.

X. THE RECORDING SYSTEMThe key attribute of recording is that it generates, as a matter of law, constructive notice to all subsequent purchasers in the chain of title. Thus, recording acts screate a powerful incentive for purchasers to file their deeds in order to block possible good faith purchaser claims by subsequent transferees. I. Recording Acts

In the context of recording statutes it deals with: o 1. When it is that a person would have to record o 2. In the event that someone doesn’t record, what sorts of rights one might

have to this regard. II. The Basic Principle

**THE GENERAL RULE: o Whoever got a piece of the property first in time owns it. o Nemo dat principle: no one can give that which he does not have.

Recording Statutes: [Exceptions to the General Rule] To qualify, you must be a bona fide purchaser. This means that (1) you must’ve

paid value for the property and (2) it must be done in good faith.

o 1. Race Statute The first person to the recording office wins. Not the first person to buy the property but the first person to record. No notice required.

o 2. Notice Statute The last person who bought the property, in good faith, gets title to

the property. [protects last person who paid enough, who had no notice of a prior claimant]

So, a subsequent BFP or creditor for value prevails over prior claimants as long as the subsequent purchaser acquires the interest without notice of a prior claim.

(3) Types of Notice o 1. Actual Notice

Means the subsequent purchaser or her agent has actual notice of a prior claim.

Personal observations, document in the deed record, hearing about it.

o 2. Constructive Notice Also called Record Notice This refers to knowledge or notice a purchaser

could gain by searching the deed records. Usually asserted when a purchasers

has not searched the records for a prior claim.

o 3. Inquiry Notice When the purchaser hears or observes

something that would cause an ordinary prudent person to inquire further.

o 3. Race/Notice Statute A hybrid of the two.

A subsequent bona fide purchaser or creditor who first records prevails against a person claiming a prior, unrecorded interest as long as the subsequent purchaser did not have notice of the preceding interest when she acquired her interest.

o HOOD V. WEBSTER A lady’s husband left her his land and in case of her death the land

was to go to his brother.  In the mean time her nephews took care of the land and she granted it to them.  It was held in escrow in the Bro’s attorney’s hands however.  When she died it all came up.  The nephews got the land because they took care of the old lady and her farm. 

The court said to prove that they were good faith purchasers they would have to show consideration.  This was not shown and so they lost.

RULE: You must pay enough, essentially what the Fair Market value of the property is.

III. POLICY REAONS BEHIND RECORDING: 1. Promote alienability and transferability of land, not to tie up the land

o Understand that the reality of owning land is not something that you can see. So if you don’t have some mechanism to tell you who owns, its possible that the land may be tied up for generations.

o General Purpose: is to protect the Good Faith Purchaser in value. Because land is elusive in that you can’t tell who owns it. If someone had not recorded, then someone like C by looking at the land will NOT KNOW if the land is owned by someone else.

XI. THE LAW OF NEIGHBORSI. NUISANCE [what is it? &] v. TRESPASS

A private nuisance is an act or condition on the D’s land that substantially and unreasonably interferes with the P’s use and enjoyment of P’s land.

o The interference is usually an intangible invasion such as smells, lights, sounds, vibrations, dust and pollution of air and water rather than a physical invasion which is the subject of a trespass claim.

o Defined: An intentional, non-tresspassory, unreasonable, substantial invasion of the use and enjoyment of someone’s land.

From ADAMS, “intentional” means…o 1. For the purpose of causing harm o 2. OR knowing that the harm will result or will be substantially certain to

result from one’s conduct. “Unreasonable”

o 3. Can mean either severe harm or be based on a balance of utilities comparing:

1. The utility of the defendant’s conduct with 2. The gravity of the harm that the offending conduct causes to the

plaintiff. II. NUISANCE PER SE

LUENSMANN v. ZIMMER In order to constitute nuisance per se a particular activity must be:

o 1. A nuisance at all times under any circumstances and in any locationo 2. OR A violation of law that is specifically designed to prohibit a nuisance.

E.g., an ordinance forbidding an activity that, let, say was a nuisance at common law.

Note on Luensmann, the court uses a very strict test here because the nuisance had to take place at all time. However, “every night” normally, a court may have adopted this to be continuous. [just as we have seen in adverse possession cases where the continuous requirement was met through seasonal use]

III. REMEDIES Injunctions

o In a private nuisance case traditionally, the remedy was an injunction An absolutist view of that said if you have a nuisance the only

appropriate remedy is an injunction. This remedy says to an owner that their property rights can be

bought. [if injunction was not afforded] o There is no respect that the court will afford to you,

just for having your property. In essence, it’s a forced sale of your property rights, through damages if you don’t get an injunction.

o Overtime, there was a breaking down of this traditional view. o Courts became increasingly concerned that developments would be impeded

only by having injunctions Therefore, the P does not automatically have the right to an

injunction. Property Rule vs. Liability Rule

o Instead, the courts will use a balancing test:

BOOMER: THE BALANCING OF EQUITY TEST Here, the single most important factor is the relative

economic impact of the injunction on the parties. o Yet, another option:

SPUR: THE COMPENSATED INJUNCTION OPTION This involves issuing an injunction against the nuisance BUT

also requiting the plaintiff to compensate the defendant for the costs of complying with the injunction.

o Essentially, the plaintiff internalizes the costs to the defendant.

In this case, D operated a commercial feeding lot and P, at a later point, developed a residential community.

The court agreed that an injunction should be warranted however, since P was the direct cause of the problem (he came later on) the court exercised its equitable powers in requiring the plaintiff to indemnify (pay for) the costs of moving or shutting down the feed lot.

o How are damages calculated? The appropriate measure of the compensatory damages depends upon

whether the nuisance is permanent or temporary. If Permanent: the plaintiff will receive all damages (to cover

both past and future harm) o Damages will be measured by the extent to which the

nuisance diminishes the fair market value of the affected property.

If Temporary: then the plaintiff only recovers damages that compensate for past harm. (on the theory that the P could bring up subsequent suits for damages)

o Damages here = the diminished rental value + any special damages.

XII. SERVITUTDES Nuisance law assess a fight between neighbors ex post [after the fact]. Servitudes assess a fight between neighbors ex ante (before the fact).

These are designed to avoid nuisance suits. (2) Types of Servitudes:

o 1. Easements o 2. Covenants

I. EASEMENTS A. What are they?

o Some sort of property right vested in someone to allow the use of another’s property.

o When we’re talking about easements we are talking about use. B. Easement in Gross v. Easement Appurtenant

o 1. Easement in Gross Personal to the holder of the easement and does not pass

automatically to another person when the easement holder’s property is sold and bought.

One that belongs to a particular grantee.o E.g, S grants D an easement in gross to fish in the

pond on Whiteacre. Now the benefit of the easement belongs to Danny personally, not to whoever happens to be the owner of Blackacre. If Dan sells Blackacre to Daniella, the easement in gross remains with Dan; Daniella has no rights to fish in the pond unless she gets her own easement.

o 2. Easement appurtenant One that benefits [a particular tract of land] the dominant, adjoining

land. One that belongs to another parcel of land

o E.g., Assume Whiteacre and Blackacre are adjacent parcels of land. Whiteacre is onwed by S and Blackacre is owned by D.

S grants D an easement appurtenant to cross Whiteacre to reach Blackacre. Since the easement is appurtenant, it “belongs” to Blackacre, and is carved out of Whiteacre.

This means that the benefit of the easement belongs to whoever happens to own Blackacre and the burden of the easement belongs to whoever happens to own Whiteacre.

It “runs with the land” o Dominant Land/Tract

The tract that is benefited or enhanced by the easement

o Servient Land/Tract The tract burdened by or out of which is

carved the easement .

C. Profit o Closely related to an easement in gross, but narrower in purpose is something

called a “profit a prendre” or “profit” This is the right to enter the land of another in order to extract

something of value such as timber, or fruits from trees, or fish or game from a lake or forest.

Profits are very ancient and were recognized by English common law.

They are generally now governed by the same rules as easements appurtenant.

o The grant of a profit carries with it an implied license to enter the land for purposes of carrying out the profit, and this license remains irrevocable as long as the profit continues to last.

D. Positive/Affirmative Easements v. Negative Easements o 1. Positive Affirmative Easement

This permits the easement holder to perform some affirmative action on the land of another.

Think of this as permitting action on the servient tract that otherwise would be trespass or an invasive nuisance.

o 2. Negative Easement Entitles dominant owner to prevent servient owner from doing a

particular act on a servient land. As a rule, however, when someone wants to impose a negative duty

on a servient landowner to desist from taking action that might harm the dominant tract, lawyers today will accomplish this by drafting a covenant that runs with the land.

o Virtually all easements are affirmative easements. E. Private vs. Public Easements

o 1. Private Private Easements authorizes specific named parties to use the land

for designated purposes. o 2. Public

Public easements authorize the general public to use land for designated purposes.

This doesn’t mean you can do anything you want. It’s for “the use of designated purposes”.

F. How do you create an easement? o The general rule is: in writing.

One distinction with the general rule: There are ways to grant an easement as well as a way to

reserve an easement. G. Other ways?

o 1. By Grant To create a property by grant, including easements:

The grantor must deliver to the grantee the deed to the property

o 2. By Reservation to the Grantor

E.g., A, in a grant to B of a possessory interest in land. Thus, if A granted Blackacre to B, A could in the deed grant

B H. More ways: Exceptions to the Statute of Frauds for Easements

o Necessity SCHWAB v. TIMMONS

Since P sold their land which provided them with a previous means of entry no necessity was found.

E.g., O owns parcels A & B. O transfers A to X. O transfers lot B to Y. In doing so, O creates a situation where B is completely landlocked. [that you just don’t have a road, the only way you can get out onto the road is by crossing your neighbor’s lot].

In order for lot B to be used productively, there must be a route of access.

In order to establish an easement by necessity, a party must show: 1. Common ownership of the 2 parcels prior to severance of

the landlocked parcel 2. And that the owner of the now landlocked parcel cannot

access a public roadway from his or her own property. o *NOTE: Once the necessity disappears, so does the

easement. o Implication

E.g., If O owns parcel A & B, and we’ve got a private road crossing parcel A to a house on parcel B. If O transfers lot B to some party X, the road is reasonably necessary for access to the house on lot B.

Here, X then might have an easement by implication over lot A.

An easement by implication arises when there has been: 1. Severance of title to land held in common ownership.

o Severance requires that it must be divided into 2 or more parcels. At least one of those parcels must be transferred to a new owner, and at least one of those parcels must be retained by the grantor.

2. An existing apparent and continuous use when severance occurs.

o At the time of severance; the common owner, while he owns both parcels; must use one parcel in a manner that benefits the other parcel.

3. Reasonably necessity for the use at the time of the severance.

o The easement must be convenient or beneficial to the use and enjoyment of the dominant land but need not be absolutely necessary. [as long as it is reasonable]

o Quick Note on the difference between Necessity and Implication 1. Implication, you must have a history, because without history there

is nothing by which the implication would arise. For an easement by necessity, this history is not needed.

2. Implication, the 3rd elements require a reasonable necessity. In an easement by necessity, the 2nd element required a strict necessity [landlocked].

o Estoppel Requires (3) things:

1. A license o typically some sort of consent/permission.

2. The licensees expenditures of substantial money or labor in good faith reliance on the license.

3. The licensor’s knowledge or reasonable expectation that reliance will occur.

o There must be some knowledge or reasonable expectation [on the part of the licensor] that the license will rely on the permitted use.

E.g., A owns Blackacre, which is landlocked parcel, right next to Redacre owned by B.

Redacre is right next to a public highay. There is an old private road travelling from the highway across

Redacre to reach Blackacre but A does not have the right to use this road.

A asks permission of B to use the road for some particular purpose. B allows and with B’s consent A uses the road and widens/improves

the road to some dregree. B sees that A uses the road. Can B block A’s usage?

No. A has established estoppel. o Prescription

Similar to the adverse possession elements but the exclusivity requirement.

Elements: A claimants use must be:

o 1. Actualo 2. Open and notorious o 3. Adverse or Hostile o 4. Continuous

not continuous if owner effectively interrupts use, as by physical interruption, or legal interruption. [i.e., action for trespass]

Not an ownership right but a usage right. Does not require severance.

FOUNTAINEBLEAU Shadow casting

II. COVENANTS Closely related to easements are covenants or promises respecting the use of land. Easements are paradigmatically about the right to go onto the land; they abrogation’s of the servient owner’s rights to exclude. Covenants however, are generally about the right to insist on the use or nonuse of land; as such they typically prescribe a more or less elaborate system

of governance rules. Easements are nearly always affirmative, but covenants can be either affirmative or negative.

TULK v. MOXHAY o This case stands for the proposition that horizontal Privity (Privity of

estates) is not required for the burden of a covenant to run at equity. Requirement for a Covenant to Run with the Land

o 1. The fact of the Covenant must be in writing. o 2. The purchaser of the serviant estate must be “on notice” of the covenant at

the time of purchase. o 3. The original covenanting parties intended both the burden and the benefit

to “run with the land” o 4. The original contracting parties were in “Privity of estate” with each other

(horizontal Privity) and subsequent owners were in “Privity with the original contracting parties” (vertical Privity)

o 5. The covenant had to have “touched and concerned” the land. EAGLE & NEPONSIT CASES