Class Nine:The Criminal Law - The Common Law Felonies

Real Property – Definitions, Property Taxes and Land Interests

Last Class – We Had Our Midterm Exam:•Next Week: Review the Exam•What We have Covered To Date:

- Introduction - Course Overview - The History of American Law and Property Rights - The Law of Property - Introduction - An Explanation of Terms

- The Law of Property - Personal Property I - Ownership, Transfers and Gifts

- The Law of Property - Personal Property II - Liens, Bailments and Special Property Interests

- Intellectual Property - Patents, Trademarks & Copyrights

Tonight’s Class:• We will all Discuss the Common Law Felonies

- MR&MRSLAMB- Murder - Rape - Manslaughter - Robbery - Sodomy - Larceny - Arson - Mayhem - Burglary

• We will begin to discuss Real Property Concepts- Real Property – The Basics

- Definitions of Real Property- The Importance of Real Property

- Nature of Interests in Real Property- Possessory Estates vs. Non Possessory- Estates in Time – Duration of Rights- Collection of Rights

- Shared Rights in Land- Real Property Taxes

Class Nine A:The Criminal Law

Common Law Felonies and Property Law

IntroductionCriminal Law, is the branch of law that defines crimes, establishes punishments, and regulates the investigation and prosecution of people accused of committing crimes.

Criminal law includes both substantive law, and criminal procedure.

Substantive Criminal Law:

Substantive criminal law defines crimes, the conduct that constitutes them, and the punishment that is proscribed for such conduct.

Substantive criminal law defines crime and punishment.

For example, what act constitutes murder or what punishment a murderer should receive.

Criminal Procedure:

Criminal Procedure establishes the procedures for the implementation and enforcement of substantive criminal law.

Criminal procedure is concerned with the legal rules to be followed, and the steps taken,to investigate, apprehend, charge, prosecute, convict, and sentence to punishment individuals who violate substantive criminal law.

For example, criminal procedure describes how a murder trial must be conducted.

Introduction Continued:A Product of Common Law:

Criminal law should be seen in the context of the common law system, which is found in countries such as England, Canada, and the United States.

In the common law system, judges decide cases by referring to principles set forth in previous judicial decisions.

Common law systems are typically contrasted with Code based systems, which are found in most Western European countries, much of Latin America, Africa, and parts of Asia.

In these code based countries, law is derived from written Roman laws, where judges decide cases by referring to written statutes, promulgated by kings or enacted by legislatures or councils, and compiled in comprehensive code books.

In legal systems based on common law, the criminal law is distinguished from what is known as civil law.

In America, our criminal statutes are codified holdings of common law. Most of the crimes contained under state and federal law, were recognized long ago as criminal conduct through case decision. So too are defenses and punishments.

The criminal law, like property law, is a fundamental legal area with common justifications and antecedents.

The inherent nature of property rights, and its value to our society, has driven much of the criminal law.

Purpose of Criminal LawThe Criminal law seeks to protect the public from harm by:

1. Inflicting punishment upon those who have already done harm and 2. Threatening with punishment those who are tempted to do harm.

The harm that criminal law aims to prevent varies.

It may be:

1. Physical harm, death, or bodily injury to human beings; 2. The loss of or damage to property; 3. Immorality; 4. Danger to the government or its institutions; 5. Disturbance of the public peace and order; or 6. Injury to the public health.

Conduct that threatens to cause, but has not yet caused, a harmful result, may be enough to constitute a crime.

Thus, criminal law often strives to avoid harm by forbidding conduct that may lead to harmful results.

Criminal Law and Civil Law (Torts):One purpose of both the criminal law and civil law in the common law system is to respond to harmful acts committed by individuals.

Each type of law, however, provides different responses.

A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. I

f the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered.

Under the criminal law, a person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case.

If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death.

In some cases, a person’s wrongful and harmful act can invoke both criminal and civil law responses.

As a result, most crimes also contain a civil remedy, known as a tort.

Theories of Criminal PunishmentVarious theories have been advanced to justify or explain the goals of criminal punishment.

These include:

Retribution; Deterrence;Restraint (or incapacitation); Rehabilitation; and Restoration. Sometimes punishment advances more than one of these goals.

At other times, a punishment may promote one goal while conflicting with another.

Theories of Criminal Punishment

A. RetributionThe theory of retribution holds that punishment is imposed on the blameworthy party in order for society to vent its anger toward and exact vengeance upon the criminal.

Supporters of this theory look upon punishment not as a tool to deter future crime but as a device for ensuring that offenders pay for past misconduct.

Theories of Criminal PunishmentB. DeterrenceThose who support the deterrence theory believe that if punishment is imposed upon a person who has committed a crime, the pain inflicted will dissuade the offender (and others)from repeating the crime.

When the deterrence relates to the specific offender who committed the crime, it is known as special deterrence.

General deterrence on the other handdescribes the effect that punishment has when it serves as a public example or threat that deters people other than the initial offender from committing similar crimes.

Theories of Criminal Punishment - ContinuedC. Restraint

Some believe that the goal of punishment is restraint.

If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes that harm society.

Theories of Criminal Punishment - ContinuedD. RehabilitationAnother possible goal of criminal punishment is rehabilitation of the offender.

Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society.

Theories of Criminal Punishment - ContinuedE. RestorationThe theory of restoration takes a victim-oriented approach to crime that emphasizes restitution (compensation) for victims.

Rather than focus on the punishment of criminals, supporters of this theory advocate restoring the victim and creating constructive roles for victims in the criminal justice process.

An example is when a criminal who stole or destroyed propertyis required to provide restitution to the victim through payment or repair.

Another example is, relatives of a murder victim may be encouraged to testify about the impact of the death when the murderer is sentenced by the court.

Promoters of this theory believe that such victim involvement in the process helps repair the harm caused by crime and facilitates community reconciliation.

Conflicts among Punishment GoalsThe various justifications for criminal punishment are not mutually exclusive.

A particular punishment may advance several goals at the same time. A term of imprisonment, for example, may serve to incapacitate the offender, deter others in society from committing similar acts, and, at the same time, provide an opportunity for rehabilitative treatment for the offender.

On the other hand, the goals of punishment may at times conflict. The retributive and deterrence theories call for the infliction of unpleasant experiences upon the criminal, including harsh prison treatment; but the prison environment may not be conducive to, or may even defeat, rehabilitation.

No one theory of punishment addresses all the goals of criminal law. A combination of theories and goals plays a part in the thinking of the legislators who establish the ranges of punishment for various crimes, the judges and jurors who sentence offenders within these ranges, and the parole authorities who have the power to release certain prisoners.

Classification of CrimesCrimes are classified in many different ways: common law crimes versus statutory crimes, and crimes that are mala in se (evil in themselves) versus those that are mala prohibita (criminal only because the law says so).

An important classification is the division of crimes into felonies or misdemeanors.

This distinction is based on the severity of the crime and is rooted in common law.

Felonies and Misdemeanors:

At common law, and in many jurisdictions in the United States today, felonies constituted crimes that could be punishable by death. Misdemeanors, on the other hand, constituted crimes punishable by fine or imprisonment. (The term jurisdiction refers to the authority of a political entity, such as a state or a county, or the territory over which that authority is exercised.)

Today, in most jurisdictions, crimes punishable by imprisonment for one year or more are deemed felonies, and those punishable by fine or imprisonment for less than one year are deemed misdemeanors. Since each jurisdiction determines the penalties for offenses it defines, a misdemeanor in one jurisdiction may constitute a felony in another. Some jurisdictions have an additional classification for petty offenses, also called infractions or violations, which are usually punishable by a small fine.

Common Law Felonies: Remember - Mr & Mrs Lamb

MurderRape

ManslaughterRobberySodomyLarcenyArson

MayhemBurglary

MurderA person is guilty of murder when: 1. With intent to cause the death of another person, he causes the death of such person or of a third person;

2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

3. Acting either alone or with one or more other persons, he commits or attempts to a felony, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants.

Rape

A person is guilty of rape when:

He or she engages in sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

Manslaughter

A person is guilty of manslaughter when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.

RobberyRobbery is forcible stealing.

A person forcibly steals property and commits robbery when:In the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

Sodomy(No long referred to in New York’s Penal Law)

Under common law, a person was guilty of Sodomy when:

He or she engages in deviate sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

Larceny A person steals property and commits larceny when:With intent to deprive another of property, or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

Larceny includes a wrongful taking, obtaining or withholding of another's property, committed in any of the following ways:

(a) By conduct known as larceny by trespassory taking, larceny by trick, embezzlement, or by obtaining property by false pretenses; or

(b) By acquiring lost property, when during such acquisition he exercises control over property of another which he knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or the nature or amount of the property, without taking reasonable measures to return such property to the owner; or

(c) By committing the crime of issuing a bad check; or

(d) By false promise, when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he or the third person does not intend to do so; or

(e) By extortion, when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (i) Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

((iv) Accuse some person of a crime or cause criminal charges to be instituted against him; or

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or

(vii) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or

(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

ArsonA person is guilty of arson when:He intentionally damages a building or motor vehicle by causing an explosion or a fire;

1. When:

A. Such explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building or motor vehicle; or

B. Such explosion or fire is caused by an explosive; or

C. Such explosion or fire either:

(i) causes serious physical injury to another person other than a participant, or

(ii) the explosion or fire was caused with the expectation or receipt of financial advantage or pecuniary profit by the actor; and

2. When another person who is not a participant in the crime is present in such building or motor vehicle at the time; and

3. When the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility.

Mayhem(Merged under Crime of First Degree Assault in Present Day NY Law)

At Common Law, Mayhem was defined as:

“The intentional disfigurement of any part of the male body useful in time of war.”

BurglaryA person is guilty of burglary when: 1. He knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and

2. In effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:

A. Is armed with explosives or a deadly weapon; or

B. Causes physical injury to any person who is not a participant in the crime; or

C. Uses or threatens the immediate use of a dangerous instrument; or

D. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Class Nine B:Introduction to Real Property

Definitions of Terms, Property Taxes, Interests in Land, Shared Rights

• Real Property - Definitions

– Blacks law Dictionary Defines Real Property as“Land and generally whatever is erected or growing upon or affixed to land.”

- Also“Rights issuing out of, annexed to, and exercisable within or about land”

- Also“Immovable Property or rights arising from Immovable property”

“Property Rights involving Land, its fixtures, structures or production”

• Real Property

The Importance of Real Property– Real Property has historically meant:

1. Wealth,

2. Power, and

3. Life

- Real Property needs to be thought of in terms of: 1. Possession, and

2. Time

- Critical concepts include: 1. Ownership, and

2. Limitations on Ownership

- The value of Real Property has led to complex legal rules

Real PropertyThe Importance of Real Property –

Why should the law recognize rights in land?

Rights in Land, commonly known as real property, consist of: interests in land; and anything attached to land (e.g., buildings, fixtures, signs, fences, or trees).

Interests in land can include: ownership interests, leaseholds, easements, life estates, and future interests.

Interests further include: rights in the land surface, the subsurface (including minerals and groundwater), and the airspace above the surface.

Real PropertyThe Importance of Real Property –

Why should the law recognize rights in land?Historically, property law was almost exclusively concerned with Real Property.

Why?

For land, was (and still is today) the source of: food (where crops and animals are raised), clothing (where material for cloth is harvested), and housing (where buildings for shelter are constructed and maintained).

As a result, land has traditionally been the ultimate source of: wealth, status, sustenance, and social, political, and economic power.

Real PropertyThe Importance of Real Property –

Why should the law recognize rights in land continued?Control over land provided the basis for political sovereignty, and disputes concerning real property were historically resolved in the king's courts.

Indeed, disputes over real property traditionally made up the bulk of all litigation.

Even today, a person’s real estate holdings typically make up their most important and most valuable asset.

Accordingly, rights in land remain the single most important resource for human existence.

As our population increases and environmental concerns continue, disputes about property rights, in our finite land supply, will continue to make this a very important legal right.

Real Property

The Importance of Real Property –

Why should the law recognize rights in land continued?

The concept of Real Property is one of the oldest concepts which exists in the law.

As we have seen, however, the legal recognition of property in ancient times, was not the legal standing of individual ownership, nor the acknowledgment of individual property rights.

These legal concepts came later, and are a much more recent development of mature legal systems.

Ancient Law saw property and people as associations, as being in proximity to the land or object.

Indeed, Roman law had no actual word for “ownership”, and the word does not appear in English Common law until 1583.

Real PropertyThe Importance of Real Property –

Why should the law recognize rights in land continued?

Nonetheless, Property has been a fundamental concept of the earliest legal systems.

People have been concerned with property, and its uses, and their law has recognized its importance and value, since man came down from the trees.

Accordingly, in the earliest societies, their concept of property, can best be understood, through the perspective of a Hohfeldian analysis.

Wesley Newcomb Hohfeld (1879 -1918)

A Professor of Jurisprudence (the philosophy of the law).

During his life he published several influential law journal articles regarding the philosophy of property.

His famous book, the Fundamental Legal Conceptions of Property was derived from two articles in the Yale Law Journal (1913) and (1917), and set forth his famous property analysis whereby property is seen as an object in connection with a complex web of social relations, with these relations establishing a limiting and defined relationship between the person and the object.

Real Property

The Importance of Real Property –

Why should the law recognize rights in land continued?

It is in this interrelationship between law and property, that it can be seen that one of the reasons law was developed in the first place, was to protect property rights and resolve property disputes.

It is to this understanding that Bentham speaks when he says,

“Property and law are born together, and die together. Before laws were made, there was no property; take away laws, and property ceases.”

This concept applies across the legal spectrum of all propertyPersonal, Real and Intellectual.

Livery of Seisen

Interests in Land

• Like all property, interests in land are a collection of rights

• Interests in Land need to be seen through the prism of:– Possession

– Time

Two Major Questions

• Possession – Does the interest allow possession of the realty?

• Time – What time will the interest in the property be executed?

First: The Nature of Interests in Real Property

Interests in LandSo just what is an “Interest in Land” ?

• Interests in Land relate to your Collection of Rights with respect to the Real Property in question

Real Property has always been held as: - Special, - Distinct, - Unique, and - Valuable in the law.

The law has long recognized that Rights in such Real Property are to be viewed as Extensive and Severable, and as such, can also be limited in its Transference, by the original owner.

Interests in Land

So just what is an “Interest in Land” ?

• Interests in Land relate to your Collection of Rights with respect to the Real Property in question

• These Rights, and their Limitations, of an Interest in Land, include:– Exclusion– Possession– Use; and– Transfer; as well as– Time

Interests in Land

So just what is an “Interest in Land” ?

• Interests in Land relate to your Collection of Rights with respect to the Real Property in question

• To determine the rights and limitations conveyed, it is necessary to look at these concepts in terms of:

1. Ownership, and 2. Limitations on Ownership

• The inherent value of Real Property has led to complex legal rules to provide these rights and limitations and their conveyance.

Interests in Land• As we have seen, like all other property, interests in land,

are determined through a collection of rights.– Exclusion– Possession– Use; and– Transfer; as well as– Time

• The rights maintained and transferred in an Interest in Land need to be seen through the qualifier of:

– Possession

– Time

Two Major Questions – Must be asked to determine the Interest

• Possession – Does the interest allow possession of the realty?

• Time – What time will the interest in the property be executed?

Words of Purchase vs. Words of Limitation

To determine what rights exist in an Interest in Land, there are two factors which tell the story:

• Words of purchase:

Describe who takes the real property by grant, gift, inheritance or bequest.

• Words of limitation:Describe the type and duration of the estate taken by the transferee.

Interests in Land

• A Two Step Dance: Possession and Time

Step One: Form of Possession• Possessory Interests in Land (Either presently or in the future)

• Non - Possessory Interests in Land (Either presently or in the future)

Step Two: When the Interest Vests• Present interests (When the RIGHT to possess is NOW)

• Future interests (When the RIGHT to possess is in the future)

Interests in Land

What is FEE??Under Common Law, the King had radical title or “allodium” over all English lands,

meaning that he was the ultimate "owner" of all Real Property.

The King, could, however, grant an abstract entity (known as an estate in land) which is what would be “owned and possessed” by the citizen granted the estate.

This grant was known as a Fee. The fee simple estate, also called "estate in fee simple" or "fee-simple title" and is sometimes simply known as a freehold

In the early period after the Norman conquest, the holder of an estate in fee simple could not sell it, but instead could only grant a subordinate fee simple estate to a third party in the same parcel of land, a process known as "subinfeudation."

The Statute of Quia Emptores adopted in 1290 abolished subinfeudation and instead allowed the sale of fee simple estates. Again, another offshoot of the Magna Carta.

Interests in Land

What is FEE??

The concept of a "fee" has its origins in feudalism.

According to William Blackstone, the great common law commentator, land held in fee simple:

• is the estate in land held by the owners and their heirs absolutely;

• is an estate in land without any end or limit;• can be conveyed by its owner to whomsoever they please; • can be mortgaged or put up as security; and • can be reduced to any other type of lesser estate.

Interests in Land

What is FEE??The concept of a "fee" has its origins in feudalism.

According to William Blackstone, the great common law commentator, land held in fee simple:

• is an estate in land held by the owners and their heirs absolutely;

• is an estate in land without any end or limit;• can be conveyed by its owner to whomsoever they please; • can be mortgaged or put up as security; and • can be reduced to any other type of lesser estate.

Is represented in Jack and the Beanstalk when the Giant says:Fee Fi Fo Fum – I smell the blood of an Englishman … … Be he alive, or be he dead, I’ll grind his bones to make my bread …Fee – Fee Estate, Fi – An ancient phrase to express disapproval, Fo – An colloquialism used to express disgust, and Fum – Fume, meaning anger

Interests in Land• Possessory Interests in Land (Either presently or in the future)

1. Fee Simple Absolute2. Defeasible Estates

- Fee Simple Determinable with Possibility of Reverter- Fee Simple Subject to a Condition Precedent- Fee Simple Subject to an Executory Interest

3. Fee Tail4. Life Estate

• Non possessory interests in land: (An Interest with a right that can be executed but is not presently possessed) 1. Easements 2. Profits, 3. Covenants, and 4. Servitudes

Interests in Land – Possessory Interests• Possessory Interests in Land

(Either presently or in the future)

1. Fee Simple Absolute

2. Defeasible Estates - Fee Simple Determinable with Possibility of Reverter - Fee Simple Subject to a Condition Precedent - Fee Simple Subject to an Executory Interest

3. Fee Tail

4. Life Estate

Words of Purchase vs. Words of Limitation

To determine what rights exist in an Interest in Land, there are two factors which tell the story:

• Words of purchase:

Describe who takes the real property by grant, gift, inheritance or bequest.

• Words of limitation:Describe the type and duration of the estate taken by the transferee.

Interests in Land

• A Two Step Dance: Possession and Time

Step One: Form of Possession• Possessory Interests in Land (Either presently or in the future)

• Non - Possessory Interests in Land (Either presently or in the future)

Step Two: When the Interest Vests• Present interests (When the RIGHT to possess is NOW)

• Future interests (When the RIGHT to possess is in the future)

Interests in Land• Possessory Interests in Land (Either presently or in the future)

1. Fee Simple Absolute2. Defeasible Estates

- Fee Simple Determinable with Possibility of Reverter- Fee Simple Subject to a Condition Precedent- Fee Simple Subject to an Executory Interest

3. Fee Tail4. Life Estate

• Non possessory interests in land: (An Interest with a right that can be executed but is not presently possessed) 1. Easements 2. Profits, 3. Covenants, and 4. Servitudes

Interests in Land – Possessory Interests• Possessory Interests in Land

(Either presently or in the future)

1. Fee Simple Absolute

2. Defeasible Estates - Fee Simple Determinable with Possibility of Reverter - Fee Simple Subject to a Condition Precedent - Fee Simple Subject to an Executory Interest

3. Fee Tail

4. Life Estate

Interests in Land – Possessory Interests

Present, possessory interests.

• Highest Level Estate in Land:

FEE SIMPLE ABSOLUTE1. Invests the owner with all possible rights (E-PUT) now and in the future.

2. It is the presumed form of ownership grant, unless a lesser estate grant was expressly intended.

3. Is of perpetual and infinite duration (lasts forever).

4. Is the form of ownership from which all lesser forms are derived.

Magic Language: “To Grantee and their heirs”

Fee Simple Absolute“To A and his heirs”

• What are the words of purchase?• What are the words of limitation?

To AWords of purchase

and his heirs Words of limitation

Infinity

What are the critical attributes of Fee Simple Absolute?

When a transfer is made to A and his heirs:

Alienable (Able to be sold/gifted),

Reducible (Able to be reduced to a lesser estate)

Devisable (Able to be given by will or intestate), and

Lasts for Perpetuity (Forever – No Limitation of Time).

Interests in Land – Possessory Interests

• Defeasible Estates These are possessory fee estates of infinite duration that can be terminated by the happening of a specified event. These are a lesser estate than fee simple absolute.

FEE SIMPLE DETERMINABLE (Possibility of Reverter)

1. An Estate that AUTOMATICALLY terminates upon the happening of a stated event.

2. Stated event must be for a lawful purpose.

Magic Language: “To Grantee and their heirs for so long as” or “while” or “during” or

“until” (the occurrence of an event).

Fee Simple Determinable“To A and his heirs for so long as …”

• What are the words of purchase?

• What are the words of limitation?

To AWords of purchase

and his heirs for so long as … Words of limitation

Infinity

What are the critical attributes of Fee Simple Determinable?When a transfer is made to A and his heirs for so long as … :

All Subject to the Possibility of Reveter

Alienable (Able to be sold/gifted),

Reducible (Able to be reduced to a lesser estate)

Devisable (Able to be given by will or intestate), and

Lasts for “So Long As” (The Limitation of The Reverter).

Interests in Land – Possessory Interests• Defeasible Estates Continued

These are possessory fee estates of infinite duration that can be terminated by the happening of a specified event. These are a lesser estate than fee simple absolute.

FEE SIMPLE SUBJECT TO A CONDITION SUBSEQUENT

1. An Estate that can terminate upon the happening of a stated event and the taking of an action

by the party granted such rights by the transferring owner.

2. Known as a RIGHT OF RE-ENTRY, this termination is NOT AUTOMATIC and needs the grantor to take action

Magic Language: “To Grantee and their heirs upon the condition that” or “provided that” or “but if” or “if it happens that” (the occurrence of an event).

Interests in Land – Possessory Interests• Defeasible Estates Continued

FEE SIMPLE SUBJECT TO A CONDITION SUBSEQUENT

- A RIGHT of RE-ENTRY CAN be waived (unlike Fee Simple Determinable which is automatic) by express agreement or by conduct.

- Although inaction by itself is NOT a waiver, where there is inaction, and detrimental reliance, courts have held a waiver by the grantor pursuant to the doctrine of estoppel.

- The rights of a Fee Simple Subject to a Condition Subsequent have been held to be devisable, but NON TRANSFERABLE.

Fee Simple Subject to Condition Subsequent“To A and his heirs upon the condition that …”

• What are the words of purchase?

• What are the words of limitation?

To AWords of purchase

and his heirs upon the condition that …

Words of limitation

Infinity

What are the critical attributes of Fee Simple Subject to a Condition Subsequent?When a transfer is made to A and his heirs upon the condition that … :

All Subject to the Right of Re-entry

Alienable (Able to be sold/gifted),

Reducible (Able to be reduced to a lesser estate)

Devisable (Able to be given by will or intestate), and

Lasts until the condition arises AND the Right of Re-entry is exercised.

Interests in Land – Possessory Interests

• Defeasible Estates

FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST

- A Defeasible Estate that AUTOMATICALLY divests in favor of a THIRD PERSON upon the happening of a stated event.

- Different from a FEE SIMPLE DETERMINABLE in that this estate does not revert to the grantor but to a 3rd PERSON.

- Subject to the Rule Against Perpetuities.

- Title passes to a third party in the event that the Condition is satisfied.

Interests in Land – Possessory Interests

• Defeasible Estates

LIMITATIONS– Possibility of Reverters and Rights of Re-entry have been limited

by most states to foster the marketability of title.

A free society needs the ability to freely transfer property, and not impair the title of the same from transactions which occurred years ago.

– DIRECT STATUTORY PRECLUSIONS (usually 30 years)

– RULE AGAINST PERPETUITIES (21 years plus lives in being)

– RULE IN SHELLEY’S CASE (Remainder limited to heirs or heirs of the body)

– DOCTRINE OF WORTHIER TITLE (Remainder invalid, Grantor retains reversion)

Interests in Land – Possessory Interests

Present, Possessory Interests.

FEE TAIL1. An Estate limited to the grantee and his or her family2. Reverts to grantor if not owned by heir3. No longer recognized in almost any state

Magic Language: “To Grantee and heirs of their body”

Now FEE SIMPLE ABSOLUTE

Interests in Land – Possessory Interests

Present, Possessory interests.

LIFE ESTATE1. By Marital Right (Dower and Curtsey)2. For Life of Grantee3. Pur Autre Vie (Life of Another)

Magic Language: “To Grantee for Life” or “To Grantee for the Life of Tilda Spain”

Life Estate“To A for Life…”

• What are the words of purchase?

• What are the words of limitation?

To AWords of purchase

for life…

Words of limitation

Infinity

Interests in Land – Non Possessory Interests

Until now we have discussed “Possessory Interests”,meaning interests in real propertythat either ARE, or WILL BE (pre-vested interests)POSSESSED by the holder of the property.

Just as there are possessory interests in real propertywhere possession is not effectuated yetbecause of time or condition, the law also recognizes interests in real propertywhere the holder of such interest does NOT EVER actually POSSESS the property.

Such are interests are deemed “Non - Possessory Interests”

Interests in Land – Non Possessory Interests

Non Possessory Interests

• Easements• Profits• Covenants• Servitudes

Shared Rights in Land

Joint Interests/Concurrent Estates- Tenancy in the Entirety

By Marital Right – only between husband and wife

Right of Survivorship – by operation of law

Severance Limited (Death, divorce, agreement, joint creditor execution)

- Joint TenancyCreated by unity of time, title, interest and possession

Right of Survivorship – by operation of law

Severance Less Limited (Inter vivos conveyance or contract to convey, death, agreement, foreclosure on lien)

- Tenants in CommonNo Right of Survivorship. Freely alienable. Joint ownership based

upon percentage. Share and responsible proportionally in all gains and liabilities.

Real Property Taxes The Tax Man Cometh

Real Property Taxes- Real Property Taxes and Estate (Death) Taxes

are the only two type of taxes

that tax you on what you own or have,

not on what you earn or acquire.

- Very Repressive and Regressive,

especially on the poor and elderly.

- Imposed by and used to finance:

Local governments, Special districts and Schools.

- Very stable source of government revenue.

- Many movements to shift funding from Real Property Tax (STAR Program – Tax Cap Proposals).

Class Exercise: The Witch and Her Real Estate

The case of beautiful Susanna North Martin

• Bonus Questions of the Day

For next time – Read Assignments

for Class One to Nine

• Question of the Day

• Questions???