first year property outline

7/31/2019 First Year Property Outline

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Part I. An Introduction to Some Fundamentals

Chapter 1. First Possession: Acquisition of Property by Discovery, Capture, and CreationA. Acquisition by Discovery

i. Johnson v. MIntosh

Discovery Rulethe first to find a non-Christian land has a right

to it if they are European (originated in England)o The discoverer is the only one who can buy the land

Conquest Ruleif there is land you can take it by sword

Only the U.S. Government has the power to perfect(sell) the land

Fundamental Principles:o Title to property, rights to property, are relative

You cannot decide who has the right without firstknowing the claimants

o You cannot give that which you do not haveo First in time, first in right

B. Acquisition by Capture

i. Pierson v. Post In order to have possession of a wild animal you must deprive it of

its natural liberty and bring it under certain control

Majority wanted certainty, peace, and order in society

Dissent wants dead foxes

How do I acquire a wild animal? By depriving its natural right andbringing it within certain control

Theme: first in timeii. Ghen v. Rich

Custom-the courts will refer to the custom and will recognize it

If it is widely recognized by the trade, the law will consider it

Theme: custom gives rise to inferenceiii. Keeble v. Hickeringill

Ratione Solio If you own the land, you own the animalso By owning the land, you are viewed as having constructive

possession of the wild animals on it, not manual possessiono Is this rational?o Does Keeble have P v. P possession?

No, because they are not deprived of their naturalliberty

Hickeringill disturbed Keebles possession of the

ducks Rights to land give constructive possession, meaning lets

pretendo Why does constructive possession exist? Incentive for

others to stay off of your propertyo Why is it important that we discourage trespass? If the law

doesnt, people will take it into their own hands


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Reasoning of this case:o Commerce, livelihood of Keeble, constructive possession,

fair v. unfair competition

Theme: Business man v. bad guyiv. Harold Demsetz, Toward a Theory of Property Rights

1. Wild Animals: in their natural state are unowned. They become private propertyupon being reduced to possession.

a. Acquisition of Title1. Possession The first person to exercise dominion and control

over such an animal becomes, with possession, the owner of theanimal

2. Constructive Possession Animals caught in a trap or net belongto the one who owns and has set the trap or net. By setting sucha trap, one is said to constructively possess those animalssnared.

3. Mere Pursuit Mere pursuit does not constitute the exercise ofdominion and control sufficient to give the hunter a property rightin the animal. However, where an animal has been mortallywounded so that actual possession is practically inevitable, avested property right in the animal accrues that cannot bedivested by anothers act in intervening and killing the animal.

4. Trespass While a land owner is not regarded as the owner of allwild animals found on his property, a trespasser who kills gameon anothers land forfeits title in favor of the landowner. This is toprevent the act of trespassing from benefiting the trespasser.

5. Violation of a Statute One who violates a statute (failure to have

a hunting license) forfeits title in animals caught pursuant thereto.b. Loss of Title1. Escape If a wild animal, captured and held in private ownership,

escapes and resumes its natural liberty, the former owner loseshis property right in it. The animal once again is unowned, and thefirst person hereafter to capture it becomes the new owner.

2. Habit of Return If a wild animal escapes and, though wanderingabout without restraint, periodically returns to its owners home, orif, though endeavoring to escape, it is still pursued by the owneror is by other means liable to be recaptured by the owner, title isnot lost.

C. Acquisition by Creation1. Property in Ones Ideas and Expressions: General Principles of

Intellectual Propertyi. International News Service v. Associated Press

This case merges unfair competition and property

Quasi property= asif property


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Congress should be protecting the intellectual property, the interestin the property or quasi property

ii. Cheney Brothers v. Doris Silk corp.iii. Smith v. Chanel, Inc.iv. Douglas Baird, Common Law Intellectual Property and the

legacy of INS v. AP2. Property in Ones Personai. White v. Samsung Electronics America, Inc.

Property rights serve human valuesthere is a balance at workhere

3. Persona: A celebritys right of publicity (the right to control he commercial value of their

name, likeness, or personality) is tangible personal property. This protects people from

losing the benefit of their work in creating a recognizable persona or identity. This right

exists both at common law and by statute.

3. Property in Ones Personi. Moore v. Regents of the University of California

Conversionunauthorized exercise of dominion and control overthe property of another

A property interest must be present

Moore had a property interest in his cells, and the hospital tookdominion and control over that property

Theme: who owns it until its given up

4. Human Tissue: While a person has a property right to their own tissue, that right

evaporates once a sample is voluntarily given to a third party.

ii. Jacque v. Steenberg Homes, Inc.iii. State v. Shack

Chapter 2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession,and Gift

A. Acquisition by Findi. Armory v. Delamirie

Finder has every right in the world to an object, save for the trueowner and prior possessor

Bailment: rightful possession of goods by a person (the bailee)who is not the owner

In voluntary bailment situations the courts usually bar an action bythe true owner against the present possessor if the bailee hasrecovered from the present possessor

True owner has a right over the findero If the finder sells the chattel the true owner has right over

the person who bought the chattel from the finder ii. Hannah v. Peel


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Hannah has a right to the brooch, save for the true owner and priorpossessor

Peel claims constructive possession because it was on his property,but he never knew about it

Court ruled there was no possession because Peel had never lived

there Actual v. constructive possession (actual trumps constructive)

Court is concerned whether it is a public or private place, whichleads to an aspect of control

iii. McAvoy v. Medina

Goal of finders law: solve the issues between finders in relation totrue owners and public/private places

Rule: landowner gets anything under or attached to their lando This is because of expectations. When one purchases land

they expect to own everything there

If an item is lost, it goes to the finder

It an item is mislaid, it goes to the shop keep where it was mislaid Rule: where an actor takes significant (but incomplete) steps

toward full control and is interrupted by wrongful acts, he has apre-possessory interest, a qualified right of possession

Themes thus far: protect true owner, protect legitimate expectations, reward honesty

C. Lost, Mislaid, and Abandoned Property1. Concept: The fact that the owner has either lost or mislaid his property does not

lead to the divestiture of his title. Title to such property persists despite the factthat it has been lost of mislaid. The owner surrenders title when he abandons theproperty

a. Lost PropertyProperty is lost when the owner has accidentally andinvoluntarily parted with his possession and does not know where to findit. To determine whether property is lost, the key factor is the place whereit is found: judging from the place where found, would a reasonableperson conclude that the owner had accidentally and involuntarily partedwith possession of it and does not know where to find it?

b. Mislaid Property Property is mislaid when, judging from the place wherefound, it can reasonably be determined that it was intentionally placedthere and thereafter forgotten.

c. Abandoned Property Abandoned property is property that the owner hasvoluntarily relinquished all ownership of without reference to any particular

person or purpose. It is necessary to show an intent to give up both titleand possession

1. Distinguish from Lost A chattel is not abandoned merelybecause the owner has parted with its possession. If theowner of a chattel involuntarily parts with possession ofgoods, they should be categorized as either lost or mislaid.Lost or mislaid goods are treated differently from abandonedchattels. To show that a chattel has been abandoned, one


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must show that the former owner voluntarily gave up andrelinquished his ownership in the chattel.

2. Acquisition of Title If a chattel can be categorized asabandoned, it becomes, by virtue of the abandonment,unowned. As with wild animals, ownership of an abandoned

chattel is acquired by reducing it to possession. Title toabandoned chattel is acquired by 1. Actual or constructivedominion and control over the thing, and 2. An intent toassert ownership over it.

3. Escheat Where abandoned property is held by anintermediary with no property interest in the property, thestate may assume title to the property through a processcalled escheat. Property may be escheated only by the statein which the property is located. Intangible property isconsidered to be located at the domicile of the propertyowner.

2. General Rules for Lost or Mislaid Property: Once you have established thatproperty is lost or mislaid, you must discuss who has the right to possess theproperty as against the whole worldexcept the true owner.

a. Finder of Lost Propertyi. General Rule: Finder entitled to possession except against true

owner1. If property is categorized as lost, the one who reduces it to

possession becomes its finder. Possession is physicalcontrol coupled with an intention to assume dominion overthe object. The intent may be manifested by an effort to keepothers away, or may be implied, as in the case of an articlediscovered on the land of an owner. Generally, the finder oflost property is entitled to possession of it as against allexcept the true owner

ii. Exceptions to the general rule1. Trespasser To penalize one who trespasses onto private

property, most courts would hold that a trespasser-finder willnot be allowed to secure possessory rights in the lostproperty. The right of possession will therefore fall to theowner of the place where the item of property is found (locusin quo).

2. Buried Articles On a theory of constructive possession, itcan be held that the owner of real property possesses allthat which lies beneath the surface of his land. On this basis,if one finds an article buried beneath the surface, the right ofpossession ought to belong to the owner of the locus ratherthan the finder.

b. Finder of Mislaid Property: The finder of mislaid property does not acquirethe right to possession. The owner of the locus in quo becomes entitled topossess the mislaid property against all the world except the true owner.


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Rationale: Since, by definition, mislaid property is that which has beenintentionally placed where found and thereafter forgotten, when the trueowner realizes where he has mislaid his property he will return to thatlocation to retrieve his property. On this basis, in a effort to return propertyto its owner, the right of possession is given to the owner of the locus in

quo and not the finder.

B. Acquisition by Adverse Possession1. The Theory and Elements of Adverse Possession

i. Powell on Real Property

The law of adverse possession is a synthesis of statutory anddecisional law

The action the adverse possessor brings is one to quiet title or toperfect their ownership

Statutes of limitations run, when they are tolled they pause

Adverse Possession requires:1. Actual entry

a. Exclusive possession2. Open and Notorious3. Hostile/adverse claim of right

a. Good faithb. Aggressive trespassc. State of mind irrelevant

4. Continuous for the statutory periodii. Henry W. Ballantine

iii. Oliver Wendell Holmes

iv. Van Valkenburge v. Lutz Color of title, faulty title or deed claim founded on a written

instrument (a deed or will) or a judgment or decree that is for somereason defective and invalid

What does it mean that state of mind is irrelevant?o We dont care what they thought, we care about what they

dido The adverse possessor acts as a true owner, no matter what

they thought

How does one ripen adverse possession into title?o Follow the four objectives

v. Mannillo v. Gorski Maine doctrine: rewards the bad guy

Connecticut doctrine: state of mind is irrelevant

If the true owner isnt going to protect their land, why should thelaw do anything but follow their example and also do nothing?Hence adverse possession

o Theory of the sleeping owner2. The Mechanics of Adverse Possession


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i. Howard v. Kuntoii. Tacking

2 kinds:o tacking property: I sell you my house with the deed as well

as 50 feet Ive been adversely possessing thats not in the

deedo tacking time: tack the time the previous owner spent on the

land to the time youve spent on the land to meet theamount of time required for adverse possession

iii. Privity

Types: Business agreement, Gift/will, Relationship, Identity ofinterest

Legally cognizable relationship

Court says privity is ok, in the case of adverse possession because:we can be comfortable that this is something more than a series oftrespassers

Privity in the context of tacking: requires that each partyvoluntarily transfers title to the next party

iv. Disabilities

(minors, prisoners, those of unsound mind)

21 year statute of limitationsv. Adverse Possession Against the Government

i. Adverse Possession of Chattelsvi. OKeeffe v. Snyder

How is voidable title different than a void title?o Voidable title: Beard buys an OKeeffe from me for $5

because I didnt know it was an OKeeffe

o Void title: Beard stole it from me Say Beard sold the OKeeffe he bought from me to his son for $5

o Since the son purchased it on good faith, the government iswilling to protect him as a good faith purchaser for value

o I can get the money back from Beard, but not the paintingback from the son

The court sees this as two innocent people (Beards son and I) oneach end of a transaction, and protects boy of us to the extent theyare willing

Discovery rulethe statute is tolled so long as the true ownerexercises diligence to locate the chattel

o If the chattel is missing, and the owner is trying to find it,then the statute tolls

F. Adverse PossessionStatute of Limitations: Title to personal property by adversepossession results from the running of a statute of limitations, which requires that thecause of action for recovery of the property be brought within a specified period after itaccrues. When the period specified has run, the presumption that the person inpossession has the right to possession cannot be overcome by the former owner; the


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party in possession thereafter has an enforceable right to possession superior toeveryone and thus becomes the true owner. In an action for recovery of the property,the defendant must plead the statute of limitations as an affirmative defense.

1. RequirementsAs with real estate, the cause of action does not accrue and,therefore, the statute of limitations does not run unless the possession relied on

is: actual; open and notorious; hostile and adverse, under a claim of right; andexclusive and continuous.a. Actual The property has not been given to another.b. Open and Notorious There must be some visible act of dominion or use

on the part of the possessor that is inconsistent with the absolute right ofproperty in the owner, so as to give reasonable notice to the owner. In thecase of thieves, a secret holding is presumed. A finder of lost or mislaidproperty is presumed to hold openly.

c. Hostile and Adverse Possession must not be by consent and not insubordination to the rights of the true owner.

d. Exclusive and Continuous Possession must be exclusive to the adverse

possessor (except for tackingsee below. Since the possession must becontinuous for the statutory period, interrupted periods that together totalthe required time are insufficient.

2. Statute of LimitationsTitle passes when the statutory limitation period has run.a. Accruing of Claim The accruing of the claim or cause of action is often a

crucial question. Demand and refusal may be requiredb. TackingSuccessive possessors of the property may tack or combine

their respective periods of possession as long as they are in privity (theproperty is sold, given, or bequeathed to the subsequent possessory)

c. Tolling the Statute Tolling the statute means that the time during whichthe following conditions are met is not counted in the time period, or thatthe period, which has otherwise expired, is extended beyond a certainevent.

1. Disability of Plaintiff When a person entitled to maintain anaction is a minor, mentally incompetent, or imprisoned on the datethe action accrues, she may bring the action after removal of thedisability within a period permitted by statute.

2. Defendant Out of Jurisdiction When the wrongdoer, who is aresident of this jurisdiction, is outside the jurisdiction, the statute istolled until the wrongdoer returns.

3. Fraudulent Concealment When a potential defendantfraudulently conceals himself after the action accrues, so as toavoid service, the statute is tolled until the concealment hasended.

3. Bona Fide Purchaser of Stolen GoodsA bona fide purchaser of stolen goods isnot protected against the claim of the owner unless the statute of limitations hasrun on the owner. Since a secret (rather than open and notorious) holding ispresumed in the case of stolen goods, the running of the statute is unlikely. Therisk is on the purchaser.


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Part II. The System of Estates (Leasehold Aside)

Chapter 3. Possessory Estates

Estates in land are possessory interest in land. These interest may be presentlypossessory (present estates), or they may become possessory in the future (future

interests)A. Present Possessory Estates1. Fee Simple Absolute largest estate permitted by law. Invests the holder

of the fee with full possessory rights, now and in the future. The holder cansell it, divide it, or devise it; and if she dies intestate, her heirs will inherit it.The fee simple has an indefinite and potentially infinite duration.

2. Defeasible Fees fee simple estates of potentially infinite duration thatcan be terminated by the happening of a specified event.

a. Fee Simple Determinable [Possibility of Reverter] an estate thatautomatically terminates on the happening of a stated event andgoes back to the grantor.

1. Words to flag: for so long as, while, during, until2. May be conveyed by the owner, but the grantee takes theland subject to the termination of the estate by thehappening of the event

3. Correlating future interest in grantor: possibility of revertera. Need not be expressly retained grantor does not

have to expressly retain a possibility of reverter. Itarises automatically in the grantor as a consequenceof his conveying a fee simple determinable estate,with its built-in time limitation

b. Transferability of the possibility of reverter the

possibility of reverter can be transferred inter vivos ordevised by will, and descends to the owners heirs ifshe dies intestate.

c. Although a possibility of reverter becomes possessoryin the future, it is a vested interest, not a contingentinterest, because both the owner and the event uponwhich it will become possessory are certain. This istrue even if the reversionary interest is determinableor defeasible. Because it is a vested interest, areversionary interest is not subject to the rule againstperpetuities.

4. A possibility of reverter arises only in the grantor, not in athird party. If a comparable interest is created in a third party,it is an executory interest.

b. Fee Simple Subject to a Condition Subsequent [Right of Entry]created when the grantor retains the power to terminate theestate of the grantee upon the happening of a specified event.Upon the happening of the event stated in the conveyance, theestate of the grantee continues until the grantor exercise her


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power of termination (right of entry) by bringing suit or makingreentry.

1. Words to flag: upon condition that, provided that, but if, if ithappens that

2. Correlating future interest in grantor: right of entry

a. Need be expressly reserved it is necessary toexpressly reserve the right of entry in the grantor; thisretained interest does not automatically arise as in thecase of a fee simple determinable and possibility ofreverter.

b. Failure to reserve right of entry must expressly statethat someone will have the right to enter upon thestated event, instead of just stating the event.

c. Waiver of right of entry grantor may waive her rightor power to enforce a forfeiture by express agreementor by her conduct

i. Requires more than just inactiond. Transferability of right of entry in most jurisdictions,a right of entry is still not alienable inter vivos. In moststates, rights of entry are devisable; and in all states,they descend to the owners heirs.

e. Although a right of entry becomes possessory in thefuture, it is a vested interest, not a contingent interest,because both the owner and the event upon which itwill become possessory are certain. This is true evenif the reversionary interest is determinable ordefeasible. Because it is a vested interest, areversionary interest is not subject to the rule againstperpetuities.

3. A right of entry can be created only in favor of the grantorand her heirs. If a similar interest is created in favor of a thirdparty, the interest is called an executory interest.

c. Fee Simple Subject to an Executory Interest estate that, uponthe happening of a stated event, is automatically divested in favorof a third person rather than the grantor

d. Fee Tailto A and the heirs of his body limits inheritance tolineal descendants of the grantee. Abolished in most jurisdictions

e. Life Estate estate that is not terminable at any fixed orcomputable period of time, but cannot last longer than the life orlives of one or more persons. It may arise by operation of law ormay be created by ac act or agreement of the parties.

1. Indefeasible will end only when the life tenant dies2. Defeasible determinable, subject to a condition

subsequent, subject to an executory interest


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B. Future Interests an estate that does not entitle the owner thereof to possessionimmediately, but will or may give the owner possession in the future. A futureinterest is a present, legally protected right in property; it is not an expectancy.

1. Remainders a future interest created in a transferee that is capable totaking in present possession and enjoyment (capable of becoming a

present interest) upon the natural termination of the preceding estatescreated in the same disposition. Unlike a reversion, which arises byoperation of law from the fact that the transferor has not made a completedisposition of his interest, a remainder must be expressly created in theinstrument creating the intermediate possessory estate. A rule of thumb isthat remainders always follow life estates.

1. A remainder cannot cut short or divest a preceding estateprior to its normal expiration. Therefore, a remainder cannever follow a fee simple, which has a potentially infiniteduration. Future interests that cut short a preceding estate orfollow a gap after it are called executory interests.

a. Indefeasibly vested remainder remainder that:i. Can be created in and held only by an ascertainedperson in being;

ii. Must be certain to become possessory on termination ofthe prior estate (there is no condition that may operate toprevent the remainder from someday becoming a presentinterest)

iii. Must not be subject to being defeated or divestediv. Must not be subject to being diminished in size

b. Vested Remainder Subject to Open this is a vested remaindercreated in a class of persons that is certain to take on thetermination of the preceding estates, but is subject to diminutionby reason of other persons becoming entitled to share in theremainder. It is also called a vested remainder subject to partialdivestment.

1. Divesting interests are executory interests once theremainder vests in one existing member of the class, thedivesting interest in the unborn members of the class iscalled an executory interest

2. Effect on marketability of title note that where there areoutstanding interests in the unborn children, the vestedremainderman and the life tenant cannot jointly convey goodtitle.

c. Vested Remainder Subject to Total Divestment arises when theremainderman is in existence and ascertained and his interest isnot subject o any condition precedent, but his right to possessionand enjoyment is subject to being defeated by the happening ofsome condition subsequent.

d. Contingent Remainder there are two ways to create acontingent remainder


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1. Subject to condition precedent a remainder will beclassified as contingent if its taking in possession is subjectto a condition precedent (contingent as to event)

2. Unborn or unascertained persons a remainder iscontingent if it is created in favor of unborn or unascertained

persons (contingent as to person), because until theremainderman is ascertained, there is no one ready to takepossession should the preceding estate come to an end.

3. Destructibility of Contingent Remainders at commons law,a contingent remainder had to vest prior to or upontermination of the preceding freehold estate or it wasdestroyed

a. Rule Abolished Today, the rule of destructibility hasbeen abolished in all but a few states.

b. Related doctrine of merger whenever the sameperson acquires all of the existing interest in land,

present and future, a merger occurs. That personthen holds a fee simple absolute.2. Executory Interests there are only two future interests that can be

created in a transferee: remainders and executory interest. If it is not aremainder because the preceding estate is not a life estate, then it mustbe an executory interest. Thus, an executory interest is any future interestin the transferee that does not have the characteristics of a remainder, ie itis not capable of taking on the natural termination of the preceding lifeestate. More specifically, an executory interest is an interest that diveststhe interest of another.

a. Shifting executory interest divests a transferee. A shiftingexecutory interest is one that divests the interest of anothertransferee, it cuts short a prior estate created by the sameconveyance

b. Springing executory interestFollows a Gap or Divests aTransferor. A springing executory interest is an interest thatfollows a gap in possession or divests the estate of the transferor.

c. Executory interest follows a fee a remainder cannot follow a feesimple interest of any kind. Therefore, any interest that follows afee and is held by a third person is an executory interest.

d. Differences between executory interest and remainders it isimportant to be able to distinguish between executory interestsand remainders for the following reasons:

1. Executory interest are not destructible, while contingentremainders are still destructible in a few jurisdictions;

2. Executory interest are not considered vested, whereascontingent remainders can become vested; and the Rule inShelleys Case does not apply to executory interests, but itdoes apply to remainders limited to the heirs of the grantee

3. Transferability of remainders and executory interests


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a. Vested reminders are transferable, devisable and descendibleb. Contingent remainders and executory interest are transferable

inter vivosc. Contingent remainders and executory interest are usually

devisable and descendible

d. Any transferable future interest is reachable by creditorse. Practical ability to transfer marketable title4. Class gifts in a gift to a class, the share of each member of the class is

determined by the number or persons in the class.a. Definitional problems

1. Dispositions to childrengenerally includes that personschildren from all marriages as well as adopted andnonmarital children. Stepchildren and grandchildren aregenerally not included.

2. Dispositions to heirs issue and descendants refer to thelineal offspring of the designated person, whatever the

degree of relationship3. Class members in gestation persons in gestation at thetime set for distribution are included in a class. The commonlaw presumption is that a child born within ten lunar monthsor 280 days after the necessary point in time was ingestation at that time.

b. When the class closes the rule of conveniencea. Its a rule of construction, not a rule of law.b. It is applicable in the absence of an expression of

intent to include all persons who meet the classdescription regardless of when they are born.

c. Under the rule, a class closes when some member ofthe class can call for a distribution of her share of theclass gift.

d. It is presumed that the ordinary transferor intends toinclude all members of the class, whenever born,provided that this would not cause any undueinconvenience.

e. Thus, the rule of convenience is based on a policy ofincluding as many person in the class as possible,consistent with permitting a distribution of the propertyat the first opportunity without the necessity of a futurerebate.

1. Outright Gift Class closes at time gift is made when a willmakes an outright gift to a class, if any class members arealive at the testators death, the class closes as of the dateof the testators death

a. No class members alive at testators death classstays open: If there are no members of the class living


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at the testators death, all after-born persons whocome within the class designation are included.

2. Postponed Gift class closes at time fixed for distribution:when possession and enjoyment of a gift are postponed, aswhere the gift follows a life estate, the class remains open

until the time fixed for distribution3. Dispositions subject to condition of reaching given agewhen there is a gift to a class conditioned upon the membersattaining a certain age, the class closes when:

a. The preceding estate, if any, terminates, andb. The first class member reaches the specified age.

That class members minimum share should bedetermined and distributed to her when she reachesthe specified age.

A. Up from Feudalism1. Tenure2. Feudal Tenures and services3. Feudal Incidents4. Avoidance of Feudal Incidents5. The Decline of Feudalism

B. The Fee Simplea. Fee Simple Absolute: the biggest estate weve got, the whole bundle of

sticks, total ability to do whatever you want with your property, (statutesmay take this away)

b. Services v. Incidents: inform our understanding of how all of thisdeveloped, these are historical things

i. Incidents: personal and if the person in possession dies inpossession then they go to the lord/king (a classic form of taxation)

ii. Services: ie) the king calls for 40 men to serve for 40 daysc. Magic words

i. Words of purchase (WHO) To Aii. Words of limitation (WHAT) for life, and her heirs

d. Issue: kids and grandkids, everyone below you in a direct linee. Ancestors: in a DIRECT line above you (not aunts or uncles)f. Collaterals: defined by who they are not, not ancestors or issue

i. Siblings, nieces, nephewsg. Intestate: died without a will, the state basically makes one for you

1. How the Fee Simple Developeda. Rise of Heritabilityb. Rise of Alienabilityc. Rise of the Fee Simple Estate

2. Creation of a Fee Simple3. Inheritance of a Fee Simple


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C. The Feel TailD. The Life Estate

i. White v. Brown

Restraints on alienation are: not ok in an FSA; disproved by thelaw, void; take property out of the stream of commerce; void

unless reasonable and clearly spelled out (would be ok on lifeestate)

Reasons restrains on alienation are unflavored: discourageupkeep and improvements on land; no credit can be given onthe land

ii. Baker v. Weedon

Contingent remainder: remainder contingent on whether AnnaBaker has kids of her own, which lasts until the day she dies

o If it is contingent it cannot be vested, if it is vested itcannot be contingent

a. Defeasible feesfocus on the words in the gift to determine whats being given

1. Languagelook for language of duration (opposed to an outright gift)2. Syntaxlook for sentence structure that gives one solid thought3. Consequencesthis is the key!

b. Affirmative waste- acts that substantially reduce property valuec. Permissive waste- failure to take reasonable care of the propertyd. Ameliorative waste- uses by the tenant that increase the market value of the

land, rather than decrease itiii. Woodrick v. Wood

E. Leasehold EstatesF. Defeasible Estates

a. Fee simple defeasible-will/may come to an end due to some external event

i. Has duration language, is a single thought, happens automaticallyb. When giving a fee simple defeasible, there are 2 types of future interest tobe given:

i. Possibility of reverter fee simple determinableii. Right of (re)entry/power of terminationfee simple subject to

condition subsequentc. FSD-fee simple determinable-fee simple so limited that it will end

automatically when a stated event happensi. Accompanied by a possibility of reverter (not a reversion)

d. FSSCS-fee simple subject to a condition subsequent-fee simple that doesnot automatically terminate but may be cut short or divested at the

transferors election when a stated condition happensi. Has the language of an outright gift, syntaxically is a separatecondition, there is an action required

ii. Accompanied by a right of entry/power of terminatione. Fee simple subject to executory limitation

i. Accompanied by an executory interest, happens automaticallyi. Mahrenholz v. County Board of School Trustees

ii. Mountain Brow Lodge No. 82 v. Toscano


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iii. Ink v. City of Cantoniv. City of Palm Springs v. Living Desert Reserve

Chapter 4. Future InterestsA. IntroductionB. Future Interests in the Transferor

1. Reversion- the interest remaining in the transferor when the transferorhas given away a vested estate or estates of lessor quantum than theestate the transferor had (always transferable, always alienable)

2. Possibility of Reverter- accompanies a fee simple determinable3. Right of Entry- accompanies fee simple subject to condition subsequent

C. Future Interests in Transferees1. Introduction2. Remainders- any future interest in favor of a transferee that:

a. Can (is capable) become a present possessory interest(immediately) upon (but no sooner than) the natural expirationfor all prior interest simultaneously created AND

b. Cannot divest or cut short any interest other than an interest inthe transferori. The interest must be capable of becoming possessory at

the termination for the following estateii. It cannot divest or cut short any prior interest created in a

transfereec. Vested- A remainder is VESTED if both:

i. Given to an ascertained taker ANDii. It must only await the natural termination of the prior

estates in order to become possessory (not subject to anycondition precedent)

d. Contingent- A remainder is CONTINGENT if either:i. The taker is unascertainedii. A condition precedent must first occur before we know

whether it will become possessory3. Executory Interests

a. 2 Prohibitory Rules: No Shifting Interests; No SpringingInterests

b. The Rise of the Usec. Abolition of the Use: The Statute of Usesd. Modern executor Interests

Chapter 5. Co-ownership and Marital Interests

A. Common Law Concurrent Interests1. Types, Characteristics, Creation2. Severance of Joint Tenancies

i. Riddle v. Harmonii. Harms v. Sprague

3. Multiple-party Bank Accounts4. Relations Among Concurrent Owners

a. Partition


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i. Delfino v. Vealencisb. Sharing the Benefits and Burdens of Co-ownership

i. Spill v. Mackerethii. Swartzbaugh v. Sampson

Chapter 10. Private Land Use Controls: The Law of Servitudes

Creation of easements a. Express grant must be in writing and signed by the grantor. May be created byconveyance.

b. Express reservation when the owner of a tract of land conveys title but reservesthe right to continue to use the tract for a special purpose after the conveyance.

Under the majority view, the easement can e reserved only for the grantor; an

attempt by the grantor to reserve an easement for anyone else is void.

c. Implication created by operation of law rather than by written instrument.a. Easement implied from existing use [quasi easement] an easement may

be implied if, prior to the time the tract is divided, a use exists on the

servient part that is reasonably necessary for the enjoyment of the

dominant part and a court determines that the parties intended the use to

continue after division of the property.

i. Existing use at time tract was divided for a use to give rise to aneasement, it must be apparent and continuous at the time the tract is

divided.

ii. Reasonable necessity whether a use is reasonably necessary to theenjoyment of the dominant parcel depends on many factors, including

the cost and difficulty of the alternatives.

iii. Grant or reservation an easement implied in favor of the grantee issaid to be created by implied grant, while an easement implied in

favor of the grantor is said to be created by implied reservation.

b. Easement by necessity when the owner of a tract of land sells a part of the

tract and by this division deprives one lot of access to a public road or utilityline, a right of way by absolute necessity is created by implied grant or

reservation over the lot with access to the public road or utility line.

d. Prescription analogous to adverse possession. Requirements: open and notorioususe, adverse use, and continuous and uninterrupted use for the statutory period.

a. Negative easements cannot arise by prescription. An easement by necessitycannot give rise to an easement by prescription. However, if the necessity

ends, so does the easement, and the use is adverse from that point forward.

Termination of easements an easement may be created to last in perpetuity or for a

limited amount of time. To the extent the parties to its original creation provide for the

natural termination of the interest, such limitations will control.A. Stated conditions if the parties to the original creation of an easement set

forth specific conditions upon the happening of which the easement right will

terminate, the conditions will be recognized.

B. Unity of ownership the ownership of the easement and of the servienttenement must be in different persons. If ownership of the two comes

together in one person, the easement is extinguished.


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a. Complete unity required for an easement to be extinguished, theremust be complete unity of ownership as between the interest held in

the easement and that held in the servient tenement.

i. If the holder of an easement acquires an interest in theservient tenement, the easement is extinguished only if he

acquires an interest in the servient tenement of equal or

greater duration than the duration of the easement privilege.

ii. If the holder of the servient tenement acquires the easementinterests, the title acquired must be equal to or greater than

her interest or estate in the servient tenement.

b. No revival if complete unity of title is acquired, the easement isextinguished. Even though there may be later separation, the

easement will not be automatically revived

C. Release an easement may be terminated by a release given by the ownerof the easement interest to the owner of the servient tenement. A release

requires the concurrence of both owners and is, in effect, a conveyance. The

release must be executed with all the formalities that are required for the

valid creation of an easement.

a. Easement appurtenant these types of easements are tied to theland of the dominant tenement. This characteristic requires that the

easement interest not be conveyed independently of a conveyance of

the dominant tenement. However, an easement appurtenant may be

conveyed to the owner of the servient tenement without a conveyance

(to the same grantee) of the dominant tenement.

b. Easement in gross the basic characteristic of an easement in grossis that unless it is for a commercial purpose, it is inalienable.

However, it can be released [conveyed to the owner of the servient

tenement].

D. Abandonment an easement can be extinguished without conveyancewhere the owner of the privilege demonstrates by physical action an

intention to permanently abandon the easement.

a. Physical act required easement holder must physically manifest anintention to permanently abandon the easement.

b. Mere words insufficient oral expressions of the owner of theeasement that he does not intend to use the easement again are

insufficient to constitute an abandonment of the easement.

c. Mere nonuse insufficientE. Estoppel an easement may be extinguished by virtue of the reasonable

reliance and change of position of the owner of the servient tenement, based

on assertions or conduct of the easement holder. There are 3 requirements:a. There must be some conduct or assertion by the owner of the

easement,

b. A reasonably reliance by the owner of the servient tenement,c. Coupled with a change of position.

F. Prescription an easement may be extinguished dby prescription. Longcontinued possession and enjoyment of the servient tenement in a way that


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would indicate to the public that no easement right existed will end the

easement right.

a. The owner of the servient tenement must so interfere with theeasement as to create a cause of action in favor of the easement

holder. The interference must be open, notorious, continuous, and

nonpermissive for the statutory period.

G. Necessity easements created by necessity expire as soon as the necessityends.

H. Condemnation condemnation of the servient estate will extinguish thenonpossessory interest. Courts are split, however, on whether the holder of

the benefit is entitled to compensation for the value lost.

I. Destruction of the servient estate if the easement is in a structure involuntary destruction of the structure will extinguish the easement. Voluntary

destruction will not terminate the easement.

Scope interpreted to employ the reasonable intent of the original parties

a. In the case of easements by necessity, the extent of the necessity determines the

scope of the easement. Because there is no underlying written instrument to

interpret, courts will look instead to the circumstances giving rise to the easement.

b. With implied easements, the quasi-easement will provide the starting point for thecourts construction of the scope of the easement. Modifications in the easement

will be enforced to the extent that they are necessary for reasonably foreseeable

changes in the use of the dominant parcel.

Licenses privilege their holder to go upon the land of another (the licensor). Unlike an

affirmative easement, the license is not an interest in land. It is merely a privilege,

at the will of the licensor.

a. Assignability a license is personal to the licensee and therefore not alienable. The

holder of a license privilege cannot convey such right.b. Revocation and termination licenses are revocable by nature, at any time by a

manifestation of the licensors intent to end it.

c. Failure to create an easement if a party attempts to create an easement orally,the result is the creation of a license, a revocable privilege.

A. Easementsa right, created by an express or implied agreement, to make lawfuland beneficial use of the land of another. Easements can be viewed by the TractIndex

1. Historical Background, and Some Terminologya. Appurtenant easementtied to the land, available to anyone

who uses the land. The benefits to be realized by the easementmust be directly beneficial to the possessor of the dominanttenement in his physical use and enjoyment of that tract ofland.

i. The benefit passes with transfers of the benefitted land,regardless of whether the easement is mentioned in theconveyance.


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ii. If the servient parcel is transferred, its new owner takesit subject to the burden of the easement, unless she is abona fide purchaser with no notice of the easement

b. In gross easementpersonal to the owner of the easement, nottied to the land. Generally, an easement in gross is transferable

only if the easement is for a commercial or economic purpose.c. Appurtenant easements are favored because it is a lot easier tofind the owner of the easement when it is tied to land

d. Servient estateestate that serves, the one that is burdened bythe easement

e. Dominant estatethe one benefitting from the easement (maynot exist in gross easements

2. Creation of Easementsi. Willard v. First Church of Christ, Scientist

1. You cant have an easement in your ownproperty

ii. Holbrook v. Tayloriii. Shepard v. Purvineiv. Henry v. Daltonv. Van Sandt v. Royster

vi. Othen v. Rosier1. Adverse usage is a requirement of prescriptions2. Permissive land use is a part of a license, which

is revocablevii. Raleigh Avenue Beach Assn. v. Atlantis Beach Club

3. Assignability of Easementsi. Miller v. Lutheran Conference & Camp Assn.

4. Scope of Easementsi. Bown v. Voss

5. Termination of Easementsi. Preseault v. United States

6. Negative Easements7. Conservation and Other Novel Easements

B. Covenants Running With the Land

Covenants running with the land at law (real covenants) a written promise to do

something on the land or a promise not to do something on the land. Real covenants run

with the land at law, which means that subsequent owners of the land may enforce or be

burdened by the covenant. To run with the land, however, the benefit and burden of the

covenant must be analyzed separately to determine whether they meet the requirements

for running

1. Requirements for burden to run if all requirements are met, the successor ininterest to the burdened estate will be bound by the arrangement entered into by

her predecessor as effectively as if she had herself expressly agreed to be bound

a. Intent the covenanting parties must have intended that successors ininterest to the covenanttor be bound by the terms of the covenant. The

requisite intent may be inferred from circumstances surrounding creation of


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the covenant, or it may be evidenced by language in the conveyance creating

the covenant.

b. Notice under the common law a subsequent purchaser of land that wassubject to a covenant took the land burdened by the covenant, whether or

not she had notice. However, under US recording statutes, if the covenant is

not recorded, a bona fide purchaser who has no notice of the covenant and

who records her own deed will take free of the covenant.

c. Horizontal privity relationship between the original covenanting parties.Horizontal privity requires that, at the time the promisor entered into the

covenant with the promise, the two shared some interest in the land

independent of the covenant

d. Vertical Privity to be bound, the successor in interest to the covenantingparty must hold the entire durational interest held by the covenantor at the

time she made the covenant.

e. Touch and concern as a general matter, for the burden of a covenant torun, performance of the burden must diminish the landowners rights,

privileges, and powers in connection with her enjoyment of the land.

i. Negative covenants for the burden of the negative covenant totouch and concern the land, the covenant must restrict the holder of

the servient estate in his use of that parcel of land

1. Note the similarity of negative covenants and negativeeasements. The primary difference between them is that

negative easements are limited to a few traditional categories,

but there are no limits on negative covenants.

ii. Affirmative covenants for the burden of an affirmative covenant totouch and concern the land, the covenant must require the holder of

the servient estate to do something, increasing her obligations in

connection with enjoyment of the land

2. Requirements for the benefit to run if all requirements for the benefit to run aremet, the successor in interest to the promise will be allowed to enjoy the benefit

a. Intent the covenanting parties must have intended that the successors ininterest to the covenantee be able to enforce the covenant. Surrounding

evidence of intent, as well as language in the instrument of conveyance, is

admissible.

b. Vertical privity the benefit of a covenant runs to the assignees of theoriginal estate or of any lesser estate. The owner of any succeeding

possessory estate can enforce the benefit at law. In the majority of states

today, horizontal privity is not required for the benefit to run. As a

consequence, if horizontal privity is missing, the benefit may run to the

successor in interest to the covenantee even though the burden is notenforceable against the successor in interest of the covenantor

c. Touch and Concern for the benefit of a covenant to touch and concern theland, the promised performance must benefit the covenantee and her

successors in their use and enjoyment of the benefited land.

3. Remedies damages only. Only money damages are awarded, not injunctions. Ifyou want an injunction, you have to have an equitable servitude.


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1. Historical Backgrounda. Covenants Enforceable at Law: Real Covenantsb. Covenants Enforceable in Equity: Equitable Servitudes

i. Tulk v. Moxhayc. Creation of Covenants

i. Sanborn v. McLeanEquitable servitudes if a plaintiff wants an injunction or specific performance, he mustshow that the covenant qualifies as an equitable servitude. An equitable servitude is a

covenant that, regardless of whether it runs with the land at law, equity will enforce against

the assignees of the burdened land who have notice of the covenant. The usual remedy is

an injunction against violation of the covenant.

first year property outline

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