law school essentials –...

LAW SCHOOL ESSENTIALS – PROPERTY PROFESSOR ZACHARY KRAMER

ARIZONA STATE UNIVERSITY – SANDRA DAY O’CONNOR COLLEGE OF LAW CHAPTER 1: INTRODUCTION & REAL V. PERSONAL PROPERTY A. First Year Property Exams Skills that lawyers need to have: (1) _________________________ (2) ________________________

• Issue Spotting – Keys

o Know the ________________________________________________.

o Know common __________________________________________.

• Apply Facts to Law

o Identify important ____________________. Distinguish _________________________

facts from red herrings.

o Assess strengths and ________________________________ of both sides of a case.

Exam Tip: Don’t give up on one side of the case! A common mistake made by students is focusing on one argument and giving up on the other. Be as objective as possible, identifying what each side will argue, and identifying the strengths and weaknesses of both. Giving up on one side of the argument is giving up points.

Exam Preparation • Know the _____________________________ of the exam: simulate the exam and practice

as much as possible.

o If professor has not discussed exam structure, ___________________!

• Policy issues: distinction may exist for exam purposes, so know what your professor expects.

o If your professor has not identified whether policy should be discussed, ask!

• _____________________________: what will be on the exam?

o Ask professor whether everything assigned in the reading will be tested or just class

discussions.

o Check to see if old exams are available on file.

Bad, Good, & Great Exams • Step 1: Black letter law

o Bad exams: The student doesn’t know the black letter law. The law is the ___________

________________________ of your answer. You need to know the law to be able to

apply the facts.

o Prevent a bad exam by knowing the law.

• Step 2: Know the _________________________

o One reason students will not do well on an exam is because they miss issues entirely.

o Failure to spot an important issue could cost points.

• Step 3: Organization

o The best exams are the ones that are _________________________________________.

o Organization Method

Editors Note: Check with your professor to verify what method you should follow.

IRAC - _________________________ – “The issue in this problem is…”

- _________________________ – “The rules governing this issue are…”

- _________________________ – A new paragraph, “in this case…” and

discuss facts.

- _________________________ – “A wins or loses…” OR “A has a better

argument than B, but B could stand on the following…” Come to some

conclusion.

2 |© 2014 Themis Bar Review, LLC | Law School Essentials – Property

• Step 4: Application

o Analysis section of IRAC

o Good exams will take the time to consider the specific facts and applicable rule.

• Step 5: Novelty

o Great exams recognize why the factual issue being tested is ________________________.

o New problems that need to be resolved by applying the law

• Step 6: Big picture

o Great exams spot the big picture and see the ramifications of a _____________________.

• Step 7: What’s missing

o The best exams spot what is missing; “If we knew X about this case, it would come out

differently.”

o Understanding why having missing facts are important

Exam Tip: Practice! You can get better at taking exams by practicing!

B. Property

Key Terms • Real Property – Land and stuff _____________________________ to land

• Personal Property – _________________________ is the legal definition. Highly moveable,

but not always.

o Tangible Property – Property you can ___________________________.

o Intangible Property – Symbolic items such as a stock certificate

• Alienate – Property synonym for the _____________________________ of property. This

can be done by sale, gift, trade, ______________________ (devise), inherit (intestate

succession).


Big Picture • Basic framework that American property law is based upon. When non-lawyers talk about

property, they are referring to _________________________. Lawyers don’t mean stuff;

they mean “rights” to stuff.

o Property is _________________________ among people _________________________

to things.

1. Rights – property is a bundle of sticks including the right to exclude, right to

________________, right to alienate, right to _________________________.

2. Among people – property rights are relational and are limited by someone else’s

rights.

Example 1.1: Casebook was purchased at the bookstore and you own it. You can exclude others from it, you can use it, you can trade it, you can ____________ ____ it, and you can destroy it. But you can’t put its contents on the internet because that would _________________________ on the rights of the author and the publisher. Your rights are limited by their rights.

3. Things – are the stuff, the real and _________________________ property

Example 1.2: You own a home, and as a homeowner, you have the right to exclude others from your property. A man has been living in the tool shed behind your house and is a squatter. As homeowner, you have the right to ______________________ him; your rights are better.

Note: The right to exclude is not _______________________________.

Example 1.3: The police are in hot pursuit of a suspect and follow the suspect onto your property. The suspect locks himself in the shed behind your house. The police have the right to enter your property to apprehend the suspect. Your right to exclude the police is _________________________ by the police’s right to enter.


CHAPTER 2: POSSESSION OF PROPERTY A. Lecture Organization:

• Big Picture

• Key Terms

• Theory

• Mechanics (Doctrine)

• Applications (problems) – Feel free to pause and answer questions in the space included on

the handout and then listen to the answer.

B. First Possession Big Picture

• Rules of first possession concern how a person acquires property other than by purchase

such as ___________________________, capture, and _________________________.

Key Terms 1. Unowned Property – Property without an ________________________________ or recognized

owner such as wild animals.

2. Fugitive Resource – A resource that is _________________________ and moves from place to

place until someone captures it such as wild animals and liquid resources like _______________

or _________________________.

3. Trespasser – Someone who enters another’s property without ___________________________.

A squatter is a trespasser.

4. Copyright – Legal regime for protecting ___________________________ or ________________

______________ works. Think of it as a legal monopoly over the rights of a creator’s work

product.

5. Patent – Scientific version of copyright; a legal regime for protecting ______________________

_____________ advancement.


Theory of First Possession • Possession is a _______________________________________. First possession and

possession as a legal matter is heavily influenced by _________________________. The

basic rule governing first possession is “first in _____________________, first in _________

_________________”; the person who gets there first has possession of the property.

Mechanics • Discovery – the person who discovers property (real or personal) has the _______________

___________________ to that property. Best title is the closest thing a person can have to

absolute _______________________________.

o Theory is that discoverer has the best title because she was __________ ____________

__________________________.

Exam Tip: The person defined as discoverer is often open to manipulation.

Example 2.1: When the European settlers arrived in New World, native tribes were living on much of the land. Although the tribes were clearly first in time, courts ultimately concluded that the tribes were not ____________________________________ of the land, but __________________________________________. An important distinction in property law is occupancy and possession. An

apartment renter is an occupant with an interest subject to the landlord’s greater

interest.

Themes of first year property:

- Title is _________________________. Rights are interpreted in terms of

competing claims.

- Possession is a _________________________________. Question of who

has first possession is as much about policy as a legal position.

• Capture – Rule of capture specifically applies to fugitive resources.


o Wild animals – two characteristics:

_________________________ – owned at large; no specific owner

_________________________ – they are mobile.

o A person becomes an owner of a wild animal or fugitive resource by __________________

___________ the animal and reducing it possession.

Mortally wounding the animal

_________________________ the animal in a cage or trap

_________________________ the animal and securing it with hands

Exam Tip: A prospect of capture, no matter how reasonable or likely to succeed, is not enough to constitute possession.

Example 2.2: Post is hunting a fox, and just as he corners the fox in a hollow, Pierson kills the fox and takes the hide. Post wants the hide and argues that he captured the animal. Ruling is that Post’s _________________________ of capture is insufficient; he didn’t reduce it to ______________________________.

o Special problems with wild animals:

Domestic animals – The inclination to return suggests domestication.

Example 2.3: Olga takes care of a herd of deer that roam freely throughout the day but return to Olga’s property at night to eat and sleep. One day Hunter kills one of Olga’s deer. Olga brings suit against Hunter claiming that the animal was not a wild animal and supports her claim by arguing that the animals had a _______________ __________________________________. Hunter will argue that he didn’t know the deer were domesticated. If the deer had collars, Hunter shouldn’t be shooting them.

Constructive possession and trespass – the law discourages trespass; the law will

not reward a possessor’s wrongful taking of property by trespass.

Example 2.4: Oliver and Terrance are neighbors. Terrance sees a deer grazing on Oliver’s property, illegally enters Oliver’s land, shoots the deer, and brings it home. Terrance is not in possession of the deer; a court will _________________________ _________________ his trespass onto Oliver’s property. Even though Oliver was not in possession of the property, the law will deem him in ________________________ _________________ possession because we want to deter trespassers.


• Creation – A person who creates property is a first possessor.

o Most common way to create property is through copyright or patent because it gives you

protection as to the whole world.

o Body parts - Most courts have deemed that people have no rights to their body parts.

Example 2.5: Penny is being treated for a rare disease and agrees to donate cells for scientific research. Researchers use the cells to create a new cell line that has been effective in treating a number of serious diseases. The researchers patented the cell line and have made millions of dollars; Penny hasn’t seen a dime. Penny sues claiming the researchers have converted her property. Does Penny have a claim? ________________ ________________________________________________________________________________________________________________________________________________

Application Example 2.6: Frank and Isaac are neighbors and fish the river along side their property to support themselves. Frank has been steadily catching more fish than Isaac enraging Isaac. Just as fish are about to swim into Frank’s net, Isaac shoots a gun scaring the fish. Frank argues that he is in possession of the fish, what result? Critical difference from the fox example: __________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Example 2.7: Oliver acquired a rare fox, which he keeps secured on his property. One day the fox chews through the rope securing it and wonders off having no inclination to return to Oliver’s property. Two days later, Hunter, with a permit to hunt in the area, kills the fox. Oliver sues to recover the hide, who wins? Oliver’s argument will be: ______________________________________________________ ___________________________________________________________________________ Hunter will argue: I had a right to hunt there and was not violating the law; it was reasonable. What facts will resolve this? ____________________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________


CHAPTER 3: SUBSEQUENT POSSESSORS A. Possession Big Picture

• Subsequent possession occurs when a person comes into possession of property that is

already ______________________ by someone else. This includes property that is

_________________ and _______________________ by someone else.

Key Terms 1. True Owner – _________________________ owner of the property in question; person with

best title.

2. Finder – person who finds the piece of missing property. Finder’s rights depend on how the

property is ______________________________, relating to how the property was lost.

Example: Person has a watch, which he drops. It is found and used by first finder, who then loses it. A second person finds it. It is possible to have more than one finder.

3. Improver – a finder who _________________________________ to missing property.

Example: True owner drops watch, finder finds it, realizes that it fell off the true owner’s wrist because clasp was broken. To become an improver, the finder has to fix the clasp and add value to the watch.

4. Bailment – when a person _________________________ relinquishes property to someone

else.

Example: Professor Kramer picked up his coat at the dry cleaner; they are in a bailment relationship. Professor Kramer still owns the coat, the dry cleaner is just holding the coat for him to clean it.

5. Bailor – Owner who delivers property to another for a limited time; no transfer of ___________

__________________.

6. Bailee – person who _________________________ the property from the bailor.

o Note: the law of finders involves _____________________________ bailment (contrast

with the voluntary dry cleaner relationship).


Theory of Subsequent Possession • Title is relative. A person’s rights as to property are understood in relation to another’s

rights in the same piece of property.

Example 3.1: Oliver is the owner of a pocket watch. As he’s walking through a park, the watch chain breaks and the watch falls off. Frank finds the watch and is the finder. By finding lost property, Frank has acquired some _________________________ in the watch. He can exclude someone else from trying to steal it from him. Frank’s interest is weaker than Oliver’s since the true owner has the best _________________________. If Teddy wants to steal the watch, his rights are weaker than Frank’s because he has no legitimate claim to the property.

Exam Tip: Think about cases in terms of a hierarchy of property interests. Who has the best/worst title and how does it compare to other’s interests?

Mechanics • Finders Rules

o Concerned with situations in which the true owner accidentally _____________________

property and another person finds it. These are involuntary ________________________.

o Policy: The overall goal is to _________________________ the property to the _________

____________________________, because (i) the true owner has best title, and (ii) we

want to reward attachment to property and want true owner to have property.

o Important: _________________________ how the finder discovered the property

because that determines which rule controls.

Lost Property – True owner unintentionally loses or misplaces property

- Finder acquires good title, as against the whole _______________________,

except the true owner or a _________________________ possessor

Example 3.2: Oliver owns a rare leather money clip, and accidentally drops it in the park. Frank finds the clip. As the finder of lost property, Frank has ______________________________________ as against the whole world except Oliver. Example 3.3: Shortly after Frank finds the clip he accidentally drops it while shopping. Sally finds the clip and is now the finder of lost property. As a


finder, Sally has good title as against the whole world except, Oliver (true owner) and Frank (prior possessor). Sally’s interest is __________________ than Frank’s.

Mislaid Property – Also called misplaced property. Owner intentionally _________

________________ a piece of property somewhere, but _____________________

forgot it.

- Finder acquires _______________________________ in the property.

Example 3.4: Oliver is shopping at the mall for a new hat. As he is paying for the hat he lays his wallet on the counter and leaves it there. This wallet would be ________________________ property because he put it down _______________________________ but accidentally left it. The shop owner who finds the wallet has _________________________ to the property because we want property to end up in the hands of the true owner, which is more likely if finder has no rights.

Abandoned Property – When the owner intentionally relinquishes his rights to the

property and has no present desire to retake it.

- The finder acquires _________________________ title and become the

________________________________.

Example 3.5: When Artie wakes up, he finds a fairly new television on his lawn. A large television is hard to accidentally misplace, someone must have left it on Artie’s lawn and we assume it is _______________________ property. If so, Artie is now the best title owner because abandoned property is subject to the rule of _______________________.

- Special Case: Home run baseballs, once they leave the _________________

_________________________ are abandoned property and the finder (the

person who _________________________ the ball) has the best title.

Example 3.6: Slugger Johnson hits the ball out of the field. The ball lands in the stands between two fans, Jack and Diane. Whoever gets the ball first, provided neither engages in ______________________________________ _____________________________ to get to the ball, will be the rightful _________________________.


Exam Tip: “Lost” versus “mislaid” is a fine distinction and is dependant on having all of the facts. Where was the owner when she lost the property? What was she doing? How did the finder find it? What did the finder do after finding it?

Example 3.7: Una is shopping at the mall for a new suitcase where she leaves her wallet on the shop counter. As she walks out of the store, she knocks the wallet off the counter onto the floor. Francine finds the wallet on the ground. From Una’s perspective, the wallet was _____________________________. From Francine’s perspective, it is ________________ because it is lying on the ground and looks accidentally dropped.

Accession – A situation in which a subsequent possessor adds value to the property

through ____________________ or adding ____________________________ to

the property.

- The true owner ______________________ the rights to chattel including

the rights to the property in its _____________________________ value.

- Accession becomes an issue when an improver greatly increases the value

of the property to the point that it is ________________________________

changed.

The improver will have a claim if he was an _________________________________

trespasser.

If the improver stole the property and then improved it, he has _________________

__________________.

Application Example 3.8: Olga purchased a house with a large backyard and hires Fountain Landscape Co. to design a new backyard. Employee Fritz discovers a metal box buried in the ground, he hides the box in his bag so the foreman doesn’t see it, and takes it home. The box is filled with seemingly valuable stamps, which he sells. The stamps fetch a good price at auction and Olga learns of the stamps for the first time. Olga intervenes in the sale of the stamps claiming that she is the rightful owner. Who has better title as between Olga and Fritz? What will Olga and Fritz argue? _________________________________________________ ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


What is the critical fact? _______________________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Example 3.9: Same facts as 3.8 except Fritz discovers the box while trespassing on Olga’s property to hunt for buried treasure. How does this change the dispute? What is the critical fact? _______________________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________


CHAPTER 4: ADVERSE POSSESSION A. Adverse Possession Big Picture

• Adverse possession is a doctrine that makes it possible for a _________________________

possessor’s use of property to blossom into _________________________ ownership. This

is a system by which squatters can become rightful owners. This is a matter of __________

__________________________________ possession.

Key Terms 1. True Owner – Person with the ______________________ interest in the property in question.

2. Adverse Possessor – Trespasser: a person wrongfully _________________________ the land in

question. If the trespasser _________________________ the adverse possession standard, he

will become the _________________________ owner.

3. Color of Title – Adverse possession based on a _________________ ______________________,

such as a fraudulent contract or a bad deed.

Example 4.1: O is the true owner of Blackacre, though he has never visited the property. A buys the property from Z. However, Z has no interest in the property, thereby making A’s deed invalid. When A takes possession of Blackacre, A’s possession is __________________ __________________________________.

4. Statute of Limitations – time period during which a ____________________________________

must be brought. It creates a _________________________ time within which a cause of action

must be brought. Adverse possession occurs when a statute of limitation runs out and the

owner has lost the opportunity to bring an _______________________________ action.

Theory of Adverse Possession • Theory is best considered in the context of an example:

Example 4.2: O is the owner of Blackacre, a soybean farm. A trespasses onto Blackacre. At the point A trespasses onto the farm, O as the true owner has the _____________________ _______________________ A. O & A live in a jurisdiction that provides a 10-year statute of limitations for an ejectment action. Adverse possession is concerned with the situation when O, the true owner, does not take any action to eject the _____________________________


___________________________ within the statutory period. When the 10 years are up, two things happen: O is _________________________ from ejecting A. Law creates a ___________________________________ in A and A is now the true owner of the property.

• 4 Theories of adverse possession:

1. Earning Theory – Want to reward the adverse possessor for her ______________

___________ use of the property.

2. Sleeping Theory – _________________________ the true owner for not being a

better owner and for not making beneficial use.

3. Reliance – Want to encourage people to do _________________________ and

_________________________ with the person in possession of the property, so

adverse possession is recognized in order to _________________________ third

party reliance.

4. Quiet Title – Adverse possession is a _____________________________________

mechanism. When title is contested, the doctrine of adverse possession helps to

settle disputes as to who is ______________________________________ of the

property.

Mechanics • Four elements of adverse possession: (Note: Follow your professor’s preference as to the

elements).

1. Entry – Must be _________________________ entry giving ____________________

__________________ possession with respect to the true owner. The purpose is to

trigger the statute of limitations.

- Constructive adverse possession: Adverse possession under ____________

________________________ (faulty writing), the adverse possessor may

gain title to land that is not in his _________________________________.


Example 4.3: O is the true owner of Blackacre, a 100-acre farm. A purchases an invalid deed from Z. Z has no rights to Blackacre, which makes the deed no good. A moves onto the front 50 acres and farms it for the statutory period. Because A’s possession was under color of title, she has _________________________ adverse possession of the front 50 acres, and _________________________ adverse possession of the back 50 acres as described in the deed. Because the deed she received described the back 50, the law deems her in color of title and in constructive possession of the _____________________________________.

2. Open & Notorious – In order for adverse possession to occur, the _______________

__________________________must be open and notorious. The purpose is to put

the owner on _________________________ of the trespass.

- Hidden uses: The adverse possessor cannot hide or ____________________

the use. The true owner must be able to reasonably ___________________

_____________ the adverse use.

Example 4.4: O is the true owner of a summer home. A moves into the home adversely. In the hope of concealing his use of the home, A does not turn on lights, nor does he go outside during the day. Is this open and notorious? ______________ ____________________________________________________________________________________________________________________________________________________________________________________________________________

3. Hostile – Use must be under a ___________________________________, without

the owner’s __________________________________, and against the true owner’s

_______________________________.

State of mind: Most courts look to _______________________________________

of the adverse possessor.

- Good faith – the adverse possessor must ______________________ that

she owned the land. This is a factual mistake.


- Bad faith – the adverse possessor must _________________________ that

she is not the rightful owner; this requires ___________________________

trespass.

- Objective – majority rule. The adverse possessor’s mindset is ___________

____________________________. All that matters is that the claims are in

____________________.

4. Continuity – Must be continuous possession of the property for the statutory

period. The law doesn’t require _________________________ continuity; the use

must be consistent with the _________________________ of the property.

Example 4.5: A enters into adverse possession of a summer home. For ten years, A vacations at the summer home against the interest of the true owner who hasn’t been to the home in over fifteen years. Is A’s use continuous?__________________ ____________________________________________________________________________________________________________________________________________________________________________________________________________

o Tacking: An adverse possessor may ______________________ a predecessor’s time in

order to satisfy continuity. To tack time with a prior adverse possessor the present

adverse possessor must be in _________________________.

Example 4.6: A has been in adverse possession of Blackacre for four years. The statutory period is five years. B, another adverse possessor, forcibly removes A from adverse possession. How long until B can satisfy the adverse possession standard? It will more than likely take ______________________ years because ____________ __________________________________________________. B is going to argue that she should get A’s four years. A will probably say that he was ___________________ _________________________ removed, and therefore the two were not in privity. There was no deed or formal exchange.

o Disability – If the true owner is _________________________ at the time the cause of

action accrued, the statute of limitations is _________________________ (or paused).


The most common situations are when an owner is in prison, mental incapacity, or

when a person is a minor.

Example 4.7: O, the owner of Blackacre is in prison. A enters Blackacre while O is incarcerated. The statute of limitations will not start running against O until ______ __________________________________________________________________.

Application Example 4.8: O is the owner of Blackacre, a 100-acre tract of natural grassland. O hasn’t visited Blackacre in ten years because O has been in Europe. A, a neighboring cattle farmer leads his cattle to Blackacre, letting them graze and live on O’s property. When A put the cattle on the property originally he declared, “This will show you, O, you dirty lazy ex-pat.” A visits Blackacre occasionally to tend to the cattle, though he maintains his primary residence down the road. A makes no improvements to the land, yet the cattle are on Blackacre in excess of the statutory period (continuity requirement). What are the two issues? Issue 1: ____________________________________________________________________ ______________________________________________________________________________________________________________________________________________________ What will O argue? ___________________________________________________________ ___________________________________________________________________________ What will A argue? That he has entered Blackacre, but more importantly, that he has put his cattle on the property, and they have used it and the cattle represent him. Therefore the use is consistent with the grass land. Who has a better argument? ___________________________________________________ ______________________________________________________________________________________________________________________________________________________ Issue 2: State of mind or hostility requirement. When A moved on the land, he screamed, “This will show you O, you dirty, lazy ex-pat.” This suggests that A is operating under an aggressive trespass mentality. Why does this matter? ________________________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________


CHAPTER 5: GIFTS A. Gifts Big Picture

• Gifts are gratuitous transfers and are another example of _________________________

possession.

• Definition of a gift: a _________________________ transfer of property without payment

or consideration.

o If valid, a gift is ____________________________________.

o A promise to make a gift is not _________________________.

o A gift of real property must be in accordance with the _____________________________

and must be in writing.

Key Terms 1. Donor – person who makes the gift, the transferor or _________________________.

2. Donee – person who receives the gift, the recipient, grantee, or transferee.

3. Gift Inter Vivos – transfer during _________________________.

4. Gift Causa Mortis – transfer at _________________________. It is in lieu of a will, and

therefore a will _________________________. It is a deathbed gift.

Theory of Gifts • Rooted in idea that society favors the free _________________________ of personal

property because we want it to end up in the hands of people who are going to use it most

_________________________. We don’t want people to hoard goods.

B. Gift Inter Vivos (Requires intent, delivery, acceptance) 1. Intent – A donor must have _________________________ intent to make an irrevocable gift.

Donor must _________________________ a clear intent to make a gift. The donor can do this

by _________________________ it down or by making a ______________________________

that corroborates intent.


Example 5.1: Olive wants to give her antique watch to her daughter, Glenda. As she hands Glenda the watch, Olive says, “I love you and I want you to have my watch, my most prized possession.” That statement is very strong evidence of Olive’s _______________________ __________________________________________________________________________.

o Conditional gift: a situation in which as person makes a gift on the __________________

_____________________________________.

Example 5.2: Olive gives her antique watch to her daughter, Glenda. The watch keeps terrible time. When she hands Glenda the watch she says, I will give you the watch provided the horologist can fix it. Conditional intent is acceptable so long as there is no evidence of _________________________.

o Engagement rings: Who gets the engagement ring if the relationship sours? Most courts

are split. Some courts say the ring must be returned if the marriage doesn’t take place;

other courts say the wedding ring does not need to be returned.

Exam Tip: With a question involving engagement rings, argue the facts: (i) the parties’ expectations; (ii) the value of the ring; (iii) the circumstances of the falling out; and (iv) who is to blame.

2. Delivery – The donor must _________________________ the property to the donee in order to

make a valid gift.

o Theory: we want the donor to feel the “_________________________ of delivery” and

the law requires manual (actual) delivery when ______________________________.

Example 5.3: Olive wants to give her antique letter opener to her son, Garrison. The opener is small, light, and comes in a carrying case with a handle. It is entirely _______ __________________ for Olive to deliver the letter opener _______________________.

o When manual delivery is not possible, 3 types of non-actual delivery are permitted:

Constructive delivery – The donor provides something that will give the donee

________________________ over the item or will provide ____________________.

Example 5.4: Olive wants to give her Jeep to her daughter, Glenda. The Jeep is a large item. Instead of actually physically delivering the car, Olive gives Glenda a key. The key will get Glenda into the car, will start the car, and will give Glenda _________________________ over the car.


Symbolic delivery – occurs when the donor gives something that is symbolic of the

gift

Example 5.5: Olive wants to give her old Jeep to her daughter, Glenda. The Jeep is a large item. Instead of giving a key, Olive gives Glenda a photo of the Jeep and writes on the photo, “Yours! Congratulations!” The photo is ________________________ delivery and symbolizes the Jeep.

Delivery in writing – This is another type of symbolic delivery. The donor delivers

the item in writing provided that the writing ________________________________

_____________________ the item that is being gifted.

Example 5.6: Olive wants to give her old Jeep to her daughter, Glenda. The Jeep is a large item. Instead of actual delivery, Olive writes up a note saying, “I give you my old red Jeep, the one in which you learned to drive.” If Olive has more than one red Jeep, this will distinguish the two vehicles.

3. Acceptance – The donee must accept the gift. So long as the gift is for __________________ we

_________________________ acceptance. In order to rebut that presumption, there must be

some ___________________________ evidence by the recipient to _______________________

the gift.

Example 5.7: Olive hands her antique watch to her son, Garrison, saying “I want you to have my watch.” Garrison hands it back and says, “I don’t want it, give it to Glenda.” Is Garrison’s statement enough? If he doesn’t physically take it or hands it back and says he doesn’t want it that is probably_________________________________________________ ______________________________________________________________________________________________________________________________________________________

B. Gift Causa Mortis • A gift made in _________________________ of donor’s death

o Because it is made in anticipation of death, a gift causa mortis is a ___________________

_________________________ and a way to pass property at death.

o Still requires inter vivos elements of _________________________, delivery, and

______________________________.


o Gift causa mortis requires additional elements:

Imminent death: because it is a will substitute, it must be made in the face of

__________________________________________________ and the donor must

be on the brink of dying – an ____________________________________________

of death is not enough.

Example 5.8: Woody Allen is notoriously afraid of death. To be on the safe side, he gives his ex-girlfriend, Mia Farrow, all of his possessions and says, “We’re all going to die one day, Mia, take everything in case today is my day to go.” This is probably not going to be a valid gift causa mortis. If Woody wanted to give Mia his things, he should have made a will since he had plenty of time. Example 5.9: Olive is suffering from a terminal disease and doesn’t think she has much time left so she calls her kids, Glenda and Garrison, into her bedroom. Olive says, “Share my personal property.” This is a property gift causa mortis. Olive doesn’t have much time to live, she doesn’t have time to make a will, but wants to make sure her children get her property.

Death or lack of recovery: In order to be a valid gift causa mortis, the donor must

actually _________________________ or _________________________________

_____________________________________________.

Example 5.10: Same facts as example 5.9. Olive doesn’t die, but also doesn’t immediately recover from the illness, but dies a week later. This is still going to be a _________________________ gift causa mortis. Modern courts say the _________ _______________________________________________________________.

o Revocation – A gift causa mortis can be _________________________.

Example 5.11: Same facts as example 5.9. Olive makes a full recovery. Should she want to, Olive can revoke the gift to Glenda and Garrison. The rule is that you can revoke your will up until the moment you die. The gifts in the will are not executable until death, and gifts causa mortis operate the same way.

Application

Example 5.12: Olive’s most prized possession is her ruby bracelet. When visiting her daughter Glenda, Olive removes the bracelet and sets it on the bathroom cabinet while she is washing her hands. She accidentally forgets the bracelet. The following day Glenda finds


the bracelet and calls her mom. Hearing the news Olive says, “Go ahead and keep the bracelet. I’ve always wanted you to have it anyway.” Is there a valid gift? Is there intent? ______________________________________________________________. Was there delivery? This is harder because Olive didn’t hand it over to Glenda; and the bracelet can easily be hand delivered. Is there acceptance? __________________________________________________________ ___________________________________________________________________________ The real issue, then, is delivery. The problem is that the intent to make the gift developed after the bracelet was left behind and whether leaving it behind and letting someone find it is valid for delivery. What are the arguments? Invalid gift: ______________________________________________________________. Valid gift: It may be cumbersome to expect a person to bring the item back to the donor

who then has to give it back to the donee. This may be unreasonable and unnecessary.

Example 5.13: Brutus has been sick for weeks and is getting sicker by the hour. He asks his nurse, Amelia, to track down his son, Popeye. Brutus and Popeye have never been close. When Popeye arrives, Brutus says, “We’ve never seen eye to eye, son, so it should come as no surprise that I don’t want you to have any of my property. My trusted nurse, Amelia, gets everything in my house; you get nothing.” As Brutus says this, he points to all of the furniture in his room. In the nightstand there is a life insurance policy worth $1 million. Amelia claims ownership of the furniture and the insurance proceeds. Popeye challenges the validity of the gift. Did Brutus make a valid gift? Intent and acceptance don’t appear to be issues. Delivery issue 1: Is the symbolic gesture enough? Amelia will argue: _________________________________________________________

________________________________________________________________________________________________________________________________________________

Popeye will argue: ________________________________________________________ ________________________________________________________________________________________________________________________________________________

Delivery issue 2: Did Brutus intend to deliver just the furniture or what the furniture contained? Who was the beneficiary of the insurance policy? That will be critical to the analysis.


CHAPTER 6: ESTATES IN LAND

Exam Tip: Master the material by practicing it and do lots of problems. The handout contains multiple problems so you can pause the lectures and try the problems on your own first.

Big Picture • Ownership in American property law is built around a system of ______________________

_________________________________________________ interests. The system is feudal

in origin, and does not map cleanly on to the way most Americans understand property

ownership.

Key Terms

1. Title – Relates to the concept of _________________________; the person who has title has the

ownership interest. Title sometimes refers to a _________________________ that represents

ownership.

Example 6.1: Oscar buys a new SUV hybrid. Upon paying for the vehicle, he receives a paper title to the SUV. In terms of ownership, Oscar has title to the car. In addition he has a piece of paper that is the title to the car, which also signifies the ownership rights.

2. Chain of Title – A sequence of ________________________________________________ over

time to a _____________________________ piece of property. The chain of title is traced from

the _________________________ owner back to the _________________________ owner of

the property.

Example 6.2: Erin is buying Blackacre from Darren. Erin traces Blackacre’s chain of title: Darren purchased the property from Carl, Carl purchased it from Beverly, Beverly purchased it from Avery (the original owner).

3. Present Interest – Interest that gives the holder the right to _____________________________

possession – sometimes called _______________________________ estates.

Example 6.3: Orville conveys “To Artemis for life.” Artemis is a life tenant, having a life estate, and therefore has the present interest.


4. Future Interest – Interest that gives the holder the right to _________________________

possession.

Example 6.4: Orville conveys “To Artemis for life.” Orville has the future interest. It is a _________________________. Artemis gets to be on the property now and when she dies, it will kick back to Orville.

5. Vesting – A vested interest gives the holder an ____________________________ right to title,

either as a present interest or as a _________________________ interest. Present interests

______________ vested and future interests ______________ vest.

Example 6.5: Orson conveys “To Anders for life, then to Becky.” Becky’s interest is a vested _________________________ because we’ve _________________________ Becky, we know she will take it, and there is no condition precedent in order for her to take. When Anders dies, it will go to Becky.

Theory of Estates & Future Interests • Ownership in American property law is based upon a legal _________________________.

The idea is that people don’t own property; they own _________________________ in

property. Estates and future interests are alienable.

Example 6.6: Laura has an alienable estate in Blackacre. Oliver has a reversion. Laura conveys her life estate to Leslie. Oliver conveys his reversion to Olivia. Now Leslie has a life estate for the __________________________________________________, and Olivia has a _________________________. Both the present and future interests are alienable.

• Estates and future interests are all about time.

1. Duration – Estates in land are measured by how long they are capable of _________

_________________. The longer they last, the _____________________ they are.

Example 6.7: Oliver has a fee simple absolute in Blackacre. Because it is __________ _________________________, Oliver’s fee simple is capable of lasting forever. Example 6.8: Owen has a fee simple absolute in Blackacre. He conveys it to Tara for one year. Tara now has a term of years in Blackacre. Owen has a reversion. A term of years is a _________________________ estate than a fee simple absolute because it has a _________________________ duration.


2. Possession – We divide possessory rights into _______________________________

interests and _________________________ interests.

Example 6.9: Orlando conveys Blackacre “To Lawrence for life, then to Reginald.” Lawrence (not Orlando) has the _________________________ right to possession (a life estate) and Reginald has a future interest. When Lawrence dies, Reginald ____________________________________________________________.

Mechanics

• Fee Simple Absolute – “The Big Cheese.” The fee simple absolute is the ________________

estate in land because it is capable of lasting _________________________. It is

inheritable, devisable, and fully alienable. Even if you die without a will, it will pass by

___________________________________________________________________.

Example 6.10: Owen dies owning a fee simple absolute in a soybean farm, Blackacre. O died intestate (without a will) and is survived by three children, Arnold, Betty, and Candice. The children will take __________________________________________________ in Blackacre; they have concurrent ownership. Example 6.11: Olive dies owning a fee simple absolute in Whiteacre, a rural estate. O died testate (with a will) leaving everything to best friend, Hank. Hank will take the fee simple absolute in Whiteacre under Olive’s will. Example 6.12: Otis owns a fee simple absolute in Greenacre, a natural grassland. Otis sells Greenacre to Tawny. Tawny now has a fee simple absolute in Greenacre.

o Note: There is no ______________________________________________ with a fee

simple absolute.

• Defeasible Fees – a _________________________ fee simple

1. Fee Simple Determinable: Capable of lasting _________________________, but will

terminate after _____________________________ period ends.

Example 6.13: Orson conveys Blackacre, “To Freddy so long as the land is farmed.” “So long as” are words of _______________________________________________ and tell us this is a durational period. Freddy has a fee simple determinable so long as the land is farmed. This estate will last forever, so long as the land is farmed; if farming stops, the period _________________________ and the fee simple determinable ends.


2. Fee Simple Subject to Condition Subsequent: capable of lasting forever, but will

terminate on the __________________________________________________

Example 6.14: Opie conveys Whiteacre, “To Francis, but if the land is no longer farmed, then Opie and heirs can re-enter and re-take Whiteacre.” Francis has a fee simple __________________________________________________. If Francis or her heirs ever stop farming the land, Opie or his heirs can ______________________ to eject Francis. The future interest Opie and his heirs have is a _________________ _________________________ which must be elected.

3. Fee Simple Subject to Executory Limitation: Capable of lasting forever, but

terminates on violation of a condition and title will pass to a __________________

______________.

Example 6.15: Ovitz conveys Purpleacre “To Arnold and his heirs, but if Arnold stops farming the land, then to Bernard.” Bernard is a ___________________________. Arnold has a fee simple subject to executory limitation and Bernard has an _____________________________________. If Arnold stops farming the land, it will vest in Bernard.

• Future Interests – If a grantor conveys a defeasible fee, then there must be a ____________

_________________ interest, because the grantor has conveyed less than a fee simple

absolute.

o Fee simple determinable can only be followed by a ________________________________

_______________________________, which is held by the grantor.

Example 6.16: Opie conveys Whiteacre “To Francis so long as the land is farmed.” Here we presume that Opie has retained the future interest: a possibility of reverter.

o Fee simple subject to condition subsequent can only be followed by a _______________

_____________________, sometimes called a power of termination, which is held by the

grantor.

Example 6.17: Olivia conveys Greenacre “To Fergie, but if the land is not farmed, Olivia and her heirs can reenter and retake.” Olivia has retained a right of entry, but she has to


_________________________ that right and essentially ________________ Fergie if Fergie stops farming the land.

o Fee simple subject to executory limitation can only be followed by an ________________

_______________ interest which is held by a third party transferee.

Example 6.18: Olivia conveys Greenacre “To Fergie, but if Fergie stops farming the land, to Elliot.” Fergie receives a fee simple subject to an executory limitation, Elliot receives an executory interest.

Application Example 6.19: O conveys Blackacre “To A for life, then to B.” Who has the present interest? ______________________________________________ Who has the future interest? _______________________________________________ Example 6.20: O conveys Blackacre “To A and her heirs.” What interest does A have? ________________________________________________ Does O have an interest? __________________________________________________ Example 6.21: O conveys Whiteacre “To A so long as the land is used for residential purposes.” What interest does A have? ________________________________________________ Does O have an interest? __________________________________________________ Example 6.22: O conveys Whiteacre “To A and her heirs, but if land is used for other than residential purposes, O can reenter and retake.” What interest does A have? _________________________________________________ Does O have an interest? ___________________________________________________ Example 6.23: O conveys Yellowacre “To A and her heirs, but if A ever sells liquor on the premises, to B and her heirs.” What interest does A have? ________________________________________________ What interest does B have? ________________________________________________ Does O have an interest? __________________________________________________


CHAPTER 7: ESTATES IN LAND & FUTURE INTERESTS Big Picture

• Digging deeper into estates in land

Key Terms 1. Life Estate – Present estate that lasts for the _________________________ life and ends

_____________________________ at that person’s death.

Example 7.1: O conveys “To A for life.” A has a life estate that ends ___________________. Example 7.2: O conveys “To A for the period of B’s life.” A has a life estate, but it is not measured against A’s life. It is measured against _________________________. When B dies, A loses possession.

2. Reversion – Future interest held by a grantor and follows a _____________________________

or term of years

Example 7.3: O conveys “To A for life.” A has the life estate, the present interest. O has a reversion.

3. Remainder – Future interest that is created in a _________________________ and capable of

becoming possessory at the _______________________________________________ of a prior

estate. There are three types of remainders.

o Vested Remainder – created in a grantee who is an _______________________________

person who is not subject to a condition ___________________________.

Example 7.4: O conveys “To A for life, then to B.” A has a ________________________. The future interest is being held by B who is an ascertained person and there is no condition for B to take.

o Contingent Remainder – created in a grantee and is _________________________ in an

unascertained person, or is subject to a condition precedent.

Example 7.5: O conveys “To A for life, then to A’s first born child.” At the time of the conveyance, A has no children. It is a contingent remainder because there is no ________________________ taker.


Example 7.6: O conveys “To A for life, then to B if B graduates from law school.” B is in her first year of law school. This is a contingent remainder because B must satisfy a condition precedent in order to ______________________ (graduation from law school).

o Vested Remainder Subject to Open – sometimes called a class gift. It is a remainder to a

_________________________ of people and at least one member of that class has

already _____________________. The rest of the members of the class have yet to vest.

Example 7.7: O conveys “To A for life, then to A’s children who reach the age of 18.” A’s oldest child, B, is 20 years old. Therefore, B is vested as an ascertained taker who has satisfied the condition precedent. Any latter-born children, B’s siblings, have yet to reach 18, and as they do, they will partially _________________________ B’s interest.

4. Executory Interest – future interest created in a _______________________________________,

which cuts short or divests a prior _________________________ interest.

o Springing Executory Interest – interest that divests the _________________________ to

become possessory.

Example 7.8: O conveys “To A when she graduates from law school.” At the time of the conveyance, A has a springing executory interest because if and when A graduates from law school, she will divest O, the grantor. O had a fee simple ______________________ __________________________________________________.

o Shifting Executory Interest – interest that divests the ______________________________

(another third-party).

Example 7.9: O conveys “To A and her heirs, but if A ever sells liquor on the premises, to B.” B has an executory interest. If and when A sells liquor on the premises, B’s interest will divest A and cut short A’s fee simple.

Exam Tip: Be able to distinguish a remainder and an executory interest. Remainders wait to vest, and executory interests do not. A remainder is only possessory at the natural termination of the prior estate; an executory interest divests someone and follows an unnatural event.

Example 7.10: O conveys “To A and for life, then to B, if B gives A a proper funeral.” Does B have a remainder or an executory interest? _____________________________ ____________________. After A’s death, it’s not possible for B to immediately give A a proper funeral because it takes time, so if B does carry out the funeral, B will have to


divest O after the end of A’s life estate.” This gives B a ___________________________ executory interest because B is divesting the _________________________.

Application

Example 7.11: O conveys “To A for life, then to B if B reaches the age of 18.” What does A have? __________________________________________________________. What does B have? ___________________________________________________________ ___________________________________________________________________________. What does O have? __________________________________________________________. Example 7.12: O conveys “To A for life, then to B.” What does A have? __________________________________________________________. What does B have? __________________________________________________________. What does O have? _________________________________________________________. Example 7.13: O conveys “To A for life, then to B and her heirs, but if B is not admitted to the bar, then to C and her heirs.” At the time, B is a first-year law student. What does A have? __________________________________________________________. What does B have? ___________________________________________________________ ______________________________________________________________________________________________________________________________________________________. What does C have? __________________________________________________________. What does O have? __________________________________________________________. Example 7.14: O conveys “To A and her heirs, but if A never travels through Europe, to B and her heirs.” What does A have? __________________________________________________________. What does B have? __________________________________________________________. What does O have? __________________________________________________________. Example 7.15: O conveys “To A after she finishes her first year of law school.” A is in the middle of her first year of law school. What does A have? __________________________________________________________. What does O have? __________________________________________________________. Example 7.16: O conveys “To A for life, then to B for life, then to C and her heirs.” What does A have? __________________________________________________________. What does B have? __________________________________________________________ __________________________________________________________________________. What does C have? __________________________________________________________ __________________________________________________________________________. What does O have? _________________________________________________________. Example 7.17: O conveys “To A for life, then to A’s children.” A currently has one child, B. What does A have? _________________________________________________________. What does B have? _________________________________________________________. What does O have? _________________________________________________________.


Example 7.18: O conveys “To A for life, then to A’s heirs” What does A have? _________________________________________________________. What do A’s heirs have? ______________________________________________________ __________________________________________________________________________. What does O have? __________________________________________________________. Example 7.19: O conveys “To A for life, then to B if B attends A’s funeral.” What does A have? __________________________________________________________. What does B have? __________________________________________________________. What does O have? __________________________________________________________. Example 7.20: O conveys “To A and her heirs so long as the land is farmed.” What does A have? __________________________________________________________. What does O have? __________________________________________________________.


CHAPTER 8: THE RULE AGAINST PERPETUITIES Big Picture

• The Rule Against Perpetuities (“RAP”) limits an owner’s ability to tie up future interests for

more than two ______________________________. This is based on the idea that the

alienability of property is _________________________ for society.

• RAP sets a perpetuities period that is a ____________________ plus 21 years. Under RAP,

to be valid, a future interest must be certain to ________________ or _________________

within that time period.

• RAP is a form of logic and isn’t concerned with whether the interest will ________________

________________ vest.

• RAP is a gatekeeper. If an interest is invalid under RAP it is ___________________________

from the conveyance which affects the other interests.

Mechanics • 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.

1. Interest – RAP only applies to 3 kinds of ________________________________________

______________________. Executory interests, contingent remainders, and vested

remainders subject to open.

Exam Tip: If you see one of these three interests on an exam, put a star over it to remind you to do a RAP analysis with regard to that interest.

2. Must Vest, if at all – Rule wants to know if the interest will _________________________

within the perpetuities period and isn’t concerned with whether the interest actually vests.

Remember, vesting is the right to ______________________________________________.

3. Life in Being – Refers to search for the validating life who is the person who shows us

whether the interest will vest or fail within the person’s ____________________________,


at the person’s _________________________, or _________________________ after the

person’s death.

4. Creation of the Interest – Validating life must be alive when the interest is created. Look for

two creation points: (i) at the time of the ______________________________ conveyance,

the interest is created at the time of the gift; (ii) with a _________________________ (gift

by will), the interest is created at the testator’s death, which means the validating life

_________________________ be the testator.

• Analysis for RAP has 3 steps:

1. Does RAP apply?

o Is there an interest created in this conveyance that is ___________________________

__________________________?

2. Search for validating life

Exam Tip: When is the last moment in time when you will know whether this interest will vest or fail? Look for the outside point of the perpetuities period.

Example 8.1: O conveys “To A for life, then to B if B graduates from law school.” When is the last moment in time we will know if this interest vests? Earliest we will know is in a couple of years, the last moment in time is _____________________________________. B can be the measuring life; B was alive at the creation and B will validate the interest. Example 8.2: O conveys “To A and her heirs, but if liquor is ever sold on the premises, then to B and her heirs.” When is the last moment in time we will ever know if liquor is sold on the premises? We can’t use A to measure because A could die the next day, and because A has the fee simple subject to executory limitation, A’s heirs are subject to the _______________ __________________________. We can’t use B or B’s heirs either. We don’t know. It can go on _____________________ and there’s no _________________________________ life, so this ____________________________ RAP. Example 8.3: O conveys “To A for life, then to A’s first child who reaches the age of 21.” A’s only child, B, is 15. When is the last moment in time we will know whether this interest vests or fails? The first moment in time is when B reaches 21 in 6 years. B could die tomorrow and A could have more children. So the last moment in time is ___________________________ _______________________. A is the validating life.

3. Assess the interest for changes.


o If an interest is valid, we do ___________________________ because RAP is satisfied.

o If the interest is invalid, we _________________________________________ as if it was

never valid at all.

Example 8.4: O conveys “To A and her heirs, but if liquor is ever sold on the premises, then to B and her heirs.” See Example 8.2: we know there is no validating life. This violates RAP, so we have to cross out everything that modifies the future interest. “To A and her heirs, but if liquor is ever sold on the premises, then to B and her heirs.” The new conveyance is “To A and her heirs.” A has a _____________________________ _______________________________________________________________________.

Analysis

Example 8.5: O conveys “To A for life, then to A’s first child who reaches the age of 21.” What does A have? __________________________________________________________. What does child have? _______________________________________________________. What does O have? __________________________________________________________. Step 1: Is there an interest subject to RAP? _______________________________________. Step 2: Is there a validating life? When is the last moment in time we will know if A has a child who reaches the age of 21? _______________________________________________. Step 3: Assess: ______________________________________________________________. New conveyance? ____________________________________________________________ ___________________________________________________________________________. Example 8.6: O conveys “To A for life, then to A’s first child to reach 25.” What does A have? __________________________________________________________. What does child have? ________________________________________________________. What does O have? __________________________________________________________. Step 1: Is there an interest subject to RAP? ________________________________________. Step 2: Is there a validating life? When is the last moment in time we will know if A has a child who reaches the age of 25? _______________________________________________. Step 3: Assess: ______________________________________________________________. New conveyance? ___________________________________________________________. Example 8.7: T devises “To my grandchildren who reach the age of 21.” T dies leaving two children, A and B, and three grandchildren under the age of 21. What do grandchildren have? __________________________________________________. What does T’s estate have? ____________________________________________________. Step 1: Is there an interest subject to RAP? ________________________________________. Step 2: Is there a validating life? When is the last moment in time we will know whether this interest vests for fails? ________________________________________________________ ___________________________________________________________________________. Step 3: Assess: ______________________________________________________________. New conveyance? ___________________________________________________________.


Example 8.8: O conveys “To my grandchildren who reach the age of 21.” O has two children, A and B, and three grandchildren under the age of 21. How is this different from 8.7? __________________________________________________ ___________________________________________________________________________. What do grandchildren have? __________________________________________________. What does O have? __________________________________________________________. Step 1: Is there an interest subject to RAP? ________________________________________. Step 2: Is there a validating life? When is the last moment in time we will know whether this interest vests or fails? _________________________________________________________ ___________________________________________________________________________. Step 3: Assess: ______________________________________________________________. New conveyance? ___________________________________________________________. Example 8.9: O conveys “To A and her heirs, but if liquor is ever sold on the premises, to B and her heirs.” What does A have? [Hint: see Example 6.23] ______________________________________. What does B have? __________________________________________________________. What does O have? __________________________________________________________. Step 1: Is there an interest subject to RAP? ________________________________________. Step 2: Is there a validating life? When is the last moment in time we will know whether this interest vests or fails? ________________________________________________________. New conveyance? ___________________________________________________________. Example 8.10: O conveys “To A for life, then to B if she reaches the age of 26.” What does A have? __________________________________________________________. What does B have? __________________________________________________________. What does O have? __________________________________________________________. Step 1: Is there an interest subject to RAP? _______________________________________. Step 2: Is there a validating life? When is the last moment in time we will know whether this interest vests or fails? ________________________________________________________ __________________________________________________________________________. New conveyance? ___________________________________________________________.


CHAPTER 9: ESTATES IN LAND—CONCURRENT INTERESTS Big Picture

• Concurrent ownership exists when two or more people own the ______________________

property at the same time.

Key Terms

1. Co-Tenants – people who have _______________________________ interests. Being a tenant

does not make this a landlord-tenant situation.

Example 9.1: Jack and Diane have equal interests in Whiteacre, a soybean farm. Because they have concurrent interests, Jack and Diane are ______________________________ on Whiteacre.

2. Right of Survivorship – power of succession following the death of a _______________________

______________________________. It only exists in two of the three concurrent estates (joint

tenancy and tenancy by the entirety).

Example 9.2: A and B have joint tenancy, a type of concurrent estate with a right of survivorship. On A’s death, B ____________________________________________ outright under the right of survivorship.

3. Probate – judicial process for _____________________________________ a decedent’s estate.

The probate process applies to both testate (with a will) and ____________________________

(without a will) succession.

Example 9.3: Tony died testate leaving all of his property to his children, Mitch and Mabel. Before the children take an interest, Tony’s estate must go through the probate process: settle debts, pay taxes, itemize and account property, and distribute to children.

o Joint tenancy and tenancy by the entirety are probate-_____________________________

mechanisms.

4. Ouster – when one co-tenant _________________________ another co-tenant _____________

_________________________ to the concurrently held property.


Example 9.4: Mitch and Mabel own a home as co-tenants. Mitch changes the locks and removes Mabel’s things. This amounts to _________________________ because Mabel has a right to be there and wants to be there and Mitch is denying her that.

5. Partition – equitable action whereby a court will divide up a concurrent estate

Example 9.5: Mitch and Mabel own Blackacre as co-tenants. They are unable to share the land peacefully so Mabel brings a ______________________________________ to have the court physically divide the property into _________________________________ shares. Mitch will be entitled to one share and Mabel will be entitled to the other.

Theory of Concurrent Ownership

• Involves a situation when ________________________________ people have an interest at

the same time (concurrent not consecutive). The law of concurrent ownership is built

around a legal fiction in which two people can occupy the same ______________________

at the same _________________________.

Example 9.6: Jack and Diane are co-tenants on Blackacre, an undeveloped lot. As co-tenants, Jack and Diane have an equal right to occupy the whole of Blackacre.

• Think of the law in this area as a ________________________________________________

regime between co-tenants because the law is trying to resolve issues that may arise.

Mechanics • There are three concurrent estates: tenancy in common, joint tenancy, and tenancy by the

entirety.

o Tenancy in Common

1. Interest: Each co-tenant has a ___________________________ but _______________

_________________________ interest in the property. The interests are not ________

_________________________ divided.

Example 9.7: Jack and Diane own Whiteacre as tenants in common. Their interests are separate but there is no physical separation.

2. Possession:

Example 9.8: Even though Jack and Diane each have a one half interest in Whiteacre, each is allowed to occupy the whole of the property. Neither can oust the other.


3. Survivorship: There is no _________________________________________________ in

a tenancy in common.

Example 9.9: Jack dies leaving all of his property to his son, Jason. On Jack’s death, Diane does not assume Jack’s interest as she would under a right of survivorship. Jason will take Jack’s interest under the will. As a result, Jason and Diane will be ___________ _________________________________________________. Default rule: Presume any conveyance to more than one person creates a ________

____________________________________________________________________.

Example 9.10: O conveys “To Jack and Diane.” Under the modern presumption, this is a tenancy in common. Example 9.11: O conveys “To Jack and Diane, then the survivor takes it all.” Use of word ______________________________ suggests the grantor was thinking about a right of survivorship and possibly wanted a joint tenancy, but it is not clear. It might be enough to _________________________ the presumption. Example 9.12: O conveys “To Jack and Diane, as joint tenants with a right of survivorship.” This is the best language because it says both ___________________ tenants and has language of ___________________________________________.

o Joint Tenancy

1. Interests: Joint tenants have ____________________________ but undivided interests.

2. Survivorship: The _____________________ feature of a joint tenancy is that it comes

with a right of survivorship.

Example: Jack and Diane own Greenacre as joint tenants. On Jack’s death, Diane owns Greenacre in ___________________________________________________________. A joint tenancy is not part of a decedent’s _________________________ estate.

3. Four Unities of a Joint Tenancy: these are required for creation. (“PITT”)

Possession – At creation, each joint tenant must have the right to_______________

_______________________the whole of the property.


Interest – At creation, each joint tenant must have the same ___________________

____________________as measured by _____________________________.

Example 9.13: O conveys Blackacre “To A and B, with A to have a fee simple absolute, and B to have a life estate.” A and B do not have a ___________________ _________________________. B has a lesser estate than A.

Time – At creation, the joint tenants have to receive their respective interests at the

___________________________________.

Title – The joint tenants must receive their interests from the same ____________

___________________.

Example 9.14: O wants A & B to have a joint tenancy in Blackacre. He conveys a half interest to A by deed (inter vivos transfer) and devises the other half by will to B. Because the transfers involve _________________________ instruments, A and B do not have a joint tenancy; at best they have a tenancy in ____________________. They also don’t have unity of ______________________ because the instruments are executed separately.

4. Severance: If any of the four unities are destroyed, the joint tenancy will be __________

_____________________. If you lose any of the unities, the tenancy is destroyed and

becomes a tenancy in common (the default).

Example 9.15: A & B own Blackacre as joint tenants. B conveys her interest to C. This severs the joint tenancy, making A and C [not B] tenants in common. The conveyance to C severs ________________ and ______________________ because C takes at a different time and by separate instrument. Mortgages – Does a mortgage sever a joint tenancy?

- Lien theory: mortgage is a __________________ on property and doesn’t

sever.

- Title theory: mortgage will sever the joint tenancy under the theory that the

mortgage is an _________________________ in land.


Leases – If a lease tenant leases his interest in the joint tenancy:

- Severance approach: lease ____________________________ the unity of

interest because the lessee has a different interest, as well as the time

unity.

- No severance: courts conclude that the lease temporarily _______________

__________________ the joint tenancy.

o Tenancy by the Entirety

This is joint tenancy with an extra (fifth) unity: marriage. Only _________________

_________________________ can enter into tenancy by the entirety.

Example 9.16: A and B are to be married next month. They buy a house and the deed reads, “A and B as tenancy by the entirety.” Is this a valid tenancy by the entirety? ____________________________________________________________ ___________________________________________________________________.

• Partition

o A remedy available in tenancy in common or a ___________________________________.

If a co-tenant seeks to partition the concurrent relationship, the court will _____________

_________________ the property according to the separate interests.

Partition in Kind: ____________________________ division of the property into

separate tracts of land.

Partition by Sale: _________________________ division whereby the court sells the

property and divides the _________________________ according to the co-tenant’s

respective interests.

Application

Example 9.17: A and B own Blackacre as joint tenants. Although happily married, A and B have different ideas about what to do with Blackacre. A wants to use the land as a bird sanctuary, whereas B wants to open a carnival on the property. B enters into a lease with Rick’s Circus-O-Rama while A is out of town. When A returns, Circus-O-Rama is already in


possession of half of the property. A demands that the circus leave immediately. The circus refuses to leave citing the lease with B [not A]. Does A have a claim against B? Does the lease sever the joint tenancy? ___________________________________________ ______________________________________________________________________________________________________________________________________________________ Has A been ousted because A has a right to the whole? ______________________________ _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


CHAPTER 10: LANDLORD AND TENANT Big Picture

• Landlord-Tenant law is as much about _________________________ law as ___________

____________________ law. A leasehold creates both property and contract interests. A

lease creates contractual rights and ______________________________ as well as property

based __________________ and obligations. A lease is both a _______________________

and a contract.

Key Terms

1. Lease – contract that __________________________ the landlord tenant relationship.

2. Tenancy – Non-freehold estate. Distinguish from freehold estate.

Editor’s Note: Both are possessory interests, but freeholds are for an indeterminate duration whereas non-freehold estates (leaseholds) are for specific periods.

3. Holdover – A tenant who stays in possession after her _________________________ has ended.

Example 10.1: Tammy is renting an apartment from Larry. Tammy’s lease is set to end at the end of March. Larry visits the apartment on April 1, and finds Tammy still living on the premises. Tammy is now a holdover tenant.

4. Habitability – A health and _________________________ standard. There is a warranty of

habitability in ____________________________ leases.

Theory of Landlord Tenant

• Landlord-tenant law is undergoing changes: (i) giving tenants greater rights and protection;

and (ii) rise of contract law and leases are becoming more important in terms of providing

_________________________ and outlining _________________________.


Mechanics

• The relationship between landlord-tenant can create four tenancies:

1. Term of years/Tenancy for years – Estate that lasts for a __________________ period of

time. ________________________________ automatically occurs at the end of that period.

Example 10.2: L and T enter into a term of years for a period of 6 months. At the end of the six months, the lease ends automatically.

o Note: Even though it is called a term of years/tenancy for years it doesn’t have to be for a

year or years; it could be a term for a week. If it is one solid term and not _____________

_____________________, it is a term of years.

2. Periodic tenancy – Tenancy for a period of time that ________________________________

continues for succeeding periods until one of the parties decides to ___________________

________________________.

Example 10.3: L and T enter into a month-to-month lease. It is a periodic tenancy that will last for succeeding monthly periods until one of the parties wishes to terminate.

o Note: _________________________ the landlord or tenant may terminate.

o Special issue: the notice to terminate must be given before the intended _____________

________ period.

Example 10.4: L and T are in a month-to-month leasehold. T intends to move out at the end of March. T must _________________________ L of this intent before March begins because March is the intended last period. If T waits until March 1, the lease may _________________________ through April.

3. Tenancy at will – A leasehold that may be terminated at _____________________________

by either the landlord or tenant. Notice is ____________________ required. However, if

the landlord does ask the tenant to leave, the tenant is given a ________________________

amount of time to leave.

4. Tenancy at sufferance – Treated as a leasehold and exists when tenant is _______________

________________________ over. It is what we call the situation when the tenant is in


possession _________________________ the period has ended, but before a __________

_____________________________________ has begun.

Exam Tip: A tenancy at will involves an agreement between the landlord and tenant. Contrast with tenancy at sufferance is only concerned with the actions of the tenant, in which the tenant has held over without an agreement.

• If a tenant holds over the landlord has three options:

1. Evict: if the landlord wants to he can kick tenant out using ____________________

__________________________ proceedings.

2. Do nothing: passive landlord can just wait; often this happens if tenant is holdover

due to an ___________________________________ mistake.

3. Re-let: landlord takes the holdover as indication that the tenant wants to stay on as

a tenant and the landlord will ___________________________________________

to the holdover tenant. This will be based on the terms of the prior lease. If the

landlord decides to re-let, it will be for the same ________________ period. Rent is

likely to be the same, but landlord cannot impose ____________________________

conditions into the new lease.

• Transfers – Rules governing a tenant’s ability to __________________________ a leasehold.

o Restrictions in lease on transfer: Absent any language to the contrary, a lease can be

______________________ transferred. So if the lease is ________________________ as

to whether the tenant can transfer, we assume that the tenant can.

Note: if the lease states that the tenant needs ______________________________

of the landlord to transfer, but the lease does not state a standard for exercising

that permission:

- Majority: Landlord may only withhold permission for a _________________

______________________________________________ ground.


- Minority: Landlord has full ______________________________ to make

this decision.

o Two kinds of transfers: assignments and subleases.

1. Assignments – A _________________________ transfer of the tenant’s remaining term.

2. Sublease – A transfer for _________________________ than the entire duration.

Exam Tip: Think of difference between assignment and sublease as an “all, or less than all” standard.

Example 10.5: L rents to T for a year. With 6 months left on the lease, T wishes to leave to join the circus. With L’s permission, T transfers the rest of her leasehold to D. Is this a sublease or an assignment? ____________________________________________________ ___________________________________________________________________________

• Special Issue: Rights and Responsibilities

o When a transfer has occurred, but no one pays the rent and the landlord wants to

recover:

A lease creates both a contract interest and a property interest. In landlord-tenant

law, the contract is ___________________________________________; property

interest is called privity of _________________________. If the landlord is in either

privity of contract or privity of estate, the landlord can collect __________________

for a breach and rent.

- Assignment – L rents to T (original tenant), who assigns her interest to T1

(assignee tenant).

• L and T are still in privity of _________________________, so L can recover from T.

• L and T are not in privity of _________________________, because T assigned interest and is no longer in possession.

• L and T1 are not in privity of _________________________. • L and T1 are in privity of _________________________. • Result: L can collect rent from either T or T1.


- Sublease – L rents to T (original tenant), subleases to T1 (sublessee).

• L and T are in privity of _________________________ because the contract between them is still good.

• L and T are in privity of _________________________ because the tenant has the reversion as to the subtenant.

• L and T1 are neither in privity of contract, nor privity of estate. • Result: L can only collect rent from ________, and T can collect from T1

because they are in __________________________________________ _______________________________.

• Conditions of Lease Premises:

o Warranty of Habitability – Implied warranty of habitability in every ___________________

____________lease.

The warranty requires the landlord to maintain premises that are _______________

__________________________________________________ for residential use.

Example 10.6: T is renting an apartment from L. There is no hot water, the toilet is broken, the clasp on the kitchen window is broken and swings open, and the security door in the main entrance does not close so anyone can enter the building. This is a case of _____________________ of warranty of habitability. The L does have a reasonable amount of time to _______________ these problems, but this is probably a breach.

Remedies:

1. Tenant can ________________________ to pay any rent until the defects are fixed.

2. Tenant can wait to be _______________________ and then can defend against that

eviction by citing the _____________________________ of the implied warranty of

habitability.

3. Tenant can _______________ the defects and then __________________________

cost from the rent.

o Covenant of Quiet Enjoyment – All ________________________________ and residential

leases contain an _________________________ covenant of quiet enjoyment.


The covenant is breached when the landlord _____________________________ the

tenant’s possession.

Courts are interpreting this broadly to cover situations in which the landlord fails to

maintain safe and healthy premises.

Remedy is _______________________________ eviction. Argument is that the bad

conditions amount to an eviction and it’s as if the landlord has effectively evicted.

- The tenant has the option to _____________________________________.

- To take advantage of this remedy the tenant must stop _________________

_________________________ first, and then give the landlord a reasonable

amount of time to ____________________________________________.

Application Example 10.7: L and T enter into a lease agreement for the period of T’s enjoyment. T moves in only to find substantial problems on the premises. The drywall has cracks in bathroom, there is a short in the electrical system which make the lights flicker, the bar across the street makes considerable noise, the apartment is a dead zone for T’s cell phone service, and the faucet in the bathroom leaks intermittently which T says is an unnecessary waste of water. T complains about the problems demanding that L fix them immediately. L responds by threatening to evict T saying, “I can kick you out if I want to, I will make those fixes if and when I find the time.” Has L breached, and can L evict T? 1. What kind of tenancy is it? Lease agreement says “for the period of T’s enjoyment.” It says period and sounds like a term of years, but T’s enjoyment isn’t a fixed term. It isn’t a periodic tenancy because it’s not an automatically succession of periods. Most likely a tenancy at will and T has the option to terminate at T’s will. 2. Has any warranty been breached? Habitability? ________________________________________________________________ ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Quiet Enjoyment? ____________________________________________________________ _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


CHAPTER 11: LAND USE RESTRICTIONS—EASEMENTS Big Picture

• These are land use issues, and the primary concern is how a landowner’s rights are

restricted as to how the landowner can use the land.

Key Terms

1. Servitude – _________________________ land use agreement; between two private parties.

An easement is a type of servitude.

2. Easement – A _______________________________________________ right to use the land.

Example 11.1: A and B are neighbors. A gave B the right to cross her land to access the highway. B’s right is an _________________________; a non-possessory right to use.

3. Dominant Estate – Estate benefited by the easement.

Example 11.2: A and B are neighbors. A gave B the right to cross the land to access the highway. B has the dominant estate because it _________________________ B’s use of the land.

4. Servient Estate – Estate burdened by the easement.

Example 11.3: A and B are neighbors. A gave B the right to cross the land to access the highway. A’s estate is the servient estate, because it is _____________________________ by the easement.

5. Easement Appurtenant – benefits the holder in use of the dominant estate.

Editor’s Note: Specifically, an easement appurtenant is one in which the benefits are tied to the land and must correspond directly to the use and enjoyment of the possessor of the dominant estate.

Example 11.4: A and B are neighbors. A gave B the right to cross the land to access the highway. B’s easement is an easement appurtenant.

6. Easement in Gross – benefits the holder __________________________________ and is not in

connection to the use of an estate; it is connected to the holder personally.

Example 11.5: American Railroad has the right to cross X’s land. The railroad has an ______________________________________________. Not benefitting the railroad in the railroad’s use of a particular estate (belonging to the railroad), it’s benefiting the railroad personally.


7. Profit – right to access another’s property to extract ________________________________.

Example 11.6: B has the right to enter A’s land and take water from the pond on A’s property.

o Note that this is limited to entering the property to take the resource.

8. License – _______________________________ right to enter someone’s land. Distinguish from

___________________________ that is not revocable until the easement terminates.

Example: A plumber who enters the house to fix the broken toilet. The plumber has a license.

9. Negative Easement – (largely absorbed by covenant law) authorizes the holder to ___________

_____________________ someone from doing something on her land and stops the landowner

from using the land the way she chooses.

Example 11.7: A has a right to prevent B from growing bamboo on her land because the bamboo cuts off A’s access to light. That is a negative easement. In this situation, A can prevent B from growing bamboo on B’s land.

Theory of Easements

• Distinguish easements from ____________________________________ because both are

promises regarding private land use and both are servitudes.

Mechanics

• Was an easement _________________________?

• What is the _________________________ of the easement?

• Was the easement _____________________________?

• Creation – there are _________________________ ways to create an easement:

o Express easement – Created by express grant, and because this is a ________________

_________________ interest it must be in ___________________________ to conform to

the Statute of Frauds.


Example 11.8: A wants B to be able to cross her land to reach the town square. She executes a written signed agreement stating “I give B the right to cross my land so she can reach the town square.” Express grant of property interest, in writing, and signed.

o Easement by Estoppel – created when the grantor of a license is _____________________

from revoking it. Licenses are by nature revocable, and here the licensee’s use of the

property creates a _______________________________ and the owner is estopped from

revoking the license.

Exam Tip: Look for detrimental reliance. Often times this includes money spent to improve the license.

Example 11.9: A has a license to access a road on B’s land to access to A’s house. A spends considerable money to improve the road and also excludes a trespasser. B tried to revoke license by demanding that A pay for it; at this point, A’s license becomes ___________________________________ and B is estopped from revoking.

o Easement by Implication by Prior Use – The land was united by a common owner and the

owner was using one part of the land for the benefit of the other. The land is later split

and the question is whether the land continues to be used in this way even though it is no

longer unified. Use must be ___________________________, ______________________,

and ___________________________.

Example 11.10: A owns neighboring tracts, Tract 1 and Tract 2. A lives on Tract 2, and crosses Tract 1 to reach the road. A sells Tract 1 to B. A continues using the path on Tract 1 to reach the road. If this use continues for some time, an __________________ ________________ may be implied.

o Easement Implied by Necessity – created when a united tract is _____________________

so as to deprive access to a road or access point. This must be strictly ________________

_________________________.


Example 11.11: A owns neighboring tracts: Tract 1 and Tract 2. A sells Tract 2 to B. By severing the tracts, Tract 2 has become landlocked, and the only way to get to any road is by crossing Tract 1. An easement by necessity has been created. The _____________ _____________________________ must cause the necessity. If the necessity develops _________________________ the severance, there is no easement by necessity.

o Easement Implied by Prescription – This is an easement by _________________________

_____________________________. This must be continuous, actual, open, and hostile

for the __________________________________ period.

• Scope of Easements

o Scope of easement is determined by its __________________________, based on the

parties’ intent.

Example 11.12: A grants B an express easement to access her home, which is on a neighboring tract. B decides to subdivide her lot and build a large apartment complex with over fifty units. This is a great _________________________ on the easement and this is a _____________________________________ different use. It is likely that this is beyond what the parties contemplated. Example 11.13: Instead of an apartment complex, B divides the lot into two single-family homes. If a reasonableness test is applied this likely this is reasonable.

o Special situation of necessity: with an easement by necessity, the scope is determined by

the extent of the necessity. Court will consider whether the change in use was reasonably

________________________________.

• Termination – There are five possible ways:

1. Express Release – Holder executes a formal release in _________________________.

The release is recorded.

2. Expiration – Easement can _________________________________ expire at its stated

termination point.

Example 11.14: A gives B an easement to cross her property for 5 years. When does the easement end? __________________________________________________________.


If B stays in use of the easement past 5 years, then this is possibly a _________________ ______________________easement.

3. Merger – Easement ends if both the dominant and servient land come under the ______

_____________________________________.

Example 11.15: A gives B an easement to cross her land to access the highway. Later, B purchases A’s land and now owns both the dominant and servient estate. The estates merge into one, and the easement is _____________________________________.

4. Abandonment (Estoppel) – Easement is terminated if holder does some act to ________

__________________________ the easement and servient tenant _________________

on the abandonment.

Example 11.16: A gives B an easement to cross her land to access the highway. Later, B comes to A and says that she found another way to get to the road and won’t be using the path anymore. In reliance on statement, A paves over path and builds a basketball court. Has the easement terminated? _________________________________________ ________________________________________________________________________________________________________________________________________________

5. Prescription – Terminating the easement by an _________________________________.

Example 11.17: A gives B an easement to cross her land to access the highway. A decides she doesn’t want B on her land anymore and erects a fence blocking access. If B does not tear down the fence or finds a way around the fence to continue using the easement, she can _________________________ the easement by adverse possession.

Application Example 11.18: Tracts 1 and 2 are adjacent lots. At one time, Dash Phone Company owned both lots. Dash built a warehouse on lot 1, and used lot 2 as a loading dock to access the building on lot 1. After business declined, Dash severed the lots and sold lot 1 with the building on it to Boyd, who used the building to operate an antique furniture business. Dash still owned lot 2. At the time Dash gave Boyd the access code so he could use the gate on lot 2 to access the back of the building on lot 1. Boyd used the driveway on lot 2 to receive large deliveries. After some criminal activity in the area, however, Dash secured lot two by building a security fence between lot 1 and lot 2. Can Boyd get an order to remove the security fence?


Issue 1: Is there an easement? Express Easement? _______________________________________________________. Easement by Estoppel? Boyd could argue he had been given a license to use (key and code), he had been using it, and he now has detrimentally relied on that. Easement by Prior Use? _______________________________________________________ ______________________________________________________________________________________________________________________________________________________ Easement by Necessity? _______________________________________________________ ______________________________________________________________________________________________________________________________________________________ Easement by Prescription? _____________________________________________________ ___________________________________________________________________________ Issue 2: Assuming there was an easement, has it been terminated? ____________________ _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Issue 3: Has the scope of the easement been overburdened? Probably not, because Boyd has been using it in the same way Dash was using it.


CHAPTER 12: REAL COVENANTS AND EQUITABLE SERVITUDES Big Picture

• Primary concern is whether the _________________________ runs with the land.

Covenants are enforceable and run with the land at _________________________ as real

covenants or by _________________________ as equitable covenants.

Example 12.1: Neighbors A and B enter into agreement that they will plant only red flowers in their garden. B decides, instead, to plant white flowers. Assume that the agreement is a valid contract. Can A sue B for the breach of contract? ______________________________ __________________________________________________________________________. Example 12.2: Continuing example 12.1: If B transfers her interest to C, who plants white flowers. Can A sue C under the contract? ________________________________________ ______________________________. The promises in that contract aren’t going to run to C. In order to hold C to the promise, the burden of the covenant must run with the land either as a real covenant or equitable servitude holding successors to promises of predecessors.

Key Terms

1. Covenant – Promise regarding ________________________________ between private parties.

2. Real Covenant – Promise regarding land use that ______________________________________

_______________ and is enforceable at _________________________.

3. Equitable Servitude – Promise concerning the use of land that runs with the land and is

enforceable in _________________________.

4. Run with the Land – Holds successor in interest to the ____________________________ parties’

promise.

5. Benefits and Burdens

Example 12.3: Neighbors A and B decide to mutually restrict their lots to single-family residential use and sign a contract. Later, B sells her lot to C and C builds an apartment complex on the lot. A sues C to stop her from changing the use. If A sues C, is the benefit or burden running with the land? __________________________________________________ ___________________________________________________________________________ Example 12.4: Continuing example 12.3. A wants to build the apartment complex, and B has sold to C; A is violating the single-family residential land use agreement. If C sues A, is the benefit or burden running with the land? _________________________________________ __________________________________________________________________________


Example 12.5: Continuing example 12.3. A has conveyed to D, and B conveyed to C. C wants to build an apartment complex. D, a successor, sues C, the other successor, to stop him. Are we running the benefit, or burden, or both? _______________________________________ __________________________________________________________________________

6. Horizontal Privity – _________________________________________ relationship between the

________________________________ contracting parties to a promise. Successive means the

grantor-grantee relationship with regard to transfer.

Example 12.6: A conveys neighboring tract to B. In the deed, A and B agree to paint houses white. A and B are in __________________________________________________. Example 12.7: A and B are neighbors and they mutually agree to paint their houses white. There is no horizontal privity, because there is no __________________________________ nature or _________________________ between A and B.

7. Vertical Privity – Successive relationship between an _________________________ party to the

contract and her successor.

Example 12.8: A and B enter into mutual agreement that will update the mud on their adobe homes every five years. A later sells her property to C. A and C are in vertical privity with one another; A is an _________________________ party to the promise with B, and A has sold to C, so there is vertical privity. Example 12.9: Same facts as example 12.8. If C didn’t buy the home from A, but acquired title to property by adverse possession, are A and C in vertical privity? __________________ ___________________________________________. Title is created in adverse possessor by ________________________________________________ rather than by transfer.

Theory of Covenants and Equitable Servitudes • Differences rooted in history: The rules developed over time in response to new problems.

Keep in mind the relationship between the two; equitable servitudes developed because

real covenants are rigid, and were created to lessen the harsh _______________________

of the rules governing real covenants.

Mechanics

• Run with the Land

o Real covenants: Requires writing, intent, touch and concern, privity, and notice.


Writing – Original promise must be in _________________________ in satisfaction

with the Statute of _________________________.

Intent – Parties must _________________________ for benefit and burden to run

with the land.

Exam Tip: Look for implied intent from circumstances or express intent from the language. Ideal language would be “this covenant runs from heirs to assignees.”

Touch and Concern – Promise has to _________________________ both parties to

the agreement, both the burdened and benefitted parties.

Example 12.10: A and B enter into an agreement that A will not paint her house lime green. This touches and concerns ________ interest because it restricts what she can do with her property. Does it touch and concern B’s interest? _______________ ____________________________________________________________________

- Special problem: association/maintenance fees in condos or planned

communities: courts have concluded that these fees __________________

______________________________________ the land.

Notice – This matters if running a _________________________. If running a

burden to a successor, the successor must be on _________________________ of

the promise.

Example 12.11: A and B enter into an agreement that neither will paint their house black. The agreement is recorded. B sells to C, and C does a title search and discovers the recorded agreement. We presume that if the agreement is recorded, the person is on notice. Promise is in record and C is on notice.

Privity

- Horizontal Privity – To run the _______________________, the original

parties must have been in a successive relationship. If you want to run a

____________________________, horizontal privity doesn’t matter.


- Vertical Privity: In order to run the _________________________, the

parties must be in _________________________ vertical privity. The

successor must succeed to the exact same estate that the predecessor had.

Example 12.12: A and B agree to paint their fences white. A sells her fee simple absolute to C. C wants to paint her fence yellow in violation of the agreement. A and C are in ______________________________________ ______________________, because C succeeded to A’s fee simple absolute.

- If running the benefit, the parties can be in ___________________________

vertical privity either involving the same or lesser estate ________________

out of predecessor’s estate.

Example 12.13: A and B agree to paint their fences white. A conveys a life estate to C. B wants to paint her fence purple. A and C are in relaxed vertical privity. The _____________________________ would run.

• Equitable Servitude – Requires intent, notice of the burden, and touch and concern (no

_________________________ requirement).

o Termination: same methods for terminating _______________________________ apply

to terminating a covenant.

Changed Circumstances – A promise or covenant terminates when it no longer

makes sense to enforce it due to _________________________________ changes

to the surrounding area _____________________ the covenant was created.

Example 12.14: A and B enter into agreement that they would maintain their lots as residential use. At the time, their subdivision was exclusively residential. Over ten years, businesses have sprung up in the area. A wants to open a business and B opposes it citing the covenant. What is A’s argument as to the termination? ____________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


Application Example 12.15: A and B are neighbors of adjoining properties and both hate dogs. They mutually agree to never have a dog on their premises. They record a contract that says: “A and B and their heirs and assignees forever agree that no dog shall live on their respective properties.” A keeps the agreement under the bed for safekeeping. B dies and B’s estate leases property to C, B’s son, who moves into the house. C has five dogs. Can A enforce the covenant against C? Privity? _____________________________________________________________________ ___________________________________________________________________________ Burden or benefit? ___________________________________________________________ ______________________________________________________________________________________________________________________________________________________ Real covenant or equitable servitude? Intent: _____________________________________________________________________ ___________________________________________________________________________Notice: _____________________________________________________________________ ______________________________________________________________________________________________________________________________________________________Touch and Concern: ___________________________________________________________ ___________________________________________________________________________

[END OF HANDOUT]


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