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1. Property Outline a. What is property? 1. Property is the rights among people concerning things b. Theories of Property 1.

Legal Positivism 1. Property exists only to the right of the government allows/recognizes them 2. Society/government prescribes rules by which property may be acquired or preserved 2. Natural Law Theory 1. The idea that certain rights naturally exist as a matter of fundamental justice regardless of government action has little impact on modern property law c. Different types of Property 1. Real Property House, land 2. Personal Property clothes, items of ownership (your shit) 3. Intangible ideas, intellect

d. 5 Theories
1. First Possession first come, first serve 1. How property rights began, has less relevance today because everyone pretty much owns everything 2. Utilitarian/Happiness 1. Jeremy Bentham we recognize property in order to maximize overall happiness of society 2. Property exists to ensure that owners use resources in an efficient manner in a manner which maximizes economic value defined as a persons willingness to pay a. Happiness = Money = use of property efficiently 3. C owns nut tree not solely in order to benefit C, but because recognizing Cs title will promote the welfare of all members of society a. Cs ownership is protected, C is able to use the nut tree in a manner that best serves the common good 3. Democracy 1. Relationship between property and democracy is that a right to own private property has an important and salutary effect on the citizens relationship with the state on their understanding of that relationship 2. Under democratic approach Ds ownership of nut tree and the surrounding land because this provides D with the economic security necessary to make political decisions that serve the common good. a. Without giving people property rights, there wouldnt be democracy b. Civic republican theory less prominent today because most citizens obtain economic security from wages earned at a job, not from farming land. i. Still scholars suggest that giving each person a stake in society through property ownership will provide political and social benefits to all.

4. Labor 1. When a person mixed his own labor (which he owned) with natural resources (which were unowned), he acquired property rights in the mixture 2. E.g. : B picks all the nuts off tree, puts them in a bag, and takes them home to eat. Under the labor theory, the nuts are now Bs property because she acquired them through her labor a. Once labor was mixed in, value arose and the thing became private property 3. One potential application may be in the realm of newly-created property, such as copyrights and patents a. E.g. Moore v. Regents of California 5. Personhood 1. Property is necessary for an individuals personal development under this view, each person has a close emotional connection to certain tangible things, which virtually become part of ones self such as family photos, love letters, or perhaps a home. 2. E.g. Suppose Es family has owned nut tree for four generations; as a child, E literally grew up under the tree. Thus, E venerates the tree as almost an extension of herself. Under personhood theory, Es right in the tree should merit special protection. e. In order for economy to reach full potential of production, there are 3 features which its system of property rights must have 1. universality, exclusivity and transferability 1. Universality Cows in India are sacred, cannot be used as a resource, thus there economy is smaller as a result 2. Exclusivity - owners unlikely to develop land if unable to exclude others from use and enjoyment of property; e.g. why grow and harvest land if others can simply take it without being excluded 3. Transferability property must be transferable for optimal economy so individuals are not permanently stuck there based on exclusive ownership.

f. DEPUT
1. Four key implications of the rights approach 1. Property rights are defined by government same thing as legal positivism, e.g. B holds property rights in his farm only if and to the extent that they are recognized by the government 2. Property rights are not absolute property rights are relative, not absolute. 3. Property rights can be divided property rights concerning a thing may be split among multiple holders, such that it may be difficult to identify a single owner 4. Property rights evolve as law changes 2. Destroy 3. Exclude 1. Landowners right to exclude is implemented through the tort doctrine of trespass 2. One of the most essential sticks in the freaking bundle

3. Existence of the doctrine of trespass creates stick of exclusion a. An entry made under a privilege is not a trespass, the most common privilege is consent b. Privilege may also arise from necessity e.g. police officer may enter As land in hot pursuit of a fleeing thief 4. Jacque v. Steenberg Homes, Inc. a. Even if you dont cause any damage you will still be liable for punitive damages for trespass 5. State v. Shack a. Right to exclude is not absolute you cant bar migrant workers from receiving government aid, necessity may justify entry upon the lands of another 6. Property rights are neither static nor absolute. The balance struck is always tentative subject to constant re-evaluation in light of current needs and norms 4. Possession 5. Use 1. Traditionally, landowner had the absolute right to use his property in any way he wished as long as he did not harm the rights of others a. Law Doctrine of Nuisance the principle limitation on owners right to use i. Common law doctrine of nuisance is the traditional method used to resolve land use conflicts ii. Intentional, 2. Nontrespassory, 3. Unreasonable, and 4. Substantial interference with, 5. The Use and enjoyment of Ps land iii. Most difficult question is whether the conduct is unreasonable, unreasonable if the gravity of the harm outweighs the utility of the actors conduct 1. Prah v. Maretti b. Some jurisdictions also prohibited the spite fence 1. Sundowner v. King 6. Transfer 1. Alienability is a cornerstone of the American legal system 2. Any owner may freely transfer or alienate any of her property to anyone 3. The law restricts a. WHO can transfer or obtain property (crazies can do neither) b. WHAT can be transferred ( some types of property cant be transferred at all like rights to military pensions) (corneas can be given away but not sold) c. HOW property can be transferred in order to avoid fraud, uncertainty, or other problems (will is no effective to transfer property at owners death unless it is in writing, signed by owner, and appropriately witnessed by 2 people)

4. Advocates of the law and economics approach stress that the right to transfer is vital for efficiency to our market economy, because it helps to ensure that property is devoted to its most valuable use a. Johnson v. MIntosh (Native Americans sold land to Johnson, Govt sold land to MIntosh) b. Moore v. UCLA

2. Adverse Possession
Disseisor = person adversely possessing a. Disseisee = person whose land is adversely possessed b. Four justifications/ theories apply to doctrine of AP 1. Preventing frivolous claims 1. AP is seen as a special statute of limitations for recovering possession of land. It bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims 2. Also provides occupant with security of title, encouraging productive use of land 2. Correcting title defects 1. Technical mistakes often occur in the process of conveying title to land 2. E.g. the property description in a deed might contain an error, AP resolves such problems by protecting the title of the person who actually occupies the land. 3. Under this title, lengthy possession serves as proof of title. 3. Encouraging development 1. AP viewed as legal tool to encourage economic development 2. AP relocates title from idle owner to industrious squatter 4. Protecting Personhood 1. Justice Holmes explains AP which echoes personhood theory a. a thing which you have enjoyed and used as your own a long timetakes root in your being and cannot be torn away without you resenting the act c. In order for one to assert successful claim of AP, the disseisor must generally satisfy 5 elements for the prescribed statutory period. The disseisor must show that his/her possession to the land was actual, open and notorious, exclusive, hostile (or under a claim of right), and continuous for the statutory period 1. Actual disseisor must physically use the land in the same manner that a reasonable owner would, given the lands character, location and nature. 2. Open and Notorious - disseisors possession must be visible and obvious, so that if the true owner made a visible inspection of the land, he would be come aware of the adverse claim. 1. Instance where O& N is treated as two part test rule arises where the land use only represents a minor encroachment on anothers property so while the use is open, it is not clearly adverse a. E.g. small part of a driveway crosses the property line;

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2. Where the use is open but nonetheless hidden in nature i. E.g. use of cave, night time use only Exclusive the disseisors possession cannot be shared with the true owner or with the public in general Continuous disseisors possession must be as continuous as a reasonable owners would be, given character, location and nature of the land. 1. E.g. Howard v. Kunto (pg. 127) Hostile/under claim of right: Different jurisdictions take varying approaches to the element of hostility 1. Objective approach the court will not ask what the disseisor was thinking in terms of how he or she acted in relation to the land. a. Ask yourself does the disseisors behavior make it clear that they were interacting with the land as a true owner would 2. Subjective good faith approach the disseisor must in good faith believe that the land belongs to him or her. a. The unknowing thief b. Most states are departing from this because it undermines AP 3. Subjective good bad faith approach a minority approach in which the disseisor must knowingly intend to dispossess the true owner of his or her property a. the knowing thief 4. Statutory requirement disseisor must satisfy all the elements of adverse possession for the period prescribed by state statute. a. Doctrine of tacking allows for adding the years of claimed adverse possession by one disseisor to the years of another to satisfy the statutory requirements. i. Some states permit the statutory period to be tolled if the true owner is under a legal disability 1. Such disabilities tend to include age, insanity, incarceration, and sometimes service in the military or living in another state See Gurwit v. Kannatzer (prototype AP case which satisfied all elements) pg. 101 1. Fulkerson v. Van Buren a. Court rule needed subjective bad faith approach, Van Buren acted in good faith i. Dissent said that claim of ownership under mistake will still be adverse, doesnt have to be based on ill will or enmity. Tioga Coal v. Supermarkets a. Appellate court ruled in favor of objective rule, claiming that they didnt care who Tioga coal was directing their adversity toward, the city or the supermarketsit doesnt matter, courts presumed element of hostility was implied. Tacking Privity Howard v. Kunto 1. 2 elements of tacking

a. Purchaser may tack the adverse use of its predecessor in interest to that of his own where the land is intended to be included in the deed between them, but was mistakenly omitted b. Must show privity in tacking case connection or relationship between successive occupants that distinguishes them from being mere trespassers or wrongdoers i. When dealing with the actual and continuous element, always need to look at nature and condition of the land , in this case it was a summer home and it was used in the same nature and condition as other residents. c. Color of title refers to a claim to title which appears valid but may be legally defective (pg. 114-115) d. Privity hypotheticals i. A occupies Os land for 6 years, A then tells his firned B you can be here if you want, but Im leaving B occupies the land for 5 more years No privity ii. C occupies Os land for 2 years. C then tries to convey the land to her sister E, but the deed C uses for this purpose is invalid. E occupies the land for 9 more years yes privity 10. Where time period can be stopped, if true owner, desisee is disabled can stop the clock on statute of limitations 1. Minority 2. Imprisonment 3. Legal Insanity 4. Away on Military Service 5. Resides Out of State a. Once the disability is removed the desisee has a set time to protect interest in the land b. OR, the time is interrupted when desisee is under a disability and resumes once cured d. Vertical Dimension Ownership 1. U.S. v. Causby airspace 1. A landowner owns as much of the space above the ground as he can occupy or use In connection with the land. Invasions of that space will amount to taking (or a trespass) where they directly and immediately interfere with the owners enjoyment and use of the land 2. Chance v. BP Chemicals 1. There may be liability for trespass where material from one individuals property migrates onto/into another subsurface property and where such migration actually interferes with the subsurface owners reasonable and foreseeable use of that subsurface property 2. When dealing with an indirect invasion claim of trespass the P must show some type of physical damage or direct interference with the use of that land

3. Causby and Chance have similar language in regards to reasonableness, there is no bright line rule, each case is fact based test

3. Water Rights
a. What types 1. Riparian system flowing waters (rivers, streams) 2. Surface collecting waters 3. Underground percolating waters ( b.

Riparian Water Rights What theories?


1. First come, first served a. Riparian landowner could use water on land for his own ordinary purposes irrespective of the effect on others 2. Prior appropriation systems driven by statute 3. Equal Rights all riparian proprietors on a water course/lake have equal rights to the use of the water, none can use to the extent of depriving others of an equal opportunity to use the same. 4. Natural Flow it is the right of every riparian proprietor to have the flow across his land maintained in its natural state, undiminished in quantity or impaired in quality 5. Reasonable Use (American Rule) Allows for the full use of a watercourse in any way that is beneficial to the riparian owner, provided it does not unreasonably interfere with the beneficial uses of others

c. Surface water rights


1. Common Enemy 1. Landowners have the unlimited privilege to deal with surface water on their land without regard to harm which they may cause to others. (abandoned after 20th century) 2. Civil Law (natural flow) 1. Higher elevation land has easement or servitude over lower tracks for all surface water that naturally flows downhill 3. Reasonable use 1. Each possessor is privileged to make reasonable use of his land even though the flow of surface waters may cause harm to others 4. Today almost all states follow one of 3 approaches to groundwater ownership:

d. Underground Water Rights


1. Reasonable use approach a. The dominant view is that a surface owner may use groundwater only for a reasonable use on the overlying land. 2. Correlative rights a. The surface owner is entitled to a proportional share of the groundwater beneath his land.

3. Permit system a. Title to groundwater is vested in the state, so the surface owner can obtain water rights only by securing a permit 4. Statutory 2. Riparian water rights refer to: 1. Water which percolates below the surface 2. Water which flows along a course such as a lake or stream 3. Water which flows from one property to another after a rain storm 4. Water which collects on one persons property as a result of melting snow. e. Sipriano v. Great Spring Waters of America 1. State of TX has rule of capture water rights and P wanted TX to change to reasonable use 2. Issue was whether to use rule of capture or reasonable use 1. Rule of reasonable use would limit the common law right of a surface owner to take water from a common reservoir by imposing liability on landowners who unreasonably use groundwater to their neighbors detriment f. Subsurface Rights 1. The traditional view was that a landowners title extended downward to the center of the earth, but modern courts increasingly question this view. Some courts suggest that the surface the surface owners rights extend downward only so far as to accommodate a reasonable and foreseeable use of the subsurface g. Rights to Groundwater 1. Today almost all states have rejected the rule of capture approach to groundwater. The dominant view is the surface owner may withdraw groundwater only for reasonable uses on his overlying land.

4. Owning Personal Property four ways to acquire rights in chattels


1. 2. 3. 4. b. Rule of Capture Finders Adverse Possession Gift

Rule of Capture State v. Shaw


1. Holding: Owners of the nets, having captured and confined the fish, had acquired such property in them that the taking of them larceny 2. Remember Pierson v. Post possession of a wild animal/ unowned thing may not be based on pursuit alone. The pursuer/claimant must have taken some action to deprive the wild animal/unowned thing of its natural liberty, and subjected the thing to the pursuers/claimants control. 1. Submit to control, deprive natural liberty, intend to not abandon 3. And then State v. Shaw adds the element of not intending to abandon wild/unowned thing to the world at large 4. Role of Custom 1. Courts may adapt custom when crafting, e.g. whaler who killed a whale which later sunk and washed up on shore still owned it.

2. In applying the rule of capture, courts commonly stress the goals of administrative efficiency, certainty, and social order. 5. Popov v. Hayashi 1. Issue: what type of possession is required of an abandoned baseball in order to support a claim of conversion? 2. Issue 2: can a claim of conversion proceed where the P has failed to establish possession or title 3. What type of possession for claim of conversion? a. CONVERSION: wrongful exercise of dominion over the personal property or dominion b. Gray Rule: person who catches the ball is the owner c. Bernhardt & Finkelman Rule: Possession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball whether or not complete control is achieved. 6. Holding 1. Possession requires an individuals complete control of an item, after incidental contact between the item and other people and things. 7. Modified Bernhart Rule 1. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. 2. Pre-possessory interest is something more than intending to have but something less than having

c. Finders
1. Four factors that govern personal property 1. Lost a. Definition: owner unintentionally and involuntarily parts with item and does not know where it is b. Who gets it: Finder c. Why: First possession, labor, utilitarian theory 2. Mislaid a. Definition: owner intentionally places item somewhere with the intent to return, but overlooks or forgets where they placed it. b. Who gets it? Owner of premises c. Why: True owner will likely return 3. Abandoned a. Definition: owner has voluntarily relinquished all rights to the property b. Who gets it? Finder c. Why: Utilitarian theory, labor theory 4. Treasure trove a. Definition: coins or currency with an element of antiquity hidden for such a period of time that the owner is dead or undiscoverable.

b. Who gets it? Finder 2. Armory v. Delamirie 1. A finder is going to have a better claim over everyone except the rightful owner 2. Chimney sweep had superior property rights to that of goldsmith, when it has to do with Finders, the courts only responsibility is to find out which party has a better claim, not who the true owner. 3. Trover common law remedy when a party seek the value of the item 4. Replevin party wants the item back itself

5. Bailment
1. Possessor of property is holding for the true owner a. Bailee is the person who is in possession of the item b. Bailor is the person who is the true owner of the thing or entrusted another to the thing 2. Types of responsibility a bailee would have to bailor

a. Mutual bailment
i. Both parties benefit from bailment (e.g. leaving car at mechanic) ii. Court hold bailee to reasonable prudent person standard of ordinary care and will be liable for negligence

b. Benefit to bailor
i. Burden to the bailee and benefit to the bailor (e.g. chase asked andrea to watch his bag while he goes to the bathroom) ii. Court says bailee only has to exercise slight care and only liable for gross negligence

c. Benefit to bailee
i. Burden is on the bailor and the benefit to bailee ( e.g Rene gives chase his car to use, Chase is held to a high standard of care to make sure Renes car is returned ii. Court states that bailee, because they are being favored by the bailor, must exercise a high standard of care and will be liable for negligence

6. Finders Rules
1. When there are competing finders the first finder should be the one to keep it and the first finder will prevail if a third party becomes involved in claims of findings/possession 2. Finder prevails above all but true owner/prior possessors a. Where found item is attached to/underground, it should be awarded to the land owner b. Where one finds something in the course of working for another, the employer should prevail over employee c. The more public the space in which the item was found, more likely the found item should be awarded to the finder rather than real property owner 7. Policies for Finders

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1. First Possession 2. Rewarding honesty 3. Encouraging finders 4. Returning property to true owner Hannah v. Peel (lost) 1. Rule/Holding: where landowner has not shown an intent to exercise control over the subsequently found item, nor any intent to exclude others from space in which item was found, possession should be awarded to the finder McAvoy v. Medina (mislaid) 1. Plaintiff argued the wallet was lost property, but the court said it was not lost it was mislaid. 2. As a general rule, a mislaid chattel belongs to the owner of the locus in quo, not the finder. This gives the item to the person most likely to ensure its return to the true owner. Haslem v. Lockwood (abandon) 1. In this case, manure was abandon by horse owners and P enhanced the street by intending to remove the manure he had raked into piles. 2. Court ruled that manure was abandoned and that P had reasonable time, 24 hours to pick it up, so D was liable. Benjamin v. Linder Aviation (mislaid) 1. Holding: Court held that the bank, as the owner of the plane where the money was found by the mechanic, had the right to possession of the property as against all but the true owner 2. Dissent: argued that the property was abandoned because a. Facts reveal that property was voluntarily put in a certain place by owner b. However, not reasonable that a person would hide 18K and forget where it was at the owner abandoned and no longer wished to possess it

d. Adverse Possession of Chattels


1. Common Law Approach 1. Reynolds v. Bagwell a. Held in good faith for value, openly and notoriously for the statutory period b. Actual / Exclusive/ Continuous/ Hostile/ Open and Notorious/ Statutory Period i. Open & Notorious : 1. uses item as ordinary owner would, 2. displayed violin in a public forum, 3. uses in a way that would notify owner of location of property a. Chattels are movable items which make it difficult to show open/notorious ii. Concealment must be some affirmative act which placed the property in a situation which tends to prevent its discoveryor

hinders the true owner from obtaining, in the exercise of ordinary diligence, information concerning the property c. Tacking i. Sometimes courts allow tacking as long as there is privity between the possessors ii. Some courts refuse to permit tacking because either 1. Each transfer by an individual without title constitutes a separate conversion so the period begins anew 2. Tacking would increase the difficulty that the owner has in finding her property d. UCC: Power to Transfer; Good Faith Purchase of Goods, Entrusting i. A purchaser of goods acquires all title that the purchasers transferor had or had power to transfer except acquires rights that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. 1. A person with voidable title has power to transfer good title to a good faith purchaser for value 2. If goods have been delivered under a transaction of purchase, the purchaser has such power even if a. Transferor was deceived as to the identity of the purchaser b. The delivery was in exchange for a check that is later dishonored c. It was agreed that the transaction was in cash sale d. Delivery was procured through criminal fraud 2. OKeefe v. Snyder a. Discovery Rule i. Cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence, should have discovered, facts which form the basis of a cause of action ii. OKeefes argument that the painting was stolen in 1946 and she waited until 1972 is not really reasonable diligence, but courts applied it anyway b. Demand and Refusal Rule i. The statute is tolled until the true owner demands return of chattel c. Both require true owner to find lost chattel but under demand and refusal clock doesnt start ticking until youve said thats mine give it back. Vs. Discovery Rule which asks true owner to track it down and find it

e. Gifts
1. Inter Vivos Gifts
a. Given while the donor is alive b. Does not require payment or consideration c. Donor can back out but once 3 basic elements fulfilled, the gift is irrevocable 2. Essential Elements of Inter vivos Gifts a. Intent i. Donor must intend to make an immediate transfer of the property b. Delivery i. Property must be delivered to the donee, so that donor parts with dominion and control over the item 1. Manual transfer physical exchange of the gift, preferred by the courts 2. Constructive delivery transfer of something that gives donee access to gifted item, e.g. a key 3. Symbolic delivery something that represents the gift, e.g. a letter c. Acceptance i. Donee must accept the property 2. Testamentary 1. Meant to be effective after donor dies a. Donor giver b. Donee taker 3. Gruen v. Gruen

1. 1st element : Donative Intent


a. Donor must intend to make an immediate transfer of the property 2. Present and Future Interests a. I give you the painting when I die all dad is saying is when I die I am making a promise that is fully unenforceable b. I give you the painting but I want to keep it until I die Father has present possessory interest, but gives son a future possessory interest i. In the future the son knows he will be able to exercise possession over the property c. Stepmother argues that is was a testamentary gift and it would only be effective upon Dads death. d. The courts says the correct test is whether the maker intended the gift to have no effect until after the makers death, or whether he intended it to transfer some present interestIn this case it was ruled that the father intended to retain present possessory interest in the painting and where the son would have future possessory interest

3. 2nd element: Delivery


a. Property must be delivered to donee, so that donor parts with dominion and control over the item i. Court says unlikely that the lack of delivery could undermine donors intent ii. Cant transfer a future possessory right to something that does not presently exist, the only way to deliver the painting is through a symbolic delivery e.g. a letter telling son he will have painting in the future

4. 3rd element: Acceptance


a. Donee must accept the property although acceptance of a valuable item is usually presumed unless donee outright rejects the gift 4. Albringer v. Harris 1. After ring has gone back and forth between 2 people, P asks for the ring back and D says no a. Defendant argues the ring was a conditional gift i. Ring was revocable if condition of marriage is not satisfied (the majority approach, but Montana strays from this approach) 2. Holding a. Ring is an inter vivos gift b. Montana is unwilling to go conditional route because of gender bais; anti-heart balm satutes prevent anybody from suing one another, if something happens prior to your wedding you cant sue the other party the other person for wedding preparations, dinners, dresses etc. i. Anti-heart balm statutes favor women because the womans family typically pays for everything 5. Brind v. International Trust Co.

1. Gift Causa Mortis


Made in contemplation, fear or peril of death (conditional) Donor must die of illness or peril which he/she fears or contemplates Delivery of the gift must occur Just like conditional gift, it has a revocable quality revocable before death occurs or if decedent doesnt die of the illness he/she feared/contemplated 2. Issue: is whether the donor died of illness/peril which she feared, a. She did not die of the surgery, surgery did not even occur b. Her attorney even told her that she needs to rewrite her statement if she wants the jewelry to go to her friends and not back to her husband 3. Holding 4. Because donor did not die of illness which she feared there is no gift causa mortis her recovery from operation revoked the gifts, she did not reaffirm her will a. b. c. d.

5. Intestacy Schemes and Estates


a. Basic Methods of Transfer
1. Transfer by Deed 1. Sale/Gift 2. Conveyed or Granted a. Grantor b. Grantee 2. Transfer by Will 1. Devise a. Testator/Testatrix/devisee 3. Transfer by Intestate Succession (death without will)/Intestacy Scheme 1. Property descend to heirs a. Want to have some method to which to ensure that someone s property is taken care of it they don t have a will or their willis incomplete or is not specific enough b. Each scheme is jurisdictionally driven c. Priority i. Spouses ii. Issues children first iii. Issues grandchildren next iv. Ancestors parents v. Ancestors grandparents next vi. Collateral remainder blood relatives 2. Heir/lineal descendent

6. Intestacy Scheme Basics


a. Per Stirpes bi-representation I am getting as representative what somebody ahead of me would have received 1. Dead father who has a dead daughter who has 2 living children, the children will take the daughter s interest and share it. 2. Division of estate where a class or group of people take in accordance to what their deceased ancestor would have taken ( by representation ) b. Per Capita each person takes an individual equal share. c. Betty has son and daughter, son died, but son has 2 daughters. Betty s assets are $120,000 1. Per Stirpes: Daughter gets $60,000 and each granddaughter gets what dead father would have gotten $60,000 divided by 2 each gets $30,000 2. Per Capita it would be $120,000 divided by 3, which comes out to $40,000 each among daughter and 2 grandchildren.

7. Estates in Land an OVERVIEW


a. Present Estates

1. Absolute Free Simple Absolute (FSA) 2. Defeasible (IT CAN HAVE A FUTURE INTEREST IN SOMEONE ELSE depends on condition of the conveyance and if they are broken/upheld) 1. FSD fee simple determinable a. Words of limitation i. Until ii. While iii. So Long As iv. During 2. FSCS fee simple subject to condition subsequent a. Words of limitation i. But if ii. Provided That iii. On Condition That iv. However 3. FSEL Fee simple subject to executor limitation a. All the words of limitation above apply, only difference is there will be third party involved and future interest executory interest 3. Finite 1. FT Fee Tail 2. LE Life Estate 3. Term of Years/Leaseholds (non-free hold estates)

b. Future estates
1. In grantor 1. Possibility of reverter FSD 2. Right of re-entry/power of termination FSCS 3. Reversion FT, LE, Term of years/leaseholds 2. In someone other than the grantor (third party) 1. Executory interests FSEL a. Shifting i. O to A provided that if A ever allows the timber to be cut, then to B 1. A has FSEL 2. B has shifting executory interest in FSA b. Springing i. O to A for life, then to B five years after A s death 1. O has a reversion in FSEL because in 5 years going to B who has springing executory interest in FSA 2. Remainders a. Vested b. Contingent

8. Present Estates
a. Absolute v. Defeasible Fees v. Finite Fees b. Core elements of estates 1. Identify relevant LANGUAGE (specific words you have to have to indicate different types of estates) 2. DURATION 3. TRASFERABILITY 4. FUTURE ESTATE? (distinguish those which have future estate and those do not) 5. ACTIONS ESTATE HOLDER CAN/CANNOT TAKE?

9. Estate definition
a. Interest in land which IS or MAY become possessory b. AND where ownership is measured in terms of duration 10. O: Blackacre to A for life; then to B and his heirs a. A has present life estate b. B has future interest, fee simple absolute FSA = and his heirs 11. I am my father s heir a. You are your father s apparent heir not an heir until he dies

12. FEE SIMPLE ABSOLUTE (FSA)


a. Language 1. to B and his heirs , to B, his heirs and assigns, to B 1. Today the presumption is that you have a FSA over a LE b. Duration 1. Unlimited c. Transferability 1. Deed, will intestacy d. Future estate? 1. None e. Forfeiture? 1. None f. Actions taken by estate holder? 1. Use, abuse, exclusive possession, enjoy fruits of land, transfer 13. O conveys Blackacre to B and his heirs forever O has two children, C and D. B has one child E, 2 nephews F and G. who has present interest in Blackacre? a. B, because the conveyance is to him alone b. Who has a future interest in Blackacre? 1. No one, because B has received a fee simple absolute. NO FUTURE INTEREST IN FEE ABSOLUTE!!

14. LIFE ESTATE (LE)


a. EG: O conveys Blackacre to A for life b. DURATION

1. Life of A c. LANGUAGE 1. to A for and during his natural life 2. to A until he dies d. FUTURE INTERESTS 1. Reversion to O and his heirs/devisees e. EG: O conveys to Blackacre to A for the life of another 1. Per autre vie estate for the life of another f. EG: O conveys Blackacre to A for 20 years, then to B for life. 1. A has Estate for a term of years 2. B has remainder in Life Estate 3. O has reversion in FSA 15. Woodrick v. Wood a. Court looks at CL approach any change to structure of the land is considered a waste b. In this case court goes with prevailing approach - a life tenant has right to make beneficial use of property even though land would be altered in the process 1. Acts that would technically constitute waste under CL, would not be enjoined when such acts resulted in improving rather than injury c. Waste is defined as an abuse or destructive use of property by one in rightful possession 1. Estate owner owes a duty to future interest holders to avoid affirmative waste and permissive waste 1. Voluntary Waste results from an affirmative act that significantly reduces the value of the property (e.g. demolishing a valuable house) 2. Permissive Waste - results from failure to take reasonable care to protect the estate (e.g. failing to make minor repairs or pay property taxes) 3. Ameliorative Waste results from an affirmative act that leads to a substantial change in the property and increases its value (e.g. building a swimming pool) 16.

Fee Tail (FT)

(Delaware, Maine, Massachusetts, Rhode Island)

a. LANGUAGE 1. to A and the heirs of his body 2. Fee tail male O conveys to G and the male heirs of her body 3. Fee tail female 4. Fee tail special O conveys to G and the heirs of her body by R 1. FT special is created when the transferor wants to restrict the fee tail only to the descendants of the transferee who are parented by a particular person b. DURATION 1. Life estate in A, subsequent life estates in lineal blood relatives of A c. TRANSFERABILITY 1. Deed (but limited to FT) d. FUTURE INTEREST

1. Reversion to grantor (when there are no heirs of the body); remainder to someone other than grantor

17. FEE SIMPLE DETERMINABLE (FSD)


a. Defeasible Fee - Estate in land which automatically expires upon the happening of a stated event which is not certain to occur b. LANGUAGE 1. So long as 2. Until 3. While 4. During the time that 5. When c. DURATION 1. Predicated by determinable language 2. Statute of Limitations starts right away d. TRANSFERABILITY 1. Deed or will (but only what is owned in the FSD) e. FUTURE ESTATE 1. Possibility of Reverter

18. FEE SIMPLE SUBJECT CONDITION SUBSEQUENT (FSCS)


a. Defeasible Fee - Fee simple estate in land which gives grantor discretionary power to terminate the grantee s estate after the happening of a stated event, not certain to occur b. LANGUAGE 1. Upon express condition that 2. Upon condition that 3. Provided that 4. If c. DURATION 1. Predicated on conditional language 2. Statute of Limitations starts at right of re-entry 1. Delayed exercise of forfeiture: reasonableness standard grantor has reasonable time to come back and claim land d. TRANSFERABILITY 1. Deed or will (but only what is owned in the FSCS) e. FUTURE ESTATE 1. Right of re-entry/power of termination 19. Marhenholz v. County Board of School of Trustees of Lawrence County a. Deed Language: to be used for school purpose only; otherwise to revert to Grantors herein b. Construction preferences if language is unclear (like Marhenholz) courts tend to interpret the conveyance 1. FSA over defeasible fee (FSFD, FSCS) or finite fees (usually LE) 2. Defeasible fee over finite fee

3. FCSC over FSD 4. Fee subject to a covenant over a defeasible fee 5. Fee with unenforceable precatory language over covenant 20.

Remainder Rules (Why NOT EXECUTORY INTERESTS)


1. Future Interest to be created at same time and by same document as prior estates 2. Follows a Freehold Estate (i.e. FSA, Finite: LE, FT, Term of Years), but not a defeasible fee simple (i.e. FSD, FSCS, FSEL) 3. Cannot cut short the prior estates. Remainderman only takes if the other estate has naturally expired 4. No gap between termination of prior estate and remainderman s taking of possession O: BA to A so long as land is not subdivided, and if it is, then to B 1. B has shifting executory interest; A s present interest FSEL (violates remainder rule iii) O conveys to A for life, but upon A s death or divorce, to B. 1. A has a life estate with executory limitation; B has shifting executory interest (violates remainder rule iii) O conveys to A for life. In a later deed, O conveys O s interest to B. 1. A has life estate; O has future interest reversion. B has received future interest in O s reversion in FSA (violates remainder rule i) O conveys to A for life, then 3 years after A s death, to B. 1. A has life estate; O has reversion in FSEL, B has springing executory interest in FSA (violates remainder rule iv)

b. c.

d.

e.

21. Future Interests in Someone other than Grantor Remainders


a. VESTED 1. Both
no condition precedent and not ascertainable 2. Remainder which is ready to take effect as to the present estate immediately upon the expiration of the preceding estate 1. Indefeasibly vested a. (1) created in an ascertainable person b. (2) is not subject to a condition precedent other than natural termination of prior estate i. O: BA to A for life, then to B 1. B holds indefeasibly vested remainder 2. Vested subject to divestment (complete defeasance) a. Remainder is vested BUT is subject to condition subsequent b. Means it s yours but something could happen to take it away from you i. O:BA to B for life, then to D, but if D does not survive B, then to E 1. D is ascertainable person and his interest is not subject to condition precedent: his interest is ready to become possessory UNLESS specified event occurs (D dies

before B does). But if B dies before B, D s interest will be terminated or divested so D has vested remainder subject to divestment 3. Vested subject to open (partial defeasance) AKA (vested remainder subject to partial divestment): notes on 11/02 a. Vested remainder held by one or more living members of a group or class that may be enlarged in the future b. You are gonna get it but you might have to share it i. O: to B for life, then to D s children 1. At time, D has 2 living children, E and F. D might have more children because he is still alive 2. Remainders in E and F are vested because (1) they are both ascertainable and 3. (2) there is no condition precedent 4. Where conditional language comes in later clause than language granting remainder a. but if likely to be vested remainder b. When in doubt opt for vested remainder

b. CONTINGENT
1. Taker not born/ascertainable or; 2. Subject to a condition precedent 1. Contingent remainder where conditional language comes before language creating remainder, or is part of description of taker (usually in form of condition precedent)

3. Destruction of Contingent Remainders


1. Contingents remainder must vest on or before termination of the preceding estate, and if it does not, it is destroyed 2. Any contingent remainder that has not vested at the termination of the preceding freehold estate is destroyed 4. MODERN APPROACH TO DESTRUCTION OF CONTINGENT REMAINDERS 1. LESS HARSH THAN DESTRUCTION OF CONTINGENT REMAINDER RULE BECAUSE IT ALLOWS REMAINDER TO VEST AFTER THE PRESENT ESTATE HAS ENDED a. It would change it from contingent remainder to springing executory interest

5. Merger Issues
1. Doctrine of merger allows vested interests to be combined when they come into the hands of the same holder 2. IF a. A possessory or vested life estate and the next vested estate in fee simple subsequently come inot the hands of the same person AND b. These two estates are not separated by another VESTED estate,

3. THEN a. The LE merges into the next vested estate held by the same persons, and b. If there is a contingent remainder between them, the contingent remainder will be destroyed 4. O to A for life, then to B for life, then to C a. Allows merger rule to apply (see Workbook page 121) 5. O to A for life, then to B for life if B has reached 21, then to C. a. Merger rule does not apply (B is not yet 21) (see Workbook pages 121)

c. Rule in Shelley s Case (RISC)


1. If freehold estate is given to a person and in the same instrument, a remainder is given to the heirs (or the heirs of the body) of that person, he/she takes both the freehold estate and the remainder 1. One instrument which 2. Creates a freehold estate in a transferee and 3. A remainder in that transferee s heirs, and 4. Both interests are legal or equitable 2. takes words or purchase into words of limitation 3. Is a rule of law not a rule of construction therefore must apply regardless of grantor s risk 4. O: BA to A for life, then to A s heirs. (applying Shelley s Case) 1. A: Life Estate 2. A: Vested remainder in FSA 3. O: Doctrine of merger comes into play and A gets FSA

d. Doctrine of Worthier Title


1. If a grantor creates a remainder or an executory interest in his own heirs, the grantor retains a future interest in him/herself rather than creating a future interest in those heirs. 2. Rule of construction, so if you have other evidence of grantor s intentions or wishes than opt to fulfill grantor s intent 3. Doctrine applies when: 1. A conveyance creates a remainder or executory interest 2. In the grantor s heirs a. If a grantor attempts to create a future interest in his heirs that interest is void in the grantor is deemed to retain a reversion b. Only applies when a conveyance creates a future interest in the grantor s heirs 4. O: BA to A for life, then to my heirs a. A: Life Estate b. O: Reversion in FSA

e. Rule Against Perpetuities (see notes 11/09/09 for examples)

1. No interest is good unless it must vest and close, if at all, not later than twenty-one years after some life in being at the creation of the interest 1. No interest is good a. Contingent remainders b. Executory interests c. vested remainders subject to partial defeasance (subject to open) d. WILL BE VOID IF THEY DO NOT COMPLY WITH THE RULE 2. Unless it must vest, if at all a. The interest must vest or fail during the rule period. b. If it does vest or fail during the rule period, it is valid under RAP c. If it does not vest or fail during the rule period, then it is void and the language is removed from the conveyance 3. Not later than 21 years after some life in being a. The period in which the interest has to vest or fail: life in being plus 21 years 4. At creation of the interest a. Date at which clock starts ticking AND where we look to our lives in being i. Date of conveyance ii. Delivery of deed iii. Will (testator s death)

2. Big question(s)
1. Is the future interest holder s interest certain to vest or not vest within the perpetuity period (21 years after a life in being at the time of the conveyance)? a. If yes (there is a certainty of vesting or not vesting) then conveyance is valid 2. Can you conceive of any situation in which the interest might vest outside the perpetuity period? a. MIGHT vest OUTSIDE (there could be vesting outside the rule period) then the portion of the conveyance which violates RAP is void

3. The create, kill, count approach


1. Identify all your future interests and which ones are subject to RAP. a. Executory interest in the Jee daughters 2. Create someone who comes into being AFTER the creation of the interest, but w ho could possibly have a future interest vest in them a. Y (additional Jee daughter) 3. Kill everyone else associated with the conveyance 4. Count 21 years from those deaths and ask whether the newly created individual s interest could vest after that 21 year period 5. Could Y s interest vest outside the 21 year period of the deaths of Hall, the Jees and the other Jee sisters?

6. What has to happen for vesting, and could it happen after 21 years of those deaths? 7. IF YES, the future interest violates RAP

22. Concurrent Estates a. Tenancy in Common 1. Each tenant in common has an undivided, fractional interest in the property 2. Each may transfer his interest to another person; it is freely alienable, devisable,
and descendible

3. 4. 5.
b.

Each has right to possess and use the whole parcel When property is sold the property will be divided according to their proportionate shares Language EG: To A and B as tenants of common
the four unities

JOINT TENANCIES

1. Joint tenants have an undivided right to use and possess the whole property. 2. Joint tenant also has right of survivorship which means that their interest is neither devisable nor descendible 3. If one joint tenant transfers her interest, the joint tenancy is severed, the transfer breaks the unities of time and title, the right of survivorship is destroyed
4. TIME 1. Estate is created at same time 5. TITLE 1. Interest in land is created in same document 6. INTEREST 1. All tenants get same interest in property 7. POSSESSION 1. All tenants have an equal right to possession of the property 8. Other Characteristics of JT 1. Right of survivorship 2. Transfer of interest to another destroys the JT and creates a tenancy in common a. Called severance 3. Notice or consent of other tenant was not required at CL a. Tempered in many states by statute 4. Language EG To A and B as joint tenants with the right of survivorship

c. TENANCY IN ENTIRETY
1. Only married couples can hold tenancy by entirety 2. Only terminated by death, divorce or agreement of both 3. Neither spouse may transfer nor encumber his or her interest

1. Allows the holders to partially shield their assets from holders (see Sawada v. Endo) 4. Language EG: to A and B as husband and wife as tenants by the entirety d. James v. Taylor 1. Land to my children Melba, WC and Billy jointly and severally, and unto their heirs, assigns and successors forever 1. Melba wanted JT because: a. Melba 1/3 = 100% b. WC 1/3 c. Billy 1/3 2. Heirs of WC and Billy wanted Tenancy in Common because: a. Melba 1/3 b. WC 1/3 heirs = 1/3 c. Billy 1/3 heirs = 1/3 3. Court went with Tenancy in Common- Because of the alienable nature of TC this is preferred 4. Modern courts prefer tenancy in common because of marketability. Freedom of alienating your interest has far less consequences a. Downside of TC is that it is more difficult to alienate the land when it is under multiple person s possession instead of one person i. When you have JT there are chances it will be owned by one person which in turns makes the property more marketable e. Conveyance to Straw Person 1. If you were tenants in common and you wanted to become joint tenants you use to have to use a straw person 2. A can convey BA to C who would then convey the land to A and B as JT with right of survivorship a. 4 unities are now present in JT, nowadays you don t need a third party, grantor may create joint tenancy to his/herself and another person 23. Tenhet v. Boswell a. Important to remember that courts are split on lease holds 1. Sometimes they say leaseholds are complete severance 2. Others say at the end of lease hold the temporary severance ends and joint tenancy resumes. 3. Problem in this case is that conveying tenant dies 1. In jurisdictions which say there is a severance they say the leasehold continues until it is suppose to end and then goes back to JT 2. What court here says is no severance is that upon death of Johnson the leasehold ends

24. Mortgages
a. Mortgagor person who is asking for loan

b. Mortgagee person who lends the money

c. Title Theory
1. Mortgagee has title and could exercise possession right away mortgage is a severance of your JT you have given to someone else the right of possession

d. Lien Theory state says


1. Mortgage just puts a lien on your property without changing nature of possessory rights in property. Does not cause a severance 1. Jurisdictions who do lien theory are not in accord with what happens when you have the mortgagor departing or dying does then the mortgage still stay on the property? Does remaining tenant hold property subject to the mortgage or not? a. Courts are split as to whether property will still be encumbered to the debt or whether creditor/mortgagee is out of luck 25. Partition a. Division of land held in co-tenancy into the cotenants fractional shares b. Types of partition 1. In Kind preferred by courts because it leaves cotenants holding the same estates as before and does not force a sale on unwilling cotenants 2. By sale reality is that happens a lot, sometimes if there is a house you can t chop it into bits, you need to sell the property and divide proceeds 3. 3 questions the courts consider 1. Property cannot be conveniently portioned in kind 2. Interest of one or more parties will be promoted by the sale 3. Interest of other parties will not be prejudiced by the sale c. Arkland v. Harper 1. Court says No to allow economic argument to trump personhood 1. The commercial argument is always going to win on an economic argument, court says we are not only going to take economics into account that is not where we are stopping in analysis 2. Other Factors the court considers 1. Sentimental/emotional interests 2. Economic value to each party for in kind or partition 3. Does property serve as residence? 4. Livelihood 5. Longevity of possession d. Contribution 1. Joint owners where one is in possession, in-tenant, and the others out of possession, out-tenant, is where the in-tenant asks out-tenant to help him out with payments e. Accounting 1. Conversely when out-tenant says to in-tenant hey you are making money off this land and we want some of it f. Ouster

1. When one co-tenant refuses to allow another co-tenant to occupy the property 1. When that happens that co-tenant is liable for the pro-rata share of rental value of his occupency

26. Tenants by the entireties (TE)


1. Marital Property 1. Common Law Approach a. Dower i. W gets 1/3 of W s freehold land

b. Curtesy i. H has life estate in all land belonging to wife where she had children 2. Majority Approach separate property system a. Property is separately owned by the spouse who owns it, anything accrued during the marriage is split but anything owned prior to the marriage is owned separately by spouse 3. Tenancy by Entirety a. Only married couples can hold property in tenancy by the entirety b. Only can end through divorce or agreement c. Neither can convey interest to a third party d. Core language i. To H&W, husband and wife ii. To H&W, husband and wife, and the survivor of them iii. To H&W, husband and wife, as tenants by the entirety e. Unities i. Time, Tide, Interest, Possession, H&W f. Core feature i. Indestructible right of survivorship b. Married Women s Property Acts 1. Provided the wife with the same rights as a single woman to own, manage, dispose of her property 2. Also protect wife s property from the claims of her husband s creditors 3. CL, only 19 states use this approach c. Sawada v. Endo 1. Issue: Can creditors even go after tenancy in entirety (jointly husband/wife indestructible right of survivorship) 1. Is it fraudulent to transfer a tenancy by the entireties 2. Group III Majority Approach 1. Any attempted conveyance by either spouse is void, and estate is not subject to separate debts of one spouse

2. Creditor s rights creditors of an individual spouse cannot reach the tenancy property 3. Group 3 Tenancy of Entireties cannot be attacked from the outside by the individual problems created by a specific spouse 27. Marital Property, Palimony, Same Sex-Marriage a. Palimony : property rights for unmarried cohabitants in committed relationships b. Majority opinion is that processional degree is not a marital asset 28. How to value the professional degree? a. Reimbursement Approach b. Value Approach 1. Guy v. Guy says we think Reimbursement Approach is best and they kick it down to trial court to determine how much Rob should be reimbursed by Audra (her nursing degree was paid for by Rob) c. In re estate of Roccamonte said: 1. The K: Unmarried adult partners, even those who may be married to others, have the right to chose to cohabit together in a marital-like relationship, and that if one of those partners is induced to do so by a promise of support given by one to the other, that promise will be enforced by court. d. Issue is when we encounter laws that encounter different people differently 1. Does giving different names to unions between heterosexual couples and gay couples violate the equal protection clause of the CA state Constitution? 1. Suspect Classes a. When you have a law that treats different groups of people differently, the law is suspect i. Immutable trait ii. Bears no relation to perform/contribute of society iii. Associated with stigma of inferiority and 2nd class citizenship manifested by history of legal and social disabilities 2. Standards of Review a. Rational Basis i. Is there a rational basis for the law? and ii. Is it possible that law s goals will be satisfied by virtue of different treatment of the specific group? iii. You use a rational basis when you have a law that is treating different people differently but there is no suspect class b. Strict Scrutiny i. 1st need to prove compelling state interest being served by law straight then; ii. Need to prove that the differential treatment is not only reasonably related to state s interest, but also, that it is necessary to serve that interest

iii. You use strict scrutiny when you have a law that is treating different people differently and there is a suspect class

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