Property outline

I. Dominant Legal Doctrines in the United States

A. Consequentialist (teleological, utilitarian)
1.
To recognize the consequences of certain decisions, and select the judgement that
maximizes the outcome
B. Rights-based (deontological)
1.
To vindicate fundamental rights
II.
Acquisition
A. By Discovery
1.
Case: Johnson v. MIntosh
a) Facts
(1)
Plaintiff Johnson bought title to a piece of land from a Native American
chief.
(2)
The chief was vested with the power to transfer the title to the land by the
tribes he represented.
(3)
Defendant MIntosh bought the land from the United States government.
(4)
The government had the right to sell the land from a land grant from the
state of Virginia.
b) Issue
(1)
Whether the Native Americans should have superior title because they
were first. Or if the European nations, when they discovered the new world
acquired superior right to the land.
c) Holding
(1)
The rule is nonsense, but without finding for the defendant, a great deal of
property rights would be called into question and the whole thing would become
a mess. With regrets, the court finds in favor of MIntosh.
d) Rule
(1)
Only applicable to Native American tribes, their rights to lands they have
can be extinguished by the discovery of them by european nations.
2.
Doctrine of Discovery
a) The right of discovery extends to all european powers that discover new lands
b) Natives retain some right to occupy the land
c) However, the sovereign power, like the british and then the US, has the right to
extinguish the rights of Natives.
(1)
The rights may be extinguished by either sale of the land,
or by simple conquest.
d) Underlying policy is to create certainty in property rights
B. By Capture
1.
Case: Pierson v. Post
a) Facts
(1)
Post hunted a fox over unowned land.
(2)
Pierson, knowing that Post was hunting the fox, killed it
and took it.
(3)
Post claims the fox as his because he was in pursuit

(4)
Pierson claims the fox because he was the one to kill it.
b) Issue
(1)
Whether the hunt of a wild animal vests title in the pursuer.
c) Holding
(1)
IN the case of wild animals title is not vested until there is possession.
Pursuit of the animal is no possession.
d) Rule
(1)
A hunter must either kill or trap a wild animal to possess it, and thereby
acquire title to it.
2.
Case: Ghen v. Rich
a) Facts
(1)
Whalers hunting fin-back whales typically cannot take immediate
possession (dominion and control) of the whales they hunt upon killing the
whale.
(2)
The implement used, the bomb-lance leaves a distinctive brand on the
whale, identifying it to others.
(3)
The whale typically sinks, to float back up to the surface 3 days later.
(4)
When found by locals on the shore, custom is to come and tell the whalers
in return for a finders fee.
(5)
Plaintiff Ghen followed this general custom. Shot the whale, and waited
for it to be found again so that he, and his crew, could collect on the whale.
(6)
However, the whale was found by Ellis, who did not follow this general
custom.
(7)
Ellis took the whale and sold it to Rich, who profited from the oil.
(8)
Ghen then sues Rich for the value of the oil he got out of the whale.
b) Issue
(1)
Is there possession where the chattel is marked as belonging to a hunter.
c) Holding
(1)
Yes, there must be some title vested in whalers when they kill and mark
the whale as theirs. If there were no title, the industry would collapse.
Therefore, there must be possession of a constructive or fictitious kind to
account for such situations.
d) Rule
(1)
You can sell no more title to something then you have.
(2)
When a hunter apprehends an animal in accordance with some local
custom, title is acquired.
3.
Doctrine of Constructive Possession
a) Allows a court to construe a party has physical possession even though the party
does not have actual possession.
b) You have prior constructive possession of all wild animals on the property you
own. (from the core to the heavens)
c) Domesticated animals, with a habit of returning, are different then wild animals.
The owner retains constructive possession even if the animals go out to graze
outside of the owners property.

d) An owner of exotic animals retains constructive possession of their exotic animals

even after they escape.
e) Case: Keeble v. Hickeringill
(1)
Facts
(a)
Plaintiff Keeble owns a fancy pond set up for the purpose of
capturing large quantities of birds.
(b)
Defendant Hickeringill intentionally frightened the birds away
before they were captured. But committed no other offense in doing so.
(was not trespassing or anything like that.)
(2)
Issue
(a)
Whether a person can maliciously interfere with the property rights
of a landowner, by scaring the game away before they are caught.
(3)
Holding
(a)
In favor of Keeble. Court reasons that the hunting of of ducks is a
socially productive end, and its trade is part of the economy. Recognizes
new action: malicious interference with trade.
(4)
Rule
(a)
Nuisance: an unreasonable interference with the use of persons
property.
i) Private Nuisance: a nuisance that adversely impacts only a few parties
ii) Public Nuisance: A nuisance that impacts a large number of parties.
(1)
Public Nuisances are the area from which we get zoning
laws, environmental regulation, local ordinances.
4.
Law of Waste
C. By Creation
1.
Intellectual Property
a) Inventions, trademarks, ideas in general.
b) Intellectual property is so crucial that jurisdictions over intellectual property was
given to congress in the constitution.
c) Patent/copyright law is federal
(1)
There are 2 kinds of patent
(a)
Utility
i) Granted if the invention meets 3 requirements:
(1)
Novel (some new product or process)
(2)
Must yeild utility (have some direct benefit)
(3)
Non-obvious (non-obvious to a person of ordinary skill in
the trade or art.)
(b)
Design
i) Granted if the inventor can show the invention is:
(1)
Novel
(2)
Non-obvious
(2)
A patent, if granted, lasts for 20 years from the time of the application.
d) Copyright
(1)
Provides protection for items of creative expression
(2)
Also protected by federal statute

e)

2.
a)

b)
c)

d)
3.

(3)
Originally quite narrow in scope. Protected ONLY maps, charts, and
books.
(4)
As modern technology developed, and commercial value has been added
to many other creative works, a wider range of items could be copyrighted.
Including:
(a)
Songs
(b)
Movies
(c)
Pictures
(d)
Programs
(e)
Prints
(5)
Copyright lasts for the life of the author +70 years.
Trademark
(1)
A symbol or brand-name, some kind of sign or identifier of a company or
a product.
(2)
Can be registered under federal statute.
(3)
Can also arise under state common law
(4)
Fundamentally different from other protection
(a)
Only helps companies provide clear information about their
products to the market. There are no trade-offs (between the title holder
and the public at large) as in copyright and patent.
(5)
They last as long as they are used.
Case: International News Service v. Associate Press
Facts
(1)
The AP was collection information that INS apparently did not have about
current events.
(2)
INS began to spy on the AP (by bribing member organizations and
employees) to gain access to their information in advance of its publication
(3)
INS also took news that had been published, repackaged it, and sold it as
its own.
(4)
AP gained an injunction against INS for the inducement of members and
employees.
Issue
(1)
Do news gatherers have property in the news after it is published?
Holding
(1)
Yes. Question is not whether AP has a right to the
news against the public, as the defense argument suggests,
but against this defendant in particular. Yes, AP has a right
to the news it publishes, and therefore the injunction
against INS Stands. AP has a quasi-property right to the
news it has gathered But only while the news is still a
commodity, or Hot News Further, the right is only
against other inerests in selling the news, its property
interest in the news does not prohibit private individuals
from telling other private individuals about it.
Rule
Trade Secret Law

a) A body of tort law that constrains companies from certain behaviors

(1)
In contemplation of the downside of patents
(a)
Patents enter the public record
(b)
Patents expire, afterwords allowing imitators
(2)
Therefore, it may be preferable to simply keep the innovation secret
(a)
Thereby protecting trade secrets beyond the limited period of
patents
4.
Case: Cheney Brothers v. Doris Silk Corp.
a) Facts
(1)
Doris made a pattern at some cost
(2)
Cheney brothers copied the pattern for profit (whether knowing or not)
(3)
Doris now sues for damages alleging that the court could protect their
patterns as a kind of copyright for a short time.
b) Issue
(1)
Whether seasonal patterns can be protected as a kind of short-term
copyrighted work of creative expression
c) Holding
(1)
No. There is no such thing as a half-copyright. The copyright act was set
in place by the legislature, the court has no authority to second-guess what it
does and does not cover. International News service should be construed
narrowly.
d) Rule
(1)
A person cannot have patent or copyright over something like a pattern of
silk.
(2)
A persons rights in creative expression are generally limited to the
chattels of their invention. Unless they have a patent or copyright, that extends
the title to also include the conceptual content.
5.
Case: Smith v. Chanel
a) Facts
(1)
Smith makes a perfume imitating Chanels perfume
(2)
Smith claims their product is just as good as Chanels
(3)
Chanel claims it spends considerable resources producing its product
(4)
Chanel further claims that smiths product exploits Chanels goodwill and
public trust for their own gain.
b) Issue
(1)
Is mere imitation of a non-patented product a violation of some property
interest the creator may have in the product?
c) Holding
(1)
No. The court cites a public policy concern. Every copyright and patent
has a natural chilling effect in that others will be afraid to market similar
products knowing that the products are protected by law. In this case, there is no
patent or copyright, so the general rule should apply.
d) Rule
(1)
Property rights are limited to the chattels of your invention unless
extended by copyright or patent.

6.

Right of publicity
a) Gives celebrities property rights in their own persona
b) One of the newest property rights
c) First in courts, most states now have statutes as well
(1)
Extends to commercial use of a celebritys
(a)
Name
(b)
Likeness
(c)
Voice
(d)
Anything that an advertiser might use to tie the product to a
celebrity
d) Action in tort law that protects privacy against public embarrassment and
attention
(1)
Doesnt have anything to do with property law
(2)
Celebrities were originally able to use this tort, and courts to recognize
their property rights in their persona based on the tort.
(3)
Remember that there is a parody exception to copyright. I dont think this
knocks that out.
7.
Case: White v. Samsung
a) Facts
(1)
Samsumg prints an advertisement with a robot in place of Vanna White.
(2)
Vanna White sues for infringement of intellectual property rights
(a)
Under her common law right to publicity
(b)
Under the Lanham Act
(3)
Trial court grants summary judgement for defendant
(4)
Court of appeals reverses trial courts decision.
b) Issue
(1)
Whether celebrities have a property right in the persona they create for
themselves and make their livelihoods distributing.
c) Holding
(1)
Yes. Samsung may have infringed on Vanna Whites right to publicity. Its
complicated by the fact that the robot does not look much like her, but is
obviously intended to resemble her. So they reverse the summary judgement
and remand for a new trial.
d) Rule
(1)
For celebrities, the right to publicity protects them against the to use of
their persona without their consent
8.
Case: Moore v. Reagents of the University of California
a) Facts
b) Issue
c) Holding
d) Rule
D. By Find
1.
Bailment
a) Property transaction in which one person (bailor) transfers possessory rights (not
title) to the bailee. (transference of possessory rights only.)

b)

2.
a)

b)

c)

(1)
Property transaction
(2)
One of the rights included in the bundle of property rights overall
(3)
Possessory rights not as strong as true title, but still very important in
overall poperty.
(4)
Utilized by dry cleaners, movers, valets, lockboxes in banks. (these are all
examples of contractual bailments.)
A finding is treated as a kind of bailment
(1)
It is a non-contractual or involuntary bailment.
(2)
The fact of a finding in which a finder takes possession of the item is the
bailment
(a)
A bailee is someone holding possession of something they have no
title to, or own.
(3)
The duty of care depends on the nature of the bailment
(a)
If the bailment is primarily for the bailees benefit, then the bailee
is burdened with the highest duty of care
(b)
If the bailment is for the mutual benefit of both parties, only a
normal standard of care applies.
(c)
If the bailment is for the benefit of the bailor, the bailee beast the
lowest duty of care. This is the kind of care required for a found chattel.
Kinds of chattels found
Abandoned chattels
(1)
Abandoned chattels go to the finder
(2)
On land owned by another, the finder still gets the chattels
(a)
Thats a bullshit rule. And I suspect it does not extend to owners of
land for junkyards. Abandoning things there is precisely the reason the land
is owned.
Lost Chattels
(1)
Lost if the rue owner does not know where to find the chattel. It is an
involuntary loss of possession.
(2)
It is required by law to make some sort of notice that the true owner may
retrieve their chattels.
(a)
These are called ESTRAY STATUTES:
i) Finders must deliver chattels to police
ii) The police may have to advertise for some period
iii) When no true owner is found, the chattel is turned over to the
finder and they now have good title to the chattel.
iv) At some point the true owners right to reclaim the chattel is cut off
by a statute of limitations
(1)
This is all to encourage finders to come forward with found
chattels. Rewarding them with the chattels for doing so in good
faith. The title to the chattel is essentially involuntarily transferred.
Mislaid Chattels
(1)
True owner places chattel somewhere intentionally, but forgets where it is,
or to take it with them.
(2)
There is some true owner to be concerned with. Usually something like a
wallet or something else important.

(a)
True owner may return to the place where the item was left.
(3)
land owner gets it sometimes, finder gets it other times. All based on the
circumstances of the finding. Has some sort of good faith requirement that the
chattel will be left with the person best situated to find and return the chattel to
the true owner.
E. By Adverse Possession
1.
Entry
a) Adverse possessor must prove actual entry onto the land.
2.
Open and Notorious
a) Means whether the manner of the adverse possessor's occupation was so as to put
a reasonable true owner on notice that there may be an adverse possession claim.
3.
Continuos for the statutory period.
a) Varies across Jx
b) 6-20 years.
c) At some point the right of the true owner gets cut off from ordering an ejectment
d) Sometimes seasonal use only counts as continuous
4.
Adverse and under a claim of right
a) Adverse possessor cannot be there with the permission of the true owner.
F. By Gift
1.
Donor must intend to make a gift.
a) A present gift. Any promise to make a gift in the future isnt enforceable.
2.
There must be a transfer of the gift. Should be actual.
a) If not actual, then constructive.
b) Then if not constructive, maybe symbolic.
(1)
Trend moves towards allowing more symbolic delivery
3.
Must be accepted. May be presumed where the gift is of material value to the
grantee.
4.
Gifts inter vivos vs. Causa mortis
a) Elements are the same
b) However, courts are much stricter in evaluating the elements of a gift causa
mortis.
III.
Possessory Estates
A. Up from feudalism -- System installed by William the Conqueror. System defines status
through relationship to land. System forms a pyramidal hierarchy with the king at the top.
The king bestows protection and land downwards, and receives tenure in return.
1.
Tenure
a) In exchange for land grant, the lease lord promises to render specific services to
the crown.
(1)
Land is granted to Tenants in chief to enhance the power of the temporal
lords over the kingdom. However, all owe deference to the king regardless of
who owns the land.
(2)
Sub-leasing a prominent strategy among lease tenants in chief.
(3)
Knight service -- the lord provides a number of knights to fight for the
king 40 days of the year.
(4)
Grand Sergeanty -- the lord provides for the splendid court life and
pageantry of the king.

(5)
Socage -- economic tenure for the subsistence of the overlords.
(6)
Even in grants within families, tenure was expected. This tenure was
sometimes nominal, but helped to reinforce the tenurial relationship, and the
lords right to incidents.
2.
Feudal Incidents
a) Services eventually gave way to money payments. However, these payments
could not keep in step with inflation. Therefore lords used incidents more and more
over time.
(1)
Homage and fealty -- each military tenant pledged utter support to the
their lord. When pledging to their lord, they also had to pledge their fealty to the
king. In disputes with their lord, they could rely on the king to protect them.
(2)
Aids -- The lord may ask for the aid of his tenants in times of economic
crisis. This incident was initially used frequently, but was later limited in the
Magna Carta to:
(a)
The ransoming of the lord from his captors
(b)
The knighting of his first son
(c)
The marriage of his first daughter.
(3)
Forfeiture -- the lord could seize the land if the tenant breached his duty to
the lord. If the tenant was guilty of high treason, the king could seize the land.
(4)
Liabilities at death of a tenant
(a)
Wardship and Marriage
i) When a tenant died and his heir was not of age 21, the tenant would
take guardianship over the heir as a ward. The lord would be in
possession of the heirs estate until he came of age. Further, the lord
could arrange the Wards marriage.
(b)
Relief
i) When a tenant died, his heir was required to pay relief to the lord
before he would come into possession of his inheritance.
(c)
Escheat
i) When a tenant dies with no heirs the land returns to the possession of
the lord. If the tenant is guilty of a felony, the land first goes to the
king who is allowed to waste the land for a year and a day before it
goes back into the possession of the Lord.
3.
Decline of Feudalism -- Tenants began to undercut their lords through
subinfeudation. To combat this, the lords passed a law prohibiting the practice all
together. Though the Quia Emptores statute was meant to save the feudal system, it
ultimately doomed it.
a) To get the statute passed the lords allowed their tenants to substitute other tenants
for themselves for all or part of their land without the lords consent.
b) Established the principle of free alienation of land.
(1)
Alienability is the power to transfer resources to another.
(2)
Alienability is a crucial concept for the beginnings of a market economy.
c) All mesne lords eventually disappear and land is held directly from the king.
d) After Quia Emptores

(1)
All real property eventually becomes alienable. People own their land
without need of feudal incidents. (though modern taxation is essentially the
same idea)
IV.
Possessory estates
A. Typically property rights in land that give the owner possessory rights. The word estate is
in reference to the medieval status that used to go with owning possessory rights.
1.
The Fee simple Absolute
a) This is the largest kind of possessory right that a person can own in land. It lasts
from here to eternity.
b) At common law certain words were required for a grantor to convey a fee simple.
(1)
To A were the words of purchase
(2)
and his heirs were the words of limitation.
(3)
The indicate the size or duration of As rights in the land
c) In modern law, where there is any ambiguity, the presumption is that the grantor
always intends to transfer a fee simple.
2.
The Fee Tail
a) Mostly extinct now. Only recognized in a few states.
b) Its heritability is limited to direct lineal descendants.
(1)
Would include children, grandchildren, so on
(2)
Could not include cousins.
(3)
The fee tail owner cannot divide his fee tail
(4)
The fee tail owner is precluded from selling or gifting the tail to anyone
other than a direct descendant.
(5)
This fee tail originated in the medieval period. The mechanism is intended
to protect the status of the family line against later descendants who decide to
sell or gift the land to someone outside the family.
(6)
The possessory right is smaller than a fee simple. Fee simples go on into
eternity
(7)
But a fee tail can end with the bloodline.
(a)
To A are the words of purchase
(b)
And the heirs of his body are the words of limitation.
(8)
There is also a fee tail male where the direct lineal descendant must also
be a male direct lineal descendant.
3.
A reversion
a) Any piece left over after the grantor has conveyed some smaller portion of the
estate
(1)
So when a grantor with a fee simple grants a fee tail to his child, if the
child dies without heirs, the land reverts to the grantor
(2)
If the grantor grantor is dead at the time when the reversion occurs, his
heirs take the land reverted to him.
4.
Life estates
a) A possessory estate that gives the possessor the right to possess the property so
long as they live.
b) If a grantor grants a life estate to a grantee, the grantor has impliedly kept the part
that is left over, the reversion.

V.

(1)
If the grantor decides to give what is left over after conveying a life estate
to someone else, that is called a remainder
c) To A are the words of purchase
d) so long as he lives are the words of limitation
Futurvooe Interests
1.
Remainder
a) Vests on the natural expiration of a previous life estate to another grantee.
2.
Tenancies
a) They are typically what you get through a lease.
b) There are those at will, that can be terminated by either party at will
c) There are periodic tenancies that are automatically renewable unless notice of
termination is provided.
d) There are term of years tenancies where there is no automatic renewal, and no
notice required.
(1)
This is an estate even smaller than a fee tail or life estate.
3.
The Rule of primogeniture
a) Generally restricts inheritance to the oldest male direct lineal descendant.
b) These days, there are intestate statutes, giving spouses a share, and their children
equal shares.
4.
Defeasable estates
a) Property right conveyed but with conditions. As a general matter, a defeasable
estate is an estate that can be terminated upon some event.
b) Defeasable fee simples
5.
Fee simple determinable
a) A fee simple that automatically terminates upon the occurrence of a stated event.
b) For example, if O conveys Blackacre to A so long as he remains sober, O has
placed a condition on As ownership. Should A start drinking again, the Fee is
terminated and reverts to O.
c) To create a Fee Simple Determinable, the grantor must use language to indicate
that the fee is the grantees until such time that the conditions are not met. So words
like, so long as or until
d) Eliminated in california
e) Right retained by grantor is called possibility of reverture.
(1)
This future interest is not a large enough interest for the law of waste to
apply.
6.
Fee simple subject to a condition subsequent
a) Sometimes they use language that the grantor has the right to elect to terminate
the Fee when the condition is met. But the termination is not automatic.
b) To determine that the fee simple is subject to a condition subsequent, and not
determinable, look for language like but if, then
c) The grant of real property reverts to the grantor when the condition is met and
then the grantor reenters.
d) The right the grantor retains is called a Right to Enter.
7.
Fee simple subject to executory limitation

a) Like a fee simple determinable, except instead of reverting back to the grantor, it
forfeits to some other grantee.
b) Therefore, the other grantee is granted an executory interest
8.
Rule of perpetuities
a) Only applies to certain kinds of
(1)
Contingent remainders
(2)
Executive interests
(3)
Vested remainder subject to open.
b) Never applies to grantors future interest.
c) If it applied, it destroyed the future interest as soon as it was created.
d) Essentially a rule of logic, requires no real facts. Unfortunately the logic can be
confounding.
e) So they passed a Uniform statutory rule against perpetuities
(1)
Modifies rule against perpetuities to adopt the wait and see doctrine.
(a)
It should not void future interests at the time of the grant, but wait
90 years to wait and see.
9.
Savings Clauses
a) Backstop measure to prevent void.
(1)
If the remainder has not vested in 89 years, the property automatically
vests in so and so.
10.
Trusts
a) Created either inter vivos or at death.
b) Grantor becomes Testator and recipient is the Trustee.
c) Beneficiaries are called equitable owners of the trust
d) Trusts can have contingent interests that remain contingent indefinitely.
(1)
Only a small number of states have allowed perpetual trusts
(2)
But it may be a trend
e) Trusts make the rule against perpetuities irrelevant.
11.
The Drill
a) First thing to do is look at the grantee: Is it a possessory estate or a future interest?
(1)
If possessory
(a)
What size is the estate?
i) Fee simple
ii) Life estate
iii) Term of years
(b)
Is there a condition on it?
i) If yes -- what does it do?
(1)
If it causes forfiture back to the grantor -- it is
determinable
(2)
If it gives the granto right of entry -- then it is subject to a
condition subsequent
(3)
If it divests the property to some other grantee -- then it is
subject to an executory limitation.
(2)
If Future interest
(a)
What kind is it?

i) Remainder -- if it would follow the natural expiration of a possessory

estate.
(1)
Vested -- if it is given to an ascertained person or persons
and is not subject to a condition precedent.
(2)
Contingent -- if it is given to an unascertained person or
persons OR subject to a condition precedent.
(3)
Vested subject to Open -- if it is given to a class of persons,
some of whom are ascertained, but could still grow.
ii) Executory -- if it would divest some future interest
(1)
Shifting -- if it would divest another grantee
(2)
Springing -- if it would divest the grantor
(b)
What size is it?
i) Fee simple
(1)
To be and his heirs
(2)
To b
ii) Fee Tail
(1)
And the heirs of her body
iii) Life estate
(1)
For life
iv) Term of years
(1)
For a term of ten years
(c)
Is there a condition on it that could cause divestment?
i) If Yes
(1)
Figure out what the condition does
(a) If it causes the estate to go back to the grantor
(automatically) -- Determinable
(b) If it gives the grantor right of entry -- Subject to a
condition subsequent
(c) If it gives the estate to another grantee -- Subject to an
executory interest
ii) If No
(1)
Youre done here
VI.
Joint Property Interests
A. Tenancy in common
1.
Modern presumption generally favors this kind of joint property interest.
2.
Under a tenancy in common, property owners are called tenants in common.
3.
Under tenancy in common each tenant in common has a separate but undivided
interest in the property.
a) Either party can sell or devise their interest as they like.
4.
Each tenant in common has a right to possess the whole.
5.
No specific granting language is required, courts will assume it where the
language is ambiguous.
B. Joint tenancy
1.
Concurrent property interest in which the tenants are in some respects regarded as
though they were a single owner.
2.
Each tenant has a right of survivorship.

a) When one of the joint tenants dies, that joint tenants interest ends.
b) The other joint tenant takes the decreased joint tenants share.
3.
At common law there were some technical requirements: 4 Unities
a) Time -- interest must vest at the same time.
b) Title -- interest must be created through the same instrument
c) Interest -- requires that the size of the shares of the joint tenants must be equal.
d) Possession -- each joint tenant must have a right to possess the whole.
4.
Requirements are more lax today.Courts sometimes do not require each tenant to
have equal share.
5.
Presumption is not in favor of joint tenancy, therefore precise language may be
required.
a) To A and B as joint tenants, with right of survivorship, and not as tenants in
common.
b) To A and B as joint tenants
6.
Commonly used between married people and families.
a) Because of the right of survivorship, it does not have to be probated, and does not
have to be devised in a will.
b) Thus, it can be used to avoid the need of a will at all.
C. Tenancy by the entirety
1.
Can only be held by a married couple, otherwise its much like a joint tenancy.
2.
Each tenant has a right of survivorship
a) They dont have to devise the property to their spouse
3.
Joint interest cannot be conveyed, even secretly, creating a tenancy in common.
a) Tenancy cannot be terminated like that, can only be terminated by agreement,
death, judgement and execution against both spouses, or divorce.
4.
In a minority of states that have the tenancy by the entirety concept, it will be
assumed whenever there is a joint property interest created by a married couple.
D. Marital Property
1.
Marital property is typically a type of common property these days
2.
At common law: pretty patriarchal, womans personal property became her
husbands. She could retain some of her real property. But as a matter of equity it
became mostly his property.
a) All marital property was for all intents and purposes, the husbands property.
3.
But somewhere around the 19th century, there was a movement to bring about
greater equality in the treatment of marital property.
a) Happened mostly through the use of state laws.
(1)
Things like married womans property acts -- they redressed the issue of
marital property.
(2)
By the beginning of the 20th century, every state had their own version of
a married womans property act.
4.
There are a minority of states that acquired some differences in how they were
going to treat marital property.
a) Western states had some continental influences.
(1)
California is such a state.

(2)
Under the civil law tradition, marital property was treated as community
property.
(a)
Typically treated the husband and wife as equal at the outset.
(b)
Common law states have more or less moved towards the civil law
dynamic.
E. Elective Share Statutes
1.
Surviving spouse can challenge the spouses will
2.
Spouse can get up to half the estate.
a) Or a minimum share of one third
F.Proceeds from insurance
1.
Not a probate asset.
2.
Its a contract. So money goes where the contract says it goes.
G. Right or survivorship
1.
House not a probate asset where there is a joint tenancy with right of survivorship.
2.
Right or survivorship is automatic.
H. Probate Assets
1.
Things not jointly owned can be devised according to the will.
2.
Where the will says everything goes to A the only property at issue are the
probate assets.
3.
The wife can elect to take half of probate assets under elective share statutes.
a) It might frustrate the spouses intent
b) But thats the purpose of the statute anyway.
VII.
Easements
A. Private land use controls and the laws of servitudes
1.
Servitudes are non-possessory property interests typically held in land.
2.
Easement -- typically a right to use or perform an act on someone elses land.
3.
Promises or covenants regarding the use of land
a) Typically restrict the use of land.
b) Developers would place a restriction on the lots they sell. Like a residential use
restriction.
c) Servitude -- not to use the land in a certain way.
4.
Easements -- about the right to use or perform some act on someones land.
a) The lot that is subject to that right of use is the Serviant Tenement.
(1)
In other words, it serves someone else.
b) Apertinent -- an easement that assigns the right to use the serviant tenement to
some other parcel of land. The Dominant Tenement.
c) Dominant Tenement -- the lot with the right to use an appurtenant easement on a
Serviant Tenement.
d) In gross -- does not have any dominant tenement. The right to use the serviant
tenement is not attached to a dominant tenement. But to a person in particular.
Classic example is the publics right to cross beachfront property to reach the beach.
It doesnt attach to any particular lot, but to the public in general.
(1)
Real Covenants
(2)
Equitible Servitudes -- both about restricting the use of land.

(3)

Negative easements
(a)
Courts dont like these therefore there are very few.
(b)
Thats why there are so many positive easements.
B. How easements are created
1.
Expressly
a) Through express grant of easement or reservation in a deed. There must be a
writing that defines the easement with some specificity.
2.
By prescription
a) Acquired in much the same way as an AP claim.
b) Actual entry and exclusive possession not required.
c) Otherwise the other elements of AP claims apply.
3.
By implication
a) Requires that both serviant and dominant tenements were owned as one parcel
originally, prior to severance, there was use of the serviant tenement by the
dominant tenement, and that use must have been apparent and continuous. And at
severence the continued use of the serviant and dominant tenement must be
reasonably necessary.
4.
By necessity
a) Serviant and dominant tenements were owned as one parcel originally, and upon
their severance, use of the serviant tenement by the dominant tenement is strictly
necessary. Most commonly happens when someone has a lot boxed in by other lots.
It becomes necessary to cross someone elses lot to get in and out.
5.
Quasi-Easements
a) Easements by estoppel. Sometimes called an irrevocable license. It arises when a
person gives permission to another person to use their land. The person with
permission makes an investment in reliance. The person who gave permission
acquiesces to the investment. Under those circumstances, the permision or license
becomes irrevocable. It becomes an easement by estopel. Permission is usually
revocable always at the will of the permission-giver. But not here where there has
been substantial investment in reliance.