Property I

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Property I
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Property I
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  1. WHAT IS PROPERTY LAW?
    Property as a Bundle of Sticks

    Each stick is a right or duty

    Rights: What we can do/refrain from doing with property

    Duties: What we owe others in relation toproperty
  2. Types of Property
    Real v. Personal Property

    Tangible v. Intangible Property
  3. Key Concepts
    Ownership v. Possession

    Property as a way to structure human relationships
  4. Joseph P. Singer
    "The most fundamental paradox of property is that we may best understand it by exploring the tensions - the contradictions - within it."
  5. Fundamental Tensions
    • Development v. Ownership
    • Efficiency v. Fairness
    • First in Time v. Labor Theory
    • Formalism v. Instrumental Ends
    • Right to Exclude v. Right of Access
    • Market v. Non-Market Values
    • Power to Hold v. Freedom of Transfer
    • Privilege to Use v. Security from Harm
  6. First Possession
    Acquisition of Property by Discovery, Capture, and Creation
  7. Subsequent Possession
    Acquisition of Property by Find, Adverse Possession, and Gift
  8. Absolute Title
    Perfect title; unencumbered title
  9. Cede
    To transfer, usually from government to another
  10. Convey
    To transfer realty to anotherperson
  11. Conveyance
    The transfer of land from one person to another
  12. Ejectment
    An action to recover the possession of land
  13. Occupance
    Possession
  14. Patent
    A grant of public property by the United States.
  15. Regal Government
    The state.
  16. Sovereign
    A state which has supreme authority
  17. Vest
    To give a right to.
  18. Chain of Title
    Example (CB p. 699)

    God; Jesus; Pope; Isabella, Queen of Spain by Christopher Columbus; France; United States
  19. Acquisition of Property by Discovery
    The legal principle under which the United States justified sovereignty over lands that had been occupied by Native Americans.
  20. Johnson v. M'Intosh
    Discovery of land by a European power gives absolute title only subject to Indian right of occupancy.

    Discovery gives an exclusive right to extinguish an Indian right of occupancy either by purchase or conquest.
  21. Acquisition of Property by Capture
    Pierson v. Post

    Glen v. Rich

    Keeble v. Hickeringill
  22. Bodily Seisin
    Actual physical possession of some body (i.e. a wild animal)
  23. Constructive Possession
    Dominion and control over an object, though not physical possession
  24. Ferae Naturae
    A Wild Animal
  25. Hostem Humani Generis
    Enemies of the human race
  26. Ratione Soli
    Because of the land

    In the context of title to animals this refers to ownership b/c of the presence of the wild animal on the claimant's land
  27. Pierson v. Post 
    (fox case)
    Property right to a wild animal can only be acquired of the hunter "occupies" it. Some authorities say "trap," "wound and continue pursuit." If mere pursuit were to vest title, it would be difficult to determine who was the first to pursue.
  28. Glen v. Rich
    (Whaling Case)
    Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom.
  29. Why wasn't there a need for the court in Glen v. Rich (Whaling Case) to make a judgment?
    The custom was already good enough. In this case the custom represents the entire industry and: 

    • 1. Affects few people
    • 2. Has been relied on for many years
    • 3. Requires the hunter to perform all that is possible
    • 4. Gives a reasonable fee to finder
    • 5. Without this custom, the industry would die. 

    The custom of the local hunting trade was more efficient than the general rule decided in Pierson v. Post. The rule in Glen v. Rich was refined to fit a specific need.
  30. Keeble v. Hickeringill
    (Decoy Duck Pond Case)
    A landowner, in pursuit of his trade, may lawfully capture wild fowl free of the malicious interference of another.
  31. Doctrine of Ratione Soli Applied to Keeble v. Hickeringill
    • Public Policy: 
    • 1) Every man should be able to enjoy the use of his land as he sees fit, as long as he is lawful. 

    2) "In pursuit of one's trade" is profitable and generally creates wealth.
  32. Formalism v. Instrumental Ends
    Formalism employs the rules to the facts each time. 

    Instrumental Ends creates a rule to fit what we think is a good outcome.
  33. Externalities
    Demsetz is an ambiguous concept that exists whenever some person makes a decision about how to use resources without taking full account of the effects of the decision. the effects are ignored (cost/benefits) and hence, external.
  34. Fugitive Resources
    Natural Resources

    i.e. Water, oil, natural gas

    Some courts apply the law of capture
  35. The Riparian Doctrine v. The Prior Appropriation Doctrine
    • Riparian Doctrine
    • The fugitive resource belongs to those who own land next to the source 

    i.e. Water rights....Eastern states with large supplies of water

    • Prior Appropriation Doctrine
    • Resource belongs to the state and right to use is determined by priority of use

    i.e. Water rights...western states with scarce supplies of water
  36. Acquisition of Property by Creation
    International News Service v. Associated Press

    Feist Publications, Inc. v. Rural Telephone Service Co.

    Harper & Row Publishers, Inc. v. Nation Enterprises

    Diamond v. Chakrabatary

    White v. Samsung Electronics America, Inc.

    Moore v. Regents of the University of California
  37. International News Service v. Associated Press 
    (Newspaper IP Case)
    There is a property interest in freshly printed news that allows the creator to prevent others from copying it. Facts are not copyrightable, but compilations of facts can be.
  38. Relativity of Title
    Some property interests are protected against infringement by certain persons but not by others.
  39. Feist Publications, Inc. v. Rural Telephone Service Co. 
    (Phone Book Case)
    To qualify for copyright protection, a work must be original by the author (independently created by the author and it possesses at lease some minimal degree of creativity).
  40. Elements of Copyright Infringement
    • P holds a valid copyright to the work;
    • D copied the work; and
    • The copying was an improper appropriation.
  41. Four Statutory Factors Relevant to Determining Whether the Use was Fair
    1) The purpose and character of the use

    2) The nature of the copyrighted work

    3) The substantiality of the portion used in relation to the copyrighted work as a whole

    4) The effect on the potential market for or value of the copyrighted work
  42. Fair Use
    Privilege in others than the owner of copyright to use the copyrighted work in a reasonable manner without owner's consent
  43. Harper & row Publishers, Inc. v. Nation Enterprises
    (President's Memoir Case)
    Fair use is a defense to copyright infringement. 

    Establishes factors relevant to determining whether use was fair.
  44. Under the federal statute, patent applications must meet 5 requirements to be granted:
    1) Patentability

    2) Novelity

    3) Utility

    4) Non-obviousness

    5) Enablement
  45. Diamond v. Chakrabatary
    Products of nature are not patentable, but a live artificially engineered microorganism is patentable b/c the creation isn't found anywhere in nature, and its use is beneficial and useful.
  46. Three Requirements for Trademark Protection
    1) Distinctiveness

    2) Non-functionality

    3) First use in trade
  47. White v. Samsung Electronics America, Inc.
    Vana White Robot Case

    Property in One's Persona

    The common law right to privacy prohibits the appropriation of one's identity, regardless of the means of employment.
  48. Right to Privacy
    Right to personal autonomy
  49. Right to Publicity
    Right to control the use of one's own name, personal image or likeness, and prevent others from using for money without consent.
  50. Moore v. Regents of the University of California
    (Spleen Cell Case)
    Property in One's Own Person

    Human body parts, once removed, are not property, such that they may be converted.
  51. The Right to Exclude
    "Property as "that sole and despotic dominion in which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." -William Blackstone
  52. Jacque v. SteenBerg Homes Inc.
    (Mobile Home Delivery)
    The right to exclude others from his or her land is one of the most essential property rights.
  53. State v. Shack
    (Migrant Aid Worker)
    Trespass does not include a situation where representatives of recognized charitable groups enter private land in order to provide gov't aid to those workers who need it.
  54. Other Limitations on the Right to Exclude
    • Civil Rights legislation
    • Rent controls and limitations on evictions
    • Adverse possession
    • The Public Trust Doctrine
    • Legislation protected homeowners who have defaulted on mortgage payments
  55. Elements of Right to Abandon
    1) Owner must intend to relinquish all interests in the property with no intent that it be acquired by any particular person; and

    2) There must be a voluntary act by the owner effectuating that intent.
  56. Pocono Springs Civic Association Inc. v. MacKenzie
    (No Indoor Plumbing on the Lot Case)

    To invoke the right to abandon, one must relinquish all right to title and claim to possession with intention to terminate ownership. There must be a voluntary act by the owner effectuating that intent.

    Other actions to merely disassociate are insufficient.
  57. Hawkins v. Mahoney 
    (Prison Property Case)
    The presumption or inference of intent to abandon is up to the owner. There must be intent and a voluntary act.
  58. Eyerman v. Mercantile Trust Co.
    (Demolish a Good House Case)
    Right to Destroy

    When there is no benefit to balance against the injury, destruction would be in violation of public policy.

    If there is not benefit to balance against the injury of destruction, then there is no right to destroy.
  59. Acquisition by Find
    Armory v. Delamiri

    Hannah v. Peel

    McAvoy v. Medina

    Bridges v. Hawkesworth

    South Staffordshire Water Co. v. Sharman

    Elwes v. Briggs Gas Co.
  60. Goals of Prior Possessor Rules
    1. Protect an owner who cannot prove true ownership.

    2. Protect individuals who entrust goods to others


    3. Protect expectations of prior possessors

    (presume possession is ownership)
  61. Armory v. Delamiri
    "I'm keeping your diamond" case. 

    A finder of property does not acquire an absolute title; the true owner has absolute title. The finder acquires title superior to the rest of the world. 

    Case highlights the goals of prior possessor rules.
  62. Hannah v. Peel
    Jewelry found in the House case

    If the owner of property has never occupied his land, the finder of property on his land has a superior title against the land owner.
  63. McAvoy v. Medina
    A finder has no title to mislaid property. The prior possessor rules only apply to "lost" not mislaid property. 

    Supports the goal of property law to promote the return of lost property to its true owner.
  64. Mislaid Property
    Property that is intentionally sat down, but forgotten. 

    i.e. Placing one's wallet on the counter during a sales transaction, but forgetting to pick the wallet back up before leaving the counter.
  65. Bailee
    Temporary Ownership

    i.e. dry cleaners, valet parking, coat check
  66. Bridges v. Hawkesworth
    Lost box at the store went to finder

    A land owner possess everything attached to or under his land; A land owner does not necessarily possess that which is unattached to his land
  67. South Staffordshire Water Co. v. Sharman
    Lost stuff in mud found by employees went to possessor of land 

    Lost item attached to or under land goes to the possessor of the land
  68. Elwes v. Briggs Gas Co.
    Abandoned item: prehistoric boat embedded in soil goes to private land owner (lessor) not finder (lessee of the land)
  69. Items Found in a Public or Quasi-Public Place
    Apply the lost/abandoned/mislaid doctrine
  70. Lost Item
    An item accidentally parted with, goes to finder

    Exceptions: trespassers and employees who are finders don't get the item.
  71. Mislaid Item
    An item intentionally placed but unintentionally left behind, goes to the management/owner of place where found to be held in trust for the true owner.
  72. Abandoned Item
    An item intentionally left goes to finder.
  73. Ordinarily, one acquires title to land by:
    Conveyance: Title passes by deed, either in sale or by gift.

    Devise: Title passes through a will. 

    Descent: Owner dies intestate (w/o a will), and title passes through the probate process.
  74. Tacking
    Privity is satisfied by any non-hostile nexus such as blood, contract, deed, or will. 

    Tacking is not allowed when there has been an ouster. 

    Ouster defeats privity.
  75. Disabilities Exception to Adverse Possession
    Typically ascribed by state statute and only applies when the disability is present at the inception of adverse possession. 

    Common disabilities include infancy, insanity, and imprisonment.
  76. Adverse Possession
    Title to real property may be acquired by adverse possession if an owner does not, within the statute of limitations, take action to eject a trespasser who claims adversely to the owner; and possession meets the following elements: (COAH)

    Continuous

    Open and Notorious

    Actual and Exclusive

    Hostile
  77. Adverse Possession: Continuous
    To establish continuous possession, an adverse possessor must show uninterrupted possession of the sort that a usual owner would make under the circumstances for the appropriate statutory period. 

    Howard v. Kunto
  78. Adverse Possession: Open and Notorious
    To establish open and notorious possession, the occupation must be visible and not clandestine or covert.

    A minor border encroachment does not satisfy this element.
  79. Adverse Possession: Actual and Exclusive Entry
    For actual entry, the adverse possessor must show actual physical entry onto the premises, not symbolic, fictitious, or hypothetical.

    Van Valkenburgh v. Lutz

    For exclusive entry, the adverse possessor must show that he/she did not share the occupied land with the true owner and/or general public.
  80. Adverse Possession: Hostile
    For hostility, the adverse possessor must show that that he/she did not have the true owner's permission to be there. Under the majority rule, the intent of the adverse possessor is irrelevant.
  81. Three Different Standards Regarding the Required State of Mind (Intent) of the Adverse Possessor
    Objective Standard - Intent is Irrelevant (Majority Rule)

    Good-Faith Standard

    Aggressive Trespass Standard
  82. Van Valkenburgh v. Lutz
    The Shack and Shit Case

    To satisfy the adverse possession statute, possessor must establish actual occupation.
  83. Mannillo v. Gorski
    Petty Ass Walkway Border Case

    Possession need not be knowingly and intentionally hostile, but it must be notorious enough to give the true owner actual or constructive notice of the encroachment. 

    A minor encroachment does not satisfy the open and notorious requirement when the only way to know would have been to get a survey on the land. No presumption of knowledge.
  84. Howard v. Kunto
    Tacking on successive possessions of property is permitted for purposes of establishing adverse possession if the successive owners are in privity.
  85. Adverse Possession of Chattels
    O'Keefe v. Snyder
  86. O'Keefe v. Snyder
    They Stole My Hubby's Paintings Case

    The statute of limitations is tolled if the owner of stolen chattel makes diligent efforts to locate and recover the lost chattel. 

    Under no circumstances can a thief transfer good title to stolen chattels.

    Identifies the Discovery Rule
  87. Adverse Possession of Chattels: Discovery Rule
    Rules by which one may obtain title to chattels by adverse possession:

    The statute of limitations doe snot run if the true owner uses diligence to discover the possessor of her property. 

    Voidable Title: Title which remains valid until the true owner asserts ownership.
  88. Gift
    Voluntary transfer of property from one to another without compensation or consideration

    Donor: The giver of a gift

    Donee: The recipient of a gift
  89. Three Types of Gift
    Inter vivos gift - between the living

    Testamentary gift - after donor's death

    Gift causa mortis - gift given in contemplation of death
  90. Acquisition of Property by Gift
    IDA

    Donor must intend to make a gift of personal property (may be shown by oral evidence).

    Donor must deliver possession (hand over the property) to the donee with the manifested intention to make a gift. Delivery requires objective acts, but if manual delivery is impossible, constructive or symbolic delivery may be accepted. 

    Acceptance by the donee. Courts presume acceptance upon delivery unless a donee expressly refuses.

    Newman v. Bost

    Gruen v. Gruen
  91. Newman v. Bost
    Sugar Daddy Case

    Physical delivery is required unless impractical. Only then will symbolic and/or constructive delivery be accepted to meet the delivery requirement. 

    Goal is to protect owners of property from being defrauded. 

    Another goal is to promote free alienability of property.
  92. Gruen v. Gruen
    My Stepmother Kept My Dead Dad's Painting Case

    An inter vivos gift requires that donor intends to make a present transfer of title. If intention is to transfer after death, then the gift is invalid without a will.
  93. Freehold (Possessory) Estate System
    Trace the freehold estate system to the Norman Conquest in 1066. 

    William the Conqueror

    All land went back to the King.
  94. Alienable
    Transferable inter vivos, or during holder's lifetime.
  95. Devisable
    Can pass by will.
  96. Descendible
    Can pass by the statutes of intestacy if its holder dies intestate (w/o a will)
  97. If a person dies intestate (w/o a will) real property descends to:
    his or her HEIRS.
  98. Persons who take real property under a decedent's will are called
    Devisees.
  99. Persons who take personal property under a decedent's will are called
    legatees.
  100. Issue means
    Descendant

    i.e. grandchild, child, etc.
  101. The persons who succeed to an intestate's personal property are called
    Next of Kin
  102. If a person dies intestate without any heirs or next of kin, the person's real and personal property:
    Escheats to the state where the property is located
  103. The Parties in a Conveyance
    • O = Grantor
    • Assume fee simple absolute title in O
    • Unless otherwise stated, assume the laws of intestacy apply.

    A = Grantee

    B, C, D, etc. = Additional Grantees
  104. Words of Purchase/Limitation
    "To A" = words of purchase = to whom

    "for life" = words of limitation = for how long
  105. Four Main Types of Possessory Estates (measured by duration of grantee's interest)
    Fee Simple Absolute (aka Fee Simple)

    Fee Tail

    Life Estate

    Defeasible Fees
  106. Fee Simple
    • Language to Create
    • Grantor, O, conveys, "To A and his heirs" or "To A."

    Under Common Law: "To A and his heirs" creates fee simple. "To A" creates a life estate in A. 

    Under modern rule, both "To A and his heirs" and "To A" create fee simple. 

    • Characteristics
    • Alienable
    • Devisable
    • Descendible

    • Future Interests
    • None
  107. "Assess the state of title" menas
    State what interest, if any, that each party has in the property
  108. The Fee Tail
    • Language to Create
    • Grantor, O, conveys, "To A and the heirs of his body."

    • Characteristics
    • Alienable
    • NOT devisable 
    • NOT descendible 

    • Future Interests
    • In the grantor, a reversion.
    • In a third party, a remainder.
  109. Life Estates
    • Language to Create
    • Grantor, O, conveys, "To A for life" or

    • "To A for the life of B." 
    • Life estate pur autre vie is an estate that is measured by a life other than the grantee's.

    • Characteristics
    • Alienable
    • Devisable
    • Descendible if pur autre vie and measuring life is still alive

    • Future Interests
    • In O, the grantor, it is called a reversion. In a third party, it is called a remainder.
  110. White v. Brown
    Live In But Don't Sell My House Case

    Unless a contrary intention appears by the terms of the will and its context, a will conveys a testator's entire interest. 

    Alienation of Property Principle
  111. Alienation of Property
    A principle that the owner of a piece of property should be able to sell or use the land as he/she sees fit, without limitation by the former owner.

    Promotes the most productive use of land
  112. The Life Estate
    A life tenant is entitled to all ordinary uses of and profits from land. 

    A life tenant must not commit waste (i.e. unreasonably interfere with the expectations of future interest holders)
  113. The Life Estate: Three Forms of Waste
    • Voluntary or Affirmative Waste
    • Actual, overt conduct (or acts of destruction) that creates a more than trivial decrease in value

    • Permissive Waste (Neglect)
    • - Land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land. 

    - Relevant standard: the life tenant must maintain the premises in reasonably good repair. 

    - Life tenant must pay all current general property taxes on the land for the duration of the life estate

    • Ameliorative Waste
    • Those renovations or transformations of property that work to increase the premise's value
  114. Seisin
    Before 1536, a freehold estate could only be created by a ceremony known as feoffment with livery of seisen.

    Possession of a particular kind with certain consequences.
  115. Baker v. Weedon
    A trail court shall order a judicial sale only if it is in the best interest of both the freehold tenant and the holder of future interest.
  116. Leasehold Estates
    • -Nonfreehold estates
    • -Leasehold tenants do not have seisen
    • -Modern leasehold estates
    •     -> term of years
    •     -> periodic tenancy
    •     -> tenancy at will
  117. There are three types of defeasible fees.
    1. Fee simple determinable

    2. Fee simple subject to condition subsequent

    3. Fee simple subject to executory limitation
  118. Fee Simple Determinable (aka fee simple on special limitation)
    • Language to Create
    • Grantor, O, conveys, "To A for so long as ...." or

    "To A during ....." or

    "To A until . . . "

    • Characteristics
    • Alienable
    • Devisable
    • Descendible
    • BUT ALWAYS SUBJECT TO THE LIMITATION!

    • Future Interests
    • Possibility of Reverter in O, the grantor.
  119. Fee Simple Subject to a Condition Subsequent
    • Language to Create
    • Grantor, O, conveys, "To A and his heirs, but if X event occurs, grantor reserves the right to re-enter and retake."

    - "provided, however, that if X event occurs ..." 

    - "on condition that if X event occurs ...."

    - "However, if X event occurs...."

    • Characteristics
    • Alienable
    • Devisable
    • Descendible
    • BUT ALWAS SUBJECT TO THE CONDITION!
    • Future Interests
    • The right of entry (aka the power of termination)
  120. Fee Simple Subject to Executory Limitation
    • Language to Create
    • Grantor, O, conveys "To A, but if X event occurs, then to B and his heirs."

    • Characteristics
    • Alienable
    • Devisable
    • Descendible 
    • BUT ALWAYS SUBJECT TO THE LIMITATION!

    • Future Interests
    • The shifting executory interest.
  121. Defeasible Fees: Rules of Construction
    1. Clear Language Essential 

    2. Absolute restraints on alienation (power to sell/transfer) are void.
  122. Defeasible Fees: Rules of Construction: Clear Language
    Words of mere desire, hope, or intention are insufficient to create a defeasible fee. 

    Policy: Courts disfavor restriction on the free use of land. So courts will avoid finding a defeasible fee unless clear durational language is used. 

    Courts will construe these words to create a fee simple absolute: 

    "To A for the purpose of creating...."

    "To A with hope that ...."

    "To A with the expectation that ..."
  123. Defeasible Fees: Rules of Construction: Absolute Restraints on Alienation
    Policy: Courts disfavor restrictions on the free use of land. So courts will avoid finding a defeasible fee unless clear durational language is used. 

    Courts will construe these words to create a fee simple absolute: 

    "To A as long as she never attempts to sell this land."
  124. Marenholz v. County Board of School Trustees
    This was a fee simple determinable with a possibility of reverter.

    Case highlights the importance of using clear language
  125. Covenants Distinguished from Defeasible Fees
    Defeasible fees are limitations/conditions imposed by the grantor

    Covenants are promises made by a grantee

    A limitation/condition is much more onerous than a covenant

    - If a limitation or condition is breached, land may be forfeited to holder of the future interest. 

    - If something called a "real covenant" is breached, the promisee may sue for damages (while only injunctive relief is available for breach of an "equitable servitude")
  126. Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano
    The use of land may be restricted in a conveyance. 

    Habendum Clause: A portion of a deed which describes the restrictions or limitations that go along with the property being conveyed.
  127. Ink v. City of Caton
    The proceeds from eminent domaine proceeding are to be divided between the holder of the fee simple on condition subsequent and the holder of the reverter.
  128. Two Types of Future Interests
    • 1. Interests retained by the transferor
    • Reversion
    • Possibility of reverter
    • Right of entry (aka power of termination)

    • 2. Interests created in a transferee
    • Vested Remainder
    • Contingent Remainder
    • Executory Interest
  129. Hierarchy of Estates for Reversion
    Top of Pyramid to Bottom:

    • Fee Simple
    • Fee Tail
    • Life Estate
    • Leasehold Estates
  130. Reversion Example
    O conveys Blackacre, "To A for life."

    O has a refersion in fee simple absolute. 

    For future interests, always specify the estate.
  131. Possibility of Reverter
    Possibility of reverter accompanies only the fee simple determinable. 

    O conveys Blackacre, "To A, as long as ...." "during ....." or "until ...."

    O has a possibility of reverter in fee simple absolute.
  132. Right of Entry
    Right of entry accompanies only the fee simple subject to condition subsequent. 

    "To A, but if X event happens, O reserves the right to reenter and retake."

    O has the right of entry in fee simple, absolute, synonymous with the power of termination in fee simple absolute.
  133. Remainders Generally
    A future interest created in a grantee that becomes possessory at the natural conclusion of a preceding life estate, fee tail, or term of years.

    Remainders are sociable. They tag along with other estates. 

    Remainders patiently and politely wait their turn.

    Remainders are either vested or contingent.
  134. Vested Remainders
    Created in ascertained person and not subject to a condition precedent (other than the natural termination of the preceding estate).

    • Three types of vested remainders:
    • 1. The indefeasibly vested remainder

    2. The vested remainder subject to complete defeasance (sometimes called vested remainder subject to total divestment)

    3. The vested remainder subject to open
  135. The Indefeasibly Vested Remainder
    The vested remainder subject to complete defeasance (sometimes called vested remainder subject to total divestment)

    The vested remainder subject to open

    Holder is certain to acquire an estate in the future, with no conditions or strings attached.

    "To A for life, remainder to B and his heirs." A is alive. B is alive. A has a life estate. B has an indefeasibly vested remainder in fee simple absolute.
  136. Spendthrift Trust
    A testamentary trust created to be free from the interference or control of the grantee's creditors"
  137. The Trust
    Trusts allow to arrange their assets in a way that:

    1. Maximizes flexibility in property management; and 

    2. Ensures the transfer of wealth to future generations.

    Trustee has legal title - right to manage the property for the benefit of the beneficiaries (i.e. fiduciary duty to beneficiaries).

    The beneficiaries have equitable title - right to beneficial enjoyment of the property
  138. 4 Types of Leasehold Estates
    • The Tenancy of Years (or Term of Years)
    • The Periodic Tenancy
    • The Tenancy at Will
    • The Tenancy at Sufferance
  139. The Tenancy of Years (or Term of Years)
    • Lasts for a fixed determined period of time. 
    • Notice is not necessary to terminate. 
    • If the term is greater than one year, the lease must be in writing. (statute of frauds).
  140. The Periodic Tenancy
    Continues for successive or continuous intervals,until either landlord or tenant give proper notice of termination. 

    Thee is no end date in the lease. 

    Can be created expressly or by implication.

    Notice must be given to terminate.
  141. Periodic Tenancy Creation
    • Expressly
    • "To T from week to week."

    "To T from month to month."

    "To T from year to year."

    • Implication in Three Ways:
    • 1) Land is leased with no mention of duration, but provision is made for payment of rent at regular intervals. 

    2) An oral term of years that violates the statute of frauds creates a periodic tenancy, measured by the way rent is tendered. 

    3) Holdover. In a residential lease, when T has wrongfully stayed past the conclusion of the original lease, L can elect to continue to accept rent from T. This creates an implied periodic tenancy measured by the way rent is tendered.
  142. Termination of  Periodic Tenancy
    Notice must be given at least equal to the length of the interval itself, unless otherwise agreed. 

    Exception: In periodic tenancies that run in intervals for one year or more, only six months notice is needed to terminate.
  143. The Tenancy at Will
    • No fixed period or duration. Lasts as long as either L or T desire. 
    • "To T for as long as L or T desire."

    Unless parties expressly agree to tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy. 

    Under common law, no notice to terminate was necessary. By statute, most states now require that reasonable notice be given to terminate a tenancy at will.
  144. Garner v. Gerrish
    T (Gerrish) has the privilege of termination of this agreement at a date of his own choice (lease langugage)

    Issue: Tenancy at will or Determinable life estate?

    Held: Determinable life estate
  145. The Tenancy at Sufferance: Holdovers
    Created when a tenant is wrongfully held over, past the conclusion of the original lease. 

    Usually short lived. 

    Lasts until the landlord either evicts the tenant or elects to hold the tenant to a new leasehold.
  146. Lease
    A contract between L and T subject to the statute of frauds.
  147. Leaseholds and Termination
    Since a leasehold is carved out of an estate of longer duration, anything that brings that estate to an end before the agreed termination date of the leasehold should cause the leasehold to fall in. 

    i.e. Life tenant who leases land through a term of years lease to A dies before lease is over. The lease ends at the life tenant's death, and not at the lease's end date.
  148. Tenancy in Common
    Two or more own with no right of survivorship. 

    Each co-tenant's future interest is: alienable, descendible, and devisable.
  149. Tenancy by the Entirety
    A marital estate that can only be created between married partners, who share the right of survivorship. 

    Four unities Required (T-TIP) plus Marriage

    Not alienable, descendible, or devisable UNLESS both A and B agree otherwise.

    Divorce terminates the tenancy by the entirety and usually turns into a tenancy in common. 

    Special Protections: creditors of only one spouse can't reach the tenancy; neither tenant acting alone can defeat the right of survivorship by a unilateral conveyance to a third party.
  150. Joint Tenancy
    Two or more own with the right of survivorship.

    Four unities required: T-TIP

    Joint tenant's share is alienable (inter vivos conveyance doesn't need other joint tenant's permission. 

    Right of survivorship is not descendible or devisable. 

    One way to terminate/sever a joint tenancy: intervivos sale or conveyance.
  151. T-TIP (four unities)
    T: Interest must vest or be acquired at the same TIME

    T: All joint tenants must acquire TITLE by the same instrument or by a joint adverse possession. 

    I: All must have equal undivided shares and identical INTEREST measured by duration. 

    P: Each must have a right to POSSESS the whole.
  152. Title Theory of Mortgages
    If the mortgage transferred title to the mortgagee, then the four unities are disrupted.
  153. Lien Theory of Mortgages
    If the mortgage was a lien and did not transfer title, then the four unities remain. 

    If the mortgage transferred title to the mortgagee, then the four unities are disrupted.
  154. Severance by Partition
    Applies to joint tenancies and tenancies in common

    Voluntary agreement

    Partition in Kind - A judicial action for physical division of the property if its in the best interest of all. 

    Forced Sale - A judicial action if its in the best interest of all where the land is sold and the sale proceeds are divided up proportionately.
  155. Delfino v. Vealencis
    A partition in sale should only be ordered when two conditions are satisfied: 

    1) The physical attributes of the land are such that a partition in kind is impracticable or inequitable; and 

    2) The interests of the owners would be better promoted by partition by sale. 

    *The modern trend favors partition by sale.
  156. Rights and Duties of Co-Tenants
    These rules apply in the absence of contractual agreements that provide otherwise. 

    These rules apply to joint tenants, tenants in common, tenants by the entirety (with the exception on the rule of partition).


    • Possession
    • Rent (co-tenant and 3rd party)
    • Right to Lease 
    • Adverse Possession
    • Carrying Costs
    • Repairs
    • Improvements
    • Waste
    • Partition
  157. Rights and Duties of Co-Tenants

    POSSESSION
    Each co-tenant is entitled to posses and enjoy the whole.
  158. Rights and Duties of Co-Tenants

    RENT
    Rent from a Co-Tenant in Exclusive Possession: A co-tenant in exclusive possession is not liable to the others fro rent, unless he ousted the others. 

    Rent from 3rd Parties: A co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rental income, minus expenses.
  159. Rights and Duties of Co-Tenants

    ADVERSE POSSESSION
    Unless he ousted the others, a co-tenant in exclusive possession, and any of his/her lessees, cannot acquire title to the whole through the statutory adverse possession period.
  160. Rights and Duties of Co-Tenants

    CARRYING COSTS
    Each co-tenant is responsible for his or her fair share of the premises' carrying costs such as taxes or mortgage payments.
  161. Rights and Duties of Co-Tenants

    REPAIRS
    In most jurisdictions, during the lie of the co-tenancy, the repairing co-tenant has no affirmative right to contribution for any reasonably necessary repairs that she makes, absent an agreement. But at partition or accounting, co-tenant receives a credit for these repairs.
  162. Rights and Duties of Co-Tenants

    IMPROVEMENTS
    During the life of the co-tenancy, there is no affirmative right to contribution on improvements. But at partition or accounting, the improver is either credited or debited for the increase in value (the up-side-down-side doctrine)
  163. Rights and Duties of Co-Tenants

    WASTE
    A co-tenant must not commit waste. A co-tenant can bring an action for waste during the life of the co-tenancy.
  164. Rights and Duties of Co-Tenants

    PARTITION
    A joint tenant or tenant in common has the right to bring an action for partition. In contrast, a tenancy by entirety can only be dissolved by divorce.
  165. Rule Against Perpetuities (RAP)
    An attempt to balance the tensions among furthering marketability by destroying contingent future interests.

    RAP is rooted in the "Parade of Horribles" or the "What-May-Happen Test."
  166. The Fertile Octogenarian Rule
    A person is fertile regardless of age. 

    • Only applies to: CEC
    • C: Contingent Remainders
    • E: Executory Interests
    • C: Certain Vested Remainders Subject to Open (i.e. class gifts)

    • Does Not Apply To:
    • Any future interests in the grantor or certain other vested interests in the grantor or certain other vested interests (i.e. indefeasibly vested remainders, vested remainders subject to complete defeasance)
  167. 5 Step RAP Analysis
    1. Determine which future interests have been created by the conveyance. 

    2. Identify the precedent to the vesting of the suspect future interest. 

    3. Identify the lives in being and look for a validating life. Ask yourself: "Will we know with certainty, within 21 years of the death of a life in being at the time of conveyance, if our future interest holder(s) can or cannot take?

    4. if we have a validating life, the interest is valid. If not, the interest is void, so strike the offending part and revise classification of the title. 

    5. If there is another suspect interest, repeat procedure.
  168. Perpetuity Reform Movement
    Wait and See: The validity of any suspect future interest is determined on the basis o the facts at the conclusion of the measuring life. 

    Uniform Statutory Rule Against Perpetuities (USRAP): Codifies common law RAP and, in addition, provides for an alternative 90-year vesting period (starting at the time of conveyance).

    Both "Wait and See" and "USRAP" embrace cy pres (sigh pray), meaning, "as near as possible."

    Savings Clause: A clause that provides that if any future interest violates RAP, then the property goes to a designated party.
  169. The Doctrine of Merger
    Under the common law, if the life estate and the next vested estate in fee simple come into the hands of one person, the lesser estate is merged into the larger. 

    The Doctrine of Merger is still in effect.
  170. The Doctrine of Worthier Title
    Applies when O, who is still alive, tries to create a future interest in his heirs. O, who is alive, conveys "To A for life, then to O's heirs."

    According to the doctrine, the contingent remainder in O's heirs is void. Therefore, A has a life estate and O has a reversion in fee simple absolute. 

    Still viable in some states today. 

    This rule operates to further land alienability and limit dead hand control.
  171. Continental System of Community Property
    • ·     
    • Husband and wife are a
    • marital partnership (a community) and share their assets equally.

    • ·     
    • Husband's creditors
    • could reach the entire property (which followed management and control).

    • ·     
    • Does not recognize the
    • tenancy by the entirety because community property does not recognize
    • survivorship rights.

    • ·     
    • Accepted by 8 states,
    • with 2 joining later: AZ, CA, ID, LA, NE, NM, TX, WA, WI, AK

    • ·     
    • Fundamental idea is
    • that earnings, and things purchased by these earnings, of each spouse during
    • marriage should be owned equally in undivided shares by both spouses.

    • ·     
    • Whatever is bought
    • with earnings during marriage is community property

    • ·     
    • Separate property is
    • acquired before marriage or during marriage but only if acquired by gift,
    • devise, or descent.

    • ·     
    • Community property
    • states don't recognize dower or curtsey or tenancy by the entirety b/c the idea
    • is that married partners take land as 
    • a partnership.

    • ·     
    • Community property can
    • only exist between married couples.

    • ·     
    • Conveyance of share:
    • neither spouse acting alone can convey his or her undivided one-half share of
    • community property, except to the other spouse

    • ·     
    • Each spouse has the
    • power to dispose  by will of
    • one-half of the community property at death. There is not survivorship feature.


    • ·     
    • At the death of one
    • spouse, the entire community property receives a "stepped up" tax
    • basis for federal income tax purposes. The new basis is the value of the
    • property upon the date of the decedent's death.

    • ·     
    • In most community
    • property states, liability to creditors follows management and control.

    • ·     
    • The creditors of a
    • managing spouse can reach whatever community property the creditor is legally
    • entitled to manage.
  172. Marital Interest at 
    English
    Common Law
    • ·     
    • Only the husband could
    • own and manage property

    • ·     
    • Husband's creditors
    • could reach the entire property

    • ·     
    • Under the doctrine of
    • coverture, married women had no legal existence: could not enter contracts or
    • own property. Upon marriage, wife's personal property except clothes and
    • ornaments, became the absolute property of her husband and she was to benefit
    • from his support and protection.

    • ·     
    • Accepted by a great
    • majority of states
  173. By the end of the 19th century, all states enacted
    Married Women's Property Acts:
    •  Statutes that removed the disabilities of coverture
    • and gave married women control over all her property. But courts struggled with
    • the issue of whether her husband's creditors could reach her property.
  174. 4
    Possibilities for Tenancies in the Entirety in 1970's:
    • 1. Common law tenancy in the
    • entirety, unaffected by the Married Women's Property Acts. Husband's creditors
    • could reach wife's interests, subject to wife's right of survivorship (3 states
    • follow.)

     

    • 2. Husband's creditors could reach
    • wife's interests and wife's creditors could reach the husband's interests,
    • subject to the other spouse's right of survivorship (5 states follow).

     

    • 3. An absolute bar to creditors (10
    • states and DC)

     

    • 4. Husband's creditors could not
    • reach the current profits of the property, but were instead limited to
    • attaching the survivorship rights of either spouse (2 states)
  175. Termination of Marriage by Divorce
    • ·     
    • Before 1970, divorce
    • could only be granted if one party was found to have committed some marital
    • fault, such as extreme cruelty or adultery. Since then, no-fault divorce has
    • been adopted in every state.

    • ·     
    • Under no-fault
    • principles, property is divided by the court on equitable principles. This is
    • called "equitable distribution."

    • ·     
    • Under equitable
    • distribution, many states authorize a court to divide all property owned by the
    • spouses. Some states only authorize the division of marital property.

    • ·     
    • The Uniform Dissolution of Marriage Act requires that a court shall divide marital property without
    • regard to marital misconduct, in such proportions that the court deems just
    • after considering all relevant factors.

    • ·     
    • Marital property means
    • all property acquired by either spouse subsequent to the marriage except:
    • property acquired by gift, bequest, devise, or descent; property acquired in
    • exchange for property acquired prior to marriage, or in exchange for property
    • acquired by gift, bequest, devise, or descent; property acquired by a spouse
    • after a decree of legal separation; and property excluded by valid agreement of
    • the parties.
  176. Distributing
    Property in Common Law States When a Spouse Dies
    • Surviving spouse's rights at English common
    • law reflected the desires of the landed class: Land stayed in the patriarchal
    • family, but surviving spouses should be supported for their lives.

    • ·      
    • English
    • Common Law

    • 1. For Personal Property -  Surviving widow gets one-third if there
    • were surviving issue and one-half otherwise. Surviving widower took all his
    • wife's personal property absolutely.

     

    • 2. For Land - Dower for Widow:
    • Wife gets a life estate in one-third of each parcel of qualifying land.
    • Courtesy for widower: Husband gets a life estate in each piece of the wife's
    • real property if certain conditions were fulfilled.

     

    • ·      
    • Today's
    • Common Law Property States

    Modern rule is ELECTIVE SHARE:

    • - All common law property
    • states except GA have elective-share statutes.

    • - Under elective share, the
    • surviving spouse can renounce the will, if any, and elect to take a statutory
    • share, which is usually one-half or one-third or some other fractional share of
    • property that decedent owned at death.

    • - The elective share usually
    • does not apply to property held by the decedent and another in joint tenancy or
    • to life insurance proceeds.
  177. Mixing
    Community Property with Separate Property
    • When community property is mixed with
    • separate property, the community property states have enacted three different
    • rules to deals with this:

    • ·      
    • Inception of
    • Right Rule - The character of the property is determined at the time the right
    • is given to either spouse. i.e. Wife pays one-third down on a house before
    • marriage, with the remaining two-thirds paid after marriage from community
    • funds. The house belongs to the wife alone.

    • ·      
    • Time of Vesting
    • Rule

    • ·      
    • Pro Rata Sharing
    • Rule

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