Property Outline Spring 2007 2

8/7/2019 Property Outline Spring 2007 2

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I. INTRODUCTION

a. Equal Footing Doctrine: as each state entered USA, it gained control of land w/in own bordersb. Fed govt is not bound by state lawsc. Property laws only exists to extent law recognizes themd. 2 types of property: (1) real [generally immovable] and (2) personal [movable; tangible and intangible]

II. ABANDONED PROPERTY

a. Overview / Defsi. Cant abandon real property, only personalii. Once abandon cant change your mind

iii. accretion : natural movement or deposit in land; owner where accretion attaches = owner1. Manure on street = personalty; on farm w/be realty

iv. avulsion : change course of river; Ownership remains at original boundaryv. riparian : land adjacent to a river

vi. littoral : next to lake or oceanb. Rules / Cases

i. To lose title by abandonment:

1. (1) no possession2. (2) no intent to reclaim

ii. To gain title of abandoned property1. (1) must take possession

a. Possession is actual taking as their nature and situation permitEadsb. Req physical possession (1) evidentiary (2) give notice (3) efficiency (bring into

productive use)

c. Reasonable time must be allowed to pass (24 hrs for seaweed)2. (2) have intent to possess

III. BAILMENTS

a. Elements

i. Delivery for a purposeii. Acceptance

b. Def:property relationship in which bailor delivers property to bailee for performance of a servicec. BOP on baileed. Duty depends on who benefits

i. Mutual benefit : bailee must use ordinary diligenceii. Sole benefit of bailor : bailee is liable only for gross negligence

iii. Sole benefit of bailee : bailee is required to use extraordinary care in protecting the goods from loss ordamage (but he is still not an insurer, and is liable only if some degree of fault is shown)

e. Bailee must take reasonable care according to notice of what accepting (disclosed or reasonable to be expected)i. Degree of control: affects liability of bailee

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IV. LOST AND MISLAID PROPERTY

a. Overview / Vocabi. Societal Goals: (1) no self-help, (2) return object to owner, (3) discourage wrongdoing; (4) return property

to productive use

ii. Conversion : converting someones property to your benefitb. Found property

i. Owner: retains ownership of property even after someone else has found it. The owner can recover theproperty from anyone who has possession

1. Relativity of Title : owner has greatest rts, then 1st possessorii. Finder :The finders right to possess (not ownership) the found property depends on whether it was:

1. (1) Lost or mislaid; anda. Property is lost if its owner involuntarily parted w/ possession

i. If property is lost, the right of possession depends on whether the property wasfound in a public or private place

b. Property is mislaid if its owner voluntarily parted w/ possession and accidentally leftit, such as a pocket-book left on a table in a shop.

i. If property is mislaid, the owner of the premises where it was found has theright to possess it.

ii. Underlying theory is that the owner is more likely to recover the property if it isleft w/ the owner of the premises

c. This distinction will not always be clear. Ex.: a ring might be found on the floor near abathroom sink = hinges on intent

d. This theory is better served by characterizing property as being mislaid in unclear cases

2. (2) Found in a public or a private placea. A public place is one that is open to the public

i. If property is found in a publicplace, the finder is entitled to possess theproperty

ii. Dont want public places responsible for people leaving stuff there and ownerdoesnt exercise same amount of control as a private shop

b. A place is private if its possessor intends to exercise control over it and everythingfound on or in it, such as a private home.

i. If property is found in a private place, the owner of the premises is entitled toposses the property

ii. Embedded objects to land owner b/c private place owner intends to exercisepossession of land and anything in land

c. If loose (unattached), finder gets it; if buried/embedded, land owner gets itd. If found during employee responsibilities, employer gets; if not, employee gets

i. The lands possessor need not be aware of the objects existence to be entitled topossess it

e. These defs leaves a large middle ground (safety deposit box room, NWA World ClubLounge)

3. Other

a. Treasure trove : (1) not lost or mislaid; (2) gold/silver in coin, plate, or bullion concealedin earth/house/other private place

c. Remedies

i. A person who wrongfully has possession of an object is subject to the following remedies:

1. (1) Trover: Monetary dmgs in the amt or the objects value, NOT property; or2. (2) Replevin: An order to return the object to the person who is entitled to possession,, not $$

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V. GIFTS

a. Voluntary conveyance for no considerationb. Can have a gift subject to a condition (engagement ring)c. testate: die w/ willd. intestate: die w/o wille. Realty is devised to devisees in will

f. Personalty is bequeathed to legatees in willg. heirs for intestate realtyh. next of kin for intestate personaltyi. per stirpes by representationj. Trust

i. settler owner of assetsii. bnfs: people settler wants to benefit from assets

iii. trustee receives title of assetsiv. State in deed that title of land in trust to trustee to make clear that its not for trustees benefit

k. deed: transfer title for real property

l. bill of sale: transfer title for personal propertym. testator: signer of willn. Birching the boy / whipping boy storyo. 3 types of gifts

i. (1) Inter vivos: between the livingii. (2) gift causa mortis (GCM): making in anticipation of imminent death

iii. (3) testamentary gift: gift made by will

p. Inter vivos - elements

i. (1) Intent to make gift now, can delay enjoyment of giftii. (2) Acceptance: often assumed if gift is of value

iii. (3) Delivery: need immediate possession; can be constructive delivery (key, deed, letter); bailment; agencyiv. *Not revocable

q. GCM only personaltyi. 4 Elements

1. Intent : present transfer2. Delivery : more strict b/c want to prevent same fraud that wills try to prevent; clear and convincing

evidence3. Acceptance

4. Apprehension of imminent death w/ condition that the property goes to donee upon death5. ** : donor can NOT recover; must die of cause that was anticipated6. ** : making of will s/b impracticable7. ** : Can be revoked, unusually automatically, if donor doesnt die of what anticipated dying of

ii. Intent for possession immediately (condition subsequent), but only absolute upon death (cond. precedent)1. Usually subsequent so its not a testamentary gift

2. Can sell condition precedent GCM???

3. HYPO: Via GCM A, dying, gives to B. A executes a will giving all property to C.a. C wants GCM = condition subsequent b/c As will revoked title of B.

i. CTR: should have done it explicitly in willb. If will first, then GCM? GCM wins b/c will is revocable

iii. Only to a particular individualiv. Closely scrutinized

r. Testamentary Gift

i. Can be revoked before death b/c only effective at deathii. Intestate succession statute governs if no will

iii. effective at death

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iv. To be valid, testator must (1) sign and (2) meet statute of willsv. Residuary clause determines who gets what isnt explicitly devised/bequeathed in will

VI. FIXTURES

a. personal property which is attached to the land; becomes permanent part of land

b. Elementsi. (1) physical annexation to realty: physical attachment to realty

ii. (2) adaptation to a particular purpose: same use as realtyiii. (3) intent to make a permanent accession to the freehold (character of attachment)

c. Re: intenti. Permanent uniquely adapted (essential)

ii. Look at character of attachment: will it damage realty if removed; treated as realty (incl. in home appraisal)iii. BOP on person in favor of attachment

d. Property can change over time, so look at legally pertinent pt in timeVII. ADVERSE POSSESSION (AP)

a. SOL/COA : Basis for AP is SOLb. Begins with noticec. 2 focii

i. (1) who has rt to bring COA and stop AP (disabilities at time of AP)ii. (2) nature of estate at time of AP (FSA, LE)

d. Elements :

i. Actual : actual possession of propertyii. Continuous : nature of property considered; just normal use

iii. Exclusive : ask others to leaveiv. Hostile : w/o owners consent; keep trespassers off land; cant have permission; Hostile to title that original

owner had as well to others

v. Open and Notorious : not secretive

e. Hostility : states must know you dont own the property; sates must have good faith belief that property is yoursf. Disability : If owner has disability (minor, insane, imprisoned, married), then SOL tolled

i. Disability prevents SOL clock from starting; but wont stop the clock if it already started1. Once SOL clock starts, it doesnt stop, even if new disability occurs (CL: women marries)

ii. Only matters at time of AP

iii. Give more generous period if post-disability SOL would be less than regular SOLiv. Title split before AP = no tacking; title split after AP = yes tacking

g. Tacking : If AP begun by one person who didnt AP for entire SOL, but transfers possession to another AP, theirtime is combined

i. Need vertical privity of estateh. Relation back : once SOL has run, APs title is treated as though existed from time of possession began

i. Ex.: 2 yr SOL. AP gets title in 90. X sneaks onto land cutting trees from 89-91. O can sue X for 89-90and AP can sue X for 90-91. BUT, O cannot sue AP for anytime b/c of relation back.

i. bona fide purchaser: innocent party who purchases property w/o notice of any other partys claim to the title ofthat property

j. New Title : Law creates new title in person who once was wrongful possessork. Nothing against self-help for personaltyl. If SOL bars a complaint, cant be used as a defense (if not a COA, then not a defense)m. Once legal title, cant take matters into own hands via self-help and use as defense

n. SOL is based on nature (realty/personalty) of property at time of APo. Policy why allow AP?

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i. efficiency want property in productive use

ii. Due to not allowing abandonment if person not acting as a good steward of property, then give to whowill

iii. BAD: anti-conservation

VIII. ESTATES

a. Alienation: ability to transfer propertyb. Freehold: owner has title (livery of seisin)c. Non-freehold: tenants interest: rt to possess but not ownership

IX. FEE SIMPLE ESTATES

Terminates Language

CL/ML /

connecting words

Future Interest

FSA (Fee Simple

Absolute)

Never (indefinite) to A and her heirsto A

N/A

FEE SIMPLE DEFEASIBLES

FSD (Fee Simple

Determinable)

Automatically = AP

SOL startsimmediatelyinflexible

prior expires to A so long as

/Duration

Grantor

Possibility of reverter =actual title

FSSCS (Fee Simple

Subject to

Conditions

Subsequent)

At grantors election= AP SOL startsupon assertion ofCOA

Flexible

Prior divested byaction inejectment

to A uponcondition thatWords of condition

GrantorRt of re-entry / pwr oftermination = COAonly

FSSEL (Fee Simple

Subject to

Executory

Limitation)

Automatically Astitle is taken away ~FSDinflexible

Either expires ordivested

to A for so longas . . ., then to B

Any words, but

someone other thangrantor/grantee

gets future interest

3PEI

LE (Life Estate) Reversion orRemainder

a. Overview / Vocab

i. The law abhors a forfeiture how avoid?1. strict construction

2. Precatory language is non-binding3. covenant instead of a condition b/c can sue for breaking covenant; forfeit for condition

b. Analysis

i. Who has future interest?ii. What is connecting language?

iii. What if condition is violated?

c. 4 types (1 FSA; 3 Fee Simple Defeasible)i. Fee Simple Absolute (FSA)

ii. Fee Simple Determinable (FSD)

iii. Fee Simple Subject to Conditions Subsequent (FSSCS)iv. Fee Simple Subject to Executory Limitation (FSSEL)

d. FSA

i. CL words to A and his heirs (to A was only LE w/ reversion for O); ML words to A sufficient1. Rule of construction: if ambiguous assume the largest property of estate in favor of grantee

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ii. Grantors intention controlsiii. Largest interest: of potentially infinite durationiv. Heirs: only known at death

1. collaterals: same generation of brothers/sisters2. ancestors: parents, grandparents

e. Language

i. Absence of reverter clause not material for FSDii. Words of purchase who receives property interest

iii. Words of limitation define, describe the purchasers interestf. Grantors intentcontrols

i. Initial language may override later languageii. Bequeath = personalty

g. Other - Fertile Octogenarian rule: dont assume older person cant have childrenX. FEE TAIL - to A and heirs of As body

a. Language : to A and heirs of As bodyi. to A: words of purchase

ii. and heirs of As body: words of limitation

b. Purpose : prevents transfer outside of family

c. Creation : requires indefinite failure of issued. Reversion : O has reversion if fee tail expirese. Abolished in most states most JXs dont recognizef. 7 treatments of Fee Tail (FT)

i. (1) recognize itii. (2) 1st take acquires FSA

iii. (3) Recognize FT but provide means to disentail. If disentail, et FSAiv. (4) Dont recognize, give FSAv. (5) Construe language to be a life estate and a remainder in FSA

vi. (6) 1st taker has FT and next takers FSAvii. (7) Construe language as FSSCS

g. 4 ways to stop Fee Tail

i. (1) Convert fee tail into FSA in first taker (1 gen)ii. (2) Convert the fee tail into a LE in 1st taker w/ a remainder in FSA in 1st takers lineal descendants (2

gen)

iii. (3) preserve the fee tail in the hand of the 1st taker, but convert it into a FSA in the hands of linealdescendants (2 gen)

iv. (4) Preserve the fee tail but allow any taker to convert it into a FSA by making an inter vivos conveyance othe property = any holder of fee tail can disentail the tail. Just need expression of intent.

h. Fee Tail Special : fee tail male/femalei. Reversion to O when family line runs out

i. Analyticali. Focus on words of limitation: need to have indefinite succession

1. If not modified, then likely indefinite (Fee Tail)

XI. LIFE ESTATES

a. Def: max duration is measured by human life (lives)b. Legal v. Conventional

i. Legal : created by operation of law1. Marital interest : usually give surviving spouse a LE to all property owned by decedent estate

ii. Conventional : owner of property voluntarily create the LEc. Ordinary v. Pur Autre Vie

i. Ordinary : person who owns it is the measuring life: to A for life

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ii. Pur Autre Vie : person other than owner is the measuring life: to A for life of Bd. Waste

i. Test for waste is change of useii. 3 Types of Waste

1. Voluntary (commissive) : life tenant (LT) affirmatively acting to harm property

2. Involuntary (permissive) : LT fails to maintain the property3. Ameliorating (meliorating) : change to property increases value

iii. Sue for (1) dmgs; (2) spec perfiv. If have any future interest, liable for waste

e. Life estate can be renounced and may accelerate arrival of future interest or may trigger reversion to O.f. LE v. LL-T relationship

i. Freehold v. Non-freeholdii. LL cant terminate LE tenancy

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XII. MARITAL ESTATES

a. Both curtesy and dower are legal estatesi. During marriage : Apply to anything during marriage even if sold before death

ii. Eliminated : most states have eliminated and replaced w/ statutory rtsb. Curtesy : H gains control of Ws property at marriage

i. jure uxoris : H has the rts of the wifeii. if child born alive during marriage, then H got full LE

c. Dower : gives W 1/3 LE to husbands propertyi. Does not req birth of child

ii. only attaches to realty - only attaches to estates, not COA (b/c COA is personalty)iii. Inheritable : Must be inheritable

d. Community Property

i. Surviving spouse automatically gets property acquired during marriagee. Homestead Rights

i. Purpose : to protect family home, sometimes business property1. Protects spouse from selling it and losing it to creditors2. Creditors can go after home where $ borrowed to buy home or improve

ii. Low caps : $ amt often very low; not updated

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XIII. CONCURRENT ESTATES

a. 4 types but 1 obsolete (coparceny)Tenancy by the entirety

(TE)

Joint Tenancy

(JT)

Tenancy in common

(TC) (tick)

Underlying concept Per tout (forall=ownership entity) et

non per my (and neitherindiv other has anypersonal interest)No indivi; yes ownership

entity

per my et per tout: indivownership interest and

ownership entity (JT)Yes indivi; yes ownership

entity

per my et non per tout:Indiv ownership interest;

but NO ownership entityYes indivi; no ownership

entity

Survivorship (per tout) Yes Yes No

Unities needed (title, time,

interest, possession)

All 4+ marriage All 4 (no marriage needed) Only Possession

Today Only 13 states recognize Anywhere Anywhere

Rt of co-owner to force

sale of property

No indiv ownership

interest = cannot transfer

by self

Yes, can sell interest byself

Yes, can sell by self

Creditor rts Creditor of 1 cant go after

interest in the property(convenient for couples tonot be responsible fordebts = shelter)

Creditor of 1 can go after

the ownership interest of 1

Creditor of 1 can go after

the ownership interest of 1

Language as (1) JTs and (2) not

tenancy in common (3)

w/ rt of survivorship

Misc TC post-divorce CL: presumption for JT ML: Default form ofconcurrent estates.

Presumption in favor ofT/C b/c dont want to foistright of survivorship onother parties unless

explicit

cotenants sometimes fortenancy in commonspecifically; generally foranyone of concurrentestates

TC upon divorce

Can sever if both agree

b. Example language

i. M has undivided interest as TC w/ ABCDE. in FSA A-E each has undivided 1/5 interest in JT in an undivided interest in TC w/ M

ii. M has undivided interest as TC w/ ACDE. ACDE each has an undivided interest in JT in an undivided interest in TC w/ M.iii. X-Z each has 1/3 undivided interest in JT in an undivided 1/8 interest in TC w/ A,C,D, and M. A,C,D each has undivided 1/3 interest

in JT in an undivided 3/8 interest in TC w/ M, X-Z.

c. More than 1 person owns the same interest in property (personalty or realty)

i. Undivided rt to possessb/c each cotenant has rt to whole propertyd. Co-tenants : usually co-owners but sometimes only for TCe. 4 unities

i. 1. title: must acquire by same instrument or by joint APii. 2. time: acquisition at same time

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iii. 3. interest: shares must be equal, undivided, and identical in durationiv. 4. Possession: equal rts to possess the whole property = essence of concurrent ownership

f. #1 JOINT TENANCY (JT)i. 4 unitiesii. if 1 conveys, the other remain JT, grantee is TC w/ remaining JTs

iii. To partition, need just 1g. #2 TENANCY IN COMMON (TC)

i. Only unity of possessionii. No survivorship rt

iii. ML presumptionh. #3 COPARCENARY

i. Obsolete w/ end of primogeniture

i. #4 TENANCY BY THE ENTIRETY (TE)i. only by H&W

ii. can only severe together, same to partitionj. COA available among co-tenants

i. Action foraccounting: 1 coT has gotten greater than share of benefits, action to share benefits equally1. Ex.: share in rents = YES, net profit; share in revenue from timber = YES

ii. Action forcontribution: 1 cotenant has taken on more than share of liabilities, action to share liabilitiesequally

1. 1 cotenant cannot force other to share an expense unless personally liable (in personam) for ita. (1) In advance: can agree to be liable in advance by consenting to actionb. (2) Ratify: after fact, can ratify something that already happened retroactively

i. Cant disallow ratification

c. Consent : Liability hangs on cotenants consent2. Yes forTaxes: required b/c govt mandated

a. JXs are split

i. In rem remedy: only relief is against land itselfii. In personam: if would property owners get sued

1. YES, action for contribution3. No forMaintenance: cant make liable so not legally obligated to do so

a. Must distinguish b/t whether law imposes personal liabilityb. If have to spend money to make rentable, then if can show increased value then person

who pays for maintenance gets that value.

c. If normally not liable, Some JXs say if needed city ordinance or necessary repair(shorter grass/shoveled walks) , then 1 cotenant can force others to be responsible if firstgive notice

d. But if hire the most expensive service, ct will not make a decision on this

e. Cotenants liable if agreed, cotenants can NOT challenge decision on what service used

4. No forMgmnt of property : only managing for own ownership interest and want to keep up value.5. If want to avoid waiting for ratification, dont do anything until cotenants agree in advance6. Could get implied consent

iii. Action forwasteiv. Action forpartition: sold and proceeds divided

k. Intent controls from writing of instrument if cleari. Attys parol evidence not used b/c cant, in general, contradict terms

ii. Focus on language of deed

l. Doctrine of repugnant clauses : first clause prevails if 2 are irreconcilable = very formalisticm. Strawperson

i. Used to create and destroy JTii. Can terminate JT by conveying to self, no need to use strwaman as 2d party

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1. Bad incentives for secretive terminator: (1) can suppress deed of severance and get whole propertyif survives, (2) can pass to heirs if dies first by having someone produce deed of severance

iii. One JT could unilaterally sever the JT w/o the use of an intermediary device

iv. Ways to prevent secretive JT termination:1. (1) create joint LE w/ CR in fee to survivor2. (2) TC in simple fee w/ EI in survivor

3. (3) fee simple to take effect in possession in the future

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XIV. FUTURE INTERESTS - REVERSIONS, REVERTERS, AND POWER OF TERMINATIONa. Analysis

i. Look for and define prior estate

1. If FSD, the Possiblity of reverter2. If FSSC or FSSEL, (1) Power of Termination, or (2) EI3. If none of the above, reversion

ii. Did grantor convey to someone else or keep for self?iii. Categorize future interest based on creating documentiv. If gave LE to A, then to B: Bs interest is remainder or EI

v. 3 exceptions1. Rule in Shelleys Case2. Doctrine of Worthier Title3. Destructibility of CRs

vi. Rule in Shelleys Case: to A for life, remainder to As heirs (or heirs of the body1. Remainder to Grantee2. Changes remainder to As heirs into a remainder in A

3. Cts hostile to apply, but promotes alienability4. 6 elements = key is remainder in Grantees heirs

a. (1) A must have freehold estateb. (2) As heirs must have a remainder and not an executory interestc. (3) The conveyances to A and to As heirs must be in the same instrumentd. (4) The conveyances to A and to As heirs either must both be legal or both be equitablee. (5) The future interest must use words of indefinite succession, such as heirs, issue,

or lineal descendants

f. (6) The conveyance must be ofreal property onlyg. Legal v. Equitable

i. legal = conveying all of the rights; to A for life, remainder to As heirsii. Equitable = conveying property in trust; to B for As life in trust for A, then in

trust for As heirs

h. Indefinite succession:i. Must use term of art

ii. If modify technical term of art then element not met: to my heirs, share andshare alike = req not met

5. Applicability of Merger

a. Merger applies when the same person owns two consecutive property interestsi. (1) To A for life, remainder to A = FSA = LE+Remainder; LE+EI=FSSEL

6. Abolished: Shelleys rule abolished in most JXs b/c defeats intentvii. Doctrine of Worthier Title: to A for life, remainder to my heirs

1. Effect: future interest is retained by grantor as a reversion2. Status : still exists in 40 states3. Trigger is future interest in grantors heirs, instead of grantees heirs

4. changes interest in heirs to interest in grantor5. Promotes alienability

6. Defeat : defeat by saying, O does not want Doctrine of Worthier title to apply7. Elements KEY is future interest in Grantors heirs

a. (1) A must have freehold estateb. (2) Grantors heirs can have a remainderor an EIc. (3) The conveyances to A and to the grantors heirs must be in the same instrumentd. (4) The future interest must use words of indefinite succession

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e. (5) The Doctrine applies to real and personal propertyviii. Destructibility of CRs on next page

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ix. . . .Destructibility of CRs1. Contingent remainder can be destroyed in 2 ways

a. (1) CR doesnt vest prior to expiration of prior freehold estatei. to A for life, then to B is she is 21

ii. If A dies before B is 21, contingent remainder is destroyed.iii. O gets reversion

b. (2) The same person owns the estates preceding and following the contingent remainder.i. to A for life, then to Bs heirs (assuming B is alive)

1. If A acquires the reversion or if the grantor acquires the LE, thedoctrine of merger will apply and will destroy Bs contingentremainder.

2. The Contingent remainder will not be destroyed if A acquired bothinterests in the same conveyance b/c if in same document, it clearlyindicates grantors intent for B to have a contingent remainder

2. Almost abolished - Almost every state has abolished the doctrineb. Grantors Retained Interest

i. LE = reversion

ii. FSD = possibility(rt) of reverter = always follows determinable estate (FSD, LED)

iii. FSSCS = pwr of termination / rt of re-entryc. Possibility of reverter always follows determinable estates (LED, FSD)

i. Alienability : depends on the state; some prohibit inter vivios transfers, automaticd. Reversions are automatic and do NOT divest the prior estate

i. partial interest retained by OR

ii. If O has given away a FSD, he retains only a possibility of reverter. If he has given away something lessthan a fee simple, he retains a reversion

iii. Alienability : Reversions are completely alienablee. Power of Termination (post-FSSCS) cant transfer inter vivos in of JXs and in some trying to transfer destroys it

i. Can transfer by will or intestate succession

XV. FUTURE INTERESTS - REMAINDERS

a. Analysisi. Characterize present interest (conditions)

ii. Characterize future interest

b. Language: If condition in separate clause, then condition subsequent; if in same clause or before, then precedentc. Remainder retained by granteed. 2 types of remainders: (1) contingent, (2) vested

e. Acceleration : can reject LE and accelerate arrival of future interest; matter ofintenti. Contingent remainder (CR) if . . .

1. (1) condition precedent2. (2) unascertained or unborn persons3. Subject to destruction

a. Destroyed if not vested before void: to B for life, then to C and her heirs if C marries

H. If C doesnt marry H before B dies = destroyed.4. Not a property interest, but yes can convey5. to A for life, then to As heirs no ascertained taker6. Can have alternative CRs = condition precedent attached to one interest is the opposite of the

condition attached to the other interest7. Ex.: to A for life, then to B if B survives A, otherwise to C

a. Assume all alivei. A has LE

ii. B has CR (NOT ON TIMELINE)iii. C: While A and B alive, C also has CR b/c subject to B dying before A

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iv. B & C have alternative contingent remainders1. C has CR in FSA

v. O has reversion b/c must identify owner for each part of timeline

vi. If B dies before A, C has indefeasibly vested remainder ---A|--C--->

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ii. 3 types ofvested remainders1. indefeasibly VR: to A for life, then to B and her heirs

a. no conditions : to A for life, then to B and her heirsi. her heirs words of limitation b/c dont know heirs. B is getting FSA

b. Ex.: to A for life, then to B and her heirsi. Assume both alive:

1. A has LE (for life) w/ no conditions2. B indefeasibly vested remainder in FSA

c. If A dies before B, B has FSA

d. If A says doesnt want LE (renounce), B has FSA2. VR subject to open (vested subject to partial divestiture)

a. to A for life, remainder to the children of B (B alive w/ 1 child)b. class of recipients / groupc. one class member born and ascertained

d. Ex: to A for life, remainder to the children of Bi. Assume all alive and B has child

ii. A has LE

iii. If B has more children, then partially divests = vested subject to partial divestiture in FSAiv. while A alive, children have vested remainder subject to open in FSA

v. If more than one child, add each have interest in Tenancy in Common in prior to vested . . .e. If A alive, B dead, B has 1 child

i. 1 child has indefeasibly vested remainder; not subject to open b/c B deadf. If B dead and no children

i. O kept that future interestg. If B alive w/ no children

i. A has LEii. Post-As LE, CR exists b/c no ascertainable taker = not on timeline

iii. Post As LE, O has reversion interest in FSA b/c retained by grantor1. O could sell reversion2. O only gets possession if B doesnt have a child

h. B no children when A dies, but has child post-As deathi. At As death, but before , O has FSSEL b/c Os interest goes to non-grantor

ii. X (Bs child) has springing executory interest b/c divests prior interest (Os) and goes from grantorto grantee

i. B has child1

i. Child1 has FSSEL

3. VR subject to condition subsequent (subject to total divestiture)a. 2 conditions

i. (1) remainder must be vestedii. (2) condition subsequent

b. Ex.: to A for life, then to B if B survives A, otherwise to Ci. Assume all alive

1. A has LE2. B CR (not on timeline) b/c condition precedent3. C has Shifting executory interest b/c it divests B4. O recovers possession if A declines

a. O keeps until A dies or B dies, then goes to either B or C

XVI. FUTURE INTERESTS - EXECUTORY INTERESTS (EI)a. recipient is someone other than grantor

b. directly follows Fee Simple, and/orc. divests the prior estate

i. directly follow possession by the grantor = springingii. directly follow possession by the grantee = shifting

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CurrentlyPossessory?

1) Does it become immediatelypossessory? AND2) not divest prior interest (conditions)?

Toascertainedperson?

Did O keep orgive futureinterst?

Who hasinterest prior tdivestiture?

Is it a group?

Is there acondition?

Conditionsubsequent orprecedent?

FreeholdNon-freehold

SPRINGINGEI

VR S.T. OPEN (aslong as class cangrow)

CR

SHIFTING EI

INDEFEASIBLY VR

CR (watch foralternate CRs)

VR S.T.CONDITIONSUBSEUENT

Yes

No = remainder or EI

ReversionPossiblity of reverter

(LED, FSD)Pwr of termination(..CS)

No

Yes

Give

Keep

O Non-O

PrecedentSubsequent

Yes = remainderNo = EI

NoYes

Yes No

Can have VRs.t.Open & VRCS

VR S.T. OPEN &VRCS

No

Yes

17

IVR: to A for life, then to B and her heirs

VRs.t. Open: to A for life, remainder to thechildren of B (B alive and has 1 child)

o Groups

VRs.t.CS: to A for life, then to B, but if B fails tosurvive A, then to C

CR: to A for life, then to B if B survives A,otherwise to C

CR: to A for life, then to As heirso Not on timeline

Springing EI: to A when he is 21 (A is 19)

Shifting EI: to A for so long as the land is used asa park, then to B

o Not on timeline

Is it a group?


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XVII. LL-T LAW

a. S/F applies : so if > 1 yr, need writingb. Essential Terms :

i. 1. parties

ii. 2. lease termiii. 3. address of property

iv. 4. some language indicated transfer of right to possess: leases, demisesv. 5. rent

vi. 6. signature of party to be charged (for S/F)

c. No rt to enter : Hallmark is LL has no rt to enterd. LL owns, T rt to possessione. Change : Tenancies can change over timef. 4 types of Tenancy

i. Tenancy for a term (tenancy for years)

1. Fixed beginning date, fixed ending date2. lease auto terminates on ending date3. Transferable but many leases include provision excluding transfer4. Can be for less than 1 yr5. No notice

ii. Periodic tenancy (month-to-month, year-to-year)1. Continuously renews

2. termination : Each state by CL or statute stipulates how much notice requireda. CL: 30 days required - If want to get out at end of April, must let know before end of

March to keep from renewingb. Written lease can override CL, but not statutec. Only w/ notice

i. Majority: intramonth notice is void

ii. Minority: intramonth notice is effective3. Determined by what period for which you pay rent; Tells you how much notice you must give4. Either LL or T can terminate

5. Transferable6. Often what happens is tenancy for a term converts to periodic tenancy (term expires and tenant

holds over which creates a periodic tenancy.iii. Tenancy at will

1. No set time period: last only as long as LL and T both want it2. Either side can terminate3. Get up typically by giving notice (but used to not have to give notice)4. Possible to contract

5. Common with hold over T6. If tenant begins paying again at regular payments becomes a periodic tenancy - If hold over 2

extra days, will pay 2/30ths

7. cannot be transferred: viewed as being personal

a. Attempting to transfer will destroy b/c shows T no longer wants tenancy = revoke8. Termination : if either TT or L dies or either tries to transfer interest

iv. Tenancy of sufferance1. Not a true tenancy, T is essentially a trespasser - T holds over w/o LL permission2. Called a tenancy b/c if AP SOL begins to run = dont start accumulating time as an adverse

possessor3. No notice b/c T is trespasser

g. License: (1) K rt, (2) revocable at willi. Dmgs: lower for license b/c tenancy can hold liable for full-term

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h. Physical condition:

i. CL: LL no responsibility to repair; but might have covenant to repairi. No dependency of covenants for leases: if not repaired, still must pay rent

i. 1 Exception: constructive eviction b/c essence of LL-T is to provide possession

j. Privity: legal relationship that create legal liability

k. Privity of K; b/t parties of same Ki. Personal covenants: not land or estate, only enforced against person; usually not in leases

l. Privity of Estate:b/t 2 people who both have interest in same landi. Real covenants ; affect the land, run with the land

m. COAs must have privity of K or Ei. Covenant of Quiet Enjoyment

ii. Implied warranty of habitabilityiii. Covenant to Repair

iv. Exculpatory clause may prevent COA

v. Tort liability

n. Covenant Quiet Enjoymenti. Ts rt to quiet, peaceful, enjoyable use of premises, absent agreement to the contrary

ii. Implied from legal relation b/t LL and T

iii. LLs actions control, not intentiv. Applies to more than possession, also use and enjoyment of premises

o. Constructive Eviction

i. (1) Property unusable (very substantially deprived of QE for a substantial timeii. (2) LL had ability (control) to fix problem

iii. (3) T must vacate w/in reasonable timep. Covenant to repair

i. nature of premises matter (planing mill caught fire)q. Implied Covenant of habitability

i. CL: no implied covenantii. ML: implied warranty of habitability

1. (1) bare living reqs2. (2) premises fit for human occupation (heat, hot water)3. Substantial compliance w/ building/housing code fulfills LL duty, BUT health, safety violations

can overcome4. cannot waive

5. Policy: expands enforcement of code,6. Applies to residential, not commercial: less sophisticated7. Remedies

a. Abatement (withhold rent): usually not allowedb. Escrow : put in escrow awaiting resolutionc. Pay rent and then sue for breach of implied warranty (usually no special dmgs)d. Repair and deduct :

e. **rescission : void K (T rt to move outf. **reformation : reform lease under fairer termsg. **rarely used, based on K

8. Only dmgs to fix, no further dmgsr. Housing not a fundamental rt

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s. LL tort liability for 6 following reasons only (none others)i. (1) latent defect: (1) LL knew about it; (2) T did not know about it and (3) not readily discoverable

1. Want LL to reveal something not easily discoverable by T2. Policy: Prevent hiding defects

3. Patent (readily discoverable); latent (not readily discoverable):ii. (2) Dangers to people outside premises

1. ex.: awning hook2. Policy: dont want LL to escape liability (via shell-corporation)

iii. (3) leased for admission ofpublic1. Policy: public wont inspect the facility themselves

a. Usually short-term usesb. many people onc. Agent to book a concert cant effectively inspect premises

2. Policy: dont want LL to escape liability (via shell-corporation)3. If rent Metrodome for sporting event, concert

iv. (4) Parts of land retained in lessors control1. hallways, common areas, parking lot, swimming pool2. Policy: T no responsibility to maintain common areas; T has no control

v. (5) LL contracts to repair1. If LL not reqd to inspect, LL not liable until notice givenvi. (6) Negligence by lessor (LL) in making repairs = commission

1. LL must make more dangerous or give deceptive appearance of safety2. Only if T doesnt know reports have not been made3. Policy: if undertake a duty, must do in a reasonable matter (even if didnt have duty in the first

place)

t. Exculpatory clause : Yes: T gets consideration in form of lwr rent; No: adhesion K, bad policyu. Liability for criminal Act: Duty is reasonable care under the circumstances

v. FAIR HOUSING ACT

i. (1) Cant refuse bona fide offer or refuse to negotiate b/c of race, color, religion, sex, familial statusii. (2) cant discrim in terms, conditions or privileges of sale or rental . . .

iii. (3) cant make notice, statement, or ads that indicate any preference, limitation . . .iv. Remedies: dmgs, injunctions, LL license can be revokedv. Exceptions: owner-occupied dwelling; OK to restrict to older persons; relig orgs and private clubs ok

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XVIII. ASSIGNMENTS AND SUBLEASES

L-T1, then T1-T2 Assignment Sublease

L-T2 Privity ofEstate (share rt to land) No relationship b/c L-T1 fictionallyindependent of T1-T2 (even thoughsame property)

L-T1 Contract (K) Kandestate: sublease had no effect

on relationshipT1-T2 No ongoing relationship b/c onlyperformance is T1s obligation totransfer tenancyCan be rt to subrogation (law wantsperson primarily responsible for adebt to pay it)

Kandestate on new estate

a. LL rt to transfer leased property

b. attornment if T signs an attornment then T agree is will recognize new owner as LL deadletter in USc. Transferability:

i. T at will and T at sufferance: not transferable b/c personal relationshipd. Assignment

i. Transfers Ts entire leasehold b/c T doesnt hold propertyii. Note payments or other consideration can be for assignment (not just rent)

iii. Rts independent of original leaseiv. Assumption : Mere acceptance of assignment is not an assumption

1. Assumption creates privity of K b/t T1 and T2 (and LL sometimes) after T2-T3e. Sublease

i. create a new leasehold estate b/t T1 and T2ii. Has implied warranty of habitability and other implied warranties

iii. Rts depend on original lease (but T1 can raise rent)iv. Consent of LL: cant withhold unreasonably

1. Implied obligation of good faith minority2. Policy: promote alienation; implied covenant of good faith and fair dealing

3. Rule in Dupors Case: clause prohibiting an assignment w/o LLs consent is extinguished of LLconsents to 1 assignment ~ waiverf. CL test for Assign or Sublease: does T retain any interest in the leasehold estate? If yes, sublease.

g. ML: intent as evidence by totality of circumstances (duration of transfer, title and form of document, existence ofnew covenants

h. Subrogation: Surety can enforce creditors rts against person who is primarily liable.i. Ways to protect self (T1) from T2 absolving self of liability

i. (1) add provision that cant assign w/o consent

ii. (2) get assumption agreement (T1-T2) to create privitiy of K b/t T1 and T2iii. (3) Novation: get LL to release T1 for K obligations in exchange for T2s promise to be liable

j. If no privity b/t LL and Tx

i. (1) Doctrine of 3P BNF: LL treated as 3P-BNF: not party to K, but is benefited by it can enforce K

1. If T2 assumes lease, even if K only b/t T1 and T2, since LL is 3P BNF to assumption agreement,LL can sue.ii. (2) Statute: some states provide rt to LL to go directly after current tenant

iii. (3) Subrogation: LL can subrogate T2s right to sue since T2 has privity of K&E w/ T3 (if T2 sublet T3)iv. (**) Terminate the lease: If LL has no privity with Tx, LL can terminate the lease with T1 to get Tx out.

k. Holdover Tenant

i. LL (not T) elects to (1) eject T as trespasser or (2) accept him for an additional terml. Unlawful Detainer:

i. Unlawful detainer only if lease terminated

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ii. Quick remedy only question if in compliance or notiii. Exceptions: (1) implied warranty of habitability; (2) retaliatory eviction

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XIX. EASEMENTS

a. Incorporeal interests: easement, profit, real covenant, equitable servitude, licensei. May all be merged into servitudesii. PROFITS

1. subject to all same laws as easement

2. Different: gives holderrt to go on someone elses land to remove a product: gravel, oranges

iii. LICENSE

1. Not a property interest; its a contractual right2. completely revocable3. protects holder from being a trespasser; restaurant: owner lets you in, but can boot you out

b. Definition : easements are nonpossessory interest in the land of another person or legal entityi. limited rt to use someone elses propertyii. can only create what is recognized at law

iii. Affirmative v. negative

1. Affirmative : rt to enter anothers property for a limited purpose2. Negative : restricts

iv. Appurtenant v. in gross

1. Appurtenant : benefit owner of land; treated as integral part of dominant estate; transfer w/ land2. In gross : benefit is not tied to any particular parcel; personal

v. Dominant v. Servient estate

1. Servient : land encumbered by easement2. Dominant : benefited land only forappurtenant easement

vi. Legal v. equitable creation

1. Legal : satisfies all formalities of law at time of creation2. Equitable : didnt satisfy all requirement of law, but ct uses equitable powers to make it ok

c. 3 types of easements

i. 1. Express: has an outward manifestation (written)ii. 2. Implied: (1) quasi-easement/easement by implied past use; (2) way/easement by necessity

iii. 3. Prescriptive: adverse possession = acquired by AP called prescriptive easement

iv. * Estopppeld. Way by Necessity OR Easement Implied by Necessity

i. (1) priorcommon ownership of dominant and servient estatesii. (2) subdivision of property that made one parcel land-locked - (transfer of one of the estates by the

common grantor, creating the lack of access)

iii. (3) must be subdivision of parcel that caused it to be landlocked - (necessity of the easement for making useof the transferred estate) = necessity must exist at time of severance

iv. Can lie dormant

v. Strict necessity: discourage frequent use; convenience not enough (water/partial parcel access ok)vi. Not all states recognize this type of easement look to statute

vii. Policy: (1) put land to productive use helps indiv and society (higher taxes); (2) presumed intent of O1. CTR: (1) Parties s/b free to overturn presumption; (2) Should have to pay for easement b/c taking

property

e. Quasi-easement: Easement Implied by Past Use

i. (1) priorcommon ownership of dominant and servient estates - ownership at time of need mattersii. (2) transfer of one of the estates - key is when easement is needed, not just used

iii. (3) continuous and apparent use of the quasi easement - different from necessityiv. (4) reasonable necessity for enjoyment of the dominant estate

v. (3) strict interpretation: pipe 6 ft under ground ruled apparent b/c could reasonably ascertainf. Prescriptive easements

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i. same reqs as AP, only scope is different and not exclusiveii. To prevent : give permission in writing; sue for trespass; call cops; put up fence

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g. Creation of Easements

i. In gross : CL didnt allow1. commercial : usually transferable b/c owner of serving estate doesnt care who own telephone pole2. personal : divided. Ct asks, was grant intended to benefit just this individual?

ii. Stranger to the Deed : O cannot create easement for person not party to the deed1. Ex .: A sells to B. No easement mentioned. A sells to C including easement over Cs land for B.

h. Ownership of Natural Resources

i. General public : usually cant acquire prescriptive easements b/c cant transfer rts to unrecognized entities1. easement in navigable water at statehood2. easement on wet sand

ii. Implied dedication : dedicate to public in exchange for maintenance (streets)iii. Custom : need time immemorial and uninterruptediv. Public trust : for natural resources held by govt as trustee, public is bnf

i . Scope of Easement

i. If ambiguity in easements terms: Can not unreasonably increase the burden on the servient estate

1. If express easement thru A to reach B, cannot reach C also b/c its a misuse (even if no increasedburden) = cant expand dominant estate

ii. Degree of burden can increase (boat marina case)j. Termination of Easement

i. Revolution no legal systemii. merger: servient and dominant tenements come into the same hand (servient gives to dominant) - easement

doesnt reappear by simply splitting estate againiii. eminent domain acquisition of servient estateiv. fee tail easement: could disappear if no heirs of the body

v. abandonment by dominant estate: can be lost, but requires affirmative act (intent); not just non-usevi. defeasible easement

vii. express ending date: put in written documentviii. prescription (AP) by servient estate - build/ put up fence on easement

ix. physical destruction of servient estate easement area: earthquakex. death of in gross easement holder

xi. life estate easementxii. changed conditions: coal runs outxiii. express release: put in writing that no longer own

xiv. forfeiture formisusage: overburdening the easement - situations where cant unscramble: where propertyconverted from residential to commercial

xv. easement by necessity terminates once necessity is removed - govt builds road that now provides accessxvi. illegal easement: use previously legal, now legal

xvii. laches: if fail to assert rts, and someone detrimentally relies on that, you equitably lose your COA, even ifCOA not run

xviii. (equitable) estoppel: ~ laches b/c of reliance on action or failure to actxix. GCM easement: invalid b/c only personal property; BUT could be personal property (seaweed; houseboat)xx. destruction of dominant estate

xxi. equitable swap b/c of mutual mistake

xxii. Destructibility of contingent easement - Easement to A for life, then to B if reaches 21.xxiii. bona fide purchaser: if buy w/o notice of easement (not in deeds); no easement.

xxiv. Easement maintained if no intent to abandon ROW reserved for dominant estate

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XX. REAL COVENANTS AND EQUITABLE SERVITUDES

a. Affirmative v. negative covenant:

i. affirmative obligates promisor (pay $, build wall); commitment to do somethingii. negative (restrictive) covenant: promise not to do something ~ negative easement

b. Real covenant: whoever owns land is bound

i. Real covenants run w/ land , personal covenants do not

ii. All covenants are clearly enforceable, but what about future owners? Only if real covenant.iii. Personal covenant does not run w/ land; only binds person who made promiseiv. Now most allow both positive and negative to run w/ land. In the past, only negative covenants could be

real covenant

c. Implied Covenant Doctrine

i. (1) common owner subdivides property into a number of lotsii. (2) common owner has a general scheme of development for the property as a whole, in which use of

prop will be restricted

iii. (3) vast majority of the subdivided lots contain restrictive covenants which reflect eh genl schemeiv. (4) property against which application of an implied covenant is sought is part of genl schemev. (5) purchaser of lot has notice, actual or constructive, or the restriction

d. Real Covenant Requirements (so runs w/ the land)i. (1) parties intend that covenant runs w/ the land inferred from circumstances

ii. (2) covenant touches and concerns the land purpose and effectiii. (3) privity of estate b/t parties

iv. 3 types of privity of Estate1. (1) Mutual: LL-T usually not required2. (2) Horizontal privity: (a) covenant made at same time property conveyed, (b) swap of covenants3. (3) Vertical privity: unbroken chain of conveyances; no AP

4. **Cts usually req horizontal or vertical or both; not mutual anywhere.e. Reciprocal negative servitudes: (usually residential sub)

i. If owners sells one of 2+ lots w/ an easement of benefit to the land retained the servitude becomes mutual,and during the period of restraint, O of lot(s) retained can do nothing forbidden to the owner of the lot sold.

ii. never retroactiveiii. Inquiry notice

f. Equitable servitudes

i. (1) covenant touches and concerns the landii. (2) parties intend that burden run w/ the land

iii. (3) burdened party must have had notice of the covenant1. Constructive notice ok from chain of title

iv. (4) burdened party must hold or acquire some interest in the property that original promisor held(vertical privity)

g. Termination

i. Ways to terminate1. According to terms

2. same means as easement3. change of condition = drastic changes

a. Std: Impossible to secure in a substantial degree the bnfts sought to be realized by therestrictions

4. Waiver of restrictions against other parties

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Property Outline Spring 2007 2

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