Washburn Property Law Jackson Fall 2011 OUTLINE

Fall 2009 Property Law Janet Jackson

THE CONCEPT OF PROPERTY IN ITS PARAMETERS

Introduction to Property Law

What is property?The right to possess, use, and enjoy a determinate thing (either a tract of land (real property) or a chattel(personal property)); the right of ownership

Ownership Bought and sold Thing or land Owner has more rights Right to exclude Entitlement to resource Confer status/position in society Can posses property without owning it

Property is really about relationship from a legal perspective. A person’s relation to the thing (intangible or tangible) and the relationship to other people as it relates to the thing

Different Property Perspectives Property as sociopolitical structure

o Slavery o Only certain people could have property (entitled) o Land was the thing people were most concerned about (still relevant today???)o How do we acquire property today? Different than before, can’t just take land

(adverse possession)

Property as an efficient resource allocator o Market creating opportunities for peopleo Assumes that everyone is going to try to maximize and benefitso And that they are going to exchange resources or have ability to have those

resourceso Exclusive rights to resources o Can be, but there are some faulty assumptions

Property as Guardian of Individual Libertyo Can do more with your own property but can’t do anything you want if going to

interfere with someone else enjoying their propertyo Can do what you want on your property with reason and exclude

Property and the reward of labor o Mixed with your own sweat and blood, the reward is your own o Corporation or yourself?o NOT A WINNING ARGUMENT

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Bundle of Sticks (set of rights property owners have)

Right to exclude Right to transfer Right to use Right to possess/occupy Right to control

Entitlement to Property Right to Exclude (sin qua non)

o Jacque v. Steenberg Homes, Inc.When nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded.

o State v. Shack (exception for government & health)We are mindful of the employer’s interest in his own and in his employee’s security. Hence he may reasonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties

o Kelo v. City of New London The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause.

Right to Control (what do we have legitimate property interest in?)(1) Local 1330, United Steel Workers v. United States Steel Corp.

(2) Moore v. Regents of the University of California

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POSSESSION, FIRST-IN-TIME AND ACQUIRING PROPERTY INTERESTS (ACQUISITION OF PROPERTY)-(GENERALLY CONCERNED WITH PROTECTION OF FIRST POSSESSOR- “FIRST-IN-TIME”)

What is possession? Presumption of ownership; exercise of dominion and control over some property and the right to exclude

What is Seisin? the right to immediate possession of a free hold interest in land (estate) and the immediate responsibilities that go along with a free hold estate; concept is pretty primary to the extent that there are ancient laws that say can’t be gaps in seisin, someone has to always be seized of the property or in possession of the land at all times

o There is no concept of a property that is not ownedo The right to possession of real property under a particular interest o The person who has seisin has first right to immediate possession

Who is the first possessor? “First-In-Time” and Discovery/Capture

o Pierson v. Post (capture-Wild animal/Hunter Interference case)o Popov v. Hayashi (capture-Baseball Case)o Johnson v. M’Intosh (discover Indian rights case)o Edwards v. Sims (discover surface rights case)

“First-In-Time” and Findingo Courts have historically divided found property into four categories

Lost property When owner unintentionally an involuntarily parts with property through neglect or inadvertence and does not know where it is.

Accidentally placed and involuntarily parted with Key factor - place where it is found – open to public or private? Goes to finder, unless trespassing

Mislaid property when owner voluntarily puts in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.

Intentionally placed, but then forgotten Involuntary parting with Goes to property owner, in case TO comes to look for it

Abandoned Property when owner intentionally and voluntarily relinquishes all right, title, and interest in property. Property that has been lost or mislaid may subsequently be abandoned if the owner intends to give up any claim to the property.

It is necessary to show an intent to give up both title and possession

Not a good argument if something is valuable Intentional placement, voluntary parting with

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Goes to finder, unless trespassing

Treasure Trove - Consists of gold, silver, currency or the like intentionally concealed by unknown owner for safekeeping in secret location in distant past

Embedded Items - If personal property is embedded in the soil, courts ordinarily award it to the landowner rather than the finder, in the absence of a statute to the contrary, on the grounds that it had become part of the real property.

A possible exception to this is the treasure trove (gold, silver, or money intentionally buried in the earth for recovery later). American courts historically have given ownership of treasure trove to the finder, rather than the owner of the land, as long as the finder was not trespassing at the time it was found. Note: some courts have awarded treasure trove ownership to landowner, either as an object embedded in soil or as mislaid property.

Cases: Armory v. Delamire (chimney sweeper-jewel finder case); o Benjamin v. Linder Aviation, Inc. (Plane-money in the wing case)

Finder: one who exercises physical control and appropriate intent over property that has been lost mislaid, abandoned, or hidden (so as to be classified a treasure trove)

o has property rights above everyone except the true owner

Conflicts between finder and true owner In conflicts between the finder and the true owner, the finder of lost or mislaid property

does not acquire title to that property against the true owner (despite the saying, “finders keepers, losers weepers.”) If the finder has knowledge of the true owner, or is reasonably able to discover him, and the finder appropriates the property to her own use, she will be guilty of conversion.

On the other hand, the finder has the right to keep property that has been abandoned since the original owner relinquished her rights.

Conflicts between finder and 3rd parties (non-landowners) In conflicts between the finder and third parties (non-landowners), the finder generally

has the right to prevail over everyone but the true owner. If the true owner does not know the whereabouts of the property and is unaware that it has been found and therefore does not claim it, the finder is entitled to keep the property as against third persons.

o Caveat: statutory procedures and employment situations Conflicts between finder and landowner

In conflicts between the finder and the owner of the premises where the property was found, the landowner will win if the finder was trespassing at the time she found the object.

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If the finder is on the property with the landowner’s permission, the courts are divided. If an object is found in a private home, it is ordinarily awarded to the homeowner, but if the object is found in a place open to the public, some courts grant ownership to the finder and others to the landowner. Some courts distinguish between lost and mislaid property, awarding lost property to the finder and mislaid property to the owner of the premises (presumably because the true owner may remember where she mislaid the object and come back to claim it).

Finder Statutes Many states have legislation concerning lost property. These laws usually eliminate the

distinction between lost, mislaid, and abandoned property and require the finder to report the find to the police and generally award the property to the finder if is not claimed after a reasonable (or statutory) period.

Native American Graves Protection and Repatriation Act of 1990 This statute provides that Indian cultural objects found on tribal or federal lands belong to

the tribe having the strongest connection with them. It does not apply to objects found on private property.

Cases: Armory v. Delamirie, page 129; Benjamin v. Lindner Aviation, Inc., page 131

Obligations of the Possession

Bailments What is a bailment? A bailment is the relationship created by the transfer of an item of personal property by

one called the bailor to another called the bailee for the accomplishment of a certain purpose.

The bailment relationship involves the transfer of possession of an item of personal property to the bailee without a transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of personal property to the bailor or otherwise dispose of it according to the terms of the bailment.

The bailment arises where one possesses the property of another. This relationship may be part of an express contractual arrangement between the parties; however, and express contract is not necessary.

Does a bailment exist? Are the definitional elements satisfied?Elements:1. Delivery, of possession, without transfer of ownership, by bailor 2. Acceptance (implied or expressed) by bailee, with intent to control3. Agreement to return

If a bailment exists, what is the scope of the bailment? Scope:

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1. which personal property is part of the bailment?2. was there an intent on bailee’s part to exercise control?3. was the property concealed?

A way to determine the concealment is glancing at the reasonability of that item being located in the area where it was “concealed.”

If a bailment exists, what standard of liability should be imposed on the bailee?Standard of Liability 1. If the bailment:

2. is for the sole benefit of the bailor, the bailee is liable only for gross negligence (Recklessness).

3. is for the sole benefit of the bailee, the bailee is liable for even slight negligence

4. is for the mutual benefit of both the bailor and bailee, the bailee is liable for ordinary negligence

According to the standard of liability, who has the burden of proof and how can that burden be satisfied?

Burden of Proof:1. proof of delivery by bailor and 2. acceptance and possession by bailee and 3. bailee’s failure to return the property to bailor upon demand equals 4. a prima facia case of negligence.5. The burden is then on bailee to prove non-negligence

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FIRST POSSESSION AND ESTOPPEL PRINCIPLES (GENERALLY CONCERNED WITH PROTECTION OF LATER (SUBSEQUENT) POSSESSOR- RELIANCE

Three Kinds of Title Good Title : Absolute title; free of encumbrances, no cloud on the title Void Title : Unenforceable, not true title (not transferable) ex. stolen goods Voidable Title : Valid title; can be annulled/avoided if the true owner/seller can make a

claim before it is sold to a third party; once sold third party receives good title.o Subject to rescission by TO if seller fraudulently induced the TO to sell, and if the

property is sold to a third party and the subsequent buyer was not a bona fide purchaser.

Bona Fide Purchaser (BFP) (Good faith purchaser for value) No notice of the seller’s wrongful possession Have a good faith (honest in fact) belief that the seller has title And pay valuable consideration for the goods (valuable consideration-doesn’t necessarily

have to be fair market value, but fair market would be more than acceptable)

Types of Notice Actual: You know outright (you learn in fact of the wrongful possession), you know it

going into it Constructive: engraved item (would cause you to inquire), if lost please return (could

constitute constructive notice)- you should know...(return w/phone number) Inquiry: lead a reasonable person to inquire or investigate (seems like something may be

wrong); The law is going to charge knowledge that a reasonable person would’ve discovered through inquiry/investigation (i.e., would a reasonable person have asked?)-(allision with love?)

Personal PropertyArticle 2 U.C.C. § 2-403(1) Derivative title: One cannot transfer greater rights than you possess (purchaser of goods

receives all rights seller had or had the right to transfer)o Stolen property carries a void title – to protect the TO

Estoppel rules that create exceptions to derivative title rule (estoppel is a equitable principle - looking at solely the rule of law may not be enough to keep them in the position they are, have to consider equity)

-Voidable Title: gives you the ability to transfer good title to BFP-Buyer has voidable title (and can transfer good title to BFP) even if buyer:

1. Even if deceived the seller about the buyer’s identity (pretended to be someone not)

2. Even if wrote bad check (bounces)3. Even if the buyer agreed to “cash sale”

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4. Even if committed criminal fraud in acquiring the goods (forged check)5. Policy Rationale: TO and BFP innocent purchaser and seller- law has to decide

who are we going to let win?

Article 2 U.C.C. § 2-403(2) and (3)

Estoppel rules that create “exceptions” to derivative title rule:

-Entrusting goods to a Merchant: Owner has entrusted his or her property to merchant who sells that kind of property and has transferred it to a innocent third party (BFP) in exchange for valuable consideration—the TO cannot get property back from BFP, can only possibly get value back from merchant

-Policy behind principle: Protection of innocent parties

Real Property- Recording Statutes Race statute - In Race statute jurisdictions, an unrecorded conveyance is void even as to a

subsequent purchaser who knew of its existence, and a subsequent bona fide purchaser gains no priority over the earlier unrecorded deed unless the BFP records first. In this way, priority is determined by a race to the records. Although the race type of statute is consistent with the penalty principle, an argument in favor of it is that it enables the title searcher to rely upon the records alone.

Notice statute - In notice jurisdictions, a subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser had no notice of the earlier conveyance at the time she purchased. For example, O conveys to A, who does not record. O then conveys the same property to B. B has no knowledge of the earlier conveyance from O to A. B prevails over A even if A records the O-A deed before B records the O-B deed. Thus, the notice statute protects a BFP even if she does not record first. Conversly, if O conveys to A (who does not record) and then O conveys to B and B is a purchaser with notice of the earlier conveyance from O to A, then A will prevail in a contest with B, even if B records before A does.

Race-Notice statute - In a Race-Notice jurisdiction, a subsequent purchaser prevails over prior unrecorded interests only if she (1) had no notice of the prior conveyance at the time she acquired her interest and (2) records before the prior deed is recorded. For example, O conveys to A, who does not record. O then conveys to B. B has no knowledge of the earlier conveyance from O to A. A records; then B records. Under a notice statute, B would prevail because B purchased without notice of the earlier conveyance from O to A. In a Race-Notice jurisdiction, however, A prevails over B because, even though B did not have notice of A's deed at the time B purchased, A recorded before B did.

Shelter Doctrine - The shelter doctrine allows a BFP to convey property to a third party even if the third party is on notice of an earlier conveyance (in other words, the third party is not a BFP). For example, O conveys to A, who does not record. O then conveys to B, a BFP, and B records. Because B had no notice of the earlier conveyance to A and

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because B recorded before A, B would prevail over A in either a notice jurisdiction or a race-notice jurisdiction. B then wants to convey to C, but C has notice of the earlier conveyance from O to A. The shelter doctrine allows B to convey the property to C despite C's knowledge of the earlier conveyance. Put another way, under the shelter doctrine, because B had a better claim than A, so does C. Otherwise, title's like C's could never be truly marketable.

Adverse Possession - If someone uses someone else’s property without permission (non permissive occupation of someone else’s land) under certain conditions and certain way for a certain period of time, it becomes their own (gives them a legal entitlement to the land)—extinguishes the title the true owner had.

Adverse possession usually relates to land (we’re focusing on real property; when referring to chattels, usually conversion)

AP disputes usually arise from 1) color of title (to entire tract of land, including that not in use), or 2) boundary disputes (in which neighboring property is encroached upon, then only the encroached area is adversely possessed)

The person who adversely possesses is usually called the Disseisor (AP) The person who’s land is being taken is called the Disseisee (TO)

Justifications for Adverse Possession (why shifting the entitlement from the True Owner to the adverse possessor is ok)

Possession – exercise of dominion & control to the exclusion of others

Utilization of the Land : Want to make most productive use of the land

Reliance Interest : Adverse possessor and some third parties have actually started to rely on the appearance of the adverse possessor (Reliance Issue)

Resolves problem of lost evidence, cost effective : Difficulty in proving stale claims – it helps us to resolve all of these old claims; people die, evidence is lost, hard to put pieces together, gaps, information gets sketchy-so in order to facilitate the resolution of claims, going to allow adverse possession to occur, otherwise will get bogged down with claims of who really owns the land (just looking at a statute of time)

Penalizes true owners who sleep on their rights : Punishes true owners who are passive on their rights as land owners- if you sleep on your rights as a land owner, aren’t responsible, it can be adversely possessed, ability to exclude, exert dominion and control, you have the responsibility to be vigilant and exercise the right to exclude to show this is my land, don’t always have to occupy and use the land but have to be vigilant enough to know when someone is encroaching on your rights

Helps quiet titles and market transitions : Quieting titles, helps to determine who really owns the land. Action brought in court for judge to make declaratory judgment about

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who owns land. Inchoate title gained. Honors reliance expectations that person who has been possessing land should be able to keep it.

Common Law Elements of Adverse Possession (ALL must exist)C - ContinuousH - HostileE - Exclusive A - ActualN - Notorious O - Open S - Statutory period of time

(1) Continuous ; without interruption (doesn’t mean 24/7. Who is the one doing the interrupting?) how would a reasonable owner of similar property treat this element, what would continuous use be for any other reasonable owner? In determining when possession is broken, the nature and location of the land should be considered. . . the AP is only required to act in a way that is consistent with the use to which the lands may be put, and the situation permits—actual residency or occupancy is not required.

(2) Hostile ; In opposition to someone else’s right (without permission); is a completely objective element, has nothing to do with state of mind, simply just means did not have permission to use the property (if there is permission, there is no adverse possession)—intent to exercise dominion & control necessary, not intent to infringe on TO’s rights. Is AP exercising rights that are inconsistent with the rights of the TO? (objective standard – has nothing to do with the intent of the adverse possessor)

(3) Exclusive ; exercising right to exclude as the true owner would (exerting dominion and control) including letting people on or off the property (can allow TO on the property). Does not mean the land is used exclusively by the adverse possessor, the “true test is the exercise of dominion over the land in manner consistent with actions a true owner would take.” Exclusive possession is deemed to be adverse, absent proof to the contrary.

(4) Actual ; Some physical occupation, as an ordinary owner would. Establishing you own it (some physical act, some degree of physical occupation (does not have to be permanent), ex. Putting up a fence, building a house, cutting timber, some degree of physical use and occupation of the land); ordinary use. To owner would know that they are possessing the land if they were actually paying attention.

(5) Notorious ; Evident, not secretive, apparent enough that true owner would know about. If N then O-doing it as a true owner would, visible evidence on the surface of the land (can even be met under ground).

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(6) Open ; Evident, not secretive, If O then N (Majority rule for encroachments, responsibility to know your boundaries). Is AP’s conduct such that TO should be on notice of their use and conduct on the property?

(7) Statutory period of time – depends on jurisdiction

All must exist, some go together...always a matter of fact

Kansas Adverse Possession Statute (K.S.A. §60-503) K.S.A. §60-503 – Elements: Continuous Exclusive Open + 15 year statutory period

Under K nowingly A dverse claim or under B elief of O wnership of (subjective intent – minority rule) (KABO)

o Adverse possessor knows he does not own land, but intends to take title

o or adverse possessor has good faith belief (albeit mistaken) that he is true owner

Subjective standard – depends on intent of the adverse possessor ** CEO+, KABO **

Related Doctrines

i) Mutual Recognition - If parties act like and acknowledge the boundaries. In these situations, neighbors may treat a particular monument—such as a fence, a line of trees, a power line, or the like—as boundary line.

Estoppel Doctrine - For example the parties agree on a boundary line and one party relies on it to their detriment, the other party cannot then say they changed their mind about where they believe the boundary to be

ii) Good Faith Improver - thought land was theirs, made improvement before maturity of AP claim—in that case will give person the value of the land

Color of title – “Any semblance of title by which the extent of a man’s possession can be ascertained.” Usually a deed, or some instrument (transferring title to the land)—appears to transfer title but really does not—means something is wrong (there is a document that the adverse possessor receives but the transfer is ineffective, because there is something wrong with the document itself ex. Signature missing, failure to make proper service, something making it defective), so what person receives is color of title instead of good

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title (Sum - instrument that one relies on to give them title but it actually doesn’t, because there is some defect in the document)

o Do not have to actually possess all of the land the color of title describes/would otherwise give the power to possess. Based on my expectations I should own all of it

o In essence avoidable title

Constructive Possession : comes up when talking about color of title; acts as an exception to the Actual possession element (I have not actively possessed all of the land, but I constructively possessed it because I believed, and relied on, my color of title to be valid). *Rule – limited to area that bears a reasonable relationship to the area that has been actually possessed.

o For constructive possession there must be at least some actual possession of the parcel of land in question and a person holds a colorable document and deed is

o So color of title says you have 20 acres, only actually own/use/occupy 10, but court can say you constructively owned the other 10 acres

o Can get land you didn’t fence under constructive title if problem with deed o Color of title = real property is in essence avoidable title, but there are elements

different from a color of title (all that’s important is color of title is for real property)

o Reliance based expectation - what is covered in the colorable document is what

can be constructively possessed; because the adverse possessor is under possession under the colorable document, likely believes that has good title, and doesn’t need to take any further action to stake claim on the property, because belief based on this document, courts say we will let you have all property in the invalid document

When is color of title not enough?a. If the property in the color of title is in parcels, can’t constructively possess b. Teacher answer - AP possess 1 acre of land, but has colorable deed for 500,000

acresi. Authority that deals with this, limited to that which bears a reasonable

relationship to the area that is actually possessed (no formula, really depends on case by case basis)

1. Depending on how many parcels, court would not allow 783 to be possessed when only 2 acres possessed

2. Courts have allowed when only 5 acres posses allowed 300 acre because of nature of use of land

3. Courts mostly asking what is the reasonable expectation? What is reasonable to have reliance on/ Does the AP acts of possession send a sufficiently clear signal to the TO that they are intending to possess the other land/ What signal should a person in the TO’s

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position should they receive (what constitutes clear)/would a reasonable person in TO’s position observing the AP appreciate that there is a potential threat to their dominion and control over the land not possessed [Answer to these are it depends on the situation]

Does a person gain title to mineral rights (underground) if they have gained tile to property over ground?o GR: if the mineral interest has not been severed from the surface interest at the time

the AP begins their possession, at the end of the statutory period will gain fee simple title.

o IF mineral estate has been severed at time AP takes possession, AP has to take some

affirmative act to say they want to possess not just the surface but the minerals too (Have to act)-MUST MEET CHEANOS FOR THE SURFACE AND THE MINERALS AS WELL

Kentucky case that applied color of title, in drilling a well claimed all the oil and gas under even though only possessing 10 acres (found for AP), document said owned 100 acre track- able to obtain all of it

Additional Principles of Adverse Possession

o Adverse Possessor takes the property as they find the property, subject to liens, easement, back taxes etc. (whoever owns the land runs with the obligation).

o Successful AP gets new title to the land

o Sometimes b4 a court will quiet title, will make you pay any taxes

o Tacking – Adding together of periods of possession that are continuous but by different possessors

To be complete: it is necessary that they have a special relationship (Privity) Privity - willingly turning over of possession by previous possessor

o How does one turn over this possession (how is privity established?) Must be voluntary transfer to tack:

Gift – inter vivos Inheritance – intestate succession Devise - will

o A didn’t have good title to transfer, but did have possession (so AP has something that can be transferred)

o Inchoate title - imperfect or partial title

o File an ejectment – surest way to get AP off land

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o Disability and tolling of a statute

Minors, mentally incompetent, prisoners, military (Statutory period tolled during the time of disability)

o Ouster - the relationship between the parties makes this unique (most commonly co-tenants, people who each have the right to possession of the land <equal right>), so nobody has the right to kick anybody off

ii. Each can enjoy possession of all of the land iii. Equal right to all of the land iv. Cases that involve an ouster are those where the AP or Adverse Claimant

both have rights to the land, but the other person with equal right of the land is not allowing them to possession (disturbing their rightful possession), (i.e. close relatives, who have inherited the land)

v. Higher standard because have to be absolutely be clear (the person who is outsiting Has to very clearly give clear notice to the other rightful people that are not allowing them to claim their possession)

1. Notice, express notice or actual notice brought home (changed locks to the house, posted a sign, telling co tenant not allowed here)

2. Other unequivocal acts (selling the land as though you own all of it and don’t have to get permission from anyone else to someone else (attempt to sell), fee simple)

3. KEY: Person trying to Adversely Possess, their actions are so clear that the other party is not going to have a question about whether their rights are being violated , still also have to meet the other elements

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METHODS OF TRANSFERRING PROPERTY

Transferring Property by Gift (either when owner is alive or dead) Gift – a transfer of property without any consideration

Inter Vivos Gifts and Requirements Inter vivos transfer (gift) – literally, a gift “between the living”

o For such a gift to be legally effective to transfer ownership, there are 3 requirements:

The donor must have donative intent (i.e., the intent to make an immediately effective gift – must be immediate transfer of ownership interest)

The donor must deliver the object of the gift Must be sufficient to divest the donor of dominion or

control (at least to some extent) – some loss of dominion and control to owner

Actual, constructive, or symbolic Purpose of policy of making sure there actually was

delivery – to prevent fraud. Purpose is to protect the TO The donee must accept the object of the gift

Assumed when gift is of value to donee

Constructive and Symbolic Delivery – In some cases actual physical delivery of a gift is impossible.

o Symbolic delivery - when donor gives donee an object that symbolizes or represents the gift (ex. photo, bill of sale, deed, letter, certificate of stock)

o Constructive Delivery – donor gives done something that provides access to, or control over gift (ex. keys)

Only ok when actual delivery is impossible

Inter vivos gifts take effect immediately upon the delivery of the object of the gift and the acceptance by the donee

Generally irrevocable - once the donor has made an effective unconditional gift he cannot take it back or “unmake” the gift.

Promise to make inter vivos gift in the future is not enforceable (must be intended to be immediate gift)

Conditional Gifts (Gifts subject to conditions subsequent) Such a gift is revocable if condition is not met, but may not be revoked while there is still

chance condition may be met. Problem arises when condition is not evidenced in writing—implied vs. expressed (ex.

engagement ring – should this be considered an inter vivos or conditional gift?)

Causa Mortis and Testamentary Gifts

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Testamentary Gift (transfer on death) – one that the donor intends to take effect only at the time of his death.

o Typically a will – no legal effect until deatho Testator - person leaving willo Items in will given away as inter vivos gifts before execution of will are not

included in will (not part of “estate”), despite validity of will

Causa Mortis Gift – a gift in case of death (“deathbed gifts”)o Conditional gift made in context of donor’s expected imminent deatho Ownership passes immediately upon transfer and acceptance, while donor is still

alive, but is subject to being terminated if:1) The donor changes his mind and revokes the gift, or2) If donor does not die of what he thought would kill him– automatically

revokedo Gift becomes absolute upon deatho Purpose – allows dying person who did not adequately plan for their death (no

valid will) to dispose of his property as he wishes in anticipation of death

Gifts of “Future” Interests (inter vivos gifts of remainder interests) Can divide ownership of an object into present and future ownership

o Future ownership – the right to possession of an object at a future dateo Instead of transfer by will, can give inter vivos gift of future interest

Gives immediate legally enforceable rights (vs. in a will where no rights vest immediately)

Can sell future right Can use as collateral Can limit present owners rights in possession (to protect interest)

II. Transferring Property by Gift a) Characteristics of gift

(1) Donative intent (2) Delivery of the gift(3) Acceptance of the gift

ii) Showing delivery Looking to see if the donor place the item beyond their dominion and control

iii) Example: saying to someone I want you to have a pen, not enough (never letting go)iv) Giving keys to the cars: show intentv) Best way to show intent is to physically deliver “the thing” to them, but some things

are impossible, because impractical (constructive delivery)b) Going to take effect immediately upon deliver and release of itemc) Irrevocable when accepted (you can’t unmake a gift), once delivered, makes it

immediately effective

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i) Except a gift cause immortis (1) A gift in case of death (in case I die I want to give you a gift - deathbed gift)

(a) Must be made in the context of the donors expected imminent death (subjective for the most part)

(b) Present intention to deliver this gift (absolute ownership of whatever the property is), passes immediately even while the donor remains alive (i) Any attempt to reserve control invalidates

(c) Donor can terminate the gift, usually give a gift in life-irrevocable; can change mind before I die & if I don’t die of whatever I thought I was going to die from (even if I die of something that is unrelated to that)

(d) If you don’t die of what thought, but some complication –makes confusing! (i) Surgery (50/50 chance and thus could stand still), question of death can

become a question of fact (e) Whatever it is that is prompting you to think you are going to die has to be

objectively present (can’t just be in your head)(2) Insufficient: threatened assassination, minor surgery, perilous journey

Transferring Property by Deed

1) In writing2) 3 Essential terms:

o Identifies parties o Describe the property being conveyed (adequate description)o State the grantor’s intent to convey the property (evidence of grantor’s

intent) Notary stamp (be notarized) At least a date of execution Recitation of the consideration Date of delivery of the property

3) Signed by grantorii) Statement of Exclusions (statement that is for the protection of the grantor, anything

from having a fee simple title conveyed)(1) Exam question, generally asking you to assume all the elements of a deed are

present, not something want you to spend time analyzing, otherwise will make clear

d) In order to transfer property there has to be intent to transfer (grantor has to make known) and there has to be delivery

III.IN RE STATE OF EVANSa) Inter vivos gifts- Donative intent and delivery (actual or constructive)

i) Looking for a complete relinquishment of dominion and control ii) When can you say the delivery has actually taken place? When the donee has

dominion and control over the gift iii) Dissent arguing about intent and that’s not what the majority had a problem withiv) Delivery so important because of fraud –evidentiary function (check and balance)

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(1) Actual(2) Constructive(3) Symbolic Delivery

v) Symbolic and Constructive, really depend on court deciding issue –some flexible, some strict

vi) MAIN THING COURTS LOOK AT: What does the donor INTEND...

IV. Scherer v. Hyland a) Suicide check case b) Her jumping, locking the door, and never coming back...donative intent and delivery

undisputed c) Intent is the question here to show that there was deliveryd) Eliminates fraud if intent is so clear (then manual delivery is not so important)e) Unequivocal Intent, undisputed intent, very important...f) Generally don’t enforce suicide notes as a testamentary document (you have to have a

witness for a testamentary document)g) Generally required with statutes dealing with will (must be of sound mind)h) Psychologist have said suicide is very locgical/others say nope not right state of mind i) Why gift causa mortis but not testamentary gift?j) Effectuating her intent-allowing it to be an effective gift causa mortisk) No delivery of any other asset, so that’s why he only got that check, really would’ve been

going out of the bounds of the law

K.S.A. 59-608: Nuncupative Will (Gift Causa Mortis)l) Oral will made at death is valid with respect to personal property, if reduced to writing

and subscribed by two competent witnesses within 30 days after the oral willV. DecedentVI. How a person’s property is transfered depends on if they have a will or not valid will (died

testate), no valid will (died intestate)VII. Testamentary gifts-effective at death VIII. Every jurisdiction has ruels about will; Supreme Ct. has laws taking away someone’s

ability to give out testamentary give unconstitutional

Transferring Property by Will – Personal Declaration Requirements:

o In writingo Signed by testator o In the presence of 2 disinterested witnesseso And notarized

In addition, in KS... o Will has to be signed at the end (of the document) by the testatoro Witnesses must have seen or heard . . .

Effective when person dies Can give away everything in your estate before you die Until the moment you die, can change everything in will

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Will can be revoked, only can transfer property decedent still owns at time of death

1) Intestate Successiona) Over half of all Americans die intestate b) REMEMBER: American property law and intestate law evolved from English law, early

on distinction between real property and personal propertyi) Real property deceded to their heri ii) Not an heir if you received personal property-next of kiniii) NOW there is no distinction between RP & PP, dispose of it as your please iv) Primal genator rule (oldest son inherited against everyone else)v) Heir, person designated by law to inherit real OR personal propety (current law)vi) Going to post something on this after the midtermvii)Property still going to pass if you die intestate according to the statutes of whatever

jurisdiction you live in (relatives first until run out then escheats to the state)viii) Seisin, can never have a gap in seisin (want to make sure land is in productive

use-real property)(executor of estate is responsible for personal property)

WillPersonal declaration

Revocation of a WillIn most jurisdictions a will may be revoked by a subsequent will or “codicil” (instrument that makes a different disposition of part of the testator’s property). The subsequent will must meet the same requirements discussed previously.

It is generally recommended that, when executing a new will, the testator include an express provision revoking all prior wills and codicils or, if that is not the intent of the testator, she should include an express clause stating what other testamentary instruments exist and their force and effect.

Will SubstitutesMany families utilize will substitutes to pass on property at death. These substitutes include joint bank accounts or stock accounts, revocable inter vivos trusts (trusts created during the lifetime of the grantor), pension accounts, and life insurance contracts. These are will substitutes because they have the effect of transferring property at death. Other ways of transferring property at death are through joint tenancies and tenancies by the entirety, which will be discussed when we cover Estates.

Gruen v. GruenLegal principles here will be discussed and will make more sense soon, when we talk about present and future estates, but I’ve included it in your reading in order to start a foundation. Here, the trial court concluded that the father made an invalid inter vivos gift because father retained possession, and an invalid testamentary gift because the transfer did not meet the requirements of a will. The court of appeals reversed, saying that dad made a valid inter vivos gift of a remainder interest in the painting. What is a remainder interest?? We will cover that

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soon, but for now note that although son has no right to possession of the paining during dad’s lifetime, he does have a property right to possession in the future, following dad’s death. This is different from dad making a will that leaves the painting to son. If dad had made a will, son would receive nothing until dad died, and then he would receive the painting only if dad still owned it at the time of his death. By giving son an inter vivos gift of a remainder interest, dad has already given up the ability to control what happens to the painting after his death because son’s remainder entitles him to dominion and control of the painting following dad’s death. In effect, dad had a life estate in the painting and son had the remainder.

Ferrell v. StinsonSimilar principles to Gruen in that we are dealing with a remainder interest of an inter vivos gift (deed to farm). Beyond that, it is interesting that court held that placing the deed in a box in the closet was sufficient to place it beyond her dominion and control, and thus constituted valid delivery. Interesting because even assuming that her condition prevented her from getting up and removing the deed, she could have asked her housekeeper to remove the deed from the box and tear it up. So, was it really beyond her dominion and control? The Ferrell court seems to take the same flexible approach as the Scherer court (although Ferrell is 1943, so it predated Scherer).

Intestate SuccessionIf the decedent has not left a valid will, she or he has died intestate. The practical difference is that if a person dies testate, her property will be transferred according to the provisions of her will (ultimately). If a person dies intestate, her property either 1) will be distributed to the decedent’s family members designated by the state laws governing intestate succession or 2) will escheat (revert) to the state if no such family members exist. (Doctrine of escheat reflects law’s historic concern for ensuring the productive use of land – returning property to economic use, thereby benefiting society as a whole.).

Over half of all Americans die intestate. Others die partially intestate, meaning that their will does not cover all their property.

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PRESENT AND FUTURE ESTATES IN LAND

Estate in Land - interest in land that entitles owner to present possessory interest or a future possession of land, and the ownership is measured in terms of duration.

When layperson say they “own” land, they typically mean they hold a bundle of many rights, including the basic possessory rights such as the right to be on the land, to use it, and to exclude others

Present rights

Present Possessory Estate - has the present right to immediate possession of the property

Future interest - has the present right to future possession of the property o Remainder - the future right of possession remaining after a person with life

estate dies

Rule of Construction – transferor is assumed to transfer all of his rights (fee simple absolute)

unless he limits the transfer

Words of Purchase - identify the person in whom the estate is created

o i.e., “to A”

Words of Limitation - words describing the type of estate created

o i.e., “and her heirs,” “for life”

Present Possessory Estates

Freehold Estates - o Fee Simple Absolute

Unlimited duration (estate does not end with death of O) Freely alienable (transferrable)—methods of transfer:

Will (Devise) Gift or sale (Alienate) Intestate succession (Inheritance) – in absence of other

transfer

Traditional words of limitation - “and his heirs” (at common law without these words you were only conveying a life estate – today . . .)

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Today, if no words of limitation, fee simple absolute is implied (e.g., “to A”)

IF grantor conveys all of his estate (O transfers “to A and her heirs”) the grantor keeps nothing

o Defeasible:o Fee Simple Determinable

o Life Estate – duration is measured by the life of the life tenant (the measuring life) – ends when the life ends – cannot be inherited/devised by life tenant’s heirs

Ends naturally Cannot be granted to a corporation (something that has a potentially

unlimited duration – must have a natural end that someone can wait patiently for)

‘A’ can transfer the title he has (retains length of original measuring life)

Words of limitation - “for life,” or “until A dies,” or “while A is alive”

Duration of estate is measured by A’s lifeo Example: O conveys “to A for life”

A’s estate will terminate at the end of A’s life

o An estate pur autre vie is measured by someone else’s lifeo Example: O conveys “to A for the life of E”

A’s estate will terminate at the end of E’s life

Not inheritable by life tenant’s heirs and not divisible by will. Life tenant may transfer inter vivos, but no more than have (derivative title rule)

What happens if the owner of a life estate pur autre view dies before the measuring life?

1. “to A for the life of E”a. If A dies before E, the life estate will go to A’s estate, passing to

her heirs or beneficiaries until the end of E’s life2. Future interest-

a. reversion in grantor – when O gives away some interest in estate, those durational interests expire, and those interests eventually come back to him

b. remainder in grantee

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o Fee Tail (8) Largely obsolete

(9) Words of limitation- “and theirs of his body”

(10) Most modern statutes convert the fee tail into a fee simple absolute in the first take(a) Example: If O conveys Greenacre “to S and the heirs of his body,” S receives

a fee simple absolute

(11) Some other statutes covert fee tail into a life estate in the first taker, with a fee simple absolute to the lineal descendants of the first taker (Kansas Rule)(a) Example: If O conveys Greenacre “to S and the heirs of his body,” S receives

a life estate with remainder in fee simple absolute

ii) Defeasible Fees- potentially unlimited duration but could be cut short (never because someone dies) because of some specified event or a restriction is broken or not broken.

iii) Defeasible Fee Estates(1) Fee Simple Determinable

(a) Future interest belongs to the grantor

(b) Words of limitation- “as long as,” “so long as,” “while,” “until,” “during”

(c) Words of limitation prescribe special circumstance under which an estate may expire before the maximum duration

(d) Duration of estate is in fee simple absolute, but will end immediately when violated

(e) Future Interest- possibility of reverter (grantor is restored to original present estate in Fee Simple Absolute)

(f) Example: O conveys Blueacre “to the Hartford School Board, its successors and assigns, so long as the premises are used for school purposes.”

(g) Transferred by will, intestate succession, gift for sale

(2) Fee Simple Subject to Condition Subsequent(a) Future interest belongs to the grantor

(b) Words of limitation- “but if,” “provided that,” “on condition that”

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(c) Duration of estate is fee simple absolute, but will end if condition violated AND grantor exercises right to terminate grantee’s estate(i) Just because you may get away with something one time doesn’t’ mean

that the grantor can’t come in @ sometime later and exercise their rights

(d) Future interest-power of termination/right of entry (if exercised, grantor is restored to original present estate in Fee Simple Absolute)

(e) Transferred by, will, intestate succession, gift for sale

(3) Fee Simple Subject to Executory Limitation (a) Future Interest belongs to someone else(b) Life estate may be made _____________ by words of limitation or condition,

so as to create a ____________ life estate, a life estate subject to a ___________________, or subject to an _________________.

(c) Example: A converys “to my wife Sarah for her life so long as she resides in Kansas” creates a ________________ life estate

IV. Estatesa) Estate- an interest in land that entitles its owner to a present or a potential future

possession of land b) The ownership is measured in terms of duration c) Landowners generally own land in two different ways

i) Concurrently –two people related or unrelated own it together (roommates rent together (possessing))

ii) Owners of estates may divide ownership rights over time, with one person owning present possessory interest and someone else holding the future possessory interest; the present estate holder is the one who has the immediate right to possession; the future interest holder is the one who has a a later right to possession after the present interest terminates (death, duration of state ends, etc.), this is when future interest holder comes into present possession

d) Painting –dad present interest, future intereste) Two types of present estates:

i) Non-freehold(1) Tenant farmer- think landlord tenant relationship

ii) Freehold(1) All other types of estates & ownership interests

f) We are focusing on Freehold estates, going to have two days dedicated to landlord tenant estates

g) 3 types of freehold estates:i) Fee Simple (breaks into 2 other parts)

(1) Absolute (2 basis characteristics)(a) Duration is infinite and absolute, unlimited(b) Transfer through will and/or Inheritable (pass through intestate succession)

and/or through sale (sell it)- can transfer in life don’t have to wait til’ dead(c) 3 components

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(i) Fee- potential for this to be unlimited in duration(ii) Simple- to distinguish from fee tail, only purpose of this word (iii) & Absolute- unlimited, infinite, largest estate in terms of duration

that we can imagine 1. Selling only transfers the ownership of the land 2. O (Owner)--->(transfers) A & his heirs (traditionally had to be present

to transfer fee simple absolute)a. Now we don’t need these traditional words to transfer fee simple

absolutei. Can have O-->A (now going to assume that you are intending

to give away a free simple absolute)ii. Have to make sure limit (unless A does, for life, etc. going to

assume intend to give away your full estate)iii. Make sure purchaser knows if there are limitations on theri

ownershipiv. Unless told differently O has fee simple absolutev. O giving to A and his heirs vi. To A (words of purchase)- identify the person who is receiving

the estatevii. And his heirs (words of limitations/sometime inheritance)-

these words signify (type of estate duration-fee simple absoulte), only to A, doesn’t mean anything for his heirs get nothign unless A decides so

viii. A does not have a limited estate because of the heirs (heirs just words of limitation to describe what A had)

ix. Conveys A can do whatever they want x. Precision matters (fee simple(wrong)-have to say fee simple

absolute)

(2) Defeasible

ii) Life Estate(1) Measured by somebody’s life (life of 1 or more specified persons)(2) By very nature ends at the death of the measuring life (3) O--->to J for life (4) I have it for my life then going to go back to O(5) No other info present as what to do for when J dies, so reverses (reversion)

(a) Can’t devise it because only have rights to it during my life, can’t give it away in a will (can’t count on heirs); can sell it (but would be on conditions of in their death goes back to owner) then would be J for life --->Z

(b) If you move to France or some other place, can rent this property (landlord, don’t have to ask anybody)-can rent it for the rest of YOUR life. Only for YOUR life you have the authority over this property

(c) Can let someone live their for the life of J(d) So have rights but limited (derivative title)-can only give what you have, can’t

give better estate than what I have to give you

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(e) To J – words of purchase, for life – words of limitation

iii) Fee Tail (saving, pretty obsolete); what used to be fee tail has been converted to something else more recognizable

h) O-->to A for life, then to B for life, the to C for lifei) A has present possessory interestii) Future possessory interest (remainders for life)iii) This kind of future interest is called a REMAINDER iv) After C-then O has a reversion in fee simple absolute v) By just stating then to C-becomes fee simple absolute vi) O only gets a reversion when gives less than what owns

Worksheet handout (for now first person that gets it has present possessory interest)

1. O-->to A and his heirs (O=nothing, A=FSA)2. O-->to I for ever and ever (O=nothing, I=FSA)3. O--> Amber for life, then to Brenda for life, then to Clint (O=nothing, A=life estate,

B=life estate (remainder for life), C=fee simple absolute (remainder in fee simple absolute)

4. O-->to Harpo Productions, Inc. for life (not a human, can’t convey in this type of conveyance a life estate; failed conveyance); O just retains her FSA

5. O-->to A for T’s Life (O-reversion, furture possessory interest in FSA; A=present possessory interest, life estate pur autre vie; Terry=nothing, just measuring by his life)- don’t need to say anything about Terry

6. O-->to A so long as she farms the land organically (A=FSD, O=possibility of reverter)7. O-->to Alma provided that, if the property is not used for charitable purposes, Omar has

the right to reenter and recliam to property (Alma=FSCS, Omar=right of entry or power of termination)

8. O-->to A and the heirs of his body (Majority-FSA absolute transferred, O gets nothing; Minority (kansas) A gets life estate, lineal descendants of A get a remainder in fee simple absolute, O gets nothing)

1) White v. Browna) Has heirs arguing, because wants to say she died partially intestateb) Rule of Construction (1): The will should construct the fee simple unless the words and

context of will clearly evidence J’s intention to convey only a life estate. (going to presume grantor wants to give away everything has unless the grantor specifically limits the estate)-basic significant rule of estates (2) A will shall convey all the real estate belonging to (the testator) or in which he had any interest at his decease, unless a contary intention appear by its words and context, (designed to avoid partial intestacy (construe in a way to let all of the property pass-court going to assume, went through trouble of writing will, really were trying to transfer all of their property-not die intestate))

c) Court looked for language that she really wanted to limit this. Couldn’t find them, so said was FSA (concluded intended to give away all her property)

d) Restraint of alienation contrary to public policy and is void

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i) My being able to do what i want with my property and having to balance that with the property being marketable (out there and available to some extent)-this is why we have this right to alienate balanced with some way to make property marketable

ii) Courts don’t look very favorably on this (restraints on alienability in will)- because you can discriminate (1) May seem unjust (racial, ethnic perspectives); limiting and restricting economic

efficiency(2) There are some restrictions that are outdated (have to make sure any restraints on

alienation are not too restrictive)(3) P. 252, types of restraints (disabling restraints (said to be void); forfeiture

restraint (simply creates a defeasible estate- probably interpreted as a condition subsequent, but if-it will revert back to me-makes determinable)(a) Courts rather would determine something to be a FSCS than a FSD (doesn’t

immediately revert, gives grantor a chance to keep property in productive use, air on the side of constructing it in that way)

(b) Promissory restraint (can’t transfer w/o grantors permission)

e) Instead of saying repugnant to fee, the court goes to reasonableness (is it reasonable in time? Is it reasonable in scope?- this is what courts look at when looking at alienation restraints

f) Court said was a disabling restraint (give FSA but tell them they can’t do whatever they want with it)

Waste – reducing the value of the land Voluntary – affirmative acts that reduce the value of the property for future interest

holderso Ex. removing timber or some natural resource

Permissive – fails to maintain the land, allows the land to decrease in value (to go to waste)

o Ex. fails to make daily repairs or maintenance, o Ex. not paying taxes

Ameliorative or Ameliorating - Not really considered waste - doing something to property that increases the value (improves the property), but something that the future interest holders may have a problem with

Can make any necessary changes to property

K.S.A. 58-2523 - Waste Action by remainderman or reversioner for waste or trespass.

2) Waste - gov’t doesn’t want to let land go unused (seisin); Baker v. Weedona) Generally get to do whatever they want (life estate, pretty much what want); problem is

the future interest holdersb) Even though their present possessory interest doesn’t start their future interest gives them

a present interest in the property (can impact the shape its in when they get it later)

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c) Again reasonableness (ex. Forestry land can they cut down all the trees, if residential property can they make it commercial land?); maybe, sometimes a court will say yes, sometimes will so no because too damaging to the future interest

d) DEFINITION: i) Letting land just sit there and doing nothing with it can count as waste

Unproductive Propertyo Future interest holder can’t do things that interfere with the present interest

holder’s use (not fair, not going to judicially intervene as easily) Have rules of construction for:

o Carry out public policy (sometimes even in opposition to grantor’s intent)o Carrying out the grantor’s intent

Generally Law doesn’t like forfeitures

Generally speaking transferable (divisible-will, inheritble-intervivos)

Document of Latches; Trend to start right away (so taking away from reentry for FSSCS; making a time)

Defeasible Estates Handout (to help make more clear) Humphrey Case: Covenants Falls City Mo. Case: Allows us to talk about indirect restraints on alienation: restricts way

you are going to use property; the more narrow the restriction, the more likely it is to be viewed as unreasonable (courts don’t necessarily like these restraints on alienation)

o Make sure you look at the examples of enforceable and non enforceable restraints (narrow (unreasonable) v. broad)

Fee simple subject to an executory limitation- a grantor can create a defeasible estate where the future interest is in someone else other than the grantor (the future interest is what makes this different-executory limitation)

o O -->to City, but if land not used as park, then to D (some third party, not grantor), no affirmative act required by D (it divests, he just gets it)

o Future interest is key in recognizing thiso WILL ALWAYS IMMEDIATELY DIVESTo City=Fee simple subject to an executory limitationo D=executory interest

Life Estates can be made determinable (looks like others, but just connected to a life estate)

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FUTURE INTERESTS DEFINED: A future interest is the right to possession of property in the future. (5 types)

Three created in the grantor:1. Reversion 2. Possibility of Reverter3. Right of Entry (Re-entry)

Two created in someone other than the grantor:1. Remainder2. Executory Interest

Remainder A future interest that is created in a person other than the grantor in a conveyance in

which the grantor also creates a present possessory estate less than a fee simple. A remainder follows the natural termination of an estate (waits patiently), it does not divest (cut short) another interest

4 Rules for Remainders:1. Both the remainder and prior estate have to be created at the same time (same

conveyance/same interest/same time)2. Remainder may not follow a fee simple estate even a defeasible one3. Remainder has to be capable of becoming a possessory estate when the prior estate

ends 4. There can be no gap between the end of the prior estate and when the remainder

becomes possessory

2 Types of Remainders:1. Vested remainder 2. Contingent remainder

Test for Vested Remainders (If not vested then contingent):1. Born (in existence)2. Can be ascertained (capable of being indentified by name), and3. Must not be subject to any express condition precedent (other than the natural

conclusion of the preceding possessory estate)

Example: O conveys “to B for life, then to C.”

Vested Remainders (3 types)1. Indefeasibly vested remainder 2. Vested remainder subject to open3. Vested remainder subject to divestment

Indefeasibly vested remainders (most direct remainder dealing with)o Identity of holder is certain (theoretically)o Remainder is certain to become possessory estate

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o Example: O conveys “to B for life, then to C” C has an indefeasibly vested remainder in FSA. C (or successors) are assured of recieving land when B dies.

o Example: O conveys “to A for life, the to B for life, then to C for life, then to D.”o O has nothingo A has a present possessory life estateo B has a indefeasibly vested remainder for lifeo C has an indefeasibly vested remainder for life o D has an indefeasibly vested remainder in FSA

o Death in NEVER a condition precedent o Note: Teacher would have to tell us somehow not ascertainable, so assume unless

teacher says otherwise

Vested Remainder Subject to Divestment o Vested remainder that is subject to a condition subsequento Identity of the interest holder is certain and the remainder is certain to become a

possessory estate, unless some specified event occurs. If the event occurs, the remainder is extinguished.

o Example: O conveys “to A for life, then to B, so long as B continues to farm the land.” B’s interest is vested, but she could be completely divested in the future if she fails to continue farming the land. The express condition, that she farms the land is a condition subsequent. Thus, B has a vested remainder subject to a divestment

o O has a reversion is FSA o A has a present possessory life estateo B has a vested remainder subject to a divestment

o Condition subsequent- condition applies after taking possession

o A condition subsequent where the divesting condition could occur only after the remainderman takes possession: O conveys “to A for life, then to B so long as B continues to farm the land.”

o A condition subsequent when the condition could occur before the remainderman takes possession: O conveys “to A for life, then to B, but if B fails to survive A, then to C.”

o In both examples, B has a vested remainder subject to a divestment

Condition subsequent v. Condition precedento Example: Vested remainder subject to divestment:

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o O conveys “to A for life, then to B, but if B fails to survive A, then to C.” B’s vested remainder is subject to being divested if B fails to survive A. So, there is a condition subsequent

o CONDITION BROKEN

o Example: Contingent remainder:o O conveys, “to A for life, then to B if B survives A, but if B does not survive A,

then to C.” The grant to B is expressly conditioned upon B surviving A; until that condition precedent is met, B has only a contingent remainder in FSA. C’s interest, meanwhile is subject to the condition that B does not survive A. So, C’s interest is also a contingent remainder in FSA (known as alternative contingent remainders)

o CONDITION METo Question to ask: Completed transfer then can lose (vested r subject to divest.)?

OR does it look like something has to happen before can get (contingent)?

Vested Remainder subject to open (to other people in the class coming in)o Conveyed to:

A class of person At least one member of the class is:

Born , ascertained, and not subject to any condition precedent Example: O conveys “to A for life, then to A’s children.” At the time of

the conveyance, A is alive and has one child, B. B has a vested remainder subject to open (he is born, ascertained

and there is no condition precedent). If A has more children, they will have a vested remainder subject to open and then estate will be divided equally between the children

o More children equal the estate being split and reduced between the children A has

o Since the remainder is in FSA the interests of A’s children, there is no express condition that they must survive A, so any child dies, it is still open (can pass to that child’s heirs) because they have the interest in FSA

Classes can close in two ways:1. Naturally or physiologically (A’s death, if man dies, closes

after 9 months, if woman, immediately after death)2. The Rule of Convenience, which closes the class when the

prior estate terminates and the remainder becomes possessory a. Court proceeding (can’t be done on their own)

Contingent Remainders o Contingent if:

Created in a person who is not yet born, or Incapable of being ascertained at the time of the conveyance

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o Example: O conveys “ to A for life, then to A’s children.” If A had no children the

children in the conveyance would have a contingent remainder (unborn or unascertainable). Upon the birth of A’s first child, the contingent remainder would change to a vested remainder subject to open (more kids could be born)

O conveys “to A for life, then to A’s children who reach age 21.” A is alive and has not child agend 21. The children of A have a contingent remainder. (not ascertained AND subject to a condition precedent)

Alternative Contingent Remainder o O convey “to A for life, then if B is a student at A’s death, to B; otherwise to C”o What does B have to do to get the land ?

Be a student at A’s deatho When does C get the land?

If B is not a student at A’s death. C’s interest is also subject to a condition precedent

B and C have alternative contingent remainders.

Contingent Remainder to Unascertained Person o O conveys “to A for life, then to the heirs of B.” B is alive at the time of

conveyance o B’s “heirs” cannot be ascertained until her death. Therefore, the remainder to B’s

heirs is contingent.

Analysis of Remainderso Why is it a remainder? Meets one of the 4 ruleso What type of Remainder? Vested or Contingent o Category within Remainders? Then categorieso Also, What is my possessory estate? What is my future interest (only on that will

have a remainder, because a remainder is a future interest)?

Executory Interests (follows a fee estate or life estate)o A future interest in a transferee that must, in order to become possessory:

Divest some interest in another transferee (shifting executory interest—grantee to grantee), OR

Divests the interest in the future (springing executory interest- grantor to grantee)

Examples: O conveys “to A, but if A sells alcohol on the land, then to B.”

O has nothing A has a fee simple subject to an executory limitation. B has a springing executory interest in FSA (no conditions)

O conveys “ to A and her heirs if A gets married.” O has a fee simple subject to an executory limitation

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A has a springing executory interest in FSA (if A doesn’t get married, then O just keeps the estate

O conveys “to A for life, and one month after A’s death, to B and her heirs.”

O has a fee simple subject to an executory limitation (a reversion) A has a life estate B has a springing executory interest in FSA

o Springing occurs: Future interest only conveyance OR a gap

Merger Doctrineo Merger Doctrine states that when one person holds a present possessory estate and

the next vested future interest, the present estate merges into the future interest and the future interest is terminated

Example: A holds a life estate in Greenacre and B holds a vested remainder in FSA. B then conveys her remainder to A by deed. A now holds both a life estate and the next vested future interest in Greenacre and those interests merge together, giving A a present FSA estate

Destructibility of Contingent Remainderso The rule states that contingent remainder is destroyed if it has not vested at or

before the termination of the preceding estate Example: O conveyed “to A for life, then B if and when B ever passes the

bar examination” Destructibility: Assume that B outlives A, but has not passed the

bar examination by the time A dies. Under the destructibility doctrine, B’s contingent remainder is destroyed when A dies. The estate returns to O, whose reversion in FSA becomes possessory at that time.

No destructibility: If the destructibility doctrine has been abolished (as in most states), the land will return to O, but if B later passes the bar, B will then be entitled to possession.

*O retains a reversion subject to a condition precedent

The Rule in Shelley’s Case (only need to know this for exam, nothing more...)o Abolished completely in most states; in some states applies only to deeds; in some

states applies only to willso Conveyance generally looks like “to A for life, then to the heirs of A.” Under the

rule, the conveyance created a fee simple absolute in A and the heirs took nothingo Generally, if an instrument creates a life estate in one person (A) and also creates

a remainder in FSA in the person’s heirs (heirs of A) then the future interest belongs to A, not the heirs

Doctrine of Worthier Titleo Conveyance generally looks like, O conveys “to A for life, then to O’s heirs.”o The doctrine “red-pencils” the invalid remainder to change the conveyance to :

O “to A for life.”

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The Rule Against Perpetuities (Not intuitive, must remember the rules & then apply them)

o Prevents remote vesting. RAP allows grantor to control alienability, but only for a limited period. Invalidates interests that vest beyond the “Perpetuities Period” which is the lifetimes of all those connected to the conveyance plus 21 years

o Contingencies must be resolved within that time period, or the property is returned to circulation

o Creates a deadline

o The Rule: “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.”

o Requires us to test interests against the deadline of vesting within the perpetuities period

o The Rule Against Perpetuities in 5 Steps 1. Classify the Interests:

a. All vested interests are already valid!!*b. All possessory interests are vested!c. All grantor’s future interests are considered vested!!d. Rule ONLY applies to contingent remainders AND executory

interests AND vested remainders subject to open (exception to vested remainders)

2. Indentify the lives in Beinga. Only consider those alive at the time the conveyance is made (or, in

the case of a will, becomes effective)b. Must already be born and not yet dead.c. Make a list.d. Do NOT include classes or categories (e.g., B’s children) unless you

know all possible members are already alive e. Example: “to A for life, the to B’s Children.” B has two children

named Bo and Beaf. The lives in being are: A, B, Bo and Bea.

Avoid this error: Do NOT list B’s Children,” as that category may include people not yet born!!!

3. Identify the Triggering Eventa. What must happen to make the contingent interest either vest or fail

to vest for sure?b. Example: “To A and her heirs, but if B passes the February 2010 Bar

Exam then to B.”

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c. The triggering even when B’s interest either vest of fail to vest will be the day the results come out.

4. What Might Happen Testa. Imagine a scenario in which the triggering event or events are

postponed more than 21 years after the deaths of all the lives in being (the perpetuities period).

b. If you are able to come up with a scenario that postpones at least one of the events 21 years past the deaths of all the lives in being, then the interest in invalid

c. If there is one life in being whose existence or role in teh conveyance prevents you from postponing the triggering event for the perpetuities period, then that person is the “validating life” and the interest is valid

d. Example: “ to A and her heirs, but if B passes the February 2010 Bar Exam, the to B.” The triggering event for B’s executory interest (passing the 2/2010 exam) cannot be postponed beyond a life in being plus 21 years

e. Example: The Executory interest in “To A and her heirs, but if Washburn law school is ever closed, then to B” is invalid because the closing of Washburn (the triggering even) might occur more that 21 years after the deaths of A or B

5. Reclassifya. This step is only necessary if the interest is invalid. In that case,

strike out the invalid part of the interest and its accompanying language and explain what you have left. (possessory interest will be left because that is what was valid)

b. Example: “To A and her heirs, but if Washburn law school is ever closed, then to B” Because B’s executory interest is invalid, all that remains is “possessory interest,” a fee simple absolute

o Kansas RAP (59-3401) A nonvested property interest in invalid unless:

When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; OR

The interest either vests or terminates within 90 years after its creation

First conclude whether the conveyance can be saved under part 1 of the -statute (same as common law) and if not, whether it can be saved under part 2 (90 year provision).

Prospective application. Applies to conveyances made after July 1, 1992 (before that common law applies). Reformation clause states that if conveyance violate common law rule, a court can be petitioned to reform the conveyance so that it most closely approximates the grantor’s intent

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CONCURRENT ESTATES

Ownership or possession by two or more persons at the same time Three Types

o Joint Tenancy o Tenancy in Common o Tenancy by the Entirety

Tenancy in Common A concurrent in which each co-tenants each own an undivided separate and distinct share of the propertyTIC does not own the whole property like in a JT; each tenant can dispose of their undivided portion by deed or willOnly unity that exists is the unity of possession No right of survivorship; upon death interest descends to their heirsCan be destroyed by:

o Partitiono Merger, when the entire title invests in one person either by purchase or

otherwiseo Conveyance, freely alienable, each cotenant can freely convey their interest

either by inter vivos transfer or testamentary dispositiono Ouster, when one cotenant ousts from possession her cotenant the ousted

tenant has a cause of action against the possessor not to put her out and regain possession for herself (wrongful exclusion from possession)

o There is no fiduciary relationship between or among tenants in common

The tenancy in common is the most common concurrent estate. Modern statutes create a preference for this form, and, unless it is clear from the intent of the parties that another type of estate is desired, a tenancy in common will result.

Characteristics: o Separate but undivided interest in the propertyo Each tenant in common owns and undivided share of the estateo Tenants have “unity of possession”o Also there is no right of survivorshipo A TIC’s undivided interest is divisible, inheritable, transferable inter vivoso Under Kansas statutory law a tenancy in common is presumed unless it is

expressed that another concurrent estate is intended

Joint TenancyForm of co-ownership where each tenant owns an undivided interest in the whole estateAlways created by a will or a deed, NEVER by descent Under common law: 4 unities; PITT

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Under modern law there must be a clear intent to create a joint tenancy, otherwise it will not be recognized (If the words joint tenant are not in the deed or will, then a tenancy in common will result)Can be terminated by:

o Conveyance inter vivos (severs the JT and a TIC results) o Suit for Partition (severs the JT)o Mortgages (transfer of title which severs JT, in title theory jurisdiction-

minority rule, In a lean theory jurisdiction, regarded as a lean and one JT’s execution of a mortgage does not by itself result in a severance- majority rule)

o Lease does not effectuate the severance of a joint tenancy o Contracts to convey results in a severance despite the fact that a conveyance

is not made

Characteristics: o Right of survivorship exists between the tenants (distinguishing aspect)- on the

death of one of the tenants title passes to the surviving joint tenant o JT’s own the whole of the interesto When a joint tenant dies, the membership of the group is diminished and each

member’s share increases proportionatelyo A JT’s interest cannot be devised or inherited by intestate successiono The interest is alienable inter vivos, but that cause a severance of the estate and

destroys the survivorship of interesto Under common law and in some states by statute, if these four unities do not

exist, a JT has not been created (PITT Possession, Interest, Time, Title): Unity of Time- the interest of each joint tenant had to be acquired or vest

at the same time Unity of Title- All joint tenants must acquire title by the same instrument,

or by will, deed, or adverse possession. A JT can never arise by intestate succession.

Unity of Interest-All joint tenants must have equal undivided interests. (have same interests)

Unity of Possession- Each joint tenant must have a right to possession and enjoyment of the whole

Tenancy by the EntiretyCo-Ownership by a husband and wife, who at common law regarded as one legal entity; form of co-ownership similar to that of a JT based on upon the common law concept of unity of husband and wifeRight of survivorship exists 5 unities essential in a tenancy by the entirety:

o Timeo Titleo Interesto Possession

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o Person (deemed a single person under common law, so unity of person)Severance:

o In most states, neither spouse could dispose of any interest in the estate by entirety but rather in order to sever both spouses have to join in on the conveyance

o Death of either spouse severs the tenancy by the entiretyo Divorce (eliminates the unity of person); divorced persons become TICo Execution by a joint creditor on both husband and wife would constitute a

severance; BUT a creditor of one spouse cannot levy upon the estate owned by the entirety

o Partition- neither spouse has a right to partition the land at common law

Characteristics:o Can only exist between married coupleso Four unities are required plus the unity of marriage. Each spouse holds the whole

of the estate. (indispensible)o The estate cannot be severed except by joint action of the spouseso Neither spouse, acting alone, has the right to partition the propertyo Divorce (but not separation alone) terminates the tenancy by the entirety because

it terminates the marriage Not recognized by quite a few jurisdictions, Not recognized in KS, Is recognized in MO

Rights and Duties of Co-Tenants Each tenant has the right to enjoy and possess the whole estateIn a majority of states a tenant in possession has the right to retain profits gained by her use of the property; TIP need not share with a tenant out of possession UNLESS there has been an ouster—TIP must be held accountable to the ousted tenant for any profits that are collected during the period of the ousting Taxes- tenant who has paid taxes on the whole property may compel contribution by her cotenants to enforce a lean against the property Repairs and improvement, the general rule is that the TIP has no right of contribution on repairs or improvements against other cotenants to the property they have made on the property; BUT if a partition, then court may make and equitable division of the proceeds and then the court will take into account what one tenant put in (equity court, make equitable division of the proceeds)

Actions Between Cotenants (See Text pp. 383 – 396)

- General (majority) Rule: All cotenants have an undivided right to possession of the whole of concurrently owned property. Therefore, if one cotenant chooses to occupy the property and the other does not, that does not give the cotenant-out-of-possession the right to impose an occupancy charge on the cotenant-in-possession.

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- The exception to the general rule is ouster. Ouster occurs when one cotenant bars or removes another cotenant from possession of the property. The ousted cotenant can bring an action for a share of the fair market rental value of the property.

1. Accounting: An action that allows one cotenant (typically one not in possession) to demand the other cotenant (typically one in possession) to account for and share the appropriate percentage of the rents and profits obtained from the leasing or use of the property by a third party.

2. Contribution: An action in which a cotenant seeks reimbursement from another cotenant for the pro rata share of necessary expenses the complaining cotenant has paid (e.g., taxes, mortgage payments, and, in some jurisdictions, repairs). A cotenant can bring a contribution action alone or as part of a final accounting.

A cotenant who makes improvements without the consent of other cotenants cannot compel contribution. If partitioned, the cotenant who made the improvements may receive the improved part of property or the fair market value of the improvement.

3. Partition: An action that asks the court to terminate (sever) the cotenancy and to divide the cotenancy property, either in kind (physical division) or by sale (judicial sale of property and share proceeds). As part of the partition action, cotenants usually ask the court to make equitable adjustments to reflect claims the cotenant would assert in an action for accounting or contribution.

Class Notes Look at footnote on p. 383 If one cotenant not there, ok to search, or there and no physical protest, ok, but because there and

protested, unconstitutional –Cotenants (footnote on p. 383) Review Problems- pp. 355-356 #3

Marital Interests- The Common Law Estate Jure Uxoris

o Common law provided that upon marriage, the husband acquired an estate jure

uxoris in all of the land owned by his wife at the time of marriageo This estate permitted H to exercise dominion and control over W’s land

throughout the marriageo H could lease the land and collect rents (without obligation or account to W), and

could even sell the land to a third party (although, without W’s consent to the sale, the purchaser could receive only the right to possession of the land for as long as H and W remained married)

o In late 19th and early 20th centuries, the Married Women’s Property Acts

abolished the estate jure uxoris and gave married women full control over their own separate property

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- Curtesyo Estate entitled H to enjoy a life estate in all land that W had owned at any time

during their marriage o W could do nothing to defeat H’s curtesy rights

o If while married to H, W sold Blackacre to P, P took the land subject to H’s estate

of curtesy if H survived W- Dower

o Estate of dower, not as good for W as curtesy was for H

o W’s estate of dower gave her a 1/3 interest for life in all land which H owned an

estate of inheritance at any time during the marriage o During marriage H could do nothing to defeat W’s estate of dower

o If H transferred the estate the grantee took title to W’s dower right

- Elective Share—The Modern Successor of the Estates of Dower and Curtesyo Statutes in nearly all states have abolished dower and curtesy

o The estates had served the important purpose of ensuring that one spouse’s death

did not leave the surviving spouse without any property on which to sustain himself or herself.

o Today descent and distribution statutes make W the heir of H and vice-versa

o The problem of spiteful conduct remains, however nothing prevent W from

making a will that provides nothing for H, or vice-versao To address this later problem, nearly all states have replaced dower and curtesy

with “forced share” or “elective share” statues.

- Community Propertyo The common law refused to recognize the marital relationship as a shared

enterprise involving shared ownership of assets acquired during the marriageo By contrast, adopted concept of community property which views marriage as an

enterprise to which each spouse contributes as an equal of the other o Undivided equal shares- “community property” i.e., earnings

o As a result, one spouse cannot take any unilateral action to convert community

property to separate property—unlike the common law, where spouses holding as tenants in common or joint tenancy may seek partition as a matter of right

o Neither spouse has a right of survivorship in community property. Each spouse

has the freedom to transfer his or her share of community property at death o Only a few American jurisdictions have embraced community property as a

means of marital ownership- has helped with the law that govern how property is distributed in divorce

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- Equitable Distribution o How title is held test

o Equitable distribution exists in non-community property states

o The philosophy behind equitable distribution is that gender-neutral distributional

rules and equitable division of marital property should have the effect of placing divorcing wives in an economic position as good as their husbands or at least in a better position than the common law left them upon divorce

Teacher Comments Teacher believes these interests are self explanatory Read but there will be VERY few question on the exam about it...(short answer or multiple

choice form, not a part of the essay) Anytime teacher says read but not discuss, shows how she is prioritizing it for the exam

Tenancy in Commono Courts like this because it doesn’t restrict alienability o Right of survivorship is what makes them less alienable o Use and enjoyment of the property as a whole togethero Didn’t have to receive property at the same time Or same interesto Most flexible, alienable type of concurrent estate, which is why it is the preferred

concurrent estate

Joint Tenancy o One of the joint tenants can transfer unilateralyo If A or B dies, joint tenancy would go to the survivoro Severance- transfering unilaterally can convey their interest to a third party, both

parties can mutually agree to servere and become tenants in common, can ask court for a partition if they can’t agree

Partition in kind, physical-dividing the land (want to keep our intrests in the land, just don’t want to be joint tenants); physical partition of the land itself into seperate owned parts (get teh land)

Partition by sale- divide proceeds of sale (get the money)o Have to have the four unitieso How does divore affect joint tenancy- in the absence of a degree that provides for

the severance of it, will stay the same. (Courts want to see that the decree says it has actually been severed.); Where divorce decree is silent (doesn’t automaticlaly destroy the suvivorship

o If four unities not there JT cannot be created (some jurisdictions – really could be just not havign right of survivorship in the document), but if it looks like the intent of grantor was there some other courts will say that they wanted this with suvivorship and thus will grant a JT (other jurisdictions-intent driven)...intent approach is becoming more common (hesitant to say trend)

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o On KS court said (even if there isn’t a written agreement you can simply look at the conduct or the course of dealings)-what does it take to severe a JT?

EXAMPLES:1. A, B, & c JT (1/3 intrest) C coveys to D...what happens?

a. A & B still joint tenants, and D tenant in common with bothb. A, B=JT=2/3 interestc. D=TIC=1/3 interestd. C=Nothing=0 interest

2. How would the simultaneous deaths of A, B, & C be dealt with (who takes the interest?)a. The uniform simultaneous death act- a true simultaneous death will convert it to a

tenancy in common (would be disposed of if they had TIC instead of JT)

3. What if two owners want to use land in an inconsistent fashion. How should court resolve? Would probably refer them to mediation (they come to their own resolution of the dispute), If can’t mediate then partition in kind (most goes with the grantor’s intent, closest); courts genrally reluctant to force people to release their property (p. 385), courts don’t favor forcing a sale, because want people to sell when they are ready

Creditors regarding Joint Tenancy- Have access to both tenants, so can get to both of them until the joint tenant is deceased (have to do it while alive, because cannot go after the estate after the joint tenant died-but with joint tenancy becomes the other joint tenants)- so no longer available to creditor after death

EXCEPTION: IRS can still get you! (Federal Taxes owed, IRS can still come after you!)

2 cases:

Indestructible right of suvivorship- can be no unilateral or partition of the property (goes against the courts preference)-direct restraint on alienation

Attempted in 2 ways (don’t have to commit to memory the conveyance)- first one more problematic, creates direct restraint on alienation; so lawyers then came up with the 2nd conveyance – a divorce wouldn’t terminate the conveyance

If any agreement to not partition, courts look upon it with great supicion and especially if not time limited

The right to bring a partition action- has to be the person who has right to immediate possession, some states permit allow a person who holds a future interest (generally actual people who have possession of the land) EXCEPTION is landlord

Esteves v. Esteves Case – illustrates relationship between co tenants -dispute over who put what into the houseGeneral rule, all tenants in common have a right to occupy ALL of the property and because of that a cotenant who is in sole possession of the property does not have to account to the other

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cotenants for the value of the possession (no obligation to pay rent, law assumes the parties have agreed) UNLESS there is an ouster (really strong notice must be given)-happens in the context of a cotenancy, not allowing you to enjoy your possession of the property- then cotenant who was ousted is going to have certain rights (cotenants out of possession would have ability to demand rent from the person who has ousted them from the porperty)

-In a seperate action or where there is a slae, coenant who pays taxes or other maintence costs has the right to maintenace or retribution costs (usually a judicial thing)- bring action for contribution so other cotenants can contribute and reimburse them for the costs

-Repairs-generally can recover for basic repair costs, but nothing beyond that (Modern rule is that cotenant can get reimbursement for what is considered necessary reparis, but nothing beyond that) Traditional rule in Esteves was that no repairs..(not genrally the rule now); it makes sense now you should be able to get the money for the necessary repairs....WHAT ABOUT IMPROVEMENTS? Nope not necessary...so no duty to help pay for it....if he had CONSENTED to it then obligated to go through with it....WIOTHOUT EXPRESS CONSENT OF OTHER CONTENANTS, then you can’t be reimbursed

-If partition of the property, you would get more money, because you get the value of the deck (beause you paid the cost of it); If partition in kind-likely if you’ve made improvements of the land (doesn’t happen often), then you are likely going to get the part of the land you’ve improved (so in sit. like that partition by sale); or buy out other interest so can live in the land...

OUSTER- ousted co-tenant needs to bring a claim for enjectment coupled with a claim for any rents (from businesses, etc.) (out of possession cotenant)—lease producing profits on the land, who entitled? Equal interest because equal interest in the land (out of possession tenants have no right to rent if cotenant living on the land—because they all hae equal interest of the land)

Profits =yes can have their portionNo profits, just tenant=no right to rent

Teacher going to post information to help gel!

Tenancy by the Entirety

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NONPOSSESSORY PRIVATE LAND USE ARRANGEMENTS: SERVITUDES

Easements & Covenants

Easements

- Sevitudes-very borad umbrella term that refers to various nonpossessory interests (distinguishing between to possession of and use of land)

o Easement & Covenants are what we will discuss

Easement- many meant to run with the land (term of art); someone else rights to the land are attached to the ownership of the land (more precisely interest)

o No matter who owns the land, the interest is attached to the land o When the interest runs with the land, the rights that are attached to it will continue to

exist even if the parcels that are burdened and benefited by the servitude are sold o Burdened-has the easement that must be used (Servient estate)o Benefited-uses the easement on the other persons land (dominant estate)o I many situations, the servient estate remains burdened even after transfer to a successor o As long as the necessity exists, the right to used the servient will reamin and the servient

land will remain burdened o Nonpossessory interest- right to use somone eleses land; use same exact element of

Adverse possession; then you can use to the land! C H E=has a different meaning than for adverse possession... A N O S

o Must distinguish between possession and use...(Use more limited)o Getting right to use burdened, survient estateo Negative easement, prevents interference with use of the land o Most easements are affirmative o Only a few negative easements are recognized

Flow of light or air Support of a building flow of an artificial extreme

o Conservation Easements- about preservation, imposes limits on the servient estateo Subject to a negative easement... (easement agreement wouldl allow someone to be able

to get and injunction so they could not build the office building

- Affirmative Easement- gives its holder the right to enjoy some specified use of the servient land

- Negative Easement- gives its holder the right to restrict the possesor of the servient land from making some use of the land (4 types)

o Light o Airo Support

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o Stream water from an artificial flow

- Conservation Easement- limits the use of land so as to preserve availability for: forrest, recreational, agricultural use

o Protect natural resources, mountains or enhance air or H2O quality o Preserve historically or culturally significant land

Classifications of Easementso Easements Appertenant- attached to the land (attaches to the ownership of the dominant

estate, provides owner of dominant estate, right of use of the servient estate); benefits holder, can’t be seperated from thier right in the land-passes with the title (runs with the interest in the land); land over which the easement passes (burdened estate); (ALWAYS going to have a dominant and servient estate)

o Easements in Gross-benefiting someone more personally; attached to the individual itself- not an interest that runs with the land...(more personal attachment)...gives them rights in the servient land, regardless of ownership in dominant land (Not necessarily true...

o Common law-all jurisdictions prefer easement appertenant, because of their transferability (and ran with ownership of the land)

Covenant- considered a promissory servitude; promise or an agreement that has to do with land Profits & Licenses also included; mainly for being able to distinguish from an easement

o License is controlling summons use of the land

How Easements are created:o Express - written grant of an easement: Deed, Will, etc. Agreement (parties agree);

could be separate document attached to the deed or will... Must include dominant & servient estate: easement appertenant Servient estate only- easement in gross Reservation- convey to someone else but reserve the use of the land through

and easement for yourself

o Alft v. Stewart Compared the language of the paragraphs Analyze on test; have to tell why? – tell that its in gross, but there is a rule of

construction saying that a easement appertenant instead of easement in gross...(rule of construction leads us to say intended easement appurtenant)

Expectation for analyzing a hypo like this This is the rule of law, lead to this conclusion for these reasons, tradition

rule of construction Public Policy-Economics –economic self interest Utility of land and the free alienability of land-societal interest in

maximizing that utility Hassle to have to negotiate rather just knowing its already there in

your deed (these are the policy concerns behind this rule of construction)

P. 559 is relevant (paragraph 3 conveyed right of ingress and egress) Any type of easement is a conveyance Court saying made in context of dominant and servient parcel, that tells us

intent was more appurtenant that not

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(A) on pg. 560 Type out full example w/reasons

Teacher might ask for what assumptions would you need to make for assumption that easement appurtenant

Term (long term, intended for someone beyond just the current owner)

KEY QUESTION TO ASK WHEN DECIDING WHAT TYPE OF EASEMENT: Is it meant to benefit the current owner or successor owners?

IF something runs with the land and it doesn’t have to be mentioned in the land, it’s an AUTOMATIC transfer

o Sometimes ask yourself if would this be personal, would someone else care? Transferring and Easement in gross is going to require a seperate document All thee above was EXPRESS easement IMPLIED Easements

o Easement implied by necessity (p. 562-563 examples); (569-570, notes 2 & 3) Based on the presumed intent of the parties (should ALWAYS be thinking

of the intent of the grantor) At one time had to have been under common ownership (dominant and

servient estates) Looking at what happened, owner of common property severed it & one

party is landlocked Common owner failed to grant an easement Had to have existed at the time was severed Ends when necessity ends Strict necessity, the only way you can get to a public road is through the

other public parcels, mere inconvience is NEVER enough NOW courts are saying has to be a reasonable necessity, still mere convience

is not enough (even when dollar amount has gotten really high-not feasible pay $100,000 to make another road so a dollar amount)

Strict necessity is still the rule, but more and more courts are saying reasonable necessity is still enough

o Easement from preexisting use (Quasi easement); not express but implied because of prior use

Deed that subdivides a parcel of land (sometimes forgets to address what rights a person has)

At time of severance there is common ownership And the owner was using the servient portion to benefit the

dominant portion (this is where you get you prior use); The use was apparent and continuous at time of severance (notes on

568) Continuation of the use is reasonably necessary for the enjoyment of

the dominant parcel o A minority of states require strict necessity

Here there is unlimited duration (as long as elements met, can be unlimited)

o Easement implied from a Plat (p.562, teacher thinks good & clear example)

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Implied from the representations that the person buying land have relied on Use the streets and access shown on the map Neighborhood streets example Looking at the intent of the developer Certainly intended for people to get to their homes from the street Buyers purchase in reliance of being able to use all the land on the plat

o Bob’s ready wear case Used to discuss implied easements Profits & licenses The court looked at 5 relevant consideration (whether to infer appropriate

intention for implied easement) Whether claimant was the owner of the dominant parcel (evidence that

included deed-should’ve been there, if in position to draft and didn’t create easement can work against you)

Absence of express easement should be more indicative of lack of intent

The extent of the necessity of the easement to the claimant The manner in which the land was used prior to the conveyance Whether use may have been known to the parties present at time of

litigation (at time of severance) Whether reciprocal benefits occured to the court and grantee

(similar reciprocal intersts/benefits=probably did intend) Court then said not Quasi easement

o In KS use same adverse possession statute for prescriptive easements Prescriptive Easements

o Very similiar to the concept of APossession (same statute used); chief distinction, lcaimant is making some use instead of possession (possession v. use)

o Use –passing over the lando Possession-putting up a fence, etc.

Under common law, hostile still means w/o permission In many jurisdiction, the presecriptive statute is shorter, because its use, not possession and

you should be able to gain perpetual use (righ tto use) in a shorter period of time, so far though KS has not changed that

Continuous -frequency of use that is normal for the kind of easement being claimed Exclusive - (diff. than AP), exclusion is fundamental part of possession; A doesn’t have to

exclude B in order to use it, so the fact that TO is also using the land doesn’t necessarily negate prescriptive use (Melendez case, example of prescriptvie use even though dominant

and serviant use holders are using the land-very very specific) The question is Not whether A(claimant) is excluding B) but rather A is using the land without B’sregard to TO’s right to exclude A

Open-use must be sufficeintly visible and aparent so that a diligent owner of land would discover it (Actual knowledge is not necessary)

Knowingly Adverse, use is without permission, i know not my land or a good faith beleivf that entitled to land even if mistaken

Look at notes 3 & 4 following the melendez case Not concerned w/ lost grant theory NO questions will be asked about this (ELIMINATE

FROM LIST OF THINGS TO LEARN)

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General Attributes of an Easements o Nonpossessory interest in the land o General Rule is subjec tto the statute of frauds-must be in writing o EXCEPTIONS, implied, easement by prescriptiono Affirmative or negativeo Irrevocableo Often exclusive, but can be sharedo Perpetually, last specified time, as neededo Transferable (difference btween ingross and appertenant)o Can make improvements, repair, exercise control (thier easement thier control; i.e.,

throwing gravel on an unpaved road); interest gives right to do something with it...o Specifically Enforceable, anything that effects my use I can enforce

Licenses & how they differ from easementso Revocable privelege (not an interest in land) to use someone else’s land without

possessing it o Privilege - not an estate, not an interest (personal right) o Can be granted orally o Revocable (except under an equitable estoppel theory); spending money in reliance

then an attempt to revoke (at that point becomes more like an easement than a license)o Lasts as long as the nature of the license warrantso Enforced by damages (i.e. to hunt on someone’s land, tickets to entertainment

events, some parking cases would be licenses)o Usually not transferable, usually displayed on the licenseo Usually not an exclusive righto Usually very specified timeo Can only do what the license specifically says and nothing beyond that...o Note 2, 581 teacher finds interesting

Profit o Removing things from the lando Using another’s land by servering something from the land or removing a portion of

the soil or what is under the soil (i.e., trees, soil, minerals)

Easement, license, profit (similar)

Scope of Easementso Purposes for what an easement may be usedo Best thing you can get is an express easement with unambiguous terms*o General Rule- If not express or is ambiguous the holder of the easement may not

unreasonably increases the burden on the servient estate o What’s reasonable (depends on facts and cricumstance)o i.e., been granted right of way to cross highway-mere increase in traffic is not

necessarily violating the scope of traffic, changing use from agricultural to commercial might exceed the scope

o Courts weigh the interest of each landowner to see whetehr scope had been violated

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o Another general rule regarding use, easement appurtenant to one parcel of land may not be extended to another non-dominant parcel

o Brown v. Voss (595) comes to a different conclusion than this general rule; recognize the rule, been no injury & delay in the grantor protesting the extension untl after there were a lot of expenditures made (equitable estoppel being made), so going to allow it (court balanced the harms and used the rule of reason approach); unacceptable in the per se violation of easements...

o Balancing harms even if it exceeds scope, teacher thinks it was the expenditure that sent it the other ways

Extinguishment of an Easement (602)o Written Release , has to also conform to the statute of fraudso Mergero Prescription (reverse prescriptive use); extinguishment by prescription- has to be by

the statutory of timeo Abandonment- pretty high standard to show, have to knkow intendends to

relinquish his or her rights and done something to unequivocally act ot manifest

this; non use alone is never enough to show abandonment (i.e, someone else getting it by prescriptive use could be an example of this); generally found in affirmative conduct that is inconsistent with continued use of the easement (i.e, easement to use a right of way, easmeent holder build a wall so can’t be used), done something very inconsistent

with use...(i.e, not using railroad for 10 years, but removing the tracks would be) o Time Limit, purpose accomplished (i.e., as soon as road being built finished)o Misuse of an easement (not sufficient alone-act of last resort where there is no real

alternative to rememdy the misue but to extinguish it); MUST BE EXTREME, usually never this alone

Covenants Running with Interests in the Land

- Basic Terminology o Covenant- a promise (restriction) that has to do with use of land o Servitudes- describes various non-possessory interests individuals hav ein land

belonging to someone else

- In determining whether a covenant runs with the land and is an enforceable action at law, traditional requirements include 1-3 and American courts include 4 & 5:

1. The covenanting parties intend to bind successor owners to the restriction 2. The restriction “touches and concerns” the land 3. The original covenanting parties stood in “privity of estate”4. The successor took the land with notice of the restriction and 5. The covenant must be contained in a document that satisfies the statue of frauds

- Horizontal Privity

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o Focuses on the relationship between the original parties to the covenant. It is said to exist when the original parties have either a mutual interest, or when the original parties have successive interests

- Vertical Privityo Refers to the relationship between the original covenanting parties and successor

owners of each parcel. Traditionally, vertical privity requires that the successor succeed to the entire estate of the predecessor

- “Touch and Concern “Generally, it means that the covenant must relate to the enjoyment, occupation, or use of the land.

o Typically, kinds of obligations that should run with the burdened estate because they are intended to and legitimately will benefit the current and future owners of the dominant estate

COVENANTS (606 begins)o Realated to easements because type of servitude but differento Horizontal and Vertical Privity chart by teacher (always going to be a burden side

and a benefit side)o Real covenants

Real cov. Or cov. Running with the land is a promise concerining the use of teh land that benefits and burdens the original parties to the promise and thier sucessors

Remedy for breach of a real covenant is damages, money damages Has two sides, burden (duty to perform promise); benefit (right to enforce) Created through a contract Really a contract right Area that merges property and contract law Attaches to the land that is benefited or burdened, stays with the chain of

titile so that when land is transferred benefit or burden is transferred as well Both parties to the contract are bound (only parties to the contract), this is

considered an exception to the rule Allows successors to enforce it Diff. between real cov. And affirmative easements

Affirmative easement; dominant estate has right to burden serviant land

Covenant runnin with the land, more than a personal contract but less than an easement, burden or benefits pass to the eprson’s who succeed the estate because the covenant running with the land is attached to that chain of title (not an interest to the land like an easement, but attaches to the land through the chain of title)

Three requirements to bind successors in ownership CR w/ L (traditonal) Intent to bind successors (usually expressed through the language of

the deed) Covenant has to touch and concern the land (legal term of art)- has

to relate to the enjoyemnent, occupation or use of the land (i.e, promise not to build a structure higher than 30 sotries meets the standard, usually a monetary obligation does not meet the touch an conern requirement-buying insureance for the land)

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Privity of estate Two other requirements under American property law

Successor took the land with notice of the restriction (successor has notice, actual notice, record notice, or inquiry notice) recording acts

Has to satisfy the statute of frauds (has to be contained in a document that satifies this)

Legal effect, is that it is going to benefit or burden a person who was not a party to the oringinal contract but becaomes owenr of the land

Privity Horizontal-deals with the relationship of the orginal parties to the covenant

Parties have a mutal interest (related interested in the same parcel of land, cotenants, landloard, dominant/serviant)

When original parties have sucessive interest, coveneant part of the deed (grantor, grantee relatiohsinp between the party)

Vertical privitiy Relationship between the original promisor and the successor and

the people who bought their land Traditionally requriesd that the grantor be givign FSA in order for

there ot be Vertical privity Exists wehn someone sells land in FSA but not when leasing or

retaining land Difference between equitable servitude

ES is a matter of equity and have made an exception to the statute of frauds

Avaialble remedy for ES- can be enforced by an injuction and specific performance

Covenant- damages ES is still a promise, difference is it can be an oral promise that was

made Covenants are not enfoceable if they violate public polic

Racial covenatns And unreasoable retrants on alienation

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THE LAW OF THE LANDLORD AND TENANT

- Lease- instrument of conveyance, but is also a bilateral contract with mutual promises, through which a landlord transfers to a tenant and promises not to disturn the exclusive right of possession of certain premises for some legth of time, in return for which the tenant becomes obligated to pay rent. The landlord retains a reversion and usually a right of entry in case of breach

- Leasehold- A non-freehold estate, which is a possessory interest in land

Types of Leaseholds

- Term of Years (Fixed-Term Tenancy) o Any fixed term or duration (time)—may be measured by years, months, weeks or

days. o Express Agreement o Statute of Frauds applies to leasehold interest of more than one year and requires

a writing o Automatically expires upon agreed-upon date (time), by the happening of an

event, or by certain other circumstances. Usually, there is no notice requirement to terminate

- Periodic Tenancy o Must have definite beginning, but can continue until one party terminates by

giving advance notice (otherwise automatically renews).o May be indefinite duration, but term is measured by successive identical periods

of time (months, weeks, etc.)o Termination notice must meet statutory notification period (usually 30 days notice

for month-to-month tenancy, etc.) or common law standard of six months for tenancies of one year or longer

o Agreement may be oral as long as parties agree on stated period for rent. Rent payment terms may be inferred from conduct

o May arise when tenant holds over after term has expired

- Tenancy at Willo Either Party may terminate at any time

Common law- no notice needed Modern statutes- some minimal required notice

o Rent may be paid, but is not measured by a rent period (may be intermittent( or may be “rent in kind”

o Death of either party terminates tenancyo Any attempt by the tenant to assign the tenancy will end (terminate) ito Tenancy at will can become an implied periodic tenancy if tenant who is at will

begins making monthly rent payments of equal amounts that the landlord accepts

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- Tenancy at Sufferance o Not technically a tenancy/leaseholdo Arises only when tenant wrongfully holds over after the expiration of the tenancyo Landlord has the choice of making the tenant a trespasser or a periodic tenant,

retroactive to the beginning of the hold over periodo Restatement calculates hold over damages based upon the previously agreed upon

rental rate

Landlord’s Warranties

- Covenant of Quiet Enjoyment o Covenant that landlord will not interfere with tenant’s possession of premises.

Most modern leases provide an express covenant of QE, but if the lease is silent covenant will be implied

o Breached if landlord or landlord’s agent disrupts tenant’s possessiono Not breached by actions of parties unrelated to the landlord

o Remedies If L breaches, T has two basic options: wither sue to recover possession or

terminate the lease If T successfully recovers possession through such an action T must

continue to make rent payments to retain possession Eviction allows T to argue that lease is terminated and, therefore T has no

obligation for rent T may also have claim against L for compensatory damages for costs of

moving, storage, and other incidental costs

o The law has expanded the covenant to protect T not only against actual eviction, but also against constructive eviction

LL’s wrongful acts substantially OR materially deprive tenant of his or her beneficial use and enjoyment of the premises

o Actual v. Constructive Eviction Actual eviction- when landlord wrongfully ousts (excludes) tenant from

physical possession of leased premises. In actual eviction, liability for all rent is suspended

Constructive Eviction- no physical expulsion or exclusion (ouster) of tenant, but landlord’s wrongful acts substantially or materially deprive the tenant of use and enjoyment of the premises. Tenant must abandon premises in order to claim that there was a constructive eviction. Tenant must prove:

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L (or agent) wrongfully interfered with T’s right to possession of the premises in a way that was intentional, substantial, and permanent; and,

T then abandons the premises within a reasonable period of time Most courts require that T give L notice and an opportunity to cure

the interference In impoverished residential areas, T may have little choice of

alternative housing of a better quality. Some jurisdictions allows tenant to bring a declaratory judgment action seeking declaration that if the tenant had vacated, there would be a ruling of constructive eviction.

Constructive eviction may arise out of a continuous condition, such as persistent rodents, or it may arise out of a serious intermittent problem, such as heat or cooling failures. Other examples: failure to make substantial repairs, failure to provide necessary utilities.(See p. 422 for example of partial conviction)

- Covenant to Deliver Possessiono Majority of American courts hold that landlord has implied duty to deliver actual

possession at beginning of tenancy (Engligh Rule) If breached, tenant may terminate lease or sue for damages

o Minority of American courts hold that no such implied warranty to deliver possession at commencement of lease term exists (American Rule)

- Duty to Occupy and Use Premises o In absence of covenant to do so, tenant has no duty to take possession or to make

particular use of premises (however, tenant still must pay rent) Exception: commercial leases where all or significant part of rent is based

upon sales (percentage—rental lease)

- Landlord’s Duty of Fitness and Repair o Under common law the landlord made no implied representations about the

quality of housing provided in a lease. The doctrine of caveat lessee (literally “lessee beware”) placed upon the lessee all responsibility for the condition of the premises during tenancy, except where the landlord expressly contracted to take responsibility

o Limited exceptions that imposed implied obligations on the landlord: Latent defects Common areas Express agreement Short-term lease of furnished premises Building under construction

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- Revolution in Residential Housing o First, state legislatures began to enact housing codes to govern residential

propertieso Then, courts viewed lease under contract principles as a basis to revaluate the

legitimacy of caveat lessee. That led to two huge reforms:1. Courts began to adopt an implied warranty of habitability—a covenant by

the landlord, implied by law into residential leases, that the landlord will maintain the premises in a habitable condition for the duration of the lease

2. Courts said that tenant’s obligation to pay rent was dependant upon the landlord’s compliance with the implied warranty of habitability

o The implied warranty of habitability cannot be waived o Vast majority of courts refuse to extend the warranty to commercial leases

- What must the tenant show to withhold rent for breach of implied warranty of habitability?

o Tenant must show: Landlord had notice of previously unknown defect and did not repair or

cure in a reasonable time, and Defect that affected habitability existed when rent was withheld

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Washburn Property Law Jackson Fall 2011 OUTLINE

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