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Prop Outline 99

Prop Outline 99

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Published by mrgoldsmith23
property I outline
property I outline

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Categories:Types, Business/Law
Published by: mrgoldsmith23 on Dec 14, 2010
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12/02/2012

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PROPERTY OUTLINE
Spring 99; Prof. Peterson
I. ACQUISITION BY FIND
A) Prior possession => the prior possessor is favored over subsequent possessors (Armorie v.Delamirie; chimney sweep’s title to jewel prevailed over goldsmith)B) Title is relative => true owner depends on who claimants are.C) Finder v. property owner• non-trespass and Otrue owner =>in Hannah v. Peel, finder won despite jewel being on ’s
π
 property. He wasn’t trespassing, and clearly wasn’t the true owner. Owning the whole
π
 property wasn’t enough to give constructive possession of the broach.• public shop (re dropped item in shop, finder has better title than shopkeeper).• things attached to/under the land => land owner has constructive title over ownerI
I. ADVERSE POSSESSIONA.G
ENERAL
C
OMMENTS
1.Can only get was O has (if adversely possess a life estate, just get a life estate)2.Title
relates back
to date of original entry (once s/l runs, O can’t sue for back rent fromtime it was running)3.Justifications for the doctrine
-
promotes efficient use of land
-
improvement of dilapidated buildings in urban areas
-
gen’l justification for s/l (settled expectations of possessor)
B.F
OUR
 
ELEMENTS
 
TO
 
ADVERSE
 
POSSESSION
;
ALL
 
MUST
 
BE
 
FOUND
 
TO
 
GIVE
NEW
 
TITLE
”.1.Actual entry and exclusive possession =>
• physical possession; entry starts s/l running• only the land actually occupied can be claimed (unless color of title)• use the land in a way that O would (eg for a summer cottage, only need to occupy in thesummer; for a sand pit, just use it as a pit).
2.Open and notorious =>
• actions must be such that would inform a reasonably attentive owner that someone wasusing the land. Doesn’t have to be actual notice.
3.Adversity => must not be permissive use
a)
objective standard 
=> don’t care @ state of mind of A. Only care that A’s actionsappeared objectively to indicate A was taking possessionb)
subjective standard 
=> supposedly minority view, but it plays a role even in objective jurisdictions. Must be
 subjective intent to claim the land.
• good faith required => A had good faith belief land was hers• good faith ok but not required; just look for intent.• Lack of good faith => I knew it wasn’t mine, but I’m taking it anyway.
4.Continuity => continuous for statutory period
a)Effect of O’s reentry
• to disrupt continuity, O must interrupt in such a way that A knows O is asserting claim(open and obvious reentry)• Can interrupt continuity, but courts are concerned about notice to A1
 
b)Tacking => Tacking is jurisdictional…some courts don’t allow it. If they do, the rulesare:
i.Tacking different owners together by AA is permitted to tack against successive Os. Why? Expectations, use, Oshouldn’t be able to revive title by transferring ownership…say that nextowner takes “ailing title”. BUT A only acquires the estate she entered on, soif A enters against a life estate, A can only get a life estate. But, if A entersagainst fsa, and title is transferred to a life estate, at end of period A gets fsa.ii.Tacking by successive AsPermitted as long as privity of estate (meaning A1 didn’t abandon and/or getforced out by A2)
5.Taxes
In some jurisdictions (including CA) A must pay taxes on the property to claim it. In CA, itcan be paid in a lump sum at the end of the statutory period.
C. Color of Title Doctrine
1.Adverse possession of part of land (all elements must be satisfied) +
 defective writteninstrument
giving title to whole parcel give constructive possession to all that the deeddescribes2.
Good faith
re validity of deed is required in some jurisdictions.3.Claimed land must be in
 reasonable proportion
to what is actually occupied4.Example -> If A is occupying one lot with color of title to that lot and the next door lot=>if both owned by one O, A gets title to bothif lot 2 is owned by different person, A doesn’t get it
D. Defenses
DisabilityIf O was disabled at time of entry, O gets another ten years after disappearance of theORIGINAL disability to eject. Only ten years even if O is still disabled, but w/ a differentdisability than the original one.|---------------|---------------|-------------|---------------------------|--------->A enters O insane O=18orig s/l A in fsa b/c ten years after O=18O =5but O is still insane (disabled)Disabilities => Infancy (<18), Insanity, In prison
III.FREEHOLD ESTATES IN LAND
Hierarchy of estates => fee simple>fee tail>life estate>leasehold
A.F
EE
 
SIMPLE
 
ABSOLUTE
(
FSA
)
1. Creation language “to A and her heirs”. Presumption that O wished to transfer entire estate,so even “to A” usually creates fsa if O had an fsa.2.fsa is the entire timeline3.inheritable => if no will, passes to heirs as defined in statute of intestate succession.
B.F
EE
T
AIL
(
ARCHAIC
 
BUT
 
STILL
 
POSSIBLE
 
IN
 
A
 
FEW
 
STATES
)
1.Creation language “to A and the heirs of his/her body”2
 
2.Inheritable only by lineal heirs. Can be fee tail male or fee tail female.3.Property is not reachable by current possessor’s creditors4.In the few states where its allowed, it can be converted by the current possessor to fsa if desired
C.L
IFE
E
STATE
1.Creation language “to A for life2.Terminates naturally upon the death of the holder, but it can end early (e.g. holder of remainder succeeds in proving waste)3.Followed by reversion if future interest is in O4.Followed by remainder if future interest is in a transferee
D.F
EES
S
IMPLE
D
EFEASIBLE
1.Fee simple determinable (fsd)
a)Creation language => “to A
SO LONG AS
xxx, then to whoever”b)If followed by future interest in O, that’s a possibility of reverterc)If followed by future interest in a transferee, it’s an executory interest subject to RAPd)Fsd ends naturally upon the occurrence of the condition (s/l for adverse possessionstarts)e)In CA, fsd is followed by right of entry which must be exercised w/in 5 years (legislatureabolished possibility of reverter)
 2.Fee simple subject to condition subsequent (fsscs)
a)Creation language => “to A,
BUT IF
X occurs then O has the right to reenter andretake”b)Future interest is called right of entry if in O (not subject to RAP)c)Fsscs does not end automatically when the condition occurs; holder of future interestmust exercise right of reentry (in many states there’s a statutory time limit now, thoughc.l. rule was s/l didn’t run for adverse possession until O entered)
 3.Fee simple subject to executory limitation (fssel)
a) Creation language => “to A,
BUT IF
X occurs, then to B and her heirs”b) Future interest in B is called an executory interest. Be sure to check for RAP problemsc) Fssel ends automatically upon the occurrence of X
E.R
ESTRAINTS
 
ON
A
LIENATION
(“
REPUGNANT
 
TO
 
A
 
FEE
 
SIMPLE
”)
1.General rule is that restraints on alienation of a fs are void becausea) frustrates improvement of property (no mortgages)b) unfair to creditorsc) inefficient => land should be put to its highest and best used)concentration of wealth2.
 Disabling restraint 
=> withholds power of alienation from grantee (p 217); unable totransfer• these are void for both fs and life estates3.
Forfeiture restraint 
=> grantor provides that grantee forfeits interest if he attempts totransferVoid for fs, but ok for life estate (See White v. Brown, p 210; Jesse tries to leave house tolive in and not to be sold; court implies restraint would have been valid on a life estate,although this dealt with a disabling restraint)3

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