PROPERTY OUTLINE SPRING 2006 I.

CONCEPTION OF PROPERTY: Property rights are relative in that someone may have better property rights to X than another person. o A. Right of a thing good against the world  It is a set of right that you might have with respect to stuff, that is good against certain people in the world. y HYPO: MICHAEL MARKER o B. Bundle of rights [regarding possession of a ³thing´] i. Possess ii. Use iii. Transfer iv. Destroy v. Exclude

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II. ACQUISITION BY CAPTURE PIERSON v. POST o Post, fox hunter, was chasing a fox through a vacant lost when out of the blue Pierson killed the fox and took it away. o RULE: Pursuit alone vest NO property rights.  There must be ACTUAL POSSESSION to claim title to fugitive objects. y Physical Possession y Mortal wounding y Capture o Therefore, a hunter must either trap or mortally wound an animal in order to acquire title to it. o See also, Popov v. Hayashi CARVING EXCEPTIONS TO PIERSON ± when actual possession is not reasonable« o CONSTRUCTIVE POSSESSION & INDUSTRY CUSTOM  RATIONE SOLI y If you own the land then you own the wild animal that runs across it. y You constructively possess something by owning the land which it runs upon. y If something is on your land then you own it.  GHEN v. RICH y Capturers shoot a bomb lance to the bottom of the ocean, which leaves an identifying mark on the whale. Since the whale takes 1-3 days to float up to the ocean, whoever finds it can tell who shot it by the identifying marker. o RULE: Custom & Constructive Possession are exceptions to the rule of actual possession in order to capture wild animal.  Constructive Possession is applied here because of the impracticability of requiring actual possession (i.e., the size of the whale) KEEBLE v. HICKERINGILL y Duck pond decoy case. y RULE: Another exception to the general rule of capture, If the means by which you actually possess an animal involved violent or malicious acts, even though you actually possess you do not have the right to the thing because those violent/malicious acts excepts you from the general rule of possession. o Moreover, if that other person is doing so for the purpose of earning a living, the person who takes those steps will be able to claim title to the object.

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Here, Hickeringill, with malicious intent tried to possess Keeble¶s See also: EDAS v. BRAZELTON y Shipwreck case with the boat y POPOV v. HAYASHI o Barry Bonds 73rd Homerun ball. o Not clear if Popov had it in possession, Hayashi, with no malicious intent on his part picks it up. o COURT HELD: Both men intended to possess the ball at the time they were in physical contact with it. Both P and D have an equal and undivided interest in the ball.  Subsequently, the ball was sold and the proceeds were divided equally between the parties.

no news service could every stay in business. use and possess it AP wants all including exclusion. FORD MOTOR COMPANY y The usage of Midler¶s distinctive voice in the advertisement. y ESSENTIAL CHARACTERISTIC OF ³NEWS´ o The news is only news if you get it first  Doesn¶t have an identity as news if it comes second. III. [policy consideration] y RULE: Acquiring rights to an object by creating it will be respected if its creation is necessary to cause the object to retain all of its essential qualities. y HOLDING: AP has invested time and resources (organization & expenditure of labor. if the court allowed the copying of fresh news. AP y AP wants to exclude (INS has no exclusion claim ± doesn¶t think AP should exclude their own news) INS wants to be able to sell..g. o (think about it this way. it can prevent (exclude) others from copying the news until the commercial value of the news has passed.  . INTRO o i. PRESERVATION OF THE MARKETING OF NEWS. ACQUISITION BY CREATION A. skill and money) into the creation of the news. Policy: Promotes Competition  INTERNATIONAL NEWS SERVICE v. y RULE: If it¶s distinctiveness causes the imitation of the object to be mistaken for the object itself. INS where newness is required for the news to be the news MIDLER v. o e.

o Prospect Theory/Loss of Averment ± More demoralizing to AP to take away what he has had rather than TO not getting back what he has NOT had. y ELEMENTS o 1. Substantial enclosure (land literally being fenced in)  2. possession can be shown through (clear & convincing) evidence by:  1.  An EXCEPTION to the constructive ownership by color of title rule is that the true owner¶s actual possession of a part of the described land negates the constructive possession and the averse possession is limited to the land actually possessed. o 2. an adverse possessor gains ownership of only so much of a tract of property as the adverse possessor actually occupies. The land is cultivated or improved. COLOR OF TITLE o A person enters under color of title when he claims ownership pursuant to a written document.IV. purporting to transfer the property to him. The adverse possessor with color of title who successfully proves an adverse possession claim based on actual possession of a part of the tract of described in the document constituting color of title is deemed to be in constructive possession of the whole tract. Reduces significantly the statute of limitation. but a new title also springs up in the Adverse Possessor. ADVERSE POSSESSION Courts have long held that when an owner sits on her rights to exclude. usually a deed.  Having COT helps the AP in 2 ways: y 1. There is nothing inherently wrong with being a passive owner but passivity may generate a social ill. y A. including the original owner y POLICY ± What does AP serve? o Discourages true owners [TO] from sleeping on their rights as landowners. The AP becomes the new true owner and can now exercise the right to exclude against the entire world. not only is the original owner barred from asserting the right to exclude. and the SOL for challenging the original unlawful entry expires. Actual  An adverse possessor must be in actual possession of the property. y 2. o If there is no COT.  Generally. o Reliance Issues: After being on the land awhile. but the document is defective in some manner. AP develops an interest in it. Open and Notorious .

. Seasonal Use [see above] o 2. who hold this view.  E. o No actual notice to TO is required. Subjective state of mind is unimportant and usually will require that TO does not give permission to use the property. o 3. y EXCEPTIONS TO THE CONTINOUS ELEMENT o 1. but seasonal use may be continuous. y The AP¶s use must be of such character under the circumstances as would indicate to a reasonably attentive owner that someone else might be claiming the property. y 1.  . y Continuous  uninterrupted y Intermittent use usually wont constitute continuous possession.  *The continuity element focuses on the AP¶s time on the property. and inconsistent with the TO¶s legal rights. The purchaser succeeds to the AP¶s attributes. o 5.This means that the adverse possessor¶s use of the property is so visible and apparent it gives notice to the true owner that someone may be asserting an adverse claim to the land.  The possessor must use the property as a true owner would under the circumstances. [minority view] AP acting in Bad Faith o Does subjective intent of the AP matter?  Some courts. will require the AP to be on his neighbor¶s land in good faith. y Generally. Exclusive  This means that the AP holds the land to the exclusion of the true owner. actually believing it to be included in his deed description. Building fences.g. have held that mistaken possession does not constitute hostility. Hostile or Adverse  This means that the AP uses the occupied property without the TO¶s permission. Continuous  This means that a claimant must be in continuous possession for the entire limitation period. crops or animals might constitute an open and notorious presence. An AP may sell or give his interest to another person. AP acting in Good Faith o Some court. Tacking & Privity  e. if TO has actual knowledge.g. the open and notorious element is met even though no one else has reason to know of the adverse claim.. [AP is excluding the TO] o 4. o However. rather than on how long the true owner has been dispossessed. y 2. including the time the first possessor occupied the property.

Disability  Many states provide that the SOL for a AP claim will not run against a TO who is under a disability when the AP commences. P had color of title + claim of right. mentally ill. Must exist on the date of the AP y 2. military. A person taking from or through the TO under a disability generally can take advantage of the tolling statute to the same extent as the person w/ the disability. imprisoned. exclusive. continuous] . y CASES o EWING v.  If a TO is under a disability. gift. hostile. also exercised property rights over it. the TO deeded him the land (even though the deed was void because the TO had actually doubled deeded land). will or other inheritance. Therefore. o Privity occurs by contract of sale. Furthermore. the SOL will not run against him until the disability is removed. minors. y 1. Meanwhile the statute is said to be tolled. which requires Privity.y This adding of time the first possessor used the property to the time the second possessor used the property is called tacking. such as. open & notorious. allowing/disallowing people from collecting sand and dirt from it. BURNET  P used property for 21 years. [actual possession.  Infants. o 3. It was publicly known that he was using the land in such a way and the TO knew of this and did not do or say anything about it. No tacking of disabilities are allowed. or absent from state. y 3. legally incompetent.

ewman. EASTWICK  RULE: The Art Preservation Act does not apply retroactively to protect artists. contests the removal of his child¶s cornea tissue y without his consent. promotes better usage of property. o Policy: encourages medical research. E-COMMERCE o Radio injunction granted in TRIBUNE and court upholds grant of summary judgment to PETA against Doughney for service mark infringement and unfair competition in DOUGHNEY. SATHYAVAGLSWARAN ewman. o Since. B. the social welfare aspect of the hospital¶s ³better´ interest in medical research vs. P did not retain possession of his body parts after their removal. o These two cases should be reconciled.V. ART o MOAKLEY v. y y ¡   . y RULE: Excised human body parts are not property such that they may support a cause of action for conversion. protection of due process under the 14th amendment. y RULE: Next of kin have the exclusive right to possess the bodies of their deceased family members. VALUES SUBJECT TO OWNERSHIP y A.  NEWMAN v. o ~Acquisition by being alive?  MOORE v. REGENTS y Moore wants right to exclude hospital from using his cells without his knowledge. The courts are trying to preserve two different interests. [the art work was made before the Act was applied] y An artist is not the owner of the wall on which he paints. C. In Moore. PERSONHOOD o Policy: Promotes social welfare. he must show an ownership interest in them in order to have a cause of action for conversion.

II.  Freehold interests originally were those that involved feudal military service obligations. Present Interests: One that becomes vested and possessory at the moment of their creation.. ESTATES SYSTEM ± FORMS OF OWNERSHIP I. or alienating/assigning/transferring (i.. [an estate where one has the right to possession now] o 2. who has seisin. y Estates [a type of land] further classify interests and refer to when and how ownership ends. o DURATION: An estate with an infinite or perpetual duration.e. Leasehold o ii. whereas the lease ± a non-freehold estate ± did not. Fee Simple/Fee Simple Absolute o The largest package of ownership rights. ESTATES y There are two types of estates: o 1. from which others are carved. (if owner dies without a will). Life Estate o 2. give it away during his lifetime. y A.VI. Fee Tail o iii. Term of Years III. . INTERESTS y There are 2 types of interests: o 1. o TRANSER: An owner may devise (i. Non-Freehold Estates  An estate where the owner is subject to another. o All estates are interests in land. y Alienable/Assignable/Transferable: if the owner can sell. Types of Freehold estates o i. giving away or selling inter vivos) o END: There is no inherent end to ownership. PRESENT INTERESTS/POSSESSORY ESTATES y A. Fee Simple Absolute o ii. who has seisin. is not subject to any other owner.e. descend/inherit. y A. IMPORTANT TERMS y Termination: When does an estate end? y Condition Subsequent: The occurrence or nonoccurrence of an event that can cut short an estate y Devisable: if the owner can transfer ownership by will y Descendible/inheritable: if the property can pass by the state¶s intestacy stattue to ³heirs´ if the owner dies without a will. Types of Non-Freehold Estates o i. Future Interest: For which an owner must wait until some future time to obtain possessory possession of property. Freehold Estates  An estate where the owner. IV. give away at death).

If the estate is defeasible. Reversion o What are the rights & obligations of a Life tenant?  Rights y Exclude others from property y May keep income and profits from the use of the land during the life estate y Can transfer the estate to others during the life tenant¶s life. y Permissive Waste . if there is an interest back to the grantor. o DURATION: For the life of the grantee. Remainder man can sue 3rd parties who are injuring Blackacre or who are claiming title to Blackacre hostilely.. y Affirmative/Voluntary Waste o The life tenant actively changes the property¶s use or condition.  Obligations y Pay taxes/Insurance payments y Pay mortgages y Keep premises in ordinary repair o What are the rights of the ³REMAINDER MAN´  1. upon the happening (or not happening) of the condition that renders the life estate defeasible. B.y o WORDS TO CREATE: ³to A and his heirs´.  3. a forfeiture restraint o WORDS TO CREATE: ³to A for life´. o TRANSFER: Only one way ± inter vivos alienation (a gift or sale) o END:  1. ³to A so long as he wishes to live on the property´. Death of grantee [natural end]  2. ³to A.  REMAINDER y If there is an interest that goes to a 3rd party (e. usually in a way that substantially decreases the property¶s value. o Anytime you see a life estate. TO bring an action against the life tenant for waste. Possibly.g. ³to A´.  Pur Autre Vie ± ³a life estate measured by the life of another person. his heirs and assigns´. Enter the land to make sure that waste isn¶t being committed  2. you know there has got to be more interest in the thing. Life Estate o The owner owns the property for life. any person who is not the grantor) Remainder  REVERSION y In a reversion. y [³unnatural end´]  3.

³on the condition that´. y If there is confusion between a FSD and FSSCS the courts will look at the document as a whole. DEFEASIBLE FEE SIMPLE ESTATES Defeasible means that an estate can come to an end upon the happening of an event in the future.y y o Akin to nonfeasance o The life tenant fails to prevent some harm to the property. however´ o The difference between a FSSCS and FSD is that«  FSD ends automatically upon the happening of the condition subsequent  Whereas the grantor of a FSSCS must assert his right of entry (also called ³right of reentry´ or ³power of termination´). the holder of the FFSCS owns the property. ³provided. and ³until´ o With a FSD possibility of reverter. y ³but if´. the modern preference is for it to be a FSSCS. ³while´. ³provided that´. real estate taxes. Fee Simple Subject to Condition Subsequent y May hold it forever. ³during´. FAIRCHILD) Economic Waste o Occurs when the income from property is insufficient to pay the expenses the life tenant has a duty to pay: ordinary maintenance. but could lose it entirely if the condition subsequent occurs.   I. interest on mortgages. In ambiguous cases. . Ameliorating waste o Change in the property by the life tenant that makes the property more productive or valuable. II. y Until the grantor exercises this interest. and in some jurisdictions insurance. Fee Simple Determinable y An estate that would be a fee simple absolute but for a provision in the transfer document that states that the estate shall automatically end on the happening of an event or nonevent. o C. ³unless´. (See BROWKAW v.  The chance that the property might return to the grantor if the condition subsequent happened. y ³so long as´.

.. O. it goes to a third party.) y E.  This is known as ³springing´ because it springs out of the grantor¶s original grant. but held that the condition that the property would revert to O ³in the event the same fails to be used by the [Lodge]. instead of O taking back the property.  MOUNTAIN BROWN LODGE v.  This is known as a ³shifting´ executory interest because it shifts from one transferee to another transferee. O to A and her heirs. o The difference is. Fee Simple Subject to Executory Limitation [future interest] y Takes the same for an either a FSD or FSSCS in that you are giving something to X provided that he uses it as Y (or unless he doesn¶t use it as Y).RESTRAINTS on the conditions a grantor can use to defease a fee simple: o 1. Springing Executory Interest  An EI that cuts short/divests some interest in the grantor O.. o 2. y Future interest retained by the transferor/grantor o 1.e.g. y E.  III. Restraints exists. IV. but if A does not graduate from law school. o A FSSEL o B Shifting Executory Interest in Fee Simple. Restraints on alienation are void. but restraints on use are valid.g. y (2) Types of Executory Interests o 1. O to A when A marries B. Shifting Executory Interest  An EI that cuts short/divests some interest in another transferee (i. then to B and his heirs. Reversion y .´ was valid because it constituted a restraint on use. FUTURE INTERESTS There are two main type of future interest: those (1) retained by the transferor/grantor and those (2) created in a transferee. only. not the grantor. TOSCANO y Where the court invalidated the condition that the property would revert to O ³in the event of sale or transfer by the second party of all or any part of the lot´ because it constituted a restraint on alienation.

y Future interest created in a transferee o An interest created in someone. if A dies before B then it becomes a reversion from the fee-simple and it would go to the heirs of B.  A condition precedent is anything other than the natural termination of the preceding estate.g. o Divest: coming in before a natural death. o REMAINDERS  In order to be a remainder.. There is no question that the person designated to get the remainder is going to get it. 3 elements must be satisfied: y 1.g..a Power of Termination]  2 & 3 deal with defeasibility.  E. Given to an ascertained person  a person who is alive/exists o b. Right of Entry [of Re-Entry a. This is called reversion to the grantor. Indefeasibly [Absolutely] Vested Remainder o A remainder with no condition subsequent and is not a class gift subject to open. O to A for life then to B for life. y 2. y Here. other than the grantor. o E. Held by a transferee (someone who is not the grantor) y 2. it goes back to A. [happens at natural termination] y This stems from the idea that ultimately you MUST give all that you have when you die.  Only reversion doesn¶t deal with defeasibility. remainder to B and her heirs.. B remainder in life estate.. y 3. then to B and her heirs.g.  Variations on Vested Remainders y 1.  However. It cannot divest any other interest. A gives B a life estate in room 308. to A for life.  There are 2 types of Remainders y 1. that is capable of becoming possessory at the natural termination of a prior possessory estate. The reversion fills in this gap where when B dies. Is not subject to a condition precedent. O to A for life. Possibility of Reverter o 3. A Life estate.k.  E.  E. Vested Remainder Subject to Divestment o A vested remainder may be subject to divestment before it becomes a possessory. O reversion. Capable of becoming possessory immediately at the end of a prior possessory estate.  .A reversion is the future interest that is retained by the grantor when the grantor transfers an interest less than the one that he owns.g. Vested Remainder o a. o 2.

y There are (2) types of contingent remainders o 1. OR if it is made contingent upon some event occurring other than the natural termination of the preceding estates. to C and his heirs.e.g. a condition subsequent. One that will take effect only upon the happening of an event that is not certain to occur (i. y Fertile Octogenarian Rule  2. O to A for life then to A¶s children (C) we assume C is A¶s only child.  A vested remainder where a condition is attached to the vested gift which will divest the gift..g.. a contingent remainder:  Condition precedent = contingent remainder  Condition subsequent = vested remainder subject to divestment 3. Contingent Remainder y Must also meet the (3) requirements to be a remainder.y o E. y A remainder is contingent if: o 1. y A Life estate y B Contingent Remainder o Because the event to occur it not certain to occur. o E. .. It is given to an unascertained person o 2. O to A for life. then to B and her heirs. but if B should fail to graduate from law school. Vested Remainder Subject to Open o e. One where the remainder goes to a person who cannot be ascertained at the time of the initial conveyance.g. otherwise to C..  Here. then to C. then to B if she reaches 21. B has a vested remainder subject to divestment held in fee simple absolute. O to A for life. but if B does not attain age 21. o NOTE: To distinguish a vested remainder subject to divestment v. then to B and her heirs.g. y C Alterative Contingent Remainder y O Reversion o 2. B¶s interest is vested because the divesting condition occurs after the clause granted B her interest. condition precedent)  e.  C has a vested remainder subject to open because A can still have another child with whom C would have to share the remainder.. To A for life.

then to B¶s children. where B has no children at the time of conveyance. and this person/s can be anyone named in the conveyance or any intervening generations who are alive at the time the interest is created.  Then B if he reaches 25 Is a contingent remainder which has RAP application. construe a will in accordance with the intention of the testator. o E.  We then want to focus on relevant or measure of lives in being« y These are lives and beings who can effect IF AND WHEN the interest VESTS. not later than 21 years after some life in being at the creation of the interest. To A for life then to B if he reaches 25. y Who is the person whom we will look at to know if the condition is satisfied? o B. Stated otherwise. if at all. Executory Interests  2.g. this can be very difficult. Vested Remainder Subject to Open o Time Period  The tricky part of RAP is that we have a weird formulation of a time period: not later than 21 years after some life in being at the creation of the interest.) y THE RULE AGAINST PERPETUITIES (RAP) o RULE: No interest is good unless it must vest. if we employ this rule of construction. Moreover. as a policy matter. the extent to which we¶re comfortable allowing ³the dead hand´ to control. after we take all the set of people who exist right now the last of them die. if a will is susceptible of 2 constructions. o Interests subject to the RAP  1. because it is a present life estate. Moreover. O to A for life. y This means« o If there is any possibility after this time period... dying tetstate as to the remainder. courts prefer that construction which disposes of the whole of the testator¶s estate if that construction is reasonable and consistent with the general scope and provisions of the will. (Of course. . then count 21 years out. e. by one of which the testator disposes of the whole of his estate and by the other of which he disposes of only a part of his estate. y A Life estate y B¶s children contingent remainder y O Reversion V. RULES OF CONSTRUCTION y Partial intestacies are disfavored. we must ask ourselves. and where the interest is STILL UNCERTAIN TO VEST then that interest will fail the RAP. Contingent Remainder  3. a construction which results in partial intestacy will not be adopted unless such intention clearly appears.g. y When in doubt.  To A for life has no RAP application.

when he dies that. Since. a LIFE IN BEING is anyone who is alive at the time the grant had been created. which is anyone who is alive that can effect IF and WHEN the interest vests.  This is B. or when he turns 25 it will be vested to him. whether or not. o RAP Application Steps:  1. See if any of the lives in being proves whether the applicable future interest is certain to either vest or close OR fail within the perpetuities period (that person¶s life + 21 years). Wait and See Approach y SYMPHONY SPACE v. executory interest. check to see if the interest is both vested and closed.  (6). . If not every applicable future interest is both vested and closed.  3. identify necessary factual developments for vesting and closing. y Will we know whether B turns 25? y YES! Because we will know. he either reached 25 or not.   o If we go back to difference between a LIFE IN BEING and a MEASURING LIFE. B is alive. discussed in Symphony Space. These are the measuring of lives. Identify all lives in being  5. For any applicable future interest.  4. vested remainders subject to open and options)  2. we would have B¶s life (who is the only person in this context who would effect this interest vesting) + 21 years. we have a possible pool that is big but we want to focus on MEASURING LIFE. Look for future interest (contingent remainder. an interest is valid if it actually vests during the perpetuities period. PERGOLA o [Option: A right to compel sale at a certain price] o Under this approach. The measuring period beings at B¶s death and then + 21 years. irrespective of what might have happened. Then the question is.

property held in tenancy in common can be attached by creditors of each individual tenant. o Undivided: in the sense that each tenant in common has the right to possess the whole of the property (although they need not exercise this right) o Each tenant in such a tenancy in common has an equal right to possess the whole. 2. then there must be joint adverse possession.. If I own something in joint tenancy with B. Time y Each interest must be acquired or vested at the same time.VII. I take his interest. if B dies. possibility of reverter) o The interest of co-tenants must be created in the same instrument (piece of paper). o Separate: in the sense that it is independently descendible. can have title to a thing. Title y Each must acquire title by the same instrument or by adverse possession. y Technically nothing passes.g. o The interest must be created simultaneously. I.  Think of this as a gamble« y E. Joint Tenancy y Joint Tenancy is exactly like the tenancy in common. Tenancy by the Entirety y *Community Property 1. CONCURRENT ESTATES We¶ve already been introduced to the idea that more than one person. except for the treatment of survivorship. There are (3) types of concurrent ownership forms: y 1. the deceases joint tenant¶s interest is simply extinguished. never by intestate succession or other act of law (e. This is a gamble. Interest . conveyable and devisable. Tenancy in Common y 2.  Since either tenant can unilaterally convey her interest to a third party. Tenancy In Common y Each tenant in common has a separate but undivided trust.. because if I die first then I lose my rights to the property to B. but their respective share of rents or profits will de determined by their respective percentage ownership. Joint Tenancy y 3.  2. y And since each share is independently descendible. there is no right of survivorship. o Joint Tenancy requires (4) utilities at the time of creation:  1.  3. OR if there was no piece of paper. o The Right of Survivorship  A surviving joint tenant automatically acquires the interest of another joint tenant when the other tenant dies. at a single period in time.g.

such as a fee simple. then we say the joint tenancy is severed and a tenancy in common is created. Y.  4. Possession y Each must have the right to possess the whole. & Z) y However. they can convey together to a straw person and have that straw person convey back to them as tenants in common. so one spouse doesn¶t go behind the others back to severe their interest. o You still must have the 4 unities along with marriage. y Only minorities of states have retained the tenancy by the entirety. o Co-tenants must have the same interest that is: each of them must have equal undivided share and also durationally identical interest. lease. Y and Z still retain their joint tenancy. o Each joint tenant has the power to unilaterally to transfer his or her interest while they are still living. which is marriage.. if the 1st three unities are destroyed in a joint tenancy. If W.. A partition action today is statutory in nature although it began as a common law cause of action. (however.  When such a transfer or attachment occurs. and thus each may have his or her interest attached by creditors.g. but you don¶t want to do it by divorce. y In a tenancy by the entirety. The one who wants out (W) has a tenancy in common with the others (X. there is no unilateral exit option as long as the couple stays married. Y. y Best looked at as a joint tenancy with a 5th unity. y Severing Joint Tenancy o Traditionally. either one of the joint tenants can use the straw person without the other joint tenants consent or even without their acknowledgement. Instead. the tenant in common or the joint tenant may petition a court to partition the property. life estate. y PARTITION Tenants in common or joint tenants with right of survivorship are not obligated to continue a concurrent ownership and they are not required to sell just their interest to separate themselves from the co-tenancy. o If you wanted to end a tenancy by entirety. y POLICY: Upholds the entity of marriage. 3.Each must have the same legal interest in the property. Tenancy by the Entirety y This applies only to married people. Z have a joint tenancy and W wants out.  If any of these utilities is not true then the joint teneancy does not exist. X. o Joint Tenancy with more than 2 people  E. etc. There are two types of partitions: . this may have the effect of severing the unities and may convert the joint tenancy into a tenancy in common. X.  The difference is that in the case of a joint tenancy. neither spouse can seek partition of property held in a tenancy in entirety). although not necessarily identical in fractional shares.

they receive separate parcels and the others own the rest of the propert as co-owners. the court divides the property into parcels of equal value. Grant a Mortgage  This is a claim that someone [usually a bank] has on one¶s home. o The court must consider all of the tenants in common and not merely the economic gain of a single tenant.  If offers the least upset to the original co-tenancy and it does not force a person to sell who does not wish to do so.  Types of Severance: o 1.  Delfino: (1) The physical attributes of the land are such that a partition in kind is impracticable or inequitable.  When fewer than all co-tenants seek partition. Unilateral Transfer  Straw-man o 2.  (Here. Title Theory o Where a mortgage conveys legal title to the creditor. Partition in Sale o Constitutes a forced sale of the land.  There are two theories of mortgage that operate in different parts of the country and have operated over the course of history: y A. the court orders a partition by kind. . the joint tenancy is said to be severed. o The CT Supreme Court found that the effect of Vealencis¶ garbage business on the value of the remaining land was not sufficient to warrant a partition by sale. Partition in Kind o Courts favor this more. y DELFINO v. (2) The interest of the owners would be better promoted by a partition in sale. o Court will look for some action or relationship that is inconsistent with a person continuing as a joint tenant or unities to find a severance. the court may order a $ payment from one party to another. each co-tenant receives a separate parcel. followed by a division of the profits among the tenants. o In exchange for the loan you (bank) gets the title/deed. a partition by sale would force Vealencis to give up her home and would jeopardize her business) SEVERANCE  In some states. o In a Parition in Kind. (Owelty) 2. Give a Lease o 3.  In the case the borrower defaults then the bank has outright title to the house.y y 1. o When a court cannot partition the property into equal value. VEALENCIS o In this case.  A mortgage is some secured loan where the collateral is someone¶s home. when one or more of the four unities of a joint tenancy with right of survivorship is destroyed.

o A mortgage is a security for a loan. The brother dies and the brother¶s executor (D) refuses to give title to the land to P. due to a mortgage (which the brother took out and P didn¶t know about). The title remains with the debtor.  In this case. in which the lender claimed title to the brothers interest in land as collateral for the mortgage. y If the brother had defaulted on the loan prior to dying.  Rare y B. A joint tenancy must also retain it¶s unity of title. SPRAUGE o P and his brother owned some property in a joint tenancy. Simmons might have acquired the entire title of the house. the bank retains a lien on the house. HARMS v. . unless the loan defaults and the property is seized by the lien holder. but instead of having an outright title right away. since the brother would have acquired P¶s interest. Lien Theory o Same deal. o HOLDING: A mortgage does not severe a joint tenancy. the brother never lost title to his interest in the property. y If P had died and then the brother defaulted. then Simmons (who loaned the money to D¶s brother) would have acquired the brother¶s interest in the title.

Initial characterization of the property controls. They weren¶t married but they had an oral contract to split up their shit. Migrating Couples o 1. o 2. y [This was the case where he compelled his girl to move out. MARVIN v. If property is ~CP SP (separate property) 3. O¶BRIEN y Earning Capacity: Professional degrees are marital property.  ii. MARITAL INTERESTS 1. Each spouse gets half of whatever is classified as Community Property. regardless of the form in which the title is held = equitable distribution. MARVIN y Traditional approach as conceiving people as ³married´ towards a ³contract-based´ approach.  i. Each spouse takes whatever is not considered ³marital property´. unless parties agree to transmute. o *Elkus ± In New York.   VIII. The Community Property System o 1. IF they had taken the appropriate contractual steps. y All property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action. The Common Law Marital Property System o a. y The wife in this case only gets what she contributes to the degree. O¶BRIEN v. . so defining what that is becomes very important. celebrity status is even considered marital property. 2.] y Holding in this case: The courts may recognize the division of their property if they had agreements that made it seem like they were married.

the terms and condition of the lease for the original term are carried over into the new one. y E. o Termination notice must be given 30 days before (if a year.  Some states will say there is a tenancy at will and some states wont. in that case.  2. Either party can terminate at anytime. we do encounter an agreement where the lease will be terminable only by one party.  If there is no stipulated length period. tenancies. o Also known as tenancy for years or a term for years o The Key Characteristic: an advance agreement that the lease will continue for some designated period. T occupies Blackacre with L¶s consent. the initial term¶s length will conform to the frequency of the rent payments.  Implication: when a term of years comes due and the landlord continues to accept or collect the rent and does not attempt to reenter the premises.IX. BUT without an agreement for a period and without an agreement for the payment of rent.g. but may also be created by implication. . the terms of years or landlord-tenant interests.  3.g. o Why create a tenancy at will?  Most people. Tenancy at Will o A tenancy that last so long as both parties wish it to continue.  The ³anything goes´ tenancy. a month to month lease. Periodic Tenancy o A lease that automatically rolls over for a stated period of time. I. o You can use any amount of time: month to month and year to year is the most popular but it does not preclude or foreclose other options where any period of duration can be used.  The court will find a tenancy at will based on these facts. o Although we don¶t encounter agreements to tenancy at will. o This can also happen once an event occurs« o A term of years expires automatically at the end of the specified term. Term of Years o A lease that has a fixed time at which it terminates or ends.. o E. consciously will not enter into a tenancy at will with eachother. 6 months before)  This differs based on jurisdiction o May be created by an express agreement. y Most tenancy at will arise by implcation not from an express agreement. o The Key Characteristic: it¶s ability to renew itself after the specified period. usually a year or a month  It lasts for an initial fixed period then automatically continues for additional equal periods until either the landlord or tenant terminates by giving advanced notice. The Lease and the Leasehold Estate  1. LEASES: THE LAW OF LANDLORD AND TENANT Also known as leaseholds.

 2. The assignor must not retain any sort of reversionary interest in the right to possess. for example.  But this discourages the tenant from wrongfully holding over. Sublease o Less than all your space and/or less than all of your time. then the act is not an assignment but instead is a sublease. The assignee¶s interest must abut the interest of the next person to have the right to possession. How to tell which one is which´ o If the relationship terminates one day before the lease arriangment would have been terminated: sublease. Assignment and Subleases  1. y This is to tell the court that you have intended to sublease and not assign. wrongfully continues in possession after that right ends. Tenancy at Sufferance o Most authorities on the subject of leasing don¶t consider a tenancy at sufferance an ³estate in land´ o This arises when someone who used to be in rightful possession of land. 4. o This leaves the sole discretion by the landlord. Assignment o Who is responsible to the landlord?  The assignee is responsible to the landlord. if you have 9 months remaining on your term and you want to sublet for the remainder«you would sublet for 8 months and 29 days.  It is not uncommon to. II.g. If any time or interest is reserved by a tenant assignor. y The landlord then has the choice to (1) evict A or (2) can hold the tenant to a new tenancy. FORMALISM y Looks at the document y See what the parties are trying to get at« . o With an assignment. Is known as a holdover tenant. which seems draconian.  3. if A who had a term of years tenancy in Blackacre which ends on 12/31st.. o Who is responsible to the landlord?  The Prime Tenant is responsible to the landlord and the sub-tenant is responsible to the prime tenant. wrongfully continues in possession after that right ends. the assignor transfers the complete remainder of the interest to the assignee.  E. remains in possession of Blackacre on 1/1st thereafter.  1. INTENT y Look at the amount y The conduct of the parties y The interactions of the parties  2. o Someone who used to be in rightful possession of land. y A is now a tenant at sufferance which is essentially one step above trespasser.

Holems recognized that the duty to pay rent is a dependent covenant. y Whereas in an IC. infringement on the tenant¶s use of the property. MCENANY o Here. would have to have a commercially reasonable objection to a particular transferee and cannot just arbitrarily deny.  The rationale here is that if the law rather than a party creates a duty and the party is unable to perform due to frustration of purpose. if one fails to perform it doesn¶t give the other the right not to perform. he is obligated to perform in the fact of frustration of purpose. Extensions of the Independent Covenant Model  We now move from an independent covenant model [if a landlord promises to do something it is completely independent of what the tenant has to do in return] towards a dependant covenant model.  J. means that if in a certain fact set there is something almost like actual eviction (i. KENDALL v. The Independent Covenant Model ± Cases  PARADINE v.  SUTTON v. An excuse not to pay rent. courts will not just accept the idea that the tenant can just stop paying rent and live/be in the space.e. in order to comply with the Kendall rule.  The tenant stops paying rent and sues for a Breach of Covenant for failure to repair. but will . o Note: Most of the time. o These two test both. amount to the same thing even though the name is divided into the two tests.  Brick wall. the law will not protect a party in his own agreement. that says actual eviction excuses the tenant from paying rent. do not have to pay rent. III. y This means that it depends upon the other party¶s performance of their side of the bargain.  SMITH v. OLANOFF o [The loud bar near tenants residence case]  Constructive Eviction y A defense available to tenant that builds on the Smith case. JANE o We move away from this case¶s holding where if a party creates a charge or duty to himself. basically. the tenant. TEMPLE III. Constructive Eviction y This idea that the rule from Smith.  BLACKETT v. INC. a landlord. they merge. when brining an action for constructive eviction [breach of the covenant of quiet enjoyment]. we see some progress away from the independent covenant model. ERNEST PESTANA. However. o In the context of silent consent clauses. constructive eviction) then that too grounds a claim in the tenants favor that they.  Actual Eviction v. in a commercial setting.. that duty will be excused.

tenant has walk-away rights. KRIDEL o Duty to Mitigate  The landlord has a duty to mitigate tenants damages  Therefore.  Generally. JAVINS v.    require that a tenant vacate before stopping to pay rent w/in a reasonable time. FIRST NATIONAL REALTY CORP. y It¶s implied therefore it does not have to be present in the lease document in order for a court to read it into the lease. if tenant pays rent but has abandoned the premises landlord must mitigate damages. . o If a covenant is material to the bargain. MEDICO-DENTAL v. IN RE KERR o The Doctrine of Surrender  This is pro-tenant. HORTON & CONVERSE o LA building with D¶s pharmacy store.  This says that when a court finds that the landlord has accepted a surrender. o The Warranty of Habilitability  In this case the tenants resided in a 3 story complex in Washington. y Courts use a reasonableness standard in applying this rule.  The tenants cite over 1. The IWH is non waivable. the tenant is liable for the full amount of rent owed up to the moment of acceptance. but if off the hook thereafter.  POLICY: Does this really protect tenants? SOMMER v.  They didn¶t pay the rent in April and the landlord sues.500 violations of Housing Regulations.

Thus. what sorts of rights one might have to this regard. constructive notice to all subsequent purchasers in the chain of title. o 2. II. When it is that a person would have to record o 2. hearing about it. The Basic Principle  **THE GENERAL RULE: o Whoever got a piece of the property first in time owns it.  Recording Statutes: [Exceptions to the General Rule]  To qualify. THE RECORDING SYSTEM The key attribute of recording is that it generates. y (3) Types of Notice o 1.  Not the first person to buy the property but the first person to record. y Usually asserted when a purchasers has not searched the records for a prior claim. Inquiry Notice  When the purchaser hears or observes something that would cause an ordinary prudent person to inquire further. o 3. recording acts screate a powerful incentive for purchasers to file their deeds in order to block possible good faith purchaser claims by subsequent transferees. ¢ . y Personal observations. o 1. o 3. Race/Notice Statute  A hybrid of the two. [protects last person who paid enough. a subsequent BFP or creditor for value prevails over prior claimants as long as the subsequent purchaser acquires the interest without notice of a prior claim. Constructive Notice  Also called Record Notice  This refers to knowledge or notice a purchaser could gain by searching the deed records. o 2. you must be a bona fide purchaser. Actual Notice  Means the subsequent purchaser or her agent has actual notice of a prior claim. Recording Acts  In the context of recording statutes it deals with: o 1. in good faith. In the event that someone doesn¶t record. as a matter of law. I. document in the deed record. gets title to the property. Race Statute  The first person to the recording office wins. Notice Statute  The last person who bought the property. This means that (1) you must¶ve paid value for the property and (2) it must be done in good faith.X. o emo dat principle: no one can give that which he does not have. who had no notice of a prior claimant]  So.  No notice required.

WEBSTER  A lady¶s husband left her his land and in case of her death the land was to go to his brother. The nephews got the land because they took care of the old lady and her farm. If someone had not recorded. Promote alienability and transferability of land. not to tie up the land o Understand that the reality of owning land is not something that you can see. then someone like C by looking at the land will NOT KNOW if the land is owned by someone else. POLICY REAONS BEHIND RECORDING:  1. This was not shown and so they lost. unrecorded interest as long as the subsequent purchaser did not have notice of the preceding interest when she acquired her interest. y RULE: You must pay enough. So if you don¶t have some mechanism to tell you who owns.A subsequent bona fide purchaser or creditor who first records prevails against a person claiming a prior. It was held in escrow in the Bro¶s attorney¶s hands however. essentially what the Fair Market value of the property is. y The court said to prove that they were good faith purchasers they would have to show consideration. o General Purpose: is to protect the Good Faith Purchaser in value. In the mean time her nephews took care of the land and she granted it to them. III. o HOOD V. When she died it all came up. its possible that the land may be tied up for generations. Because land is elusive in that you can¶t tell who owns it.  .

[just as we have seen in adverse possession cases where the continuous requirement was met through seasonal use] III. non-tresspassory. o Courts became increasingly concerned that developments would be impeded only by having injunctions  Therefore. through damages if you don¶t get an injunction. NUISANCE PER SE  LUENSMANN v. o The interference is usually an intangible invasion such as smells. unreasonable. A nuisance at all times under any circumstances and in any location o 2.XI. The gravity of the harm that the offending conduct causes to the plaintiff. an ordinance forbidding an activity that. o Overtime. lights. vibrations.  Property Rule vs. The utility of the defendant¶s conduct with  2. For the purpose of causing harm o 2. let. REMEDIES  Injunctions o In a private nuisance case traditionally.g. the P does not automatically have the right to an injunction. ZIMMER  In order to constitute nuisance per se a particular activity must be: o 1. Can mean either severe harm or be based on a balance of utilities comparing:  1. NUISANCE [what is it? &] v. THE LAW OF NEIGHBORS I. the courts will use a balancing test: . the remedy was an injunction  An absolutist view of that said if you have a nuisance the only appropriate remedy is an injunction. just for having your property.. OR A violation of law that is specifically designed to prohibit a nuisance.  Note on Luensmann. In essence. the court uses a very strict test here because the nuisance had to take place at all time. o Defined: An intentional.  ³Unreasonable´ o 3. OR knowing that the harm will result or will be substantially certain to result from one¶s conduct. there was a breaking down of this traditional view. ³intentional´ means« o 1. II. substantial invasion of the use and enjoyment of someone¶s land. it¶s a forced sale of your property rights.  From ADAMS.  E. [if injunction was not afforded] o There is no respect that the court will afford to you. y This remedy says to an owner that their property rights can be bought. However. ³every night´ normally. sounds. TRESPASS  A private nuisance is an act or condition on the D¶s land that substantially and unreasonably interferes with the P¶s use and enjoyment of P¶s land. Liability Rule o Instead. dust and pollution of air and water rather than a physical invasion which is the subject of a trespass claim. say was a nuisance at common law. a court may have adopted this to be continuous.

y If Permanent: the plaintiff will receive all damages (to cover both past and future harm) o Damages will be measured by the extent to which the nuisance diminishes the fair market value of the affected property. (on the theory that the P could bring up subsequent suits for damages) o Damages here = the diminished rental value + any special damages.  . the plaintiff internalizes the costs to the defendant. o Yet. y If Temporary: then the plaintiff only recovers damages that compensate for past harm. D operated a commercial feeding lot and P. o How are damages calculated?  The appropriate measure of the compensatory damages depends upon whether the nuisance is permanent or temporary. the single most important factor is the relative economic impact of the injunction on the parties. o Essentially. developed a residential community. y The court agreed that an injunction should be warranted however. y In this case. at a later point.BOOMER: THE BALANCING OF EQUITY TEST y Here. since P was the direct cause of the problem (he came later on) the court exercised its equitable powers in requiring the plaintiff to indemnify (pay for) the costs of moving or shutting down the feed lot. another option:  SPUR: THE COMPENSATED INJUNCTION OPTION y This involves issuing an injunction against the nuisance BUT also requiting the plaintiff to compensate the defendant for the costs of complying with the injunction.

XII. it ³belongs´ to Blackacre. Easement in Gross v. and is carved out of Whiteacre. Easements o 2. adjoining land. Easement Appurtenant o 1.  (2) Types of Servitudes: o 1. SERVITUTDES Nuisance law assess a fight between neighbors ex post [after the fact]. o When we¶re talking about easements we are talking about use. Now the benefit of the easement belongs to Danny personally. S grants D an easement in gross to fish in the pond on Whiteacre. What are they? o Some sort of property right vested in someone to allow the use of another¶s property. Easement appurtenant  One that benefits [a particular tract of land] the dominant. . Assume Whiteacre and Blackacre are adjacent parcels of land. o 2. EASEMENTS  A. y One that belongs to a particular grantee. Servitudes assess a fight between neighbors ex ante (before the fact).  S grants D an easement appurtenant to cross Whiteacre to reach Blackacre. o E. y It ³runs with the land´ o Dominant Land/Tract  The tract that is benefited or enhanced by the easement o Servient Land/Tract  The tract burdened by or out of which is carved the easement .. not to whoever happens to be the owner of Blackacre. If Dan sells Blackacre to Daniella. Covenants I.  B. Whiteacre is onwed by S and Blackacre is owned by D. Since the easement is appurtenant.  This means that the benefit of the easement belongs to whoever happens to own Blackacre and the burden of the easement belongs to whoever happens to own Whiteacre. Daniella has no rights to fish in the pond unless she gets her own easement. Easement in Gross  Personal to the holder of the easement and does not pass automatically to another person when the easement holder¶s property is sold and bought. the easement in gross remains with Dan.g.g. y One that belongs to another parcel of land o E.  These are designed to avoid nuisance suits.

     C. including easements: y The grantor must deliver to the grantee the deed to the property o 2. o Virtually all easements are affirmative easements.  One distinction with the general rule: y There are ways to grant an easement as well as a way to reserve an easement. Positive Affirmative Easement  This permits the easement holder to perform some affirmative action on the land of another. G. It¶s for ³the use of designated purposes´. D. o 2. By Reservation to the Grantor . however. Positive/Affirmative Easements v. By Grant  To create a property by grant. Public Easements o 1. or fish or game from a lake or forest. Negative Easements o 1. Profit o Closely related to an easement in gross. or fruits from trees. Public  Public easements authorize the general public to use land for designated purposes. when someone wants to impose a negative duty on a servient landowner to desist from taking action that might harm the dominant tract.  As a rule. F. y They are generally now governed by the same rules as easements appurtenant. and this license remains irrevocable as long as the profit continues to last. Private vs. lawyers today will accomplish this by drafting a covenant that runs with the land. How do you create an easement? o The general rule is: in writing. but narrower in purpose is something called a ³profit a prendre´ or ³profit´  This is the right to enter the land of another in order to extract something of value such as timber. y Think of this as permitting action on the servient tract that otherwise would be trespass or an invasive nuisance. y This doesn¶t mean you can do anything you want. Private  Private Easements authorizes specific named parties to use the land for designated purposes. y Profits are very ancient and were recognized by English common law. E. o 2. Other ways? o 1. o The grant of a profit carries with it an implied license to enter the land for purposes of carrying out the profit. Negative Easement  Entitles dominant owner to prevent servient owner from doing a particular act on a servient land.

o At the time of severance. y Here.. Severance of title to land held in common ownership. y 3. TIMMONS y Since P sold their land which provided them with a previous means of entry no necessity was found.  . O creates a situation where B is completely landlocked.  In order to establish an easement by necessity. Reasonably necessity for the use at the time of the severance. you must have a history. [that you just don¶t have a road. If O transfers lot B to some party X. a party must show: y 1.g. O owns parcels A & B. this history is not needed. must use one parcel in a manner that benefits the other parcel. If O owns parcel A & B. the road is reasonably necessary for access to the house on lot B. o Severance requires that it must be divided into 2 or more parcels. in a grant to B of a possessory interest in land. At least one of those parcels must be transferred to a new owner. For an easement by necessity.g. y In order for lot B to be used productively. A could in the deed grant B H. O transfers A to X. y 2. And that the owner of the now landlocked parcel cannot access a public roadway from his or her own property. and we¶ve got a private road crossing parcel A to a house on parcel B. if A granted Blackacre to B. X then might have an easement by implication over lot A. while he owns both parcels. o Implication  E. because without history there is nothing by which the implication would arise. and at least one of those parcels must be retained by the grantor. [as long as it is reasonable] o Quick Note on the difference between Necessity and Implication  1. In doing so. y Thus. o *NOTE: Once the necessity disappears. the only way you can get out onto the road is by crossing your neighbor¶s lot]. so does the easement. O transfers lot B to Y. o The easement must be convenient or beneficial to the use and enjoyment of the dominant land but need not be absolutely necessary. E. Common ownership of the 2 parcels prior to severance of the landlocked parcel y 2. Implication. the common owner..  An easement by implication arises when there has been: y 1. there must be a route of access. An existing apparent and continuous use when severance occurs. A. More ways: Exceptions to the Statute of Frauds for Easements o Necessity  SCHWAB v..  E.g.

the 2nd element required a strict necessity [landlocked].e. The licensor¶s knowledge or reasonable expectation that reliance will occur.. are generally about the right to insist on the use or nonuse of land. A owns Blackacre. In an easement by necessity. the 3rd elements require a reasonable necessity.  A asks permission of B to use the road for some particular purpose. y 3.  E. as such they typically prescribe a more or less elaborate system .  Can B block A¶s usage? y No. as by physical interruption. y Does not require severance. y Redacre is right next to a public highay. right next to Redacre owned by B. A license o typically some sort of consent/permission. COVENANTS Closely related to easements are covenants or promises respecting the use of land.. o There must be some knowledge or reasonable expectation [on the part of the licensor] that the license will rely on the permitted use.  FOUNTAINEBLEAU y Shadow casting  II. which is landlocked parcel.  B allows and with B¶s consent A uses the road and widens/improves the road to some dregree. A has established estoppel.  There is an old private road travelling from the highway across Redacre to reach Blackacre but A does not have the right to use this road. o Prescription  Similar to the adverse possession elements but the exclusivity requirement. The licensees expenditures of substantial money or labor in good faith reliance on the license. Open and notorious o 3. Covenants however. action for trespass] y Not an ownership right but a usage right. [i. or legal interruption.g.  Elements: y A claimants use must be: o 1. Actual o 2. Adverse or Hostile o 4. o Estoppel  Requires (3) things: y 1. they abrogation¶s of the servient owner¶s rights to exclude. Continuous  not continuous if owner effectively interrupts use.  B sees that A uses the road. Implication.2. y 2. Easements are paradigmatically about the right to go onto the land.

The purchaser of the serviant estate must be ³on notice´ of the covenant at the time of purchase. but covenants can be either affirmative or negative.of governance rules. The original contracting parties were in ³Privity of estate´ with each other (horizontal Privity) and subsequent owners were in ³Privity with the original contracting parties´ (vertical Privity) o 5. MOXHAY o This case stands for the proposition that horizontal Privity (Privity of estates) is not required for the burden of a covenant to run at equity. The fact of the Covenant must be in writing.  EAGLE & NEPONSIT CASES . o 2.  Requirement for a Covenant to Run with the Land o 1. The original covenanting parties intended both the burden and the benefit to ³run with the land´ o 4. Easements are nearly always affirmative. The covenant had to have ³touched and concerned´ the land.  TULK v. o 3.

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