1. Possession (exclude others and control) a. Discovery (Johnson v. McIntosh) i.

He who discovers chattle owns chattle through possession b. Capture (Pierson v. Post) i. Capture equals ownership through possession c. Find (Armory v. Delamirie) (Clark v. Maloney) 1. He who finds chattle owns chattle through possession 2. Can transfer chattle without transferring possessory rights ii. Where the chattle is found can determine ownerships Place of Find as Determinative (Hannah v. Peel) iii. Property must be “lost” to constitute new ownership. Nature of the Property as Determinative (McAvory v. Medina) 1. Finder of lost property in a public place belongs to the finder iv. Terms: (Michael v. First Chicago Corp.) 1. Mislaid property: That which is intentionally put in a certain place and later forgotten 2. Lost property: When it is unintentionally separated from the dominion of its owner 3. Abandoned property: When the owner, intending to relinquish all rights to the property, leaves it free to be appropriated by any other person. a. Intent AND (Herron v. Whiteside) i. May be inferred from strong and convincing evidence ii. May be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property b. Act (Herron v. Whiteside) i. Conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. d. Bailment: The rightful possession of goods, chattle, by one who is not the true owner (Three forms of bailment) 1. Must be private property 2. Must have delivery ii. Sole benefit for Bailor 1. Liable only if gross negligence by Bailee iii. Sole benefit for Bailee 1. Liable only if there is slight negligence iv. Mutual benefit for Bailor & Bailee (Godfrey v. City of Flint) 1. One wherein a person gives to another the temporary use and possession of property, other than money, for a reward,

the latter agreeing to return the same to the former at a future time 2. Liable only if ordinary negligence e. Gifts i. Intervivos (Elements): Delivery, Manifestation to pass property interest, and Acceptance a. One in which the donor parts with all present and future dominion over the property given. b. Must be absolute and irrevocable without any reference to taking effect at some future period 2. Actual/Manual delivery (Johnson v. Hilliard) 3. Symbolic Delivery (Johnson v. Hilliard) 4. Constructive Delivery (Carlson v. Bankers Trust Co.) a. Donor gives donee something which “unlocks” where the property is given. ii. Causa Mortis (Elements) 1. Delivery a. Handing over is not a requirement for this (Scherer v. Hyland) 2. Manifestation to pass property 3. Acceptance 4. Donor in contemplation of imminent death (Scherer v. Hyland) a. Revoked immediately if donor survives. 2. Adverse Possession: New title given to an adverse possessor a. Elements i. Actual possession (Fraley v. Minger) 1. Clearly delieniate what is being possessed and it also starts the clock ticking, for purposes of adverse possession. (Roy v. Kayser) a. Examples: Fence, Cultivation, Building 2. Substantial Improvements (Burkhardt v. Smith) a. How the true owner would use the property (Burkhardt v. Smith) ii. Open, Visible and Notorious possession (Fraley v. Minger) 1. Open: Without attempted concealment (Striefel v. CharlesKeyt-Leaman Partnership) 2. Visible: Capable of being “seen” (Striefel v. Charles-KeytLeaman Partnership) 3. Notorious: known to some who might reasonably be expected co communicate their knowledge to an owner maintaining a reasonable degree of supervision over his property (Striefel v. Charles-Keyt-Leaman partnership) 4. Clear and Convincing-All elements must be more than 75% satisfied (Barley v. Fisher) 5. Good Faith (Mannillo v. Gorski)

1. Sherman) 1. Grubbs) a. 46 of Sedgwick County) vi. (Rick v. Minger) (20 years) (Purdum v. (Rorebeck v. Intent to take over the property (Peters v. Must occur for the full possession time (Lovejoy v. Crowell) ii. Intent no longer matters. Policy: Otherwise we countenance stealing b. and such occupant claims title from such prior possessor. Can transfer ownership of land. Minger): showing that [the] one in possession of the land claims the exclusive right thereto and denies (by word or act) the owner’s title. Even if Adverse Possessor knows it is someone else’s property c. V. Inc. Bell) i. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title. No break in possession (Kash v. Good Faith Standard (Carpenter v. Must be legal title i. Both the Good Faith and Bad Faith Standards are not necessary. Continuous for the Statutory period (Continuity of Possession) (Fraley v. (Worm v. Minger) 1. Ruperto) i. Now we just look at the facts. Bad Faith Standard (Manillo v. (Waller v. Criste) 1. Objective Standard (ITT Rayonier. v. Exclusive possession (Fraley v. No. Gorski) i. Gillund) a. Agents of the true owner count as negating exclusive possession of the Adverse Possessor. School Dist. True owner also counts (Rick v. Lewis) a. Adverse Possessor must not know takeing of someone else’s land. Color of Title 1. Minger) 1. through Legal document. Tacking i. Will iii. Hostile (Fraley v. but one that is not binding (has no authority). Occupation without the true owners permission (Cluff v. The Adverse Possessor must have full and complete control of the land (Rick v. Bonner County) 2.iii. then the possession of the occupant may be “tacked” to that of such prior possessor. Trust . Under claim of ownership (Claim of Right) (Fraley v. Deed ii. The usual use to which the true owner would make use of the black acre (Anneberg v. Grubbs) 2. Kurtz) b. Dansby) (10 years) a. Grubbs) iv.

In hospital b. Can terminate Joint Tenancy unilaterally a. Adverse Possessor must believe he owns legal title ii. Canterbury) 1. Boundary line dispute 1. Time: All tenants acquire interest at the same time b. Can only transfer during life time ii. Disabilities (Abel v. Doctrine of Agreed Boundaries a. Thiercof) a. Dispute over boundary line b. Boundaries by Acquiescence a. v. Agreement of boundary line c. Joint Tenancy (U. Constructive possession of ALL black acre (Birchfield v. Good Faith (Karvonen v. Adverse Possession cannot begin if person has no way of knowing a. Uncertainty b. Gubler) 1. Dyer) i. Continued occupation & Acquiescence 3. Simultaneous Ownership: Cotenancies a. Craft): Implicit is “Right of Survivorship” i. Can be transferred in lifetime by deed 2. Title: All tenants acquire interest in the same instrument c. Taking over at said boundary line 3. all black acre is possessed iii. v. Some jurisdictions require the payment of taxes as an element of Adverse Possession iv. Possession: All tenants have the right to possess the whole iii. Craft): No Right of Survivorship i. If 1/10 of black acre is possessed under Color of Title. Livery of Seisin abolished .S. Looses element of hostility (Territory v.S. Canterbury) a. Interest: All tenants have the same % interest. Facts all that matter now (Duncan v. Mentally disabled v. d. Each tenant owns a separate fractional part of the whole 1. Four Unities (Simonich v. Abel) 1. Wilt) (BAD LAW) (Taylor v. Intent is now focused (Taylor v. Each tenant owns an undivided fractional part of the whole 1. Pai-a) 3. Payment of taxes (Scott v. Can be transferred in death by will 3. Can be transferred by succession b. Tenancies in Common (U. Adverse Possession 2.b. Gragg) 2.

Cotenant is responsible for upkeep and repair if made in good faith & is substantial (Lewis v. Contribution for Expenditures 1. If a tenant in common. by any person rightfully in possession. he shall be liable to his cotenants. tenancy by the entirety is presumed. Janik) 2. Four unities plus the unity of marriage (Bad Law) (Beal Bank. Right of survivorship (Each spouse owns the whole) (Grahl v. or of the improvements forming a material part thereof. Exception: a. Defined a. but who has not the fee title or the full estate 2. Common Law: 1. In marriage. d. Cotenant who occupies the entire tenancy is not liable unless specifically stated (Fundaburk v. 1. Right and Liabilities among Cotenants i. One Tenant in Exclusive Possession 1. joint tenant or parcener commit waste. Waste (Chosar Corp. Can offset improvements against rent & profits (Hermance v. Smith) i. Co-Ownership by married people. Intent 2.S.c. Reagh) iv. Tenancy by the Entirety (U. Almand and Associates) iv. v. Cant impinge on co-tenants rights (Brunscher v. Faust) iii. Davis) ii. Rents and Profits from Third Persons 1. SSV v. Cant exclude other tenant(s) from the land 2. Community Property (Smith v. Weisner) ii. Latham) 3. Can be overcome by clear and convincing evidence a. A is entitled to reimbursement for covering more than A’s share of the debt (Janik v. Property is presumed to belong to the “community” 2. Friendly occupancy of the common estate by one tenant does not render him liable to account for rents and profits a. Cody) 3. jointly or severally for damages . v. Destruction or material alteration or deterioration of the freehold. Modern Law 1. Owens) 1. Craft): Ownership through marriage i. Co-tenant who receives money from a 3rd person for the use of common property becomes a trustee for the money (Faust v. Purchased using funds from one or the other ONLY e. Cant be terminated unilaterally iii.

Lawrence) 1. Louis. In order for ouster to exist. the mere occupation of the property by one cotenant may operate to exclude the other 3. whether vested or contingent. Mo. a cotenant in possession who has not ousted or actively excluded the cotenant is not liable for rent based upon his occupancy of the premises (Cummings v. Trust Co. Cotenant can use the land and the other tenant(s) are responsible for costs from just basic land use (In re Marriage of Maxfield) 4. An estate in land is the degree. with or without owelty. or extent of interest which a person has in it (Black v. nature. limited to commence in possession or enjoyment at a future date [right to possess . Partition (Dewrell v. Possession of one tenant in common is presumed to be the possession of all. Anderson) a. and such possession does not become adverse to the cotenant until he is actually ousted or short of ouster. 2.. quantity. Denotes quantity of interest owned 2. the adverse character of the possession of one is actually known to the other. The object of partition is a division of the property. Simultaneous Ownership: Estates and Future Interests a. The court will not be denied the exercise of its equitable powers in partition proceedings by the failure of all parties to agree that its inherent power may be so exercised vi. Bradford) 2. Introduction i. Sims) 4. or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse nature (Howell v. The meaning of “Estates” 1.v. a sale of the lands is justified only when partition in kind. A future interest in property refers to any interest or estate. Where the property is not adaptable to double occupancy. v. An estate in land may vary in its duration (Liberty Cent. or limiting or assigning rights of occupancy.) 3. Ouster 1. there must be an assertion of a right to exclusive possession b. Gilliland Oil Co. In the absence of an agreement to pay rent. Sylvania Producing Co. Owner of an estate has an “immediate right to possession of the real estate” (In re Estate of Van Den Boom) ii. The meaning of future interest (VESTED OR CONTINGENT) 1.) a. of St. is impractical. There can be no adverse possession by a life tenant against a remainderman (Sims v.

U. but you must account for the whole fee (Sullivan v. A fee simple is the highest right. Creation 1. v. however. A leaseholder. Short) Defeasible Fees: In General i. County of Los Angeles) The Fee Simple i. It is possible to break up a fee simple. Wells) a. County of Los Angeles) iii. Eagle-Picher Lead Co. Wells) iii. Nelson) 2. not a holder of real estate] (Pacific Southwest Realty Co.) ii. d. Short) 2. A “mere expectancy” is a hope or expectation NOT a property interest (Robinson v.b. A freehold is an estate for life or in fee (Matter of Estate of Stroh) ii. title and interest that one can have in land (Wray v. e. Wymer) 3. Under common law to convey a fee simple must use words to A “and his heirs” (Penienskice v. while the owner of an estate has a right to possession immediately.S. the land some time in the future] (Commissioner of Internal Revenue v. is not seised of the land. [A lease holder is considered to be a holder of “chattle” or personal property. he or she has a right to possess at sometime in the future. (Commissioner of Internal Revenue v. Freehold carries “title” (Pacific Southwest Realty Co. Thus. Fee simple subject to a condition subsequent iii. c. County of Los Angeles) iv.) (California Civil Code §700) Freehold Estates i. An absolute title estate or property. Characteristics 1. A fee simple absolute includes all rights (Bryant v. Fee simple determinable ii.) 4. Freeholder is “seised” of land (Pacific Southwest Realty Co. Words of limitation are no longer necessary now intent matters (Penienskice v. the owner of a future interest has no such right. v. Fee simple subject to an executory limitation iv. Fee simple determinable subject to an executory limitation Defeasible Fees: The Fee Simple Determinable i. Characteristics and Creation . It is an estate without end or limitation in the largest estate a person can possibly have (Sterner v. Palmer Coking Coal Co. v. Future interest distinguished from “mere expectancy” 1.

Knight) 3. Fee simple determinable has been changed into a fee simple on condition subsequent b.1. Consolidated Rail Corp) 3. (Mount Olivet Cemetery Ass’n v. City of Red Bluff) a. Knight) a. v. v. Characteristics and Creation 1. Possibility of revert has been changed into a power of termination f. Concomitant Future Interest: Possibility of Reverter 1. Must use words of duration (Board of Country Comm’rs of Van Wert Country v. Defeasible Fees: The fee simple on condition subsequent i. Salt Lake City) 2. Pizitz) 3. Ends when a proscribed event happens but is not automatic (Department of Transportations v. A possibility of reverter was not assignable (Deed) or devisable (will) and could only descend (to original grantors heirs) b. O retains a Possibility of Reverter (Mount Olivet Cemetery Ass’n v. Salt Lake City) a. Austin) a. Ends when O “re-enters” (Department of Transportations v. Merely the interest retained by a grantor after conveyance of a determinable fee. Mere declaration of purpose of the grant will not transform a fee simple into a fee simple determinable (Riggs v. No specific words needed to create a possibility of reverter because it is the interest that remains in O when O creates a fee simple determinable in A (Elmore v. Words are conditional not durational (Department of Transportation v. Consolidated Rail Corp) 2. Some jurisdictions have abolished fee simple determinable and the possibility of reverter (Walton v. Knight) i. When O creates a fee simple determinable in A. Future interest is a possibility of REVERTER 4. Will terminate automatically upon the happening of the prohibited event (Board of Country Comm’rs of Van Wert Country v. Pizitz) i. Modern Law i. City of new Castle) ii. Common Law (Shelby Contracting Co. Possibility of reverter is assignable or devisable (Shelby Contacting Co. Knight) 2. Disabling restraint: prohibits the grantee from selling or otherwise transferring the property . Direct restraint on alienation (Department of Transportation v.

Blanchard) c. Express prohibition regarding transferring the fee (Department of Transportation v. Characteristics and creation 1. Defeasible Fees: The fee simple subject to an executory limitation i. Epworth Assembly) b. Don’t need to expressly reserve the right of entry (Gray v. Forfeiture restraint: the grantee loses or forfeits the property if the latter even attempts to transfer the property iii. Right of entry a. or his successor in interest (Slowey v. or leaves an estate in fee simple in the conveyor or his successor in interest (Slowey v. Direct restraints on alienation are said to be repugnant to the fee and unenforceable. Knight) 2. V. upon the occurrence of a stated event is to be divested. Interest remaining in the grantor when the grantor transfers a Fee simple on condition subsequent [aka Power of Termination] (Ludington & Northern Ry. Shepard) ii. An executory interest vests upon the happening of a condition or even and in derogation of a vested freehold estate . Knight) 4. before the normal expiration thereof. Jenkins) ii. Promissory restraint: the deed provides that the grantee promises or agrees to not transfer the property 1. Concomitant Future Interest: Right of Entry 1. Knight) a. Jenkins) 2. However.ii. (Department of Transportation v. Provides that the estate subject thereto. is the restriction so great as to be a direct restraint on alienation (Department of Transportation v. in favor of another interest in a person other than the convey. Sparks) g. Creates an estate in fee simple in a conveyee. You cant transfer a right of entry because it is considered “to small” to be transferred (Franks v. Concomitant future interest: executory interest 1. Looks to the intent of the transfer (Skinner v. An executory interest is a future interest created in one other than the grantor which is not a remainder.

Ownership asses from one heir to another. A has a springing executory interest (Miller v. “to A and the heirs of his body. “O to A when such and such happens” [Springing Executory Interest] [under common law this was not allowed] a. Miller) h. and not in abridgment of it. In General 1. Louis Union Trust Co. when the grantor or the testator transfers a vested estate of a lesser quantum (Long v. The fee tail i. PAGE 4-26 (unable to paraphrase) i. Must arise immediately b. O has a fee simple subject to an executory limitation b. Characteristics and creation 1. Classification of Remainders (Myers v. A reversion is the interest remaining in the grantor. Southold Development Corp. Remainders i. Grant) a. A remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument 2. Concomitant Future Interest: Reversion 1. in perpetuity ii. generation to generation a. B has a REMAINDER j. “To A and the heirs of his body” 2. Concomitant future interest: executory interest 1. Adler) 1. St. A fee that descends to the grantee’s issue. Must have a natural time/event limit ii.) 2. and then to B” a. v. Roxbury home for aged women) ii. Characteristics and creation (Robins Island Preservation Fund. Long) iii.) 1. Inc. Defeasible Fees: The fee simple determinable subject to an executory limitation i. (Proprietors of Church in Brattle Square v.(Presbyterian Church of Carlyle v. Concomitant Future Interest: Remainder 1. or the successor in interest of a testator. To arise immediately on the termination of the particular estate by lapse of time or other determinate event. an estate to continue until the happening of a certain event and then to cease automatically (Institution for savings in Roxbury v. Vested Remainders .

A contingent remainder is a right to property which may or may not vest in possession at some future date (In re Marriage of Meeks) a. “O conveys to A for life. “O conveys to A for life. “O conveys to A for life. then the remainder is contingent. Indefeasibly vested i. or into the gift to. then to B if B is not convicted of a felony before obtaining age 30. Classifications. iv. B has one child BUT could have more… c. A remainder can be: (Restatement [First] of Property § 157 a. and does not depend on the happening of any future event.iii. 2. (Baker v. A vested remainder is not rendered contingent by the fact that it may never vest in possession Vested Remainders. or be the subject of intestate succession (In re Ferry’s Estate) 3. but whose enjoyment and possession is postponed to some future time (In re Marriage of Meeks) a. Whether a remainder is vested or contingent depends upon the language employed. vii. Alternative contingent remainders a. to C” (NOTES) Vested Remainders: In General 1. but if. devised. but if C returns to New York to C” d. If the conditional element is incorporated into the description of. the rermainderman. whose right to the estate is fixed and certain. Creation. v. Subject to a condition precedent/Contingent remainder Distinguishing between conditions subsequent and Precedent 1. after words giving a vested interest. “O conveys to A for life. A vested remainder is one which is limited to an ascertained person in being. a clause is added divesting it. then to B. Relies on an event that may not happen (In re Marriage of Meeks) 2. but if B is so convicted off a felony. Contingent Remainders Contingent Remainders: Creation and Characteristics 1. and Characteristics 1. The recipient is unknown (In re Marriage of Meeks) b. vi. Vested subject to open i. Vested subject to complete defeasance i. the remainder is vested. Bates) Distinguishing between vested and contingent remainders: In General . May be transferred inter vivos. then to the children of B” 1. then to B” b.

Must have vested interest in the property to maintain action of waste ix. Taxes iii. The Life Estate i. Creation and Characteristics 1. Municipal assessments for sidewalk paving iv. An estate whose duration is limited to the life of the party holding it. vested remainders generally are not 2. Right to “underlease” the property for a lesser term iv. Lange) 2. The right to rent iii. Power to transfer the estate c. of New Jersey v. a life tenant. Distinguishing between vested and contingent remainders: Waste 1. minerals. Any unauthorized destruction or severance of improvements. or some other person (In re Felker) b. or other corporeal hereditaments on or from the land belonging to another by one who did not have title. trees. Contingent remainders cannot k. v. Corp. Common Law: Waste (Federal Deposit Ins. Duties and Obligations i.1. Vested remainder will accelerate into possession (Application of Wolfsohn) a. Life Estate (In re Felker) a. Contingent remainders never accelerate into possession (Application of Wolfsohn) x. Vested remainderman’s interest immediately goes into possession upon the death of the testator (Trust Co. Mortgage interest accruing during the ownership . Contingent remainders are subject to the Rule Against Perpetuities. Life Tenant Rights i. Mars) a. The holder of a life estate. but who was rightfully in possession b. is entitled to both the possession and the use of the property to the exclusion of the remainderman ii. Responsible for repairs and maintenance ii. Distinguishing between vested and contingent remainders: Acceleration 1. Distinguishing between vested and contingent remainders: Creditors’ Claims 1. Vested remainders can be attached by creditors 2. Only contingent remainders are subject to the Rule of Destructibility viii.

Express Trust (created in two ways) i. 5. Statute of uses a. b. Modern Law (White v. shall pass all the estate or interest of the grantor or devisor. Brown) a. Passive trusts came to an end ii. unless vested interest in third person. or by will iii. Spendthrift Trusts . Presumes that a conveyor intends to transfer his whole interest in the property ii. Introduction to Trusts i. A trust is created by a manifestation of intention of the settler to create a trust. A will shall convey all the real estate belonging to (the testator) or in which he had any interest at his decease. Executory interest b. By which the owner of property declares that he holds it as trustee for some beneficiary ii. Brown) a. By which the owner transfers to another as trustee for some beneficiary. If life estate then reversion remains in transferor. Transfer in Trust 1. a lawful trust purpose. Modern-Day Trusts 1. A life estate is a freehold estate 2.v. Rules that Impede and Further Market Ability of Property a. or any interest therein. Common Law (White v. trust property. Declaration of trust 1. or be necessarily implied in the terms of the instrument. Must not commit or permit waste d. or in the successor in interest to a transferor. and an indentifiable beneficiary a. Presumes that a life estate was intended unless the intent to pass a fee simple was clearly expressed in the instrument 3. Every grant or devise of real estate. History of trusts 1. unless the intent to pass a less estate or interest shall appear by express terms. Concomitant Future Interests: Reversion or Remainder 1. unless a contrary intention appear by its words and context c. either by deed or other transfer inter vivos.

Equitable trusts 2. Skuse) b. 1. Mark) a. The beneficiary’s creditors are unable to subject the beneficiary’s interest to the payment of their claims while in the hands of the trustee (Brosamer v. Morrissey) i. California Trust Co. Amstutz) 1. (Ryan v. Legal contingent remainders 3. Culpepper) i. The doctrine of destructibility applies only to legal contingent remainders of real property. assign or alienate his right to future payments of income or principal (Brosamer v. Destructibility of Contingent Remainders i. The two estates. Modern Law: gets rid of the doctrine of destructibility c. either mediately or immediately. thus vesting him with a fee simple interest” 1. in Dixon v. The Rule Against Perpetuities a. No interest is good unless it must vest. Mark) 2. Trustee’s are the mere custodians of any income in their hands which should properly be applied to the payment of necessaries furnished to them for the beneficiary. Monaghan) 1. The Rule in Shelly’s Case (City Bank and Trust Co. When the trust instrument specifies that the income shall be paid to the trustor for life and provides that on his death the trust property shall be distributed to his hears at law. A remainder must be limited to his heirs. the person taking the freehold also takes the remainder. i. If an estate of freehold is granted by any instrument and the remainder is limited by the same instrument. without explanation. d. freehold and remainder. The doctrine of worthier title (Bixby v. Requisites a. A trust where the beneficiary is unable to transfer. must both be of the same quality.1. Doctrine of destructibility applies to (Johnson v. Statement of the Rule (Pace v. unless otherwise manifested 6. either legal or equitable. Intention of the trustor. or to the beneficiary himself with their knowledge and consent. if at all. general or special c. Common Law: A contingency that may never happen ii. it is generally held that no remainder interests are created and that the the trustor is the sole beneficiary and retains a reversionary interest in the trust corpus. The doctrine has no application to equitable interests. (Sherman v. not later than twenty-one years after some life in being at the creation of the interest . to the heir or heirs of the body of the person taking the freehold as a class. A freehold estate must be granted to the ancestor b.

Rich & Nance v. Looks to all legal possibilities ii. It becomes a possessory estate 3. Reverter ii. Deed = effective at delivery 2. Duncan) a. Effect of violation . “What might happen” approach 1. Scott) 1. Irrevocable Trust = delivery or when trust becomes irrevocable Legal Possibilities. Applies only to non-vested or contingent future interest i. If the gift to any member of the class is invalid. Measuring life + 21 years takes place upon testators death ii. 1. d. Class gift 1. It becomes a vested remainder 2. Executory interests Meaning of “Vest” (Rich. Will = effective at death 3. Transfer by will 1. Must the contingent future interest in question vest (if it ever does vest) within the lifetime of some one or more people who were alive at testaor’s death (plus the 21 year period and any period of gestation)? (Joyner v. “All or nothing” rule a. Carolina Const.b. e. or has yet to vest when it is either (1) subject to a condition precedent or (2) owned by unascertainable persons OR BOTH iii. and Further Elucidation (Jee v. Corp) i. Transfer by Deed (Crockett v. Contingent remainders usually are subject to the rule against perpetuities a. A future interest is contingent. A future interest is vested when there is either (1) an immediate right of present enjoyment or (2) a present fixed right of future enjoyment ii. Foresight. Vested remainders not subject to the rule against perpetuities a. an executory interest becomes possessory Commencement of the perpetuities period and the measuring life i. the entire class gift is invalid. c. Possibility of Reversion iii. Remainder Interests 2. A gift to a group 2. Contingent remainder vests when 1. Audley) i. The life in question is referred to as the measuring life b. Class Gifts.

American Elee. in hindsight. Presumed irrefutable 5. Power Service Corp. Reasonable Time Doctrine a. The court can re-write the will or deed so that it will vest within the RAP period (In re Chun Quan Yee Hop’s Estate) . not what might have happened. Wait and See Doctrine (Hansen v. Stroecker) 1. (Wedel v. Inc. 3. Inc. anyone is presumed being able to adopt/have kids (California Law Revision Commission Comment [California Probate Code § 21201]) ii. Independent Baptist Church of Woburn) f. (Symphony Space. Presumed limits on age people can have kids 6. Open-Ended Contingencies 1. and Trust Law (New York) § 9-1. Presumed reference is to a life in being 3. The events that actually happened are critical. Not on our test at all iii. Presumed incapable of adopting 7. Construction will be completed in a reasonable time (Singer Co. When a Fee Simple Determinable Subject to Executory Limitation violates the RAP we strike the executory interest.3 Perpetuities: Rules of Construction) 1. The court uses the reasonable time doctrine to assume that interest will not violate RAP regardless of ANY possibilities applying a reasonable time for completion. (Brown v. Presumptions (McKinney’s Estate. Gifts to Unborn Widows 1. v. If. Presumed gift is valid within a time limit 4. Amelioration i. Testator’s heirs own possibility of reverter and A owns Fee Simple Determinable. Makad. We are concerned with ANY legal possibility (Johnson v.) g. Anything that violates the Rule against Perpetuities is considered void. Pergola Properties. Cy Pres 1. Presumed the creator intended the estate to be valid 2.i. An option to purchase property cannot violate the RAP or it will be considered void. Inc) iii. The downside is that one must wait to actually see what happens iv. Options to Purchase Property 1. V. the contingent interest in fact did vest or fail within the perpetuities period. Preston) ii. Powers. At common law. the RAP is not violated 2. Examples of violation of the Rule i. Construction 1.) ii.

Court can use Cy Pres when (California Law Revision Commission. Comment [California Probate Code § 21220] 1. Some jurisdictions have just done away with the RAP [Delaware] (25 Del. Lawyer Liability 1. Reduce the period no more than is necessary 5. Hamm) 7. Essentially makes violation of RAP impossible a. Acquisition of Real Property by Gift or Purchase a. Donative Transfers §1. Legal in California v.3) 1. Will vest within RAP period b. “Any non-vested interest under this instrument which has not vested within 21 years after the death of [here identify a reasonable number of individuals alive when the period of the rule begins to run] shall terminate and the property in which such nonvested interest existed shall vest in [here identify beneficiary or beneficiaries who are to take the property” viii. Uniform Statutory Rule Against Perpetuities Act 1. Perpetuities Saving Clauses (Restatement (Second) of Property.a. Bad because the court actually rewrites someone’s will/deed 2. Non vested interest not considered valid unless (California Probate Code § 21205) a. Not required to use Cy Pres vi. Code Annotated) vii. When a class gift might become invalid 3. When an interest can vest but not within the 90 year period 4. Nonvested property interest or a power of appointment becomes invalid under the statutory rule 2. Lawyer cannot be sued for violation of the RAP because its to complex for a reasonable attorney to understand (Lucas v. Abolition 1. ii. Introduction . Interest terminates within 90 years (Wait and See approach) i. Good because the court can solve issues immediately b. Court can create new interests if necessary.

Must be signed by the person being sued ii. The material terms and signature can be written on anything as long as has signature and material terms (A. Deed is “delivered” to the grantee ii. 3. §4 (1667) [English Statute of Frauds]) i. Exception to the Statute of Frauds Requirement i. Possession plus payments 2. Established by a. Grantor executes a deed that complies with the Statute of Frauds 2. Contracts and the Statute of Frauds Requirement (St. Grantee gets deed b. Possession plus improvements b. Seller gets money b. II. fraud or fraudlike conduct of the party sought to be estopped. Complies with the Statute of Frauds 6. Material terms must be in writing 2. Estoppel 1. v. performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership. it would be unconscionable for the bank to raise the SOF and keep the property (Baliles v. if not existing. or some other person thereunto by him lawfully authorized” 1.B. Escrow closes a. c.C. tenements or hereditaments or any interest in our concerning them unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing. assured. Based on the conduct of the bank. McCormick) ii. Part performance (Bradshaw v.i. and signed by the party to be charged therewith. Equitable estoppel is based on the wrongful. There must be performance ‘unequivocally referable’ to the agreement.) . Equitable estoppel precludes a party from raising an argument or defense that it otherwise would be allowed to raise but for its misleading conduct. Usually escrow lasts for 60 days 3. Auto Parts. Formalities for the sale of real property 1. “No action shall be brought upon any contract or sale of lands. Grantor executes deed and delivered to escrow agent a. Escrow opens a. Buyer secures financing 5. Cities Service Co. Contract complies with the Statute of Frauds 2. Buyer does a title search for “marketable title” 4. Inc. (Burns v. Formalities for a gift of real property 1. Ewing) 1. Moran) c. 29 Car.

seller can sue for damages only Specific performance not available .” the non-breaching party has a right to rescind the contract. Seller breaches Buyer can sue for out of pocket damages. Where a contract specifies that “time is of the essence. “Marketable Title” Defined (Lohmeyer v. Focus is conduct of buyer Conduct substitutes for compliance with SOF Possesion plus improvements. Time for Performance: In General 1. Specific performance i. the remedy typically is not recission but damages (Kimball v. Marketable Title i. a. The property is free from all encumbrances. Free from reasonable doubt when i. Thompson) 2. A vendee may not support a breach of contact claim by relying on a defect in a vendor’s title prior to the closing time provided in the contract (Risse v. or possession plus payment Estoppel Focus is conduct of seller Conduct is misleading and would result in unconscionable injury Fraud or fraud-like conduct: active misrepresentation or silence when there is a duty to speak d. Specific performance v. Free from reasonable doubt a. except those waived in the contract for sale ii. the buyer can demand specific performance. the seller’s typical remedy is damages ii. Nappa) 1. Thompson) 3.Part Performance v. When a buyer breaches a contract for the sale of land. But when a seller breaches a contract for the sale of land and the buyer wants to go ahead with the transaction. When there is a delay in delivering marketable title. Why? Damages Buyer breaches Even if a total breach. The seller establishes that he owns what he purports to sell ii. Bower) 1. West) iii. or Buyer can seek specific performance in equity to force seller to convey property. Time for Performance: Time is of the Essence Contracts (Grace v. Merchantable title must be furnished on the date required under the contract (Risse v.

Statute of Frauds: Description of the Property (Snyder v. The deed must describe the property b. Gerarden) 1. hence money damages is an adequate remedy at law e. Backus) 1. When escrow closes the deed must comply with the Statute of Frauds a. 2. The deed must make reference to something tangible by which the land can be located iii. The risk of loss is on the buyer 2. Bumstead) 1. The risk of loss is on the seller f. Introduction 1. Risk of Loss i. Be signed by the grantor c. Who bears the risk of loss ii. Symbolic delivery is not enough vii. Bridewell) 1. Delivery: Revocable Escrows (Revocable Escrows) 1. When the deed describes the property as “all land owned by the grantor in X county. It is the grantor’s intent at the time the deed is delivered which is of primary and controlling importance 2. Name doesn’t matter. Ramsey) v. Accepted by the grantee ii. Be delivered to the grantee d. Sweeney) . A deed is inoperative unless there has been delivery to the grantee and an essential element of a valid delivery is the grantor’s intention to pass title immediately.” 2. it is then the deed of the grantor a. thus. Introduction 1. Majority rule: Doctrine of Equitable Conversion a. Where a grantor is present and authorized another expressly or impliedly to sign his name to a deed. Delivery: Oral Conditional Deeds (Sweeney v. the person does. It shall be described with sufficient certainty to identify it 3. giving up dominion and control of the property (Johnson v. Delivery: In General 1.Each parcel of real estate is unique Money is not unique. The reserved right to revoke the deeds does not make them invalid. Deeds i. Mother Hubbard Clause a. Minority Rule a. iv. Looks at the intent vi. Seek real intentions first b. Statute of Frauds: Signature of the Grantor (McAbee v. Theories to Allocate Risk (Ross v. Delivery: Revocable Deeds (Huber v.

1. Quiet enjoyment b. General warranty to defend the title of grantee and his successors against the lawful claim of all persons are in substance those for possession 2. Covenants of Title: Timing of Breach 1. Obligates the grantor to execute any other documents that grantee may need to perfect title iii. Covenant of further assurances i. Inc. There can only be breach when there is an actual or constructive eviction of the covenantee by the paramount titleholder (Brown v.) 1. A conditional delivery is and can only be made by placing the deed in the hands of a third person to be kept by him until the happening of the event upon the happening of which the deed is to be delivered over by the third person viii. Grantee must accept g. A deed delivered and accepted as complete performance of a contract for the sale of land merges all prior negotiations and agreements into the deed (Colorado Land & Resources. While future covenants “run with the land” so that B could sue O for breach of a “future covenant” present covenants do not run with the land. these presumptions can be overcome only by evidence that no delivery was in fact intended. Special Deeds ii. Covenants of Title: Nature of Encumbrances 1. Future covenants a. Covenants of Title: In General 1. Inc) . Covenants of Title: Merger 1. Present Covenants a. 2. v. General Deed 2. v. Where deeds are formally executed and delivered. Iowa Homestead Co. Covenant against encumbrances i. Acceptance 1. Covenants of Title: suit by Remote Grantees (Schofield v. A violation of the law is not an encumbrance vi. No outstanding rights or interests to the estate conveyed that will diminish the value c. Warranty Deeds 1. Credithrift of America. The right to convey are basically the same and mean that the grantor owns the estate which he proposes to convey c. Lober) iv. Covenant of seisin b.

Kietzman) i. Thorpe) 1.vii. a defective title. such after acquired title or after-perfected title will inure to the benefit of the grantee by way of estoppel . Estoppel By Deed (Schloeffel v. A mere quitclaim deed transfers and is designed to transfer only such title and interest as the grantor had when he delivered the deed i. General and Special Warranty Deeds 1. or perfects his title. conveys with warranty or covenant of like import. and subsequently acquires the title or estate which he purports to convey. IDK h. or an estate less than that which he assumes to grant. If a grantor having no title. Quitclaim Deeds (Lodge v.

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