Property Checklist Kramer, Spring 2011

The System of Possession

First Possession o Property: Rights, Among People, Relating to Things o Goal: Identify all policies in play and potential possessors/conclusions. o Discovery: First in Time first to possess it, owns it (then, chain of title) Policy: Courts of the conqueror cant call into question title of the conqueror Occupancy < Ownership (conquest now banned, Intl Human Rights). o Capture: Always ask Who has the better claim? Fugitive Resources: Kill, wound, or reduce to possession (saucy intruder). Policy: Get rid of the noxious beasts. Pierson v. Post. Custom: When 1) Everyone is aware (embraced by industry); 2) Limited application (context, industry size, practicality); 3) Reliance (tested, proven). Policy: People wont whale anymore, limited impact. Ghen v. Rich. Exercising property rights doesnt mean you have interfered with anothers. Policy: Promoting productivity for societal benefit. Keeble v. Hick. Constructive: animals on your land are ratione soli. ADR: Equity can resolve just about anything, highly policy driven. Competing: Possible complete dominion can grant pre-possessory interest. Policy: Equitable division when interests are equal. Popov v. Hayashi. o Creation: Ask - Who has a claim, What the claim is, When was interest created? Personhood: Right to exclude is incredibly important. Newman v. Sathy. Creation: Policy reasons factor into the competing interests (retroactive law, applicability, scope, legislative choices). Moakley v. Eastwick. o Threshold: In competing claims, consider who, what, and when vs. policy concerns. Subsequent Possession o Finding: Finder (usually) has exclusionary rights as against all but the true owner. Theme: We want people to act reasonably, and ideally find the TO. Policy: 1st in T, continued theft, closest to TO, incentivizes rewards. Armorie. Consider: Time passed, advertisements, TOs actions, etc. Conversion (prove you owned), Trover (value); Replevin (return) Voluntary Bailment (TO assumes risk); Involuntary (Bailee assumes). o Classifications: Lost (inadvertently), Mislaid (voluntarily), Abandoned (purposely shunned w\ present intent to relinquish rights). Lost/Abandoned property goes to finder when freeholder isnt TO. Hannah. Facts make the case. Policy can override traditional schemes. Mislaid property stays where it was left in case TO returns. McAvoy. Problem: Discouraging finders rights encourages theft (choice).

Adverse Possession: Method of quieting title in prop. which blossoms into a new estate. o Ejectment How TO exercises his rights; SoL of ejectment dictates the AP period. o Justifications AP earned it, dormancy, 3rd party reliance, quieting title. o Elements: Actual Entry: giving exclusive possession (cause of action to start clock). Open & Notorious: Owner gets notice, actual or constructive (Dont be too technical, note community interests/constructive notice. Marengo). Actual Notice: Required when entry is minor/unobservable. Manillo. Constructive: Should have known, we expect you to know boundaries. Inquiry: Comments from neighbors might not count. Manillo. Hostile/Adverse under a claim of right: hostile to TOs rights, not permissive. Claim of Right Objective, Good Faith, Aggressive Trespass. Continuous for Period: requires reasonable usage (notice/opp. and earning it). Use must be consistent with nature. Howard v. Kunto. Tacking: Requires privity of K or estate; no squatters (land, time). Violent ouster can pause the period. o Color of Title: Based on defective/fraudulent title; gives constructive notice, simple entry suffices, working small portion can give title to whole, subject to actual possession of others frustrating the claim (not in BF JDs). Note: SoF requires written conveyances for land transfers. Alt. Remedies: Acquiescence (mutual agreement); Estoppel (reliance). o Disabilities: must exist at the moment the cause of action accrues, clock doesnt start. Ex.: Underage, insane, dead (gives time for succession), or in prison. o Chattels: Discovery Rule contemplates owners acts, pauses AP while TO exercises. Factors: due diligence, alerting community, registration, otherwise putting purchasers on notice that possessor isnt the TO. Gifts o Elements: Present intent to make an immediate gift. Actual delivery when practicable. Otherwise, constructive or symbolic. Common area? Typical storage? Some courts are mean. Newman. Acceptance of the gift is presumed if it has value, unless evidence of refusal. Causa Mortis requires that the giver actually Die (prefer wills). o Valid and Irrevocable once all are met. o Remainder Interest Gifts are valid if theres clear intent and acceptance, symbolic delivery is acceptable because swapping would be silly. Gruen v. Gruen.

The System of Estates

Possessory Estates o FSA: Largest possible, we presume this, must be overcome with clear language/intent Holographic Wills not universally accepted (presume knowledge of law).

o LE: Can only transfer per autre vie subject to ultimate reversion. Future held by grantor = reversion (reverts); 3rd party = remainder (vests) o Waste: Relevant to competing interests. Affirmative or Permissive. Solved via injunction, Highest and Best Use doctrine. Analyze actual damage vs. defacto benefit Woodrick v. Wood. Ameliorative waste and sentimental value/dmg usually not recognized. o Escheat: No heirs (Spouse, Issue, Ancestors, Collaterals). Defeasible Fees FSs which can be cut short with conditions or limitations. o FSD: Durational limitations (so long as, while, during). Purpose alone is pracatory. FI in Grantor: Possibility of Reverter (remains as such once classified). FI in 3rd Party: Executory Interest (vests automatically) AP: Begins as soon as the period is up, police your interests. o FSSCS/EL: Conditional limits (but if, on the condition that, however, that) FI in Grantor: Right of Entry/Power of Termination (elective). FI in 3rd Party: Executory Interest (vests automatically). AP: Either automatically begins, or begins when you refuse to leave. o Fully Seized = right of possession while in possession. Livery = symbolic. o Habendum Clause: Defines the estate conveyed. Future Interests (you have standing in the present, fully alienable). o Reversions: Follow LEs, may or may not become possessory (never contingent). o Remainders: Politely wait their turn, cant follow vested fees. Contingent: Taker isnt ascertained OR subject to a condition precedent. Alternate CR: Turn on same condition, but still dont divest anything. Vested: Taker must be ascertained AND not subject to a condition precedent. Indefeasibly Vested, V Subject to Open/Partial, Subject to EL/Total. Any conditions must be subsequent. o Executory Interests: Must divest a vested interest (reversions are vested). Shifting: Divests a prior transferee; Springing: Divests transferor. RAP: Must vest or fail within 21 years of the death of a validating life at creation of interest. o Validating Life: Must be alive/conceived at creation, must affect vesting. o Subject: Contingent remainders, Vested remainders subject to open (class gifts), EI. All or Nothing: Entire class fails (rule of convenience trumps). o Not: Indefeasibly Vested or Vested subject to EL. o Analysis: Is it subject to RAP? Is there a VL? If it fails, strike and reclassify. Note: Devises means the conveyor is DEAD. o Charitable gifts are EXEMPT from RAP!

The System of Concurrent Interests

Concurrent Ownership: multiple people have possessory interests at the same time. o Tenancy in Common: Presumed; Separate but Undivided Interests

Each cotenant has right to possess whole, fully alienable. o Joint Tenancy: Separate but Undivided Interests w\ Right of Survivorship. Requires Unity of Time, Title (created by same instrument), Interest (equal), Possession (of the whole). (can agree to violate without severing). Temporary destruction of unities might not sever. Swartzbaugh. Special language required (mention survivorship, jointly insufficient). o Tenancy by the Entirety: Same, but requires Marriage. o Severance: Unilateral severance is okay without an intermediary device. Riddle. Partition in Kind: Preferred (in theory, Sale is more common). Partition by Sale: Kind must be impractical, must be in best interests of TiCs. Factors: possession, access, businesses, emotional attachment. Delfino Partitions can be partial, or temporary. o Benefits/Burdens Accounting: Cotenants dont owe rent, but must share rent from others. Spiller Ouster: Requires actual denial of prop. rights. Asking for access isnt enough. Freehold Estates: K and statutes have shifted duties/obligations to Land Lords. o Four Tenancies (If longer than 1 year, SoF applies). Term of Years: Fixed, identifiable period; ends automatically w\out notice. Periodic: Renewed successively til terminated w\ notice (period or 6 mo.) At Will: Terminable at any time, w\in reason (time to vacate). Death ends. If terminable by lessee alone, Lessor cant terminate. Garman. At Sufferance: Holdovers (not a real tenancy). Either eject, or rent to them. American Rule: These are the lessees problem. Hannan v. Dusch. o Assignments vs. Subleases: CL - if entire interest was x-ferred, MR - looks to intent. Rule: Its Intent of the parties, measured by all or less than all. Ernst v. Condit Rent: Requires privity of K and E. Ass = good for LL, Sublease = bad. Restrictions: LL cant arbitrarily refuse assignment. Kendall v. Ernest. Commercially Reasonable: general vs. specific business interests. Note: If tenant leaves early, LL must try to mitigate losses. o Condition of Premises Quiet Enjoyment: Contemplates substantial use and quiet enjoyment. Const Eviction: Notice, reasonable wait, then vacate. Reste Realty. o Is LL responsible? Due diligence? Did you waive/assent? Habitability: Residential only, also contemplates health and safety. Cant be waived, housing code is just a baseline. Hilder v. St Peter. You can withhold rent, fix it & less rent, damages, punitive, terminate. o Discrimination: Grounded in civil rights; education, employment, housing. 1982: Applies only to race, but has no exceptions. FHA applies to race, color, religion, sex, family status, national origin.

3603 Exceptions: (except to advertising) 1) Single family houses if you dont own more than 3 and A) without professional help B) without advertising. 2) Rooms in quarters w\ no more than 4 families and owner occupies. 3604: A) Sell, rent, negotiate B) Discriminate in terms C) Advertise D) Show F) Permit reasonable mods, make mods to policies, services, design of common areas, doors, adaptive design features. Analysis: Covered LL? Protected trait? Covered Act? Because of the trait?

The System of Servitudes

Servitudes in General: Govern how you can/cant use your land. o Five Kinds: License (enter, revocable at will), Profit (right to extract) and. o Easements: Non-possessory right to use anothers land (irrevocable license). o Covenants: A promise relating to use of land that runs with the land (legal remedies) Limitless in scope, provided that they arent illegal or contra public policy. o Equitable Servitudes: Same, but historically provides equitable remedies. Easements: Affirmative or Negative, Dominant or Servient, Appurtenant or In Gross. o Express Easements: Balance Grantors Intent vs. Injustice of Reservation. Willard. o Implied: Exception to SoF; Four Kinds. Estoppel: Reliance on promise/license, Reasonable Time, Knowledge and Consent, Use and Use+. Critical Factors: Intent, Purpose, and Inequity. Hlbrk Prior Use: Unity of Ownership when it begins, Continuous/Same Use at severance, Reasonably Necessary use, Apparent at severance. Van Sandt. Necessity: Unity of Ownership, Actual Necessity (Strict vs. Reasonable), and Necessity Existed at Severance. Othen v. Rosier. Prescription: AP; Turns on hostility (licenses fail) and exclusivity. o Scope: Use must be Reasonably Foreseeable; Glomming never is; ADR. Brown v. Vs. o Termination: Release (in writing), Estoppel (w\ reliance on cessation), Prescription, Necessity (once it isnt), Expiration, Defeasible, Merger (of estates). Presault. Takings only grant what is necessary, and expanded scope = damages. Abandonment requires non-use+ (intentional shunning). Covenants and Equitable Servitudes. o Real Covenant: Writing, Intent to run, T&C (land benefits and is burdened), Privity (Horizontal and Vertical, strict or relaxed), Notice (actual, constructive, inquiry). Running: Benefits (enforcer) require relaxed, Burdens require H and strict V. HOAs are in privity by representation; Fees and upkeep T&C. Neponsit. o Equitable Servitudes: All but privity, steps in when it fails. Turns on Notice. Tulk. Recip. Neg. Easements can be implied from intent, common plan. Sanborn. o Scope: Can be limited by Const (requires state action, Shelley), Statutes, Pub. Policy. o Term: Release, Expiration, Cessation of Benefit, Changed Circ. (is purpose thwarted, is value retained? Western Land, Rick v. West), Abandonment (mass acquiescence).