I. Natural deposits to the soil are not movable objects, but part of the soil, and thus belong to the owner of the soil. o Doctrine of Accretion- The gradual addition to land by natural causes, as a river adds soil to riverbank. o Occupancy-The taking possession of a thing that belongs to nobody with the intention of becoming its owner. II. Occupation or possession of lost or abandoned property requires the actual taking of the property by the finder with the intent to possess it. o To acquire occupancy over a thing, a person must both intend to exert exclusive control over it and actually do so. o Intent and actual possession must occur together. Intent to possess (using buoys to mark the wreck) is not an act of possession) III. The finder of lost property has a title superior to all but true owner (Armory)  Establishes Prior Possessor Rule- achieves several social goals 1. It protects an owner who cannot prove that he is the true owner. 2. It protects the individuals who entrust goods to others which promotes social welfare 3. It protects the expectations of prior possessors, who expect to prevail. 4. It promotes peaceable possession (were prior possession not to prevail, individuals might begin to steal property hoping the law would protect them) A. When lost property is found in a shop that is open to the public, the finder’s claim to the property is still greater than that of all but the true owner, including the shop owner


B. However, where a person has possession of land with a manifest intent to exercise control over it and the things on it, he has possession of anything found on that land, and thus has a claim superior to that of the finder  Detinue- Action to recover an item from a person who acquired it lawfully, as by finding, but who then kept it without right. Ownership of a house does not include possession of lost property found there if the owner has not occupied or had prior control over the house. IV. The finder has no title to property that is mislaid. The right of possession of mislaid property belongs to the owner of the premises where the property is found, and that right is superior to all but that of the true owner When mislaid, the shop owner has a duty to safeguard the property until the true owner returns, therefore the finder can never gain title. A. The classification of property as lost or mislaid depends on what the facts and circumstances of the case indicate about the intent of the owner and how the property came to be where it was found  Five types of personal property: 1) Abandoned- The owner has intentionally discarded it 2) Lost Property- Property which the true owner has unintentionally left in some location unknown to him. 3) Mislaid Property- Property which the owner intentionally placed where he could return for it, but then forgot where that was 4) Embedded Property- it has become part of the earth (like pottery) 5) Treasure Trove- “Treasure Found”; money, coin, gold, silver, plate, or bullion that was hidden by an unknown owner and later found  The court merged treasure trove into lost, and embedded into mislaid. 2

whether for compensation or gratuitous. otherwise coupled with an interest. some courts hold that the one who first acquired possession has a right to retain that possession against the other. The degree of control and possession a customer delivers to the operator of an enclosed. from one person (bailor) to another (bailee) for a particular purpose. Control and Possession. though there is dispute as to whether the rule applies to thieves 3 . A bailment is created when the owner of a thing allows another to lawfully possess it for a time. without a transfer of ownership. attended parking garage and the expectations of the parties suffice to create a bailment. I. the bailee only succeeds in removing the presumption and shifting the burden back to the bailor. the bailee must prove that the lost did not result from his negligence and even if he does. 1) This is true even if the property is wrongfully obtained (such as when it is obtained while trespassing. Good faith or innocent mistake will not excuse delivery to the wrong person Involuntary bailee. has no duty to care for the thing bailed or to deliver it to the right person as long as he does not exercise any dominion over it and in good faith Bailment. has an absolute duty to deliver the thing bailed to the right person. Bailments may be voluntary or involuntary and voluntary bailments may be for hire. or gratuitous A voluntary bailee. A bailment relationship makes the bailee responsible for delivering the thing bailed to the bailor undamaged A bailment for hire was created and proof of nondelivery therefore entitled the P to the statutory presumption of negligence To overcome this presumption. a Matter of Degree A.A. which leaves the bailee responsible for returning the thing bailed in good condition When two non-owners are competing against one another for control of an item of property.The transfer of possession of personal property.

) Exclusive.a person cant simply claim that property belongs to her. 1)To gain title by adverse possession (called limitation title). 5.) Continuous.) Actual. certain elements must be present HAVEC 1.“Possession is 9/10 of the law” B. holding that in order to recover the value of personal property from a party who unlawfully converts it for his own benefit. A handful of other courts have ruled differently. a non-owner will not be able to recover. even if she was the first to have possession of the property. In other words. An action for trover can only succeed if the P has good title to the converted property Trover-A common law c/a through which damages are sought for the wrongful conversion of personal property.) Visible (notorious). a suing party must show both title to possession of the property. though not necessarily constant depending on the circumstances 2. the usual measure of damages in an action for trover is the value of the converted property Trover allows the recovery of value of the property as if the converter had purchased it from the original owner Yhe doctrine of adverse possession allows a person who has long-term possession of real or personal property to gain a title to the property that is good against the true owner.possession that is visible to the true owner if he or she takes the time to look.possession that is more than sporadic. but she must actually possess it 3.APer must act as the true owner and exclude all those who do not have his permission to enter the land All of these must be present for the duration of a period of time established by the statute of limitations 4 .) Hostile-possession taken without permission of the true owner 4.

A claim founded on a written instrument.A rule of law under which a c/a for replevin does not accrue until the injured party discovers.the accumulation of consecutive periods of possession by parties in privity to each other. or a judgment. In the majority of cases. can be acquired by adverse possession When the SOL for an action for replevin of property has run. or by exercise of reasonable diligence and intelligence should have discovered. the original owner of the property cannot circumvent the statute by physically repossessing the converted or taken property. possession of land while claiming it as one’s own.A person who buys something for value w/o notice that another person has a legitimate claim to the property and/or that the seller’s title is defective Discovery Rule.In the law of AP. Bona Fide Purchaser. facts which form the basis of the c/a o Tacking.In replevin actions involving the conversion of art the discovery rule is more appropriate means of determining ownership than the doctrine of adverse possession. and at least one court has held that title to intangible interests. adverse possession is used to gain title to real property. One could not determine where the cave extended by entering alone (only a survey can) and is therefore not notorious o quiet (to make secure or unassailable by removing disturbing causes or disputes) his title Customarily use now satisfies the requirement of continuity and there need be only a reasonable connection between successive occupants to tack Claim of Title. such as rights to a song.The appearance of title. The doctrine is occasionally used in cases involving chattels. or a decree that is for some reason defective and invalid…results in shorter SOL 5 . One way of expressing the requirement of histile or claim of right…. o Color of Title.

In the law of AP. o Predecessor in Interest. that relationship between successors in interest that is required for tacking o Squatter. he is deemed to be in Ap of the entire property described in the instrument….a relationship between two people of quality so as to have legal consequences o Privity of Estate.The person who has possessed or owned land before the current occupant or owner o who has possession Doctrine of “Color of title” helps you create a shorter title If I have a deed and your only ap 5 acres …color of title can give you full title …we want to clear the title of all 10 acres   State of mind as an element? Majority view = irrelevant 4) “Color of Title”: what is it? How does it affect AP? (2 ways) The doctrine of title by accession (equitable doctrine) holds that a person who either converts another’s personal property or performs labor on another person’s real property which benefits the owner can gain title to the converted property if certain requirements are met The doctrine applies where the trespasser has.o Constructive AP under Color of Title.if a claimant goes into actual possession of some portion of prop under color of title. expended his own labor on the property and the circumstances are such that it would be grossly unjust to permit the other party to receive the full benefit of that labor with nothing being paid to the laborer 1) The nature of the converted property was different enough from that of the original property that the original timber could not simply be retaken 2) There was such a great disparity in value between the standing timber and the hoops that D had made that it would have been unfair to allow the p to take the hoops in payment for his lost timber 6 . in good faith.

made improvements to real property prior to eviction (such as the building of a building on the land). many exceptions to this rule. Improvements Built Upon Another’s Land A. The general rule is that the title remains in the true owner. we are going to put the burden on you to determine how much goes to each person. We put the burden on the commingler if it was in bad faith (strict rule) I. The owner’s conduct estops him from asserting title against the bona fide purchaser (entrusts something to a normal seller) 7 . guns sometimes)I mixed my grain with your grain. he is permitted to sue in equity for the value of those improvements o According to some. Does accession work?  -no you do not lose title. When it would be not grossly unjust to permit the other party to receive the full benefit of the labor. not the bona fide purchaser. grain. Title to property sold to a bona fide purchaser will shift from the true owner to the BFP where: a. and therefore does not give him the right to reimbursement by way of direct suit against the owner unless the owner has engaged in some type of fraud Doctrine of Confusion of Goods: Note p. in good faith. Where an occupant has. A bona fide purchaser is a person who buys property from a seller with no notice that a third person. There are. however.A. (marbles. 196 -fungible means everything looks the same. not the seller owns the property A. since no one can convey better title than he has. B. an occupant’s right in equity to compensation for improvements made prior to eviction applies only when he is a D in a lawsuit. such as when there is no great disparity in value between the pre-conversion and post-conversion property. the doctrine of accession does not apply II.

B. When an owner entrusts his goods to a merchant who deals in goods of that kind. is insufficient to induce reliance by a BFP and therefore does not create estoppel. A. which he conveyed to the BFP c. III. Thus. However. Voidable Title 8 . The transaction falls under the UCC which gives “good title” to a “good faith purchaser” for value even if the seller has only voidable title II.b. merely transferring possession of property to another. without more. if an owner clothes another with indica of ownership or apparent authority to sell his property. The owner is a beneficiary of the property which held in trust. A buyer in the ordinary course of business is a purchaser in good faith who buys from a merchant dealing in goods of that kind. A purchaser of a work of art is not purchaser in good faith if he is indifferent as to the seller’s status as an art merchant and his authority to sell the work of art. this gives the merchant power to transfer all of the owner’s rights to a buyer in the ordinary course of business a. such that the owner has only equitable title. Equitable estoppel precludes a party from denying any material fact which he has induced another to rely upon a. since the owner conveyed voidable title to the defrauder and that the title became absolute when the defrauder sold it to the BFP and d. The owner was fraudulently induced to sell his property to a person who then sold it to a BFP. Statutory estoppel may arise under the UCC’s entrustment provision. Equitable estoppel and statutory estoppel are defenses available to a BFP confronting a claim by the true owner. equitable estoppel will preclude him from denying the other’s ownership or authority to sell. and he will not be able to recover against the BFP b. and the trustee had legal title.

II. The UCC allows a person with voidable title to pass good title to a BFP for value even if that person acquired the goods through a bad check or through fraud criminally punishable as larceny. free from legal defects Chapter 12. Gift Requirements: A gift is valid if: A. v. and B. his voidable title is not perfected  Sheridan Suzuki Inc. Accompanied by an instrument of gift. or promise.To annul or set aside o Perfect. if there is a reasonable and satisfactory excuse. a person with only voidable title cannot pass good title to a motor vehicle to a BFP if he does not have a title certificate because until he has the certificate.A. or remaining possessions) 9 .)  In re Cohn o A dying man’s birthday gift locked in his company’s vault is valid o Promises to give gifts later are usually unenforceable o Executrix: Female “executor” (person who administers a dead or bankrupt person’s estate. under a certificate of title statute. Donative Transfers (Gift Law) I. to “donate” (give) a gift later is invalid without more. Future Gifts Invalid: The intent. (The property need not be delivered at that time. However. For example. B. more particularized statutes may impose other requirements that prevent good title from passing to a BFP. Made with (proven) intent to make a gift.To make valid and effective. Caruso Auto Sales o Buyers Beware: State law may prevent a BFP from taking good title to a car if the seller has no title certificate o Abrogate.

By a competent donor. Deathbed Gifts Valid Without Will: A gift causa mortis (“gift in contemplation of death”) is usually made by a dying person.o In Re: “In the matter of”. but only if it meets strict requirements. A gift 2. i. It is valid without a formal will. A. III. The issue here is that. but keep it for their lifetime o Inter Vivos [Gift]. A gift causa mortis is valid if it is: 1. Used to introduce cases in certain specialty courts o Probate: Matter of handling a dead person’s will and estate o Surrogate: the judge in probate court o Testator: Person who leaves a will.. usually after death. 10 . if this gift is ruled testamentary (as opposed to inter vivos).. 4. Gifts Effective After Donor’s Death: Donors may make living gifts while reserving the right to keep the item during their lifetime  Gruen v. Of personal property 3. outside its normal schedule o Testamentary: By will. or otherwise transfers property. after the donor’s death.e. o Special Term: An extra session of court. IV. Gruen o Gift of painting only after donor’s death is valid o Donors may “give” an item now. then it is invalid for failure to follow a will’s formalities.“between the living” Gift made while the person is still alive o Life Estate: Right to property for the person’s lifetime o Remainder: Right to acquire property after its current owner dies. Made in imminent expectation of death.

Imperfect Delivery: Some courts impute constructive delivery if: 1. wholly divesting the owner of control. With the intent… 6. which may be valid without a formal will.  Legacy: Gift by will C. The donee accepts. that which will not necessarily pass to another. B. 11 . The donor changes his mind before dying. and complete” during the donor’s lifetime. The donor dies. 2.” the slightly more modern term Gift Causa Mortis: Transfer of chattels by a person expecting to die soon. or which may not pass if certain conditions arise   Donatio Causa Mortis: Same as “gift causa mortis. The donee dies before the donor. 3. OR 3. …And upon the condition that the property should belong to the donee if: 1. The donor dies of the anticipated peril. undisputed evidence. The gift must be returned to the donor if: 1. Donative intent is proven by concrete. Defeasible: For property.  Foster v Reiss  Dying woman’s note to ex-husband to take property she stashed in the house they share is not valid “delivery” (overruled in part)   Courts recognize gifts made in anticipation of imminent death without formal wills. 2. unequivocal. The delivery is “actual. The donor survives.5. AND 4.

No-Fault Approach: In some states. Hyland (N. Modified No-Fault: In others. Fault-Based: Some jurisdictions’ courts decide the issue based on who was responsible for the engagement failing B. Engagement Rings: What happens when a suitor gives a wedding ring. the groom is entitled to his ring back only if he did not break off the wedding C. but the wedding is called off? A. Surman o No fault approach in PN Chapter 13: Historical Development of Estates Doctrine -“tenure”. engagement rings must be returned to the donor anytime the marriage does not occur  Lindh v. o But See:  Woo v. The donor intended to transfer possession immediately. Smart (VA) o Dying man’s personal check is not valid gift causa mortis until accepted by bank V. The donor took steps he believed sufficient to effectuate transfer  Scherer v.J) o Suicidal woman’s endorsement of check to boyfriend is valid under circumstances o Some Jxs allow “constructive delivery” for a gift causa mortis o Ad Litem: “For the litigation” o Administrator: Person appointed by the court to represent the estate of people who die leaving without leaving wills o Per Curiam: “By the court” Collective court opinion not ascribed to any single that residents owed various specified services to the king 12 . AND 3.

harvesting crops.reversion of uninherited land to the state -State and federal law provides that.g. and which. make a will -Usually in such cases the state need not pay inheritance tax on the land  In re O’Connor’s Estate o Nebraska inheritance tax laws inapplicable to escheat o When landowners die without heirs. granted to another for his lifetime. providing soldiers or money for the army. if its owner does not leave it to capable heirs o Fee: the ownership in land o Probated: Litigation in probate (will/inheritance) court o Reversion: Right to reclaim property. The greatest estate in land is the fee simple absolute. doing housework for the king/lord) o But see:  In re Estate of O’Brine o When personal property escheats to federal government. passes to the owner’s heirs. their land reverts to the government o Escheat: To [have land] revert back to the state. if not sold or passed by will. to create a fee simple under common law. (So if you own land. A. Traditionally.-Escheat. the state can first collect inheritance taxes Chapter 14: Freehold Estates I. which may last indefinitely. upon the holder’s death o Tenure: [archaic] Duties required of vassals (landholders) in old England as a condition of keeping land granted to them by the Crown (e. his property “escheat” (reverts to ownership of) the state or federal government. a deed or conveyance used words “to A and his heirs” 13 . if a landowner dies without suitable heirs.

unlike personalty. it passes to the heirs of the owner if he dies without a will 3. to be passed by will. the property will usually be divided by giving half of the estate to a surviving spouse and dividing the other half between the surviving descendants per stripes. Primogeniture. if a person dies intestate (without a will).1. even if the latter were closer relations than the successors.  Cole v. 3. The differences between the treatment of real and personal properties was accentuated by the jx of the Ecclesiastical Courts over probate 2. Prior to the passage of the Statute of Wills (1540). the idea that a person had only one legal heir (usually the oldest male descendent). 14 . 1. In a common law jurisdiction. the word “heirs” is a term of art that refers to persons who take property under relevant statutes of descent (usually when a person dies without a valid will). individuals who take property under a will are not “heirs” B. In modern practice. Steinlauf o Fee Simple Absolute: The greatest estate in land someone can have and it can potentially last forever. The development of primogeniture tended to prefer passing property to successors rather than wives or ancestors. the lack of the words “and his heirs” in a deed in the chain of title is sufficient to make title unmarketable. As used in the law of wills and estates. C. Under modern statutes. was the primary rule of inheritance developed in England. almost all state have statutes that favor fee simple title and give fee simple effect to any conveyance that expresses the grantor’s intention to pass a fee simple 2. English law did not usually allow freehold estates in land.

specified occurrence or action automatically ends and reverts to the grantor 15 . When there is a surviving spouse but no descendants. Most state statutes provide that someone causing a wrongful death cannot inherit from the deceased D. and upon the death of the life tenant either reverts to the grantor or passes to the remaindermen named in the deed. the entire estate goes to the descendants per stripes 2. where the father has acknowledged paternity or paternity has been proved II. When there is neither a surviving spouse nor descendants. A will creates a fee simple estate absent express language limiting the devise to a life estate. the holder of the life estate has a duty to maintain the property in good condition for the remainderman. 1. A. the entire estate goes to the spouse. but no surviving spouse. but modern statutes usually include illegitimate children to inherit from their mothers and fathers. since the law (often due to statute) disfavors forfeitures. the person to whom the property will pass at the end of the life estate o Fee Simple Determinable: A fee simple estate in land that in the event of a certain.  Lewis v Searles o Life Estate: An estate in land that lasts for the duration of a specific person’s life. the life estate is not inheritable. illegitimate children inherited nothing if their natural parent died intestate. At common law.1. The common law required no special words to create the life estate. when there are descendants. the property passes to the collaterals or ancestors through a statutorily determined calculation of degrees of relatedness to the deceased 3. Although it gives the owner the right to enjoy his or her land and to reap the profits of its use.

Defeasible Estates A. A will may make a devise contingent upon the devisee’s marital status for legitimate reason. o Limitation: “Words of limitation” in a will create an estate less extensive than a fee simple” o Testator/Testatrix: Person who has died leaving a will. but now. A life tenant has a fiduciary duty to reasonably maintain her property for the benefit of the remainderman. the person to whom the land will pass upon the death of a life tenant. a life estate pur autre vie (where the estate terminates upon the death of someone other than the holder) may be inherited in some cases. In the past. such as the devisee’s support or protection  Lewis v Searles B. Phillips o Waste: Damage to a property beyond normal depreciation due to a tenant’s affirmative acts (Commissive Waste) or neglect of upkeep o (Permissive Waste) o Remainderman: The person who has the right to a future interest in land. There are two important defeasible estates: 1. so. Testatrix is the female version 2.o Condition: A condition attached to a conveyance of land is language stating that in the even of a certain occurrence the size. laches will not bar the remainderman’s suit for waste  Moore v. absent prejudice to the life tenant. C. which will automatically revert to the grantor upon the occurrence of a certain event 16 . III. extent or nature of the estate conveyed will change. typically. The fee simple determinable. life tenancies were not inheritable. under common law.

Rhodes D. By itself. The fee simple subject to a condition subsequent. Stoeco Homes. Inc. o Fee Simple Subject to a Condition Subsequent: This is a fee estate under which the grantor may take affirmative action to have the land forfeited back to him if a certain condition occurs. 1. v. courts generally prefer to interpret an unclear deed as creating FSSCS rather than an FSD  Oldfield v. Because of the principle that forfeitures are disfavored. City of Seattle o Impossibility: Impossibility of performance may be advanced as a defense for failure to perform under a K or deed when a material change in the circumstances outside the control of the non-performing party or a change in the law makes it impossible to perform the terms of the K 17 . a clause providing that a conveyance is made for certain purposes will not create a limited estate in a grant of land  Roberts.2. The passage of time alone does not terminate grantor’s rights or grantee’s obligation to perform under a FSSCS  Martin v. 2. which gives the grantor the right to reenter and terminate the estate upon the occurrence of a certain event B. the court will look to the circumstances to determine the type of defeasible fee created by the deed. Where the intent of the parties is unclear from the language of a deed.” Or “To A provided that” C. it is usually created by using language such as “To A on the condition that…. a court will look at the language of the will or deed to determine the intention of the parties to create a particular defeasible fee. Generally.

allowing a person to bar a fee tail and prevent another person from asserting his rights under the fee tail. in many cases. A statute of limitations may bar grantor’s untimely lawsuit to reenter lands under an FSSCS  Johnson v. Banning o Fee Tail: Title to land that can pass only to certain natural descendants of the grantor. the title will pass to the heirs of another (no illegal) o Disentailment: The process usually created by statute. the fee tail lasts until the holder dies without issue A.. County of Nueces IV. Where a will conferred a fee simple with the qualification that if grantee died without issue. the term “issue” is interpreted to exclude adopted children. City of Wheat Ridge F. a conveyance “to A and the heirs of his body” created a fee tail estate. At common law after the year 1285. which may be inherited only by specified natural decedents of the grantee.  Caccomo v. grantee received a fee tail. Most state have statutes which abolish the fee tail and make conveyance “to A and his heirs” into a fee simple in A B. if the grantee dies without having had natural issue. issue refers to the natural offspring.E. then the land passed to another. disentailment usually resulted in the creation of a fee simple absolute in the grantee o Issue: In the law of wills and property. Chapter 16: Concurrent Ownership 18 . v. A governmental entity that holds a defeasible fee cannot condemn the grantor’s reversionary interest and pay merely nominal damages  Leeco Gas & Oil Co.

Today. Types of Concurrent Ownership A. JT existed.” with no right of survivorship. The grantee becomes a “tenant in common. II. “Undivided Interest” refers to an ownership interest where none own an identifiable segment of the property.I. 3. unless there was evidence of a clear intent by the transferor to create a tenancy in common. “Joint Tenancy” means individuals comprising a single legal entity which owns the property. Prior to the 19th century. either “in kind”—through physically dividing the property—“by sale”—with proceeds of the sale paid to the JT 6. 7. “Tenants in Common” are individuals each owning a fractional undivided interest--equal or unequal 2. available legal remedies include partition. “Concurrent Ownership” in the legal sense refers to two or more persons who concurrently have equal rights in real or personal property. Joint Tenancy 1. 5. 4. 3. JT involves “right of survivorship”—upon the death of a JT. or purchase by one cotenant of the other’s interest B. JTs may compel partition. It is often said that JTs are “seised pur my et pur tout”—each JT is an owner of an undivided interest and an owner of the whole as well. the surviving JTs own the property. statutes often declare that a tenancy in common will be created uncles there is an intent to create a JT. Four Unities of Joint Tenancy 19 . JTs may effect a “severance” of their interest—by conveying the interest by deed to another. 2. leasing and apportioning the rent. Tenants In Common 1. When Disputes arise among tenants in common. and none can assert a paramount right of possession of any segment.

Now. JTs were favored. however. husband and wife have equal rights in the control and enjoyment of their property. not just an undivided interest therein. Unity of Time—the interests vest as the same time (a limitation to a class will create a JT even if the members of the class come into being at different times. Where one seeks the court’s assistance in interpreting a deed. such as language from a will. At common law. such as a single will or conveyance 3.  In re Estate of Michael 1.) 4. Unity of Possession—each is seised of the whole estate. 2. through legislation and judicial action. a married woman was subject to the husband’s control and power of disposal of the property of the marital estate. Unity of Title—each has derived their interest in the property through the same event. Husband and wife are “seised pur tout et not pur my”—neither is an individual owning an undivided interest. favor the presumption of all tenants holding jointly as tenants in common. The courts in the US. 20 . C. At common law. Unity of Interest—each has equal undivided interest in the property 2. and will not consider any other evidence.1. the court will only look to the deed. unless there is a clear showing of an intention to create a JT with the right of survivorship. General Aspects of Concurrent Ownership A. III. 3. “Tenancy by the entirety” is concurrent ownership available only to a married couple. Thus. Tenancy by the Entirety 1. to determine the intention of the party. neither can effect a severance by conveying an undivided interest and neither can compel a partition.

and imposed by a court of equity to prevent unjust enrichment  Mortgagee: The creditor who possesses the mortgage on property. C. accident. However. Christian Constructive Trust: Involuntary trust created by operation of law where one gains a thing by fraud.   Laura v. 1.B. A co-tenant who pays more than his share of a debt secured by a mortgage or other lien on the common property is entitled to reimbursement (contribution) from his cotenants to the extent to which he paid their shares of the indebtedness. undue influence. 2. the nonpaying cotenant retains a right of redemption. rather than obtaining personal liability against e nonpaying mortgagor. a mortgagee obtains the property through foreclosure proceedings. Cotenants who have mortgage obligations concerning their real property are obligated to pay their pro rata share of the expenses. mistake.. there must be accounting. The right to compel partition is an inherent right of JT and TnC If a partition suit is filed to terminate a co-tenancy. Creation of Concurrent Estates and Severance Thereof 21 . if one cotenant does not pay. D. etc. and the other prevents the property from being lost through sale.g. IV.. A cotenant who pays a mortgage or taxes to avoid a foreclosure sale usually cannot obtain a personal judgment for contribution from the nonpaying cotenant because the nonpaying cotenant is not personally liable for the nonpayment—e. as a lien to secure payment of an obligation by the mortgagor  Perfect on Appeal: Exercising all steps necessary to pursue an appeal.

the grantee remains a JT as to his original interest but becomes a TnC as to the interest conveyed by the grantor JT. In an action for reformation of the deed (as opposed to judicial interpretation of a deed). and the third party becomes a TnC with the other two JTs. if clear and convincing evidence exists showing that the grantor intended for a deed conveying real property to contain language concerning JT with right of survivorship.   Quitclaim Deed: a deed that conveys real property but without warranty of title and without covenants Severance of JT: conduct by a JT that destroys the JT and converts it into a TnC without right of survivorship D. the conveyance by one JT to another joint tenant does not sever the entire joint tenancy. etc. but such language was absent due to the scrivener’s negligence. If three or more JTs exist. B. usually based upon fraud or mistake 22 .   Matter of Estate of Vadney Reform a Deed: Referring to “reformation” of a legal document wherein the court orders the document modified according to the parties’ intent.   Jackson v. the deed can be reformed to include the omitted language. or makes calculations. and one conveys his interest to a third party.A. by acting as a referee. the JT is severed and a TnC is created between the grantee and the former JT If there are three JTS. hearing officer. C. If two JTs exist. O’Connell Master: A quasi judicial officer who has been appointed to help the judge and court. the latter still holds the remaining twothirds as JTs. and one transfers his interest to a third person. however. person who resolves discover issues. the JT is destroyed as to the part conveyed.

” and referring to that portion of a deed that describes the interest granted and any conditions relating thereto 2. E.     Palmer v.     Jones v. The express language often used to create JT estates is: “as joint tenants and not as tenants in common. Flint Bill of Complaint: a written petition submitted to the court requesting certain relief from the defendant Granting Clause: The language in a deed or other document that expresses the transfer of an interest Habendum Clause: Also called a “to have and to hold clause. “as joint tenants. but instead joint life estates followed by a contingent remainder in fee to the survivor.” 1. other courts hold that a deed conveying property “as joint tenants with full rights of survivorship and not as tenants in common” does not create a JT. and not as tenants in common. half or less than half Per Contra: Latin for by contrast 23 . to them and their assigns and to the survivor. Green Inter Alia: Latin for among other things Moiety: A small segment of an interest. and the heirs and assigns of the survivor forever” conveys a JT. and not a joint life estate to the grantees with a contingent remainder in fee to the survivor. However. Some courts hold that a deed from the grantor to two grantees containing the phrase. Clear and Convincing Evidence: Evidence that proves something by more than a preponderance of the evidence but less proof than beyond a reasonable doubt.

the execution of a mortgage by one of two JTs will not sever the JT 1.  Per Curiam: an opinion by the whole court. real property will be treated as personal property in order to acknowledge transfer of real property based upon written agreement to sell. but where party dies before title is transferred  Justice Pro Tem: Pro tem is the abbreviation for “pro tempore”—Latin. for “the time being”—and as applied to “justice” refers to appointing one to act temporarily as a justice G. for example. If a jurisdiction treats a mortgage as a lien. In those jurisdictions that treat mortgages as a lien. if the jurisdiction treats a mortgage as a conveyance of title. a mortgage upon real property executed by one of two JTs in not enforceable after the death of that JT. A divorce alone does not sever a JT estate 24 . then a severance will result 2. However. rather than one judge Reversible Error: An error that is significant enough to possibly cause prejudice to a party so as to require the reversal of a judgment F. Whether a mortgage severs a joint tenancy depends upon the particular jurisdiction 1.   People v. Nogarr Condemnation: An action by the government to determine if property should be declared for public use upon reasonable compensation to the owners of the property  Doctrine of Equitable Conversion: Where equity acts to make that which ought to be done.

for valuable consideration and without notice of any defect in title  Judgment of the Pleadings: Deciding the case as a matter of law based upon the allegations contained in the complaint 2.Other states have contrary views. Vassaur Bona Fide Innocent Purchaser for Valuable Consideration: One who purchases property in good faith. convert a JT into a TnC    H. or to his heirs. A murderer is deprived of the entire interest except for a life interest in one-half. A murderer holds upon a constructive trust to the extent of the computed value of one-half of the property as of the date of the victim’s death for the period of the victim’s expectancy.1. such as: a. b. Murder 1. In some states. Bradley Administratrix: A female administrator who is appointed to handle the estate of one who dies intestate Sin Qua Non: “without which not” 25 . A murderer is chargeable as constructive trustee of the entire property for the benefit of the victim’s estate. when deceased Mann v. murder by one JT of another JT severs a JT   Duncan v. e. the JT has separated and terminated and on-half of the property should go to the heirs of the murdered person and the other one-half to the murderer. A murderer is entitled to keep all the property. A murderer is chargeable as constructive trustee of one-half of the property for the benefit of the victim’s estate. The provisions of a divorce property settlement agreement may. c. d. f. however. By the murder.

the adjacent landowner is only liable in cases of negligence o Adjacent lateral support may be removed provided that artificial support. Condominiums ( she said don’t worry about condos for the exam) Bonus Material Support of Land  Under theories of strict liability and negligence. such as a retaining wall. without liability for harm it may cause others 2) Civil Law Rule: A landowner who interferes with the natural flow of surface waters so as to cause an invasion of a neighbor’s interests in the use and enjoyment of his land is subject to liability to the other 3) Reasonable Use Rule: A landowner is legally privileged to make alterations to the natural flow of surface water until there is an unreasonable interference with a neighbor’s use of his land. is provided to replace such support o The duty to maintain the artificial support becomes a covenant that runs with the land Drainage. Francis Corp): 1) Common Enemy Rule: A landowner has the unrestricted right to rid his lands of surface waters. adjoining landowners have a duty to provide lateral support to each other’s land  Noone v. Price o Strict Liability for removal of lateral support is limited to land that would be subside while in its natural state  If the land subsides from removal of lateral weight of a building. Courts apply three different rules: (Armstrong v.V. The utility o the possessor’s use of his land 26 . Courts look a the following factors: a.

The foreseeability of harm that results d. The degree of harm that results c. b. the first appropriator of water from a natural stream for a beneficial purpose has a prior right to the water to the extent of the appropriation   2) Groundwater a. In western states.” landowners may pump as much groundwater as they want without liability to neighbors who claim that the pumping depleted their wells. snow.b. 27 . where the ground is more arid. Groundwater: Water that has percolated through the soil and does not flow in an underground stream or a defined channel. it is up to a jury to decide on a case-by-case basis how the water should be divided b. and streams that spreads over the ground or collects in pons as opposed to stream water that runs in defined channels Rights to Water 1) Water in Watercourses a. Under the rule of “capture. Left Hand Ditch Co. In Colorado and other western states. courts usually apply the reasonable use doctrine or an appropriation rule Coffin v. A riparian landowner may use all the water in a stream to satisfy natural needs for water. Great Spring Waters of America Inc.   Sipriano v. including the official certificate granting the land. The feasibility of alternatives Damnum Absque Injuria: A loss or damage without injury Surface Water: Water coming from rain. such as thirst. such as manufacturing and irrigation. But for artificial needs for water. Patent: A grant of government land.

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