Property

Doctrine of Discovery

Discovery + Possession = Title

Elements of Possession

1. Intent to possess

2. Actual controlling or holding the property

Acquisition by Capture / Wild Animals - 5 Rules

1. Ownership is established by capture or mortal wounding of the animal with continued pursuit

2. Any wild animal caught or wounded on privately owned land is the property of the landowner unless the hunter was allowed on to the land by the landowner for the purpose of killing animals

3. Any wild animal that has been captured and escapes is the property of the person who next captures the animal

4. same rules apply for other natural resources

5. the previous four rules are subject to modification through leg and admin rule making

The Bundle of Sticks

characterized as a bundle of rights including

• right to possess

• right to use

• right to exclude

• right to dispe

The Right to Exclude

• the right to exclude is relative, and often depends on the interests of the intruder (serving your own private values vs. serving human values (aid to migrant workers))

• in the case of trespass, punitive damages are allowed even if there is an award of nominal damages

The Right to Dispose

• Elements to abandon property

  • giving up possession of the property

  • and manifesting an intent to abandon the property

• you CANNOT abandon real property

• standard rule is that intent matters at the moment of abandonment

• Right to Destroy: not the same dead vs alive (Eyerman), if person is dead they are not exercising their own right, they are trying to convey it an executor without interest in the property

Acquisition by Finding - 5 Rules

1. any personal property that is lost or mislaid remains the property of the true owner

2. the first finder of lost property has a right to the lost property that is good to all the world except the true owner

   1. Exceptions - does not apply to trespassers (lost property goes to property owner), areas not open to the public, stuff you find during the course of employment

3. the landowner of a place where the mislaid property has been left has a right to the property against the whole world except the true owner

4. Any personal property that has been abandoned ceases to be property of the true owner

5. abandoned property becomes the property of the person who first takes possession of the property with the intent to become the first owner

   1. new owners rights trump everyone including original owner

Inter Vivos Gift Elements

• Donative Intent by the donor

  • unconditional

• delivery or possession

  • physical

  • constructive - property itself is not transferred but something giving access to and control over it is (keys)

  • symbolic - when thing delivered stands in place of the property (but courts try to avoid)

• acceptance by the donee

• once made an inter vivos gift is irrevocable

Causa Mortis Gift Elements

• Donative Intent by the donor

  • unconditional

• delivery or possession

  • physical

  • constructive - property itself is not transferred but something giving access to and control over it is (keys)

  • symbolic - when thing delivered stands in place of the property (but courts try to avoid)

• acceptance by the donee

• donor must make gift in contemplation of their impending death

• most jurisdictions: gift automatically revoked if donor survives

Adverse Possession Elements - 6

1. Actual possession that is

2. open and notorious

3. exclusive

4. continuous

   1. tacking permitted if parties were in privity of estate with each other

5. hostile

   1. owner has not given permission

6. runs for the statutory period (ex: 20 years)

The Possessory Estates - 5

• freeholds

  • fee simple absolute

  • fee tail

  • life estate

  • the defeasible fees

• non-freehold estates

  • leaseholds

Fee Simple Absolute

• absolute present and future right to possess

• alienable, devisable, descendible

Fee Tail

• fixed line of succession limited to the heirs of the body of a grantee or devisee

• in effect, basically a series of life estates

• almost entirely abolished

Life Estate

• owner owns for life

• alienable by the life tenant for a term lasting so long as the measuring life

• not devisable nor descendible

  • Baker - necessity must be present for a court to order the sale of a property by the life tenant. consideration should be given to the best interests of the life tenant and the remaindermen

• future interest in grantor: reversion

• future interest in third party: remainder

Doctrine of Waste

• doctrine that protects future interest holders against the life tenant

• life tenant has a duty not to create waste or. allow waste

  • voluntary waste: when life tenant actively changes the property’s use or condition, usually in a way that substantially decreases the property’s value

  • permissive waste: the life tenant fails to prevent some harm to the property. Some specific duties include: make ordinary repairs, pay interest on debt, pay taxes and assessments

  • ameliorative waste: affirmative act by the life tenant that improves property

Condition Subsequent

an event whose occurence or nonoccurence will terminate the estate. Once the condition subsequent occurs, the estate holder’s interest ends and the property either reverts to the original grantor or passes to a third party

Concurrent Interests - 3

• tenancy in common

• joint tenancy

• tenancy by the entirety

Tenancy in Common

• each tenant owns a share of one property

• each co-tenant has an equal right to possess the whole property

• interest is assignable, devisable, and inheritable

  • meaning tenants in common can sell their interest and the tenancy in common will continue

• favored concurrent estate by the law

• if a type of concurrent interest isn’t specified, ASSUME TENANCY IN COMMON

Joint Tenancy

• right of survivorship - when a joint tenant dies, their interest ends and the last surviving joint tenant owns the property outright

• Four Unities must be present to create a joint tenancy

  • unity of time - both interests must vest at the same time

  • unity of title - joint tenants must acquire title in the same deed or will

  • unity of interest - each joint tenant must own equal shares of the same estate

  • unity of possession - each joint tenant has a right to possession of the whole property

• NOT devisable or descendable

• but can assign inter vivos

• Assignment extinguishes the joint tenancy as to the transferee, who will hold as tenant in common

  • if more than two others, other co-tenants could still hold their fractional share in joint tenancy

• to sever the joint tenancy but keep the interest, people used to do strawman conveyances, now courts more likely to allow the person to just convey it to herself to sever (Riddle)

• if in jurisdiction where mortgages are treated as liens: a mortgage interest will not sever the joint tenancy, as liens do not sever joint tenancy (Harms).

Tenancy by the Entirety

• COUPLE MUST BE MARRIED at the time they acquire the property

• divorce terminates and converts it to tenancy in common

• right of survivorship in spouse

• one spouse cannot unilaterally sever the tenancy by the entirety (like in joint tenancy)

• neither tenant can alienate their interest without the consent of the other

• asset protection - a creditor can foreclose on the tenancy by the entirety property only if both spouses are liable for the underlying debt

• like the joint tenancy, requires the 4 unities

  • unity of time - both interests must vest at the same time

  • unity of title - joint tenants must acquire title in the same deed or will

  • unity of interest - each joint tenant must own equal shares of the same estate

  • unity of possession - each joint tenant has a right to possession of the whole property

The Defeasible Fees

• three fee simples with a catch:

• the fee simple determinable

• the fee simple subject to a condition subsequent

• the fee simple subject to executory limitation

Fee Simple Determinable

• Created by clear DURATIONAL language

• “to a so long as she remains a lawyer” “until” “unless” “if”

• if condition is violated, forfeiture is AUTOMATIC

• freely alienable, freely devisable, freely descendible

• BUT

• always subject to the stated condition, the condition doesn’t disappear, it tags along with the estate

• Future interest: possibility of reverter

• FSD/POR - Frank Sinatra Didn’t Prefer Orville Redenbacher / Fee Simple Determinable Possibility of Reverter

The Fee Simple Subject to Condition Subsequent

• Created by clear DURATIONAL language AND a clear statement of the right of reentry

• “to rachel but if coffee is ever consumed on the premises, grantor reserves the right to reenter and retake”

• Future interest: right of entry

• NOT automatically terminated in event of stated conditions, but can be cut short at the grantor’s prerogative

• The bobby brown - “it’s my prerogative”

• FSSCS/ROE

The Fee Simple Subject to Executory Limitation

• “to A but if X event occurs, then to B”

• future interest: executory interest

• AUTOMATIC forfeiture occurs in the event of the conditions breach

• clear, durational language

• FSSEL/EI

Restraints on Alienation

• absolute restraints on alienation are not enforceable

  • because it’s repugnant to public policy

  • if you cross out the restraint on alienation condition, you’re let with a fee simple

    • “to A so long as she never sells” → “to A so long as she never sells” → “to A”

• restraint on alienation linked to a reasonable time limited purpose is valid

  • “to A so long as she does not attempt to sell for the next 18 months as clouds on the title are resolved” (FSD/POR)

  • linked to a plausible context

Future Interests

• Future interests capable of creation in the grantor

  • Possibility of Reverter

    • Fee simple determinable FSD/POR

  • Right of Entry

    • Fee simple subject to condition subsequent FSSCS/ROE (bobbi brown)

  • Reversion

    • transfers an estate of lesser duration than she started with

    • life estate or leasehold

• Future interests capable of creation in a third party

  • Remainder

    • follow after fixed amount of time

    • reminders never follow defeasible fees, they are patient

    • typically accompanies a life estate or leasehold

    • vested remainder

    • contingent remainder

  • executory interest

Vested Remainder

• Created in a known taker

• not subject to condition prerequisite

• Subcategories

  • indefeasibly vested remainder

  • vested remainder subject to complete defeasance

  • vested remainder subject to open

Contingent Remainder

• created in an as yet unknown taker OR

  • “to a for life, then to a’s first child” (if kids don’t exist yet)

• subject to an as yet unknown condition prerequisite

  • “to a for life, and then if B graduates from law school to B” (ex: i’m only 9 years only i havent yet satisfied the condition precedent, but I still have to wait patiently for A’s life estate to come to an end)

• or both

Indefeasibly vested remainder

• remainder man is known with no strings attached to his taking “to A for life then to B” - no strings attached

vested remainder subject to complete defeasance

• strings attached, could be subject to condition subsequent “to a for life then to b, but if b leaves the legal profession, then to c”

  • different from contingent remainder because there’s no prerequisite to B’s entry, there’s a subsequent

vested remainder subject to open

vested in a group or category of takers, “to a for life, then to a’s children” (the children exist)

• capable of increasing in membership because the class is still open

Executory Interest

• takes effect by cutting short another’s interest

• springing - cuts short O, the grantor’s interest

  • “o to a when a marries” when a marries a will take it from o

• shifting - cuts short another transferee’s interest (someone other than O)

  • always follows a fee simple subject to executory limitation

  • dr. evil - seeking to divest a from a’s other wise unlimited interest in the land

Rule Against Perpetuities

• certain future interests are void if they vest too remotely in the future

• have to be capable of becoming possessory within 21 years after the death of a relevant life in being

• 1. Determine which future interest you have

  • RAP potentially applies only to contingent remainders, executory interests, vested remainders subject to open (does not apply ever to indefeasibly vested remainder, vested remainders subject to complete defeasance, grantor future interests)

• 2. What has to happen for the future interest holder to take?

• 3. Find a measuring life

  • looking for a person alive at the date of the conveyance who’s life and/or death is relevant to the given conditions occurance

• 4. Will we know for sure within 21 years of the death of that life if there is or is not a future interest holder to take?

Bright line Rules

• an executory interest with no limit on the time within which it must vest violates the RAP

• a gift to an open class conditioned on the members surviving to an age beyond 21 violates RAP (bad as to one, bad as to all)

Reform Efforts

• wait and see / second look: validity of any suspect future interest is determined on the basis of the facts as they occurred after the death of the measuring life

• uniform statutory RAP - invalidates an interest if it (1) fails common law RAP and (2) does not actually vest or lapse unvested within 90 years of its creation

Relations Among Co-Tenants - 10 Rules

1. each co-tenant has an equal right (but not obligation) to participate in the management of property

2. courts divide on whether each co-tenant has a duty to contribute to the routine maintenance of the property

3. courts generally agree that one co-tenant cannot compel another co-tenant to contribute to major improvements of the property

4. Each co-tenant generally has a duty to contribute to property taxes levied on the property

5. A co-tenant is possession generally does have a duty to pay rent to a co-tenant out of possession (Spiller)

6. A co-tenant in possession does have a duty to pay rent to a co-tenant out of possession following ouster by the co-tenant in possession (elements of ouster on diff flashcard)

7. a co-tenant in a tenancy by the entirety generally cannot sell, mortgage, or lease her interest in the property without the consent of her co-tenant

8. A co-tenant cannot adversely possess the property against another co-tenant (except following ouster)

9. If co-tenants in a tenancy in common or joint tenancy cannot agree on the possession, use, or disposition of the property, the remedy is partition (on separate flashcard)

10. If the co-tenants in a tenancy by the entirety cannot agree on possession use or disposition of the property, the remedy is divorce.

Ouster

• occurs when occupying tenant acts to prevent the other co-tenant from possessing the property

• generally the out of possession tenant must make a demand for access to the property and be denied

• conduct: tenant must exclude and have an intent to exclude other tenant

• constructive ouster: 1000 people are co-tenants in a studio apartment, no way they can all possess, so however many of them have been constructively ousted

Partition

• Partition in Kind: favored by the courts. court physically divides land into parcels of equal value; each co-tenant gets a parcel according to their interest

• Partition by sale: sale proceeds allocated by interest. courts only do this when in kind partition is impracticable (Delfino)

  • Ask: would an in kind be impracticable or inequitable? would the interest of the owners be better promoted by a partition by sale

Common Law Property - 3 rules

1. the baseline rule in the common law states is that each spouse owns their property separately

2. property owned by one spouse, upon divorce, may be transferred to the other spouse through an equitable distribution statute.

3. each spouse may transfer or bequeath property as they choose. However, almost every common law state now has the “elective share,” under the conventional elective share, the surviving spouse can renounce the will, if any, and elect to take a statutory share, which is usually one-half or one-third

Community Property

the earnings of each spouse during marriage should be owned equally in undivided shares by both spouses. Assets bought with earnings are community property.

property brought into the marriage, gifts, inheritances are not community property

Divorce: in theory, straightforward, each spouse keeps their separate property and community property is split in half, but some states opt for equitable distribution

Death: each spouse allowed to bequeath freely all separate property and one half of community property, there is no elective share approach. If spouse dies intestate, the surviving spouse gets 100% of community property