Property

Pierson v Post

Post was hunting a fox, pursuing it. Pierson sees it to and kills and takes it. So back and forth who possessed it. Rule: mortal wounding, intention, trap. Had to create a new law bc no law at the time. Said physical possession and mortal wound aka Pierson. Prioritizing peace and less litigation

Adverse possession

result of statute of limitations, factors: open, notorious, exclusive, hostile, and continuous

Rules from Pierson v Post

• mortal wounding and did not abandon pursuit

• unequivocal intention for own use, deprive natural liberties and brought within certain control

• encompass and secure with nets or intercept to deprive, render escape impossible

Ghen v Rich

Ghen shot and killed a whale. No tether but left a marker typical of industry. Rich bought whale from third party who took it. Rule: whoever possessed it is based on custom in industry. Limited to this industry, didn’t ruin the industry, preserve customs so don’t fall apart, agreed and recognized, works well in practice

Clark v maloney

P found logs after storm. Tied them up and they got free and D found them floating. Court said P owned them

Pierson v Post dissent

Should have looked to hunters for what to do. Pursuit within reach should be enough

Sources of law hierarchy

Constitution; statutes; regulations; common law

Common law found property rules

Abandoned: owner no longer wants it

Lost: owner unintentionally parts with it and doesn’t know where it is

Mislaid: owner voluntarily puts it somewhere, but then overlooks and forgets where it is

Who owns each found property

Abandoned, belongs to finder, can use initial ownership rules

Mislaid: first finder unless found by og owner

Lost: original owner still, finder has no rights

Armory v Delamirie

Chimney sweep found pieces of jewelry and takes to silversmith shop. Apprentice took jewels from silversmith. Rule: finders get it first aside from original owner

Benjamin v Linder aviation and state central bank

B did maintentance for LA and found $18k in wing. Who owns the money? State owned the plane after repossessing it and brought to LV for inspection. Rule: statutes first and then common law if unknown. Court says statute only applied to lost property but this was mislaid property so B had no right. State had right of possession. Legislature never added all and would’ve amended if want to apply to all, so can only conclude lost property

Benjamin dissent

Hard to believe that owners forgot about so much money. Would’ve concluded abandoned property

How can a possesor own someone’s property

Found property statute: statute requirements were met and title vests to finder

Adverse possession: common law and statutory requirements are met, title vests to possessor

Chaplin v Sanders

Strip of land between people before Chaplin and Sanders. Hibbard sold to Gilbert and acknowledged encraouchment and later to Sanders and McMurray (actual property where Hibbards had stuff on) sold to Chaplins. Chaplin had survey and sued Sanders. Statute does not include factors, only includes 10 years but we read in the factors. Court looked at time between French 1967 to Sanders 1977. Actual, exclusive, uninterrupted, open and notorious all met. Hostility met because Gilberts knew of encroachment but didn’t do anything. Lower courts back and forth of which hostility approach was present in statute. SC said too confusing so ignore possessor mindset. Conclusion: reverse and give to Sanders 

Tieu v Morgan

Land between two houses, who’s was it. Rule: actual, open, notorious, exclusive, continuous, 10 years via predecessor and current parties. Actual bc used land with what land was used for, open/notorious bc visibly apparent when sewer and maintenance, exclusive bc past owner asked for permission to use it, continous bc constant intermittant, and 10 year between past owners James and Morgans

Owner state of mind

Owner must not have given permission to the possessor, and it is assumed nonpermissive unless owner gives explicit permission

Majority approach for hostility

Ignore state of mind (objective). So hostility met as long as owner doesn’t give permission. So easier for possessor to establish this requirement.

Good faith hostility

Possessor believed land was theirs + no permission. Rewards honest mistake

Bad faith

Possessor believed land was not theirs. Not many jurisdictions. This encourages people to do market transactions of real sales if know land was not theirs

Color of title

Doc or deed that purports ownership but doesn’t actually provide it

Open and notorious

P prove possession is of such character to put original owner. onnotie or if owner knows about use

Actual

Use of land is consistent with what land is suited for, what you would expect

Exclusive

How owner would reasonably share or not share it

Continuous

Use of land was constant, intermittent, as if expected by such land

Okeeffe significance

Depends on industry like art v jewelry that can’t be displayed, bc jewelry makes it harder to obtain adverse possession. Discovery rule involved for statute of limitations

Okeefe supreme court

Used discovery rule, whether or not used due diligence to recover paintings at theft. Starts when you realize item is stolen. Bc adverse possession is too hard. Aka burden on owner here, althoough didn’t define diligently pursuing goods to stop statute of limitations from running. Reveresd appellate and remand to apply discovery rule

Okeefe supreme court significance

For art, discovery rule bc its easy to hide art since its personal property. For real estate, traditional adverse possession still applies bc not as easy to hide

Okeefe vest issue

Says vest title to possessor after expiration of statute of limiations. Dissent says no doesn’t say that.

Demand and refusal

From Okeeffe, statute of limitations starts clock when demand item back and refused

Alienability

transferrable

Owner sovereingty

Control on owner

Dead hand control

Dont’t want restrictions that make property unusable

Possessory estate

present interests, right to possess now

Future interest

Right to possess if at all in the future

Fee simple absolute

Indefinite duration of ownership. “I give purple acre to Ben/ and his heirs”

Life estate

Keep estate until person dies, then tarnsfer back to person

Life estate pur autre vie

Life estate for the life of a third party

Reversions

Future interest retained by grantor after life estate, even if given from original grantor to additional party

Remainder

Future interest in someone else, not the grantor, after life estate. “I give purple acre to Ben for life, then to Cam”

Craig case

Handwritten will saying Debbie gets everything till she dies v Daphne (same person) gets all real personal property. D dies so the case is between D estate and Craig kids. Was language of will ambiguous? Kids say life estate so revert back to Craig. D estate says left entire estate to D. Court says intent was not ambiguous and wanted to give to wife only. If not clearly life estate, default to fee simple absolute

Presumptions re ambiguity between fee simple absolute and life estate

Presumption of complete disposition. If no future interest accounted for, don’t assume they left that out on purpose. Assume that person wrote for everything in will. For life estate, must clearly express intent

Vested remainder

If party is born and identified, and will definitely come into poession with no condition precedent. “I give Purpleacre to Ben for life, then to Ben’s first child, Andrew”

Contingent remainder

Born and identified, not actually get precedent bc of condition precedent OR not born and identified. “I give Purpleacre to Ben for life, then to Ben’s children who survive him” so there must be children if any, and must be alive when Ben dies

Right of entry

For condition subsequent

Fee simple subject to condition subsequent

Future interest goes back to original grantor if and when the right to retake possession is exercised. Conditional language. Right to re enter and retake

Reversion v reminder

If owner retains future interest, reversion (life estate). If owner gives away, then reaminder

Heirs

Do not exist until someone dies

Vested subject to open remainder

Knowing someone will come into possession but not sure who or how many. “I give purpleacre to Ben for life, then to Ben’s children” and Ben has one child right now

Alternative contingent remainder

Means specific requirements if one option isn’t met, then other takes effect. Mutually exclusive conditions and only 2. 

Alt contingent remainder grantor rights

Reversion bc common law contingent remainders are destructible

Defeasible fees

When condition is not death

Fee simple determinable

Condition for transfer with condition taht is not death, and if fails, authomatically goes back to og grantor. Possibility of reverter

Wood v Fremont County

Wood has fee simple absolute. Conveys land to Fremont county for purpose of constructin ghospital. Deed doesn’t have language for automatic or right to take back. Conditions tending to destroy estates are not favored in the law so will not interpret such condition unless unequivocally indicates intention. So court decides deed was just expressing what Wood wanted, but didn’t indicate requirement.

Martin v Seattle

Land in lake seattle. Conveyed to seattle for constructing lake washington boulevard. Condition that city permits the construction of a boathouse in front o fthe deed strip and the city would acquire land for that purpose. If doesn’t follow, Dodge has right to re entry. Seattle has possessory estae of fee simple subject to condition subsequent. 1913 Seattle acquires land but then city must use it as a park so breaches condition. 1983 sucessors of Dodge try to exercise right of re entry. Court says too much time passed, should’ve been reasonble. Lived right by land so knew land was a public park. 

Wills v pierce

Will dictated condition to use home only or revert back to grantor. Could be condition subsequent or determinable, ambiguous. Wills died and passed onto family. Tilley died and passes onto Pierce. Wills stopped living in home. Wills argued had fee simple absolute whole time. Court said too constraining that said can only live here, incompatible to live in without selling. 

Executory interests

Future interest that can cut short a condition.

Fee simple subject to an executory limitation

Executory interest for future interest created in someone else

Shifting executory interest

grantee to grantee

Springing execturoy interest

Grantor to grantee

Rule against perpetuities

Common law device for eliminating grantee future interest that might vest too far in future. Default is 21 years

What does rule against perpetuities apply to?

Future interests created in grantee (contingent remainders, vested remainders, subject to open). Does not apply to revert, possibility of reverter and right of entry

3 situations to know for RAP

Future interest created in grantor (does not apply); Executory interest that will vest or not based on condition clearly happening during named person’s lifetime (Rap applies but not violated); Executory interest that will vest or not based on condition that could happen at any time (RAP applies and violated)

“But if it is not used as XX”

Courts will strike out offending language, leaving no future interest. Just possessory estate in fee simple absolute

Klmaath falls v bell

DG investments will “to city of Klmaath, so long as used for a library, and thereafter unto XX and XX, their heirs and assigns. Executory interest so RAP applies. Violated bc use of libraryh is indefinite. Court revised interest to possessory estate. infee simple determinable, so possibility of reverter. 

How to avoid RAP?

A to B and A to C, tso dif transactions and no executoryh interest to a third party C so doesn’t violate.

If words of codnition

Delete exectuory interest

Doctrine of destructibility of contingent remainders

Not common anymore. If contingent when life estate ended, remainder destroyed. Now in modern times, reversion holder will get possession to see if contingency iss met.

If words of duration

Turn exectuory interest into possibility of reverter

Heir language

If “and heirs”, still fee simple and heirs get nothing. If “then heirs”, contingent remainder while still alive

Durational language

Until, so long as, as long as

Conditional language

On condition of, provided that, but if she does

Co ownership

Multiple people simulatenously own property

Types of co ownership

TEnancy in common, joint tenancy and tenancy by entirety

Tenancy in common

Each tenant has separate and undivided interests in whole property. Fully alienable, devisable and descendible

Joint tenancy

Single owner, trtaditionally equal shares. Right of surivorship so when one joint tenant dies, interest disappears (goes back to other tenant). Not devisable or descendible.

How to create joint tenancy

Express intent to create AND four unities: title, time, interest, possession

4 unities

Time: interests acquired at same time; title: same doc/deed; interest: shares must be equal distribution; possession: equal rights to possess the whole

Modern law presumption for co ownership

Tenancy in common unless clear requirements met

Under traditional common law, how to create joint tenancy?

Convey properly to 3rd party and then have party give to A and B as joint tenants. Some jurisdictions allow joint tenancy between self and B w/o strawman

James v Taylor

Language in will was ambiguous, said 3 kids and heirs. Arkansas statute says tenancy in common unless expressly declared joint tenancy. Extrinsic evidence of bank accounts that removed children who died implied joint tenancy but can’t accept evidence and ignore statute so tenancy in common

Modern approach joint tenancy

Strawman isn’t required so ignore unities issue of time and title

Severing joint tenancy

When joint tenancy becomes tenancy in common. Can be caused by violation of four unities: one joint tenant transfers interest (strawman or transfer to self); lease may be severing

Riddle v Harmon

Married and had child Valerie Harmon. Remarried and has more kids and upset joint tenancy of property so wants to sever. Lawyer executes deed ot transfer interest to self as tenant in common. Can she do it without a strawman? Yes bc allows for creation of joint tenancy, not changing rights of tenants, and other states have already implemented no strawman rule

Tenhet v Boswell

Tenhet and Johnson are joint tenants. Johnson leases to D for 10 years and then dies. Does this sever joint tenancy? Court says has to go with right of survivorship and lease extinguished but does not sever so still joint tenancy.

Severance and notice

Some states require written noticve if no consent to party, if a lease doesn’t sever it, then cut the lease short or keep lease

Severing joint tenancy options

Consent, violation of 1+ unity like transfer interest to self or lease severing

Partition

ends co-ownership and distributes property between co-owners, can be voluntary or involuntary

Types of partition

In kin or by sale

In kind

Splitting up propety physically

By sale

Property is sold and proceeds are divided

Delfino v Vealencis

Delfino had 69% of property and wanted to build a structure for development. Brought action for partition by sale bc wanted to buy V’s land by putting it up for sale and immediatley buying out. V had 31% and used it for house and rubbish business. Wanted partition in kind. Trial court allowed partition in sale. Sec code defaults to partition in kind and sale if promotes interests of the owners. Used statute and Conn requirements like physical attributes of land. Said trial court incorrectly claimed difficult divsion. D said better use, economic, proposed maximum value. V said lose business license and home and had exclusive possession for long time. Court said in kind

Partition statute default

Partition in kind, but may do sale if better promoting interests of the owners. Protecting real property interests but forcing sale is removing property interest

Heirs’ property

Subset of tenancy in common ownership. Highly factionated tenancies in common resulting from interstate sucession since default ownership is tenancy in common. Split up into tiny interest. Disproportionately impacts black land owners. Leads to land loss and wealth loss

Factors that make vulnerable to loss

Fractionation from interstate succession as tenancies in common. Each owner has right to alienate. Right to force partition. De facto preference for partition by sale

When will Partition by sale be used

Better promote interests of owners AND physical attirtubtes of land make partition impracticable or inequitable

Spiller v Mackereth

Spiller owns half and Mackereth et al owns other half. Autorite rents to both but then leaves. Spiller moves into whole space. Mackereth sends letter to pay rent or vacate that half. Did not meet def of ouster bc letter didn’t actually say as denied right to possess or ask for keys and rejected. Spiller can’t claim adverse possession bc acknowledged ownership with partition

Spiller majority vs minority

Majority says not enough. Minority says could be enough, or constructive if behavior is enough

Ouster

Claim of absolute ownership and occupying owner must have denied non occupying co owners right to enter. Or for adverse possession, starts running clock for statute of limitations

Suarez v Herrera

Granddaughter of og property moves in while other grandchildren didn’t move in ever. Who owns the house, was it open and notorious and hostile? Hard to do for adverse possession bc had the right to enter so not on notice. Needed ouster. Put on deed as sole owners but not enough bc should’ve communicated to co owners more clear, not owner

Spiller v Suarez

Spiller: I am going to adversely possess your interest in the house

Suarez: I am sole owner of this house