Property

Property is?

An asset or things that can be bought, sold, or given away

• A set of rights and duties among people with respect to things

• To use, exclude, manage, profit from, modify, & transfer

Classifications of Property

1. Lost - unintentional parting with the property (involuntary)

• Stolen property is lost cause unintentionally parting

2. Abandoned - voluntary rejecting (no claim over property)

3. Mislaid - intentionally placed, but afterward forgotten (voluntary parting, intending to return)

4. Tresure Trove - property that is very antiquated

Who gets lost property?

• Lost, Abandoned, Treasure Trove = finder

• Mislaid - OOLIQ (owner of locus in quo - place where property was found)

  • Thief never get title rights!

Rule of Capture

• Substantially deprive it of its liberty with little to no chance of escape, OR

• Mortally wound and chase, OR

• Kill it

  • Think: wild animals or fugitive minerals (wild pieces of property)

Types of Gifts in Property

• Inter vivos gift - irrevocable

• Causa mortis - revocable

• Wills - revocable anytime before death

Inter Vivos Gift

(Irrevocable when made; not irrevocable it’s not a valid gift)

1. Present donative intent

2. Delivery

   • Actual - physical transfer of property (manual/traditional)

   • Constructive - provides access to gift (keys) & give up dominion and control

     • Rare

   • Symbolic - something that represents the property (written/letters)

3. Acceptance

   • “Between living people”

Causa Mortis Gift

(if the donor doesn’t immediately die, or dies from something else, the gift is revoked, as delivery is immediate and revoked)

1. Expectation of immediate death

2. Actual death from the thing must follow

3. Delivery (has to be actual, but could be symbolic)

4. Present donative intent

5. Acceptance

Wills

(Revocable at anytime before death)

• Donative intent is future oriented

• No delivery needed for wills

• Holographic wills - “homemade wills” generally without legal aid

  1. In writing

  2. Signed by the testator

  3. Signed by a notary or by 2 present witnesses

Adverse Possession

(Helps clarify ownership as it makes legal what is factual) » “Always Eat Cookies On Nice Holidays”

1. Actual - a) use land as average owner would b) considering nature of land

   1. KEY: is the possessor acting like the owner

2. Exclusive - exclude the a) True O & b) the public

3. Continuous - all the time for the entire period of SOL, consistent with nature of land

4. Open & Notorious - must be significant;y visible such that the title holder knows or would have knowledge of trespass upon reasonable inspection

   1. True O doesn’t have to know just open and notoriously could have (aka not hidden)

5. Hostile - treating like like his own; without permission of True O (claim as own/of right)

Intent & Adverse Possession

• Maine - bad faith (intent to steal)

• Connecticut - who cares about intent at all

  • Hostility means hostile to title - acting against owner’s right

• Iowa - needs to be good faith

  • Didn’t know it wasn’t yours

(To differentiate adverse possessors from squatters - squatters always lose)!

Tacking

Allows previous and current occupants time to ADD together to satisfy SOL: 2 requirements

1. There is privity between occupants (either by consent or operation of law)

2. The parties need to possess the same thing that same way

Tolling

Simply a temporary pause on the SOL

1. Only care when owner is under a disability (age, military, or mental incompetence) at the INITIAL start of adverse possessor’s possession (if before, continue, if after does not apply)

2. ALWAYS read the statute but time is NEVER less than the SOL (always add, never subtracts)

What is real v. personal property?

• Real - land & stuff attached to buildings

• Personal - chattels (goods/stuff other than real property)

2 Kinds of “Present Estates”

1. Freehold Estates

   1. Life Estates - “To A for life”

   2. Fees - Fee Simple Absolute, Fee Simple Determinable, Fee Simple on a Condition Subsequent

2. Non-Freehold Estates

   1. Term for Years

   2. Tenancy at Will

   3. Periodic Tenancy

   4. Tenancy at Sufferance

Freehold Estates: Fees (3)

“To A and his heirs”

• Fee Simple Absolute

  • All the bundle of sticks and its all yours

  • Highest form

• Fee Simple Determinable

  • Grantor automatically gets back if the condition is broken

  • “So long as” / “during” / “until”

• Fee Simple on a Condition Subsequent

  • A right of entry for a condition broken (not automatic)

  • Grantor can reclaim, if they so choose

  • “But if” / “Provided that” / “On condition”

Freehold Estates: Life Estates

“To A for life”

• Present interest that terminates on the death of an individual whose life serves as the governing life

• A reversion is the interest that remains with the grantor (or their successors) who transferred the life estate

Non-Freehold Estates

• Term for Years

  • Fixed start and end date

• Periodic Tenancy

  • Fixed period, but automatically renews

  • Unless proper notice - needs to equal the period

• Tenancy at will

  • Terminated at any time without prior notice

  • BOTH sides can terminate (can’t be unilateral)

• Tenancy at Sufferance

  • Enters rightfully but remains

  • Either trespasser or periodic tenant

Kinds of Future Interest (3)

1. Reversion

2. Reminders

3. Executory Interest

Future Interests: Types of Remainders (4)

• Vested RDR - limited in favor of specified people

  • No more added or taken away

• Contingent RDR - limited in favor of an unborn/unknown person whose interest is subject to a condition precedent

• Vested RDR subject to open - limited for a certain class of people & there is no unmet condition precedents

• Vested RDR Subject to complete divestment - subject to being taken away upon the occurrence of a specified condition

Future Interests: Executory Interests (2)

(Gaps)

• Springing executory interest - Where true O or O’s heirs have possession until the condition happens and automatically transfers

  • Direct from grantor

• Shifting executory interest - from someone not O

  • Not direct, some grantee

  • ALWAYS follows a Vested RDR Subject to Complete Divstment or Fee Simple on a Condition Subsequent

Concurrent Estates

(Each party shares the right to possess the whole property at the same time)

1. Joint Tenants w/ Right of Survivorship

2. Tenants in Common

Concurrent Estates: JTWROS

“To A and B as joint tenants with right oif survivorship and not as tenants in common”

• Always equal when alive

• When one dies so does their interest

  • Can sell/give away while alive, but share that is sold becomes tenancy in common (can’t give ROS)

• Severance = terminate ROS with respect to the part that is severed

  • Ex: A » Q

4 Unities: Time, Title, Interest, Possession

Concurrent Estates: Tenants in Common

(What you would think - “normal” can leave in will)

• Decide among ourselves and doesn’t have to be equal

  • Alienable, descendible, and divisable

    • Tranferable, go to heirs, and left through wills

• Can be partitioned (divides the 1 big co-ownership into smaller individually owed parts - potential pay for enhanvements and repairs)

  • Rent paid by a tenant or ouster by any 1 of the tenants

What is a leasehold?

The tenant has right to own and occupy the space with terms set out in the lease

Deliverance Covenant & Holdovers

• Holdover - someone staying past their lease:

  • American Rule - LL has to deliver right to possess (give keys)

    • New TT’s problem

  • English Rule - LL has to deliver the premises (get others out)

    • LL’s needs to evict (no delivery of possession = no rent)

Covenant of Quiet Enjoyment

Peaceful possession from LL

1. LL themselves

2. Claiming through LL

3. 3rd party claiming superior title

*Not from strangers/neighbors

This and rent go together; eviction is when the LL deprives the tenant of the Right to Q/E

Eviction 2 Types

• Actual - “get out of here”

  • TT out of there (can be partial, but LL takes property)

  • Changing the locks

• Constructive - miserable

  • Interception with use, but no actual taking of property

    • Ex: cutting off heat, blinding lights, etc.

  • “Impossible” to use property » TT has to move out

    • Substantial and material deprivation

  • Landlord has a duty

  • Substantial interference

  • Tenant gives notice and Landlord has opportunity to remedy & cure

  • If the landlord fails to remedy, Tenant must vacate the property

Transfers of a Leasehold Interest (2)

• Assignment - separate from the lease (ENTIRE interest)

  • “stepping into the shoes”

  • Pays rent to LL (directly)

  • Full length of old term

  • Think T1 moved away and surelyship

    • (jaber v. miller) - he had to continue to pay cause assignment $ not rent

• Sublease - whole new lease (subtenant; T1 keeps some interest)

  • Pays rent to T1 (could be new terms)

  • Think vacation

  • OG lease terminates so does sublease

Privity of K v. Privity of Estate

• K - created by contract

  • LL & T have P/K (if T assigns to someone else may still be liable)

• Estate - created by land & occupant of the same land

  • LL & current occupant

Assignment - LL/T = P/K & LL/Assignee = P/E

Sublease - LL/T = P/K only (LL cannot sue subtenant directly and S)

Servitudes (3 Types)

1. Easements

2. Real Covenant

3. Equitable Servitudes

Easements

Private way to limit land usage

• Dominent & Servient

3 Types:

1. Express

2. Implied

• Prior use

• Necessity

3. Prescriptive

• Appurtenant - attaches/goes with land

  • Default

  • The benefit (dominant)

  • The burden (servient)

• In Gross - personal

  • Think “People are Gross”

Express Easement

1. In writing/oral

2. Normally created by deed

• Language for apputenant easement “for the property” / “benefit of the property” / “runs with the land”

  • If ambiguous, Courts look at what makes sense, no default rule

  • Ask if it is valuable to the land/location —> regardless of the party’s location

• There FOREVER unless built in termination

Implied Easement by Prior Use

• So apparent and necessary you assumed easement existed

1. Common ownership of the land (unity of title/unified parcel)

2. Severance (of the title)

3. Prior use (at time of severance)

• “Use” was in the use at severance in the same way for the benefit of the severed land

4. Apparent & intended to be permanent

5. Reasonably necessary

Implied Easement by Necessity

• “No idiot rule” wouldn’t have bought the land without easement

1. Unity of title (during common ownership there was access)

2. Severance

3. Landlocked by severance (as result of severance the property at issue is landlocked)

4. Easement is strict necessity (mere convenience is not enough)

• Easement is created at time of severance

  • If necessity arises later, you lose (severance creates the necessity)

Prescriptive Easement

• Behave like easement owner

1. Adverse (claim of right)

2. Continuous & Uninterrupted (use not possession)

3. Open & Notorious

4. Exclusive - just you and true owner (not the public)

5. Acquiescence - consent/permission by silence (didn’t say yes, but didn’t say no; passive assent)

6. for the “prescriptive period” - assuming same as adverse possession so SOL & tacking allowed

• If permission comes in before period ends - kills acquiescence element & cause of action

Implied Secondary Easement

*Not really a thing, more of you have the right to maintain and use without owner interfering with the access to your easement

• Test is reasonableness - lest damaging alternative you can possibly do

• Looking at scope:

  • What is the easement for?

  • Where is it?

  • What land does it benefit?

• Based on rights:

  • Right to enforce easement, AND

  • Right from servant owner from interfering with easement use

Ways to Misuse/Defeat ANY Easement

1. Use it for un-intended use (wrong use)

2. Use it to benefit other/wrong parcel (wrong land)

3. Use it too intensive (too intensive)

• You will lose easement (forfeiture)

• May get chance to fix it (short term) —> cure = grace period

Real Convent v. Equitable Servitudes

*Key is the relief sought

• Real Convent - through Law and Courts. Remedy seeking is damages

• Equitable Servitude - through Courts of Equity. Remedy sought is injunction

Real Covenant

*Through law and $ » “witch”

1. Agreement

2. In writing

• Satisfy SOF - must specify and describe the land

3. Intent

• Both benefit and burden intend to run with the land

4. Touch & Concern

• Pick test: regarding ownership; economic impact; legal rights; restricts one’s use; & enjoyment of land

5. Privity (BOTH vertical & horizontal)

• Horizontal - parties to OG covenant have to be in privity

  • Grantor/Grantee relationship OR shared interest in the land

  • Either have it or you don’t (measured by original parties)

    • Neighbors no horizontal privity as not same land!

• Vertical - the relationship down the chain of title

  • “Normal chain of title” - Deed, purchase, conveyance, etc.

Equitable Servitude

*Through equity and injunction

• NOTICE - key

1. Agreement

2. NOTICE

• Actual knowledge - you knew

• Record - in the records & duty to look

• Inquiry - some fact on the ground that would make reasonable person ask

3. Involves/Regards the use of land (same as touch and concern)

4. Intends to attach - run from owner to owner (binds future owners)

Implied Negative Reciprocal Easement

*There are no implied easements, really a equitable servitude BUT context of subdivisions

1. Common grantor (originally a single lot development)

2. General Scheme about land - think BIG - almost every deed is restricted

3. All benefit from the common scheme

4. Covenants in MOST deeds - uniformity

5. Defendant must have notice - lots without restrictions, but most deeds have restrictive covenants on them

6. Binds retained land (by grantor)

• Can’t already own land, then restriction happens, and try enforcing it (wasn’t retained by grantor prior to restrictions)

Ways to Defeat ANY Covenant

1. Change conditions doctrine - no benefit remaining, therefore no covenant

• A fundamental change

• Not only changed condition, but changed conditions eliminate the benefit covenant was supposed to provide

2. Waiver & Abandonment - violates who have gotten away with it

• Substantial enough to make it inequitable to enforce it against this one

• Not saying no now may have consequences later

Deeds

• A document that shows that ___ is a piece of real property belonging to me.

1. Grantor Identified

2. Grantee Identified

3. Words of Conveyance - present tense language

4. Signed by Grantor

5. Actual Delivery (w/ acceptance presumed

• If recorded delivery & acceptance presumed

6. Specific & Identifiable description of the property at issue:

   1. Mets & Bounds - roadmap

   2. Government Survey - Grid

   3. Plats - sub-divisions

Deed Covenants

*6 total - 3 present & 3 future —> If warranty deed all automatically included, written or not

1. Covenant of Seisin - a promise in a deed where the seller (grantor) guarantees they legally own the property, possess it, and have the right to transfer it -

• I own it now

2. Covenant of Right to Convey

3. Covenant Against Encumbrances

- ^present at time deed is delivered (not before or after)

4. Covenant of General Warranty

5. Covenant of Quiet Enjoyment - a promise from the seller (grantor) to the buyer (grantee) that the buyer’s possession and ownership of the property will not be disturbed by anyone with a superior title claim

• Nobody will come along with a better title to kick you out

6. Covenant of Further Assurances

Title Assurances

1. Warranty Deed - the 100% food deed with all the promises

• All 6 covenants

• Can sue

2. Quitclaim Deeds - “I don’t know what I have, but I’ll give it to you”

• Could be buying blind/scammed

• Get insurance

• Seller not on the hook if not the owner

Recording Acts

*GOAL - people to record their deeds

*Preempts the “First in time, first in right” basic rule

1. Notice - Not valid against anyone with notice

• If recorded, then notice

• Look at time of conveyance

• “Nothing about first or earliest”

• Last GFP wins (no recording required)

2. Race - first to record wins

• “Not valid until recorded” / “Valid form time recorded”

3. Race-Notice - 1st GFP to record wins

• “In good faith” & “shall first record”

• Need BOTH GF & Record first

*If no “winner” under statute, then back to first in time rule.

Nuisance

*Clashing of incompatible property rights resolved by tort (not illegal use, just incompatible)

• Test - reasonableness of the use - the affect it has on neighbors

  • Balance/weigh of both property rights

• Rule: Intentional & Unreasonable

  • Intentional - purposeful/substantially certain

    • Know it will have result (not create nuisance, BUT will produce light/noise)

  • Unreasonable - gravity of harm outweighs the utility of actor’s conduct

    • Not lack of due care (that would be negligence), but about BALANCE

Nuisance v. Trespass

• Nuisance

  • Right to quiet enjoyment

  • Damages - need to prove injury

  • Result of an indirect/intangible invasion that interferes

• Trespass

  • Right to exclude

  • Damages - $ and presumed

  • Tangible stuff that intereferes