Property Law

S25 McFarlane Property Course

Acquiring Property: Discovery Rule

Chain of title supersedes chain of possession

Personal Property SOL Rule

SOL beings when owner discovers the property missing

Acquiring Property: Antelope Rule

claims to return captives as property depends on the law of the nation; sovereignty = all nations are equal

INS v AP Rule

published news is quasi-property subject to protections

Types of IP Protections (3)

• copyright = protects original works of authorship [70+ years]

• patent = property rights for types of inventions [20 years]

• trademark = protects words, phases, symbols, designs [10+ years] & renewable]

Acquiring Property: Capture Rule

A person can make unowned property their own through 1st possession

Acquiring Property: By Find Rule [Armory v Delamirie Rule]

A finder prevails against all others but the true owner or prior possessor

Christy v Scott Rule [By Find]

a prior peaceable possessor will prevail against the subsequent possessor or trespasser

Moore v Regents of U of CA Rule

no privacy/property rights to cells/cell lines because cells are not unique, and ownership goes to whoever creates something new from the cells

Adverse Possession [Actual Ocean 20x]

-Actual Possession

-Open

-Continuous

-Exclusive

-Adverse [hostile]

-Notorious

-20-year statutory period

Actual Possession

using the property in the same way the reasonable owner would

Open

Possession is so visible and obvious that a reasonable owner who inspects their land would not an adverse possession 

Continuous

possession only needs to be as continuous (or sporadic) as a reasonable owner 

Exclusive

land is being used exclusively; cannot be shared with the owner/public; owner also cannot interrupt the exclusive possession by retaking possession

Adverse/Hostile [2 tests]

Majority/Objective Test = use land as a reasonable owner would without permission from true owner

Minority/Subjective Test = a belief in good faith that the patron owns title to the land [innocently/buy mistakenly take possession]

Notorious

has a reputation as the owner in the community; others believe the possessor is the true owner

Tacking

the adverse possessor can tack on time of the previous possessor to meet statutory requirements if the transfer was voluntary [privity] 

Tolling

period for adverse possession is extended/tolled when the owner cannot protect their interests due to disability [minors, incompetent, imprisoned, insane, impaired, etc.] 

Color of Title

when an actual deed exists, but the deed is ineffective for one reason or another 

Trespass

intentional; physical; unprivileged; intrusion; onto the land; of another

Types of Privilege that Defeat a Trespass COA

-Consent = explicit or implied

-Necessity = access to prevent more serious harm to persons/property

-Public Policy = reason for accessing land furthers public policy 

Remedies for Trespass

-Compensatory Damages = recover the value of damaged property

-Injunction = court may issue to prevent future trespass

Nuisance

conduct that interferes with the use/enjoyment of the land other than physical entry

Types of Nuisance

-Public: unreasonable interference with the public right

[usually relating to public health/safety/substantial inconvenience/annoyance to the public]

-Private: interference with a private landowner’s use/enjoyment

Elements of Nuisance

-Intentional  

-Non-trespassory  

-Unreasonable  

-Substantial interference  

-With use/enjoyment of plaintiff’s land  

Nuisance Per Se

conduct considered to be a nuisance by statute

Remedies for Nuisance

-Injunction  

-“Balance of Equities” = defendant pays for permanent damage to compensate plaintiff’s tolerance [Boomer Rule] 

-Purchase Injunction = plaintiff pays the defendant to stop the conduct because the defendant was there first [Spur Industries] 

Right to Light/Air Rule [Fontainebleau Rule]

property owner is only liable for causing injury to a neighbor’s rights to property that are protected by law, and there is no legal right to the flow of air and light from a neighboring property

Prah Rule [sunlight rule]

private nuisance law is applicable in disputes arising from access to sunlight

Fee Simple Absolute

-Lasts forever & cannot be cut short, court defaults here if ambiguous  

-Doesn't terminate if it’s conveyed to another or the grantor dies --> just transfers to infinite new owners

Defeasible Fees

can be terminated under certain conditions; subject to a restriction

Fee Simple Determinable

Present interest that automatically terminates when a specific event/condition occurs and future interest vests automatically 

What is the future interest for a Fee Simple Determinable?

Reverter = back to grantor or heirs

Fee Simple Subject to Condition Subsequent

Grantor has the right to reenter/take back the property & terminate the estate if a barred event/condition occurs

What is the future interest for a Fee Simple Subject to Condition Subsequent

Reverter if the grantor exercises that option; not automatic

Fee Simple Subject to Executory Limitation

Transfer of property to a 3^rd party if barred event/condition occurs

What is the future interest for a Fee Simple Subject to Executory Limitation?

Executory interest held by a 3^rd party

-Shifting = 3^rd party is taking property from original grantee

-Springing = 3^rd party is taking property from original grantor

Life Estate

lasts until the end of the person’s life then automatically terminates and shifts to future interest

What is the future interest for a Life Estate?

Reversion or Remainder

What is a reversion life estate future interest?

A future interest that goes back to the grantor (or heirs)

What is a remainder life estate future interest?

A future interest that goes to the 3rd party; two types = vested & contingent

What is the definition and type of vested remainders

Elements = born, ascertainable, no express condition precedent

Types:

-absolute: cannot be terminated by future condition

-subject to open: shared by a group who’s share will decrease as new members are added

-subject to divestment, terminates if a future condition occurs

What is are the types of contingent remainders

-precedent: a condition that must occur before the interest becomes possessory

-subsequent: a condition that occurs after whoever holds the remainder takes possession

What is the contingent remainder future interest?

reversion back to grantor if contingency doesn’t happen

What is the rule against perpetuities rule?

Future interest must vest no later than 21 years after the death of some person who is alive at the creation of the interest

What is the policy interest for the rule against perpetuities?

promotes alienability/productive use of land

What are the policy reasons for the rule furthering marketability?

-promotes efficiency

-promote liberty

-promote equality

What are the types of restraints under the rules furthering marketability?

-Direct Restraint

-Indirect Restraint

-Total Restraint

-Partial Restraint

Direct Restraint [Rules Furthering Marketability]

directly forbids transfer & owner loses their interest if they transfer; typically barred by the court

Types of Direct Restraint [Rules Furthering Marketability]

-Disabling

-Forfeiture

-Promissory

Indirect Restraint [Rules Furthering Marketability]

language of conveyance limits transfer by restrictions on land

Total Restraint [Rules Furthering Marketability]

complete/absolute prohibition on alienation

Partial Restraint [Rules Furthering Marketability]

restricts alienation by a specific method, group/method, or length of time

Concurrent Ownership

more than one person may have the right to control the same thing at the same time

3 Types of Concurrent Ownership

-Tenancy in Common

-Joint Tenancy

-Tenancy by Entirety

Tenancy in Common

each owner has a share of the property, no right of survivorship, and each tenant has the right to possess and use entirely, transfer unilaterally, devise it, or have it inherited

Carr v Deking Rule [Co-Tenant Rule]

Co-tenants operating under a Tenancy in Common can lawfully lease their own interest in the property to another without consent of the other co-tenant. A lessee steps into the shoes of the leasing co-tenant

How does a termination of a co-tenancy work?

Tenants can file to terminate co-tenancy & divide the property via an action for partition

What is a partition in kind for co-tenancy termination?

physically divide the property among co-tenants [courts prefer this]

What is a partition sale for co-tenancy termination?

sell and split among co-tenants

What do you need to prove to overcome the court’s preference for a partition in kind resolution to the termination of a co-tenancy?

-Property cannot be conveniently partitioned in kind 

-Interests in one or more of the parties will be promoted by the sale  

-Interests of the parties will not be prejudiced by the sale [economic/sentimental value considered]

Joint Tenancy

all joint tenants have equal shares, and the surviving joint tenant(s) automatically inherit the deceased joint tenant's share upon their death [right of survivorship]

What is the 4 unities test under joint tenancy? [PITT]

-Possession = all joint tenants have the right to possess the entire parcel

-Interests = all joint tenants possess equal future interests that last the same amount of time

-Title = all interests are acquired by the same title

-Time = all interests are created by the same moment in time

What severs a joint tenancy?

The sale of the interest to someone else

What is the traditional approach of severance under joint tenancy?

leasing the property to someone outside of the joint tenancy severs the joint tenancy because conveying a property interest destroys the interest & possession unities 

What is the modern approach of severance under joint tenancy?

leasing the property to someone outside of the joint tenancy does not sever the joint tenancy because there is no intent to sever or transfer

What is the rule on severance of a lease one the leaser dies? [Tenhet Rule]

a lessee can be ejected once the person that leased it dies

Tenancy by Entirety

requires co-tenants to be married at the time of purchase and includes a right of survivorship

What are the rules on transfer/severance under tenancy by entirety?

-Both parties must agree to transfer [no unilateral conveyance] 

-Severable by divorce or death  

What is an ouster?

affirmative act in which a co-tenant in sole possession excludes another co-tenant from the jointly owned property

What the requirements for ouster?

-Actual

-Constructive

-Hostile Relations

-Impracticability

What is the rule for a constructive ouster? [Olivas R

a co-owner can be ousted in ways other than the traditional affirmative physical act [regular ouster]

What judicial accounting under tenancy by entirety?

recovery for expenses

Servitudes

legal device that creates a right or obligation that runs with the land [one party endures a burden for the benefit of another]

What are the types of servitudes?

-License

-Easement

-Real Covenant

-Equitable Servitude

What is a license? [servitude]

limited right to use/enter land that is revokable at will & non-transferable

What is a easement?

right to cross or otherwise use someone else's land for a specified purpose; either express or implied

What are the types of express easements?

-Appurtenant Easement

-In Gross Easement

Appurtenant Easement

a written easement that is permanent, transferable, and runs with the land [not owner]

Elements of an appurtenant easement?

-In writing

-Intent

-Notice [actual, constructive (recorded), inquiry]

What are the types of estates in an appurtenant easement?

-dominant = benefits the land

-servient = burdens the land

In Gross Easement

a written easement that personal to the grantee only, doesn’t run with the land, exclusive to use by the benefitting party only, and only has servient estate  

Types of In Gross Easements?

-personal = between friends/neighbors [non-transferable]

-commercial = usually reserved for utility companies [transferable to similar companies]

what is an implied easement and it’s requirements?

can be made either orally or in writing; requirements

-land is severed from common owner

-use for the implied easement is claimed prior to the severance

-the easement is reasonably necessary to the enjoyment of what is claimed to be the dominant estate

What are the types of Implied Easements? (4)

-Easement by Estoppel

-Easement by Prior Use

-Easement by Necessity

-Easement by Prescription

Easement by Estoppel

An implied easement that has irrevocable licenses

How is an easement by estoppel deemed to be irrevocable?

-detrimental reliance

-unjust enrichment

Elements of an Easement by Estoppel? [PFCF]

-Permission from the owner to use the land 

-Foreseeable and reasonable reliance that permission will continue  

-Changed position by the claimant (usually through significant purchases) in reliance on that continuation of permission   

-Finding an easement is necessary to prevent injustice 

Easement by Prior Use

When an owner forgot to reserve an easement when parcels are split; must be reasonably necessary to the use of the land

Elements of Easement by Prior Use [UCEAN]

-Unity of ownership (it was once all one parcel)  

-Continuous (Permanent adaptation of property for particular use)  

-Existing use (from before divided)  

-Apparent (Discoverable by reasonable inspection) 

Easement by Necessity

used when a parcel of land is landlocked; may lay dormant for many transfers but is appurtenant to the land and can be exercised at any time

Elements of Easement by Necessity [UN]

-Unity of ownership  

-Strict Necessity (only reasonable way of ingress and egress)  

Easement by Prescription

what a non-owner gets when their actions are limited to a narrow use of another’s land [use, not ownership] (not AP)

Elements of Easement by Prescription [OCEAAAN x20]

-Open

-Continuous [regular/ consistent use] 

-Exclusive [less important; acquiescence is more important here. Mention it but move on] 

-Actual use [not possession, just use] 

-Acquiescence [landowner has knowledge of use and passively allows it to happen but gives no express grant of permission] (focus on passive part for this element)  

-Adverse/Hostile [no objective or subjective test; just shows lack of permission from owner] 

-Notorious  

-x 20 = Statutory Period [tacking/tolling apply] 

Ways to terminate an easement

1. Release = agreement in writing which terminates the easement  

2. Terms of the agreement = Ex.) sunset provision in the deed  

3. Merger = owner of the servient estate becomes the owner of the dominant estate  

4. Abandonment = must show owner of the easement intended to abandon it. Requires a very high standard; have to show more than non-use  

5. Frustration of purpose = purpose becomes impossible to accomplish, or the easement no longer serves its intended purpose  

6. Adverse prescription = doing something contrary to the easement for requisite time  

7. Failure to comply with statute = basically re-recording acts require an easement to be rerecorded every few decades (depending on the statute) in order to be valid 

Real Covenant

negative servitudes; restriction on the use of land or obligations regarding land held by someone who does not own the land

Remedy for covenants

Damages

Types of covenants

-Negative = prohibits use of the land (i.e. “Residential use only”) 

-Affirmative = forces owner to participate in certain activities (i.e. “Must cut grass every week”  

Elements of real covenants

-Touch and concern

-Writing

-Intent

-Notice

-Privity

Define the touch and concern element of real covenants

a covenant must exercise a direct influence on the occupation, use, or enjoyment of the land to satisfy “touch and concern”