PROPERTY OUTLINE

Chapter 1- First Possession, Acquisition of Property by Discovery, Capture, and Creation

Who has the first possession? Prior possession is greater than subsequent possession (first possessor has more rights)

Acquisition by Discovery I. Doctrine of Discovery A) By discovering the land, the discoverer/discovering country has a right to all of the land (extent isn't clear, could be to next mountains, or the west coast in the case of the US). Discoverer has exclusive right to extinguish all rights that the natives have: by treaty, purchase, or conquest. B) title is based on discovery - you have to be the first country to discover it JOHNSON V. MINTOSH (pgs 3-17) FACTS: P purchased land from Native Americans in 1773 and 1775. With the treaty of Paris in 1783, the same land was granted to the United States Government from the British, who had "discovered" it . The United States sold the land to D in 1783. P made an ejectment suit against D and wants the land back. ISSUE: who had rights to the land? HOLDING: M'Intosh. Court referred to doctrine of discovery (see below). Court decided against P on the theory that the natives had no right to sell their land, as the European discoverers, and subsequently the US had that exclusive right. -Prior possession/ownership prevails in most cases. P argues that he had possession of the land before. However, since the discovery doctrine applies, the Painkeshaw indians had no right at all to sell the land to P. The property rights go back to the 16th century when Britain discovered the land, which was transferred to the US in 1783 with the treaty of Paris, and then was transferred to D. -Why werent the Indians the prior possessors? B/c at that time Indians were viewed as people worthy of discovery land -Indians still have right to occupy the land, but discovery right gives person right to land and the prime/only right to extinguish rights of the natives -P has bought the rights w/o them being extinguished b/c U.S. did not extinguish them until 1783, and he bought land before II. Discovery v. Conquest (p. 10) Discovery: sighting or finding of unknown or uncharted territory, accompanied by a landing and symbolic taking of possession B) Conquest: taking of possession of enemy territory through force, followed by a formal annexation of defeated territory by the conqueror. -we have westward development b/c we took over by force and eminent domain [govt demonstrated the purpose for the land and gave compensation]
A)

III. A)

Principle of First in Time (p. 11) "the institution of property was an agreement among men legalizing what each had already grabbed, without any right to do so, and granting, for the future, a formal right o ownership to the first grabber." B) Problem: eventually, everything would be owned, and there would be only private property. Acquisition by Capture Actual Possession A) Having an object in hand. Physical occupation, or fencing off land. Exclusion of others

I.

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B) II.

Genuine, manual, physical occupation of possessing a particular thing; can also include fence on your land

Constructive Possession A) Not "actual" possession in the physical sense, but as good. Usually by reason that an object is on someone's land, they are considered as being in possession. B) Legal fiction designed to achieve a particular policy result Inanimate Objection (Previously Unowned Object) Belong to the owner of the private land Includes naturally occurring inanimate objects, rocks, meteorite.

III. A) B) IV. A) B)

Animals If on land, have constructive possession, have sole right to acquire (get actual possession) Wild animals: if wild animals roam on landowners property he/she doesnt own them; however, ownership of the land gives them constructive possession of it (not actual possession) i. but ONLY while on their land; as soon as it goes onto others land, no longer have constructive possession ii. if animal wanders onto neighbors property, he/she has constructive possession iii. if wild animal is on public/open land: rightful possession to these animals is in the first person who reduces to actual possession (have to kill or mortally wound) iv. if wild animal is on private land: while animal is on your land, owner has right to it, but it is not true ownership- you have to acquire it C) Domesticated Animals: owner doesnt lose constructive possession if they wander off their land; but liability for damage by escaped domesticated animals is on the owner of the animal Oil and Gas Treated more or less like wild animals (rule of capture) Can tap into reservoir if on your land even if it goes under someone elses land. B) O has constructive possession of oil under his land; not absolute ownership, it flees to point of lowest pressure and neighbor may capture it under his land -if you put a well in and start pumping, it is your oil -if oil flows to neighbors land, it becomes neighbors property -neighbor may not trespass to get it- no slant drilling C) If reinjected, should gas be subject to doctrine of capture if dome is partially under someone elses land? -some early cases (Hammonds) treated it like wild animal; most cases (Manziel) do not i. Hammonds- gas subject to capture by neighbor; but reinjector not liable for damage ii. *Manziel- gas not subject to capture by neighbor; but reinjector liable for damage A) Water Rights Groundwater- rule of capture similar to oil and gas a. Riparian system: east of 100th meridian -enough water for everyone; riparian owner may take water and use it on riparian land b. Appropriative system: west of 100th meridian -water scarce; first person to use water has prior right Erosion & Accretion- like wild animals, soil flees; by erosion X loses but but by accretion Y gains it (lose minerals that are eroded off, gain minerals that are accreted on)

V.

VI. A)

B)

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a. Erosion: gradual, imperceptible loss of soil -if water/stream erodes it, its no longer yours b. Accretion: gradual, imperceptible deposit of soil c. Avulsion sudden, rapid shift in rivers court, property lines stay the same (no change in ownership) -X now owns land on both sides of the river PIERSON V. POST (pgs 17-23) FACTS:: Post (initial P) was chasing a fox, in hot pursuit (hadnt shot it yet) when Pierson shot it and took it. Post sues for "trespass on the case" (damages for trespassing on "his" fox). ISSUE: Who had first possession of the fox? HOLDING: Pierson. Based on the theory of "animalia ferae naturae" - wild animal. Only way to get possession of the animal is by actual possession(killing and getting it in hand) or constructive possession (mortal wounding, actual possession is near and certain) As Post had actual possession, and Post had not shot the animal, he had prior possession. This is counter to tradition, in which pursuit was considered first possession by sportsmen (discussed in dissent) Constructive possession -Not "actual" possession, but as good. Usually by reason that an object is on someone's land, they are considered as being in possession. Actual possession -Having an object in hand. GHEN V. RICH (pgs 23-27) FACTS: P threw a marked "bomb lance" at a whale, which sunk and died. Some time later, another party took the afloat whale and sold it to D. P sued for value of the whale. ISSUE: Who had rights to the whale? HOLDING: P (Ghen). Court decided by examining custom, in which marked lances are thrown at a whale, the whale dies, sinks, floats, and is recovered and returned to the owner of the lance. The finder was entitled to a percentage of the sale. As D violated this custom by not verifying the owner of the lance, the court found against him. P was in constructive possession from the time his lance killed the whale, thus was the prior possessor. KEEBLE V. HECKERINGILL (pgs 27-35) FACTS: English case. P installed a "decoy pond" on his property. Used to attract ducks for capture and sale. D came to P's pond, and shot 6 times, which scared the ducks away. ISSUE: Is such interference actionable? HOLDING: Yes. D unreasonably interfered with P's trade and business. Not every interference is actionable (if he had created a competing pond, OK). But, in this case, D reduced the number of marketable ducks, thus depriving people of the opportunity to buy them, damaging commerce overall. I. Acquisition by Creation Intellectual Property: General (p. 58-59) A) Common law provided no protection for intellectual property. The inventor owned the chattel that embodied the invention, but not the design of the invention. Today, exceptions have largely swallowed the common law rule B) Intellectual property- protecting that which intellectuals generate (what copyrights, etc. protect); give incentive to create inventions

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C)

Economic development demands some protection; how is that demand accommodated in our legal system? (through copyrights, trademarks, etc.) D) Designers can still protect their designs by putting labels on their clothes II. A) III. A) Copyright new works receive copyright protection for the authors life, plus 70 years after death (some exceptions)

Patent Person who invents or discovers any new and useful process, machine, or other invention and meets other statutory requirements can receive a patent B) Effective for 20 years from the application date C) Not renewable Trademark A word, name, symbol, or device used to identify and distinguish the products of a particular manufacturer or retailer B) Owners of trademarks are protected against use of similar marks by others when such use would result in confusion C) Obtained by registering the mark with a federal agency and using the mark in interstate commerce INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS (pgs 51-55) FACTS: P and D were competitors in the collection and dissemination of news. When AP publishes news it is released into the public domain. INS admitted to taking news that had already been disseminated, including info from APs actual papers and from public bulletin boards. INS uses the info, incorporates into own publications, and makes profit. AP sued for unfair business practices HOLDING: Court held in favor of AP One cannot have property rights in news information, b/c its a public good, but does have property right in news articles, b/c copying is plagiarism. Issue here concerns news information, not news articles However, Court approached issue in terms of unfair business practices Therefore, there is a quasi-property right in the news -when 2 competing news organizations are involved, each gaining their livelihood from beating the other's deadline, the use of such news, for profit, is a misappropriation (unlawful use of another's property or funds) of the other's product -b/c involves cost of organization, skill, labor, etc. -have a limited proprietary right in it vis a vis the competitor (but not the public) CHENEY BROTHERS V. DORIS SILK CORP. (pgs 55-69) FACTS: P manufactures silk designs for each season. Since designs dont remain popular for very long, and b/c its hard to determine which ones will sell, they dont qualify for patents/copyrights. D copies one of Ps popular designs in one season and undercut Ps price. P claimed property interest in the designs and sought a seasons protection of that interest HOLDING: Court held in favor of D In the absence of some recognized right at common law or under statutes, a mans property is limited to the chattels which embody his invention; others may imitate these at their pleasure P had no recognized right at common law or under copyright statutes The court cannot create common law patents for reasons of justice; relief is all-or-nothing, no in between, so there is no relief available

IV. A)

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Common Law rule: property rights are limited to tangibles that may embody a design, but no property in design itself -one cannot own ideas b/c they benefit society as a whole and promote innovation

Chapter 2- Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift
Acquisition by Find I. Lost Property Property is lost when owner has accidentally/unintentionally and involuntarily parted with his possession and doesnt know where to find it To determine whether property is lost, key factor is place where it is found: -judging from the place where found, would a reasonable person conclude that the owner had accidentally and involuntarily parted w/ possession of it and doesnt know where to find it? -if found on private property: rightful possession is in the finder, unless person is a trespasser -if employee finds it, the employer is in constructive possession Ex: wristwatch found on the floor of a public place The finder has a better title to lost property than anyone except true owner II. Mislaid Property Property is mislaid when, judging from the place where found, it can reasonably be determined that it was intentionally/voluntarily placed there and thereafter forgotten Ex: briefcase found on a desk, table, or counter given to original owner; idea is that owner will remember where he left it III. Abandoned Property A previously owned item that meets 2 requirements: 1) prior owner physically disposes of it 2) prior owner intends to relinquish all rights to it Owner intentionally and voluntarily relinquishes all right, title, and interest in the property Ex: keeping a refrigerator in a building that the refrigerator owner knew was to be destroyed How does one ascertain intent to abandon? -how long item has been there (the longer, the more likely it is to be abandoned) -value of the item (more expensive, the less likely youre going to abandon item) -difficulty of recovery Abandoned property becomes unowned property and goes to first possessor, who then becomes the own er and has a better right to it than all others Title to abandoned chattel is acquired by: 1) actual or constructive dominion and control over the thing 2) an intent to assert ownership over it Involuntary v. Voluntary -if owner of a chattel involuntary parts w/ possession of goods, they should be categorized as lost or mislaid -to show that a chattel has been abandoned, one must show that former owner voluntarily gave up and relinquished his ownership in the chattel IV. Treasure Trove

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Includes gold or silver coins or bullion, gems, jewels, money, etc. hidden in the earth or similar place suggesting burying with an intent to return Common Law rule: treasure went to the king (England) or the state (U.S.) Majority U.S. rule: often treated as lost property (b/c practically impossible to find owner) so it belongs to the finder against all others but the true owner; sometimes also treated as mislaid or abandoned (so might be given to landowner) Antiquities -Antiquities Act: says that when youre on properties such as national parks, forests, etc. you cannot take antiquities with you, they must remain there; it belongs to the people rather than you -considered mislaid property V. Shipwrecks Wherever the ship sinks, they own it -Ex: Ship sinks in shores owned by U.S., therefore U.S. owns whats on it Federal law- determined by law of state where found -Florida splits 50/50 with finder; this way people have more of an incentive to find and return b/c otherwise people get nothing VI. Estray Statutes Some states have legislation changing rules on lost, mislaid, and abandoned property Estray statutes- dont replace common law, supplement it 1) earlier form of response 2) advertise goods (found item) 3) in many states dfinder must also leave them w/ police or custodian; if not claimed, CL rules on lost, mislaid, and abandoned property apply ARMORY V. DELAMIRIE FACTS: P found a jeweled ring and took to Ds shop for appraisal. Ds apprentice pretended to weigh it, but stole stones instead. D offered P money for it, P declined and asked for jewel back. P only received the socket without the stones. P sued in trover (for personal property) for money damages -personal property+damages= trover -known today as conversion; idea is that you converted ones good into something else HOLDING: Court found in favor of P; P gets maximum possible value of the jewel unless D produces it RULE: Finder, while not the absolute owner and therefore doesnt have absolute property right, has a better right to possession than everyone else except the true owner -doctrine of prior possession When damages are at some unascertainable amount below an upper limit and when uncertainty arises from Ds wrong, the upper limit will be taken as proper amount (which is why P got maximum value) Why should we favor the first possessor? -it maintains peace, may enhance use and encourage investment, relative priority system fairly easy to administer, avoids difficult proof issue Terms 1) bailment: the rightful possession of goods by a person (the bailee) who is not the owner; you have given someone else right of possession) 2) bailee: person holding property in trust for another party; Example: Armory 3) bailor: true owner 4) involuntary bailment: The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor. In the case of found goods, the bailment is involuntary from

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the standpoint of the owner but not from that of the finder, who has, chosen to take possession; by doing so, the finder assumes the obligation of a bailee. Ex: owner loses ring, Armory found it 5) voluntary bailment: occurs when the owner of the goods (bailor) gives possession to the bailee; Ex: when you leave your clothes w/ a laundry mat 6) bailment/possession for mutual benefit: person delivers possession to you and you give them money; Ex: renting a car
Personal Property damages trover (former name; personal property+damages= trover) conversion (formerly trover; you converted my goods to something else) recover possession detinue (former name; if you own property, obtain possession of the goods) replevin (formerly detinue; action to recover possession of personal property) ejectment (recover possession of real property) Real Property trespass (if someone passes on your property, you can bring action of trespass for damages)

HANNAH V. PEEL FACTS: P was a soldier lawfully staying in Ds manor and found a brooch in a crevice during the course of military possession. P turned brooch over to police. When owner couldnt be found, police gave it to D instead of P. Although D owned the manor, he never lived there/possessed it. D sold brooch, then it was resold. D never had knowledge of broochs existence until incident. P sued claiming finders keepers, Ds defense is that he owned property where it was found HOLDING: Court found in favor of P -P had prior possession -D was not in constructive possession of broach just by the fact that he owned the land RULE: A landowner owns everything attached to or under the land, but not necessarily things lying on the surface of the land, even though it isnt possessed by someone else -brooch a chattel, its not attached or underground, and D doesnt have possession; P wins -finder of lost goods on private property prevails unless they are a trespasser, employee, or in special areas (public area) BRIDGES V. HAWKENSWORTH FACTS: P found a package in Ds shop that was lost by some third person. P asked D to find that person and return to them, but owner never found. P sued for return of package he found HOLDING: Court held for P -D was not in constructive possession of package by owning store; the area in front of the counter where package was found isnt completely private property b/c a customer (an invitee) is not a trespasser -P was first possessor and prevails against anyone except true owner

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RULE: The non-trespassing finder wins over the owner if the item is lost; finders keepers except to true owner -Lost: Accidental (dropped) -Mislaid: Placed intentionally and left behind (goes to the owner of the locus quo) SOUTH STAFFORDSHIRE WATER CO. V. SHARMAN FACTS: D was employed by P to clean Ps Minster Pool on his private property. D found gold rings embedded in the mud. P sought to keep possession of the rings HOLDING: Court ordered rings to be returned to landowner (for P) RULE: Possession of land includes possession of everything attached to or under it. It makes no difference that possessor isnt aware of items existence -landowner had prior possession of rings since ownership of land carries constructive possession of everything on, under, or attached to the land When a trespasser finds an object on someone elses land, courts are more likely to deem it mislaid and award it to landowner When an employee finds an object during course of employment, courts have often but not always deemed the object as mislaid and award to owner or employer MCAVOY V. MEDINA FACTS: P took wallet lying on table in Ds barbershop, gave to D to hold for true owner but owner never found. P demanded wallet back, D refused saying he owned it. HOLDING: For D RULE: Property left accidentally in a shop is mislaid property and the owner of the shop (landowner) has rights in the property -mislaid property are goods which are placed down voluntarily by owner and forgotten -mislaid property creates a bailment that the shop owner holds for the true owner and finder acquires no right in the property Acquisition by Adverse Possession I. General A) definition: Statute of limitations on the ejectment action B) after 10 year period, you get the land? C) a person who is in actual possession of land at the end of period of statute of limitations will have adverse possession D) Common Law rule: one cannot of adverse possession against the government II. Purpose A) It will be a time limit, after that person can no long come in and take over B) statute of limitations- to get the matters resolved in a period of time so people are still alive, facts are straight, and documents are still intact -when does the statute of limitations period begin to run? when the person moves on it, you have a right to bring a suit on whoever is adversely possessing it
III. Elements (5 things) A) Possession (either actual or constructive) B) [possession must be] Open, visible, and notorious- cant be hidden

-cant leave for a year and come back, SOL resets -notice: owner need to not actually see the possessor, but possessor must be available to be seen

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C) Continuous and peaceable- without interruption, either voluntary or involuntary

D) Exclusive -cant share it with others (including the owner) -exclude others from the land as the true owner would E) Hostile- without permission from the true owner -Minority of states also require: 1) sometimes need color of title (good faith deed that is mistaken; you inherited/bought a bad deed for property) 2) sometimes need claim of right (have to know that you dont own, but intend to take it anyway (legalized larceny). IV. Disabilities A) SOL doesnt run if adverse possession begins when owner is disabled. B) SOL starts at end of disability C) Includes: -minority (less than 18 yrs. old), incompetency, imprisonment

VAN VALKENBURGH V. LUTZ FACTS: Plaintiff bought land which was previously Def for 15 years in a foreclosure sale. After def cleared most of his belongings off the land which was foreclosed upon, but argued he still had the right to the traveled way to his remaining property, which was on property adjacent and behind the foreclosed land. The essential elements of proof being either that the premises (1) are protected by a substantial enclosure, or are (2) usually cultivated or improved. RULE: Under New York law, Lutzes never actually owned the land they claim was adversely possessed, so there was no adverse possession. The court goes right to the NY law, which sets out the requirements for adverse possession. One must own the land to claim adverse possession in the first place. There are two such ways in which one can prove ownership of the land: by either enclosing it, or by substantially improving it. Def did neither. The garden was never enclosed by anything. Additionally, the cultivation of the garden never utilized any substantial portion of the land, as it was too speculative of a claim to make the substantial claim. Def also claims he had a shed and other items on the property so as to show "a claim of title," which could provide proof as to the adversity this alleged dispossession has caused. However, the shed, a portable chicken coop, consistently cleared brush along the path, or even old furniture on the traveled way is not symptomatic of a claim. MANNILLO V. GORSKI FACTS: Def bought a house in 1946, and then raised the house in the summer of 1953. In order to do so, he made some changes to parts of the house, including some stairs (but did not change the width of them). Steps and front walk encroached on PL's property by 15 inches. DF contends they obtained the land through adverse possession through the state's statute of limitations, as no one contested the land before this suit. PL claims there was no adverse possession b/c there was no hostile intent to take the land to begin with. RULE: This court discards the requirement that the continued possession must be accompanied by a knowing intentional hostility and holds that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious. Mistake or intentional, when

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an owner of some part of their land is dispossessed, therein lies an ouster, if no complaint and before the statute of limitations (20 years), then the adverse possessor takes the land. If disputes over land included those which were based on a few inches with no physical line so as the adverse possessor did not know, all owners would have to be constantly on alert for the slightest encroachment on their land, which would require a survey, which is expensive HOWARD V. KUNTO FACTS: In 1932 McCall resided in the house Kuntos reside in. McCall had a deed that described a 50 ft wide parcel on the shore of Hood Canal. The 50 feet described is not the 50 ft where the house sits, but the adjacent 50 ft lot. A survey affirmed the description and a dock was built for the Kuntos. Their neighbors the Howards wished to convey one-half of their land to the Yearlys. Their survey revealed the errors now before the court. Between the Howards and the Kuntos resided the Moyers. Howard conveyed land to Moyer, Moyer conveyed the land Kuntos house stood to Howard. RULE: A person receiving tract B while mistaking it for B, can adversely possess lot B. -Privity- A succession of trespass, or adverse possession where successive owners, transfer directly or establish a personal connection as to possession. -Tacking-If one continues, directly, in adverse possession of land, the period of time continues to toll. Long periods of occupancy by those who in good faith received an incorrect deed description to the land in question during the summer months for more than 10 years by defendant and his predecessors, with the improvements, constituted uninterrupted possession. OKEEFFE V. SNYDER FACTS: OKeeffe, the painter of original works of art, alleges her paintings were stolen in 1946. Snyder asserted he was a good faith purchaser of the paintings, had title by adverse possession, and O'Keeffe's action was barred by the expiration of the statute of limitations. OKeefe owned painting she said were stolen in 1946 she did little to pursue them or report them until 1972 paintings were in dr. franks office when he died and his son acquired them. In 1975, Snyder bought and displayed them in his gallery in 76 OKeeffe demanded their return, Snyder said they were given to sold to Dr. frank, who claimed adverse possession on them. Neither party traces their acquisition back to O'Keefe. RULE: The statute of limitations begins to run upon the discovery of the dispossession, not when the person finds the actual owner. It is the original owner's job to take reasonably prudent action as any other owner would when she feels a painting has been stolen. Tacking is permitted to show privity of current and previous owners and their good faith to interpose a claim for conversion. Discovery rule- S/L limitations wont run until OKeeffe knew or reasonable should have known who had paintings. Acquisition by Gift A gift is a voluntary, immediate transfer of property without consideration from one person (the donor) to another person (the donee). The law recognizes two categories of gifts: the gift inter vivos and the gift causa mortis. I. Inter Vivos A) Giving a gift during ones lifetime; while one is still alive B) A valid inter vivos gift requires: 1) Donative intent- intent from the donor to make a present gift of the object -Intention to make a gift may be shown by oral evidence -If the donor intends the gift to take effect in the future, it is ineffective.

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2) Delivery- actual present delivery of object or property right to donee, usually manual delivery (physical transfer) -alternatives to manual delivery: a) Constructive delivery: e.g., giving person key to a safety deposit box *donor physically transfers to the donee the means of obtaining access to and control over the object b) Symbolic delivery: e.g., cannot physically transfer piece of land, so one does so with a deed * physically transferring to the donee an object that represents or symbolizes the object 3) Acceptance- agreement by donee to receive gift- generally presume; essential to validity of the gift -Once a gift is accepted, it is complete and irrevocable by the donor II. Causa Mortis A) A gift of personal property in anticipation of the donors imminently approaching death B) Requires all three gift inter vivos elements, plus a fourth element: the donors anticipation of imminent death C) Control over the subject of the gift takes effect immediately but becomes absolute only upon the donors death D) Death must result from the same illness, disease, etc. producing the donors initial expectation, not some other illness or event 1) gift is valid- ex: A tells B I will give you this gift if I die from this surgery and A dies from surgery 2) gift invalid- ex: A tells B I will give you this gift if I die from this surgery but A dies days later in car accident E) Gifts causa mortis are revocable; in some jurisdiction it is automatic when the donor recovers from the illness. F) A transfer of property by will after a persons death is called a devise or bequest and not a gift. GRUEN V. GRUEN (pgs 166-172) FACTS: Father made gift of painting to son. Delivery by means of letter. Possession was delayed until father died. Mrs. Gruen (D) contended her husband could not make a valid inter vivos gift to his son (P) and still retain present exclusive possession of the property for his life. HOLDING: For P; Court held that P established that a gift was made to him (denotative intent: by the delivery of the letter; delivery: symbolic delivery of the future interest of the painting [the remainder], acceptance: presumed b/c painting was valuable) RULE: A party may give a future interest in chattels as a gift while reserving a life estate and the donee never has physical possession until the donor's death.

Chapter 3- Possessory Estates

Estates: General I. Estate concept divides right to possession over time (just about any way you want)

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Estate Fee Simple Fee Tail

Duration Forever (Infinity) Until original grantees lineage dies out For the life of the grantee Fixed period measured in years, months, or days

Life Estate, or Term for Life Term of Years

II. Seisin A) Aspects of possession and ownership; denotes possession of a freehold estate B) Originally very close to our idea of possession C) As history developed, became more like ownership -in todays world, seisin is like ownership D) Term is not around much anymore
III. Estates in Land- are possessory interests in land A) Can be presently possessory (present estates), OR may become possessory in the future (future inter-

est B) Can be freeholds or nonfreeholds 1) Freehold Estates- give possession under some legal title or right to hold -Ex: fees or life estates (fee simple absolute, fee simple conditional, defeasible fees, fee tail, or life estate) 2) Nonfreehold Estates- give mere possession -Ex: leases (leasehold); for some definite years/period of time C) May be of infinite or limited duration 1) Infinite duration- Ex: fee simple 2) Limited duration- Ex: estate for years Present Estates I. Fee Simple Absolute A) Largest estate permitted by law B) Invests holder of the fee w/ full possessory rights, now and in the future C) Holder can sell, divide, or devise it D) If holder dies intestate, heirs will inherit it E) Has an indefinite and potentially infinite duration -general inheritance: upon the intestate death of O, it passes to the heirs that the law designatedwhether lineal or collateral -potentially infinite duration: by passing from heir to heir (grantee to grantee) it may continue forever; can go on as long as there is a next generation *if there are no heirs left, the land goes to the state F) Created by: O to A and his heirs -to A: words of purchase (describe who is going to get something)

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-and his heirs: words of limitations (describes the what)

G) And his heirs indicates a fee simple absolute because:

1) youre talking about the next heir, and the next, and the next, etc. (INFINITE DURATION) 2) the heirs dont get anything out of this conveyance, but rather the term heirs conveys they it can go on forever H) If and his heirs is not used, then you would have a life estate I) It is an absolute grant by the grantor to the grantee with no limitations as to its duration. The occurrence of no event can cut it short (hence, it is absolute). It has the potential of enduring forever (hence, it is simple). Typical language is to A and his heirs. Anciently the phrase and his heirs was a requisite to creating a fee simple estate. The archaic practice is no longer required, but attorneys often use it when drafting instruments to be absolutely certain that there is no question that a fee simple estate is intended. Modern statutes often provide that it is presumed that a grantor conveyed the largest estate that he could. As a practical matter this usually means fee simple. 1. Example- G conveys Blackacre to A and his heirs. A receives a fee simple absolute from G. If A is alive, his heirs receive nothing, the words and his heirs being merely words that describe the type of estate conveyed to A. If A is dead, then Blackacre is parceled out to the heirs in As will J) Several kinds of fee simples: 1) fee simple absolute: thats everything that you can have, theres nothing left over 2) fee simple conditional: almost extinct, but not completely gone 3) defeasible fee simples: if something happens, youll lose it II. Fee Tail K) Created by: O to A and the heirs of his body -if the lineal order dies out it goes back to O -idea is to keep it in the family L) Fee simple conditional- Estate of: 1) Limited inheritance (will only be passed down in a lineal fashion) 2) Potentially infinite duration (as long as theres still kids, grandkids, etc.) 3) Subject to conditional power to convey in fee simple absolute (A had power to create a fee simple absolute in a 3rd party after birth of a child) M) Fee tail- Estate of: 1) Limited inheritance (only to lineal heirs) 2) Potentially infinite duration -NO conditional power to convey in fee simple -When A dies, land passes to the heir of his body -Since it was a lesser estate than a fee simple, a reversion was implied -Fee tail created by Statute de Donis (which was adopted to accomplish landowners desires) N) If G conveys Blackacre to A and the heirs of his body, then A has received a fee tail estate. The significance of this is that if A does not have lineal descendants, then the estate reverts back to the grantor. Since the grantor is usually dead, the land effectively passes to the grantors successor (typically his eldest son, if living, else to his eldest sons eldest son). This operates to keep land in the family. In essence then, a fee tail is a fee simple subject to the condition that the grantee always has descendants. This amounts to the grantee having only a life estate since if he did not have issue, the estate goes back to the grantor. If the grantee has children, then it has to be passed on to them... This type of estate is recognized in only a few (4) states O) Originally, could not convey, now have to convert it (through lawsuit); In most states today, fee tail has been abolish and substitute made:

PROPERTY OUTLINE

1) convert fee tail to fee simple: most common 2) covert fee tail to life estate in grantee, remainder in fee simple to lineal heirs in next tion 3) covert fee tail to fee tail in grantee, with fee simple in lineal heirs in next generation 4) Reject Statute de Donis- treat fee tail as fee simple conditional (2-3 states)

genera-

III. Life Estate A) An estate that: 1) Lasts for the duration of a stated persons lifetime -will last for As life, and when A dies it will revert back to O 2) Is not inheritable (at least at common law) B) Created by: 1) Express grant (O to A for life) -Common Law: failure to use words of inheritance created a life estate OR 2) Operation of Law (unusual today) -CL dower and courtesy homestead, in some states C) Subsequent conveyance: A to B for life -O has reversion, B has life estate (if A dies first); if B dies first it reverts back to A -O is entitled to get it back when A dies, not when B dies D) A life estate is one that lasts for the life of some person. There are two types, pur autre vie and for the life of the grantee. The corresponding future interest is called a reversion if the future interest is in the grantor or remainder if it is in someone else. E) Life of grantee as measuring life- This is the usual life estate. Typically, G will convey to A for her life. When A dies, the life estate is terminated and, unless otherwise specified the estate reverts to G. Of course, G could specify that the estate is to go to anyone else he chooses when A died. F) Pur autre vie- This French phrase means for anothers life. In this type of life estate the measuring life is someone other than the grantee. Typical language is to A for the life of X, then to her son B. Until X dies, the estate belongs to A. If A predeceases X, the estate devolves as A -specified in her will, etc. - A to B for the life of A *B has As life estate (pur autre vie) *A conveyed it to B; A still alive, B dies- it goes back to O * O not entitled to reversion b/c A is still alive -SEE OTHER NOTES: LECTURE 10/15 WHITE V. BROWN (p. 190-197) FACTS: In her will, Jessie Lide left her house and land to white. The will stated, I wish Evelyn White to have my home to live in and not to be sold my house not to be sold. White claimed 1- she had a fee simple in herself and 2- the right to convey the land. The heirs claimed 1- white only had a life estate and 2- reversion passed to them by a partial intestacy RULE: The will should construct the fee simple unless the words and context of will clearly state Jesses intention to convey only a life estate. Modern statutes often provide that it is presumed that a grantor conveyed the largest estate that he could. As a practical matter this usually means fee simple unless clearly stated otherwise. IV. Leasehold Estate

PROPERTY OUTLINE

A) Too lowly for a freeholder to hold; the gentlemen of the land would not hold such a lowly estate B) Also is in estate in land, but NOT a freehold estate V. Restraints on Alienation A) Three kinds of DIRECT restraints on alienation B) All 3 are void as applied to fee simple unless restraint is limited in its scope and duration 1) Disabling restraint- prohibits alienation of land- O to A and her heirs, but the land may be conveyed -Has to prohibit something -void on legal interests of any type (fee simple, life estate) seen as offensive because 1. unlike other types of restraints, transfers are totally prohibited 2. they enable a person to deny the validity of his own conveyance and 3. they exempt the property from the person's creditors even while he is enjoying the property HOWEVER on fee simples it can be applied if for a limited time and reasonable purpose 2) Forfeiture restraint- Subjects interest to forfeiture of alienation is attempted -O to A and her heirs, but if A or her heirs ever attempt to sell the land, then the land shall pass to B and his heirs *A loses his right to the property 3) Promissory restraint- Grantee promises not to convey O to A and her heirs and A promises not to convey -breaches a covenant- remedy is injunction or damages for breach of contract C) Rules on Restraint 1) Fee Simple Absolute -Absolute restraint on fee simple invalid, but restraint reasonably limited in scope and/or duration is valid 2) Life Estate/Leasehold Estate -completely valid BAKER V. WEEDON (p. 197-206) FACTS: John Weedon devised farm to his wife Anna for life. Remainder to Annas children. But if she died without children, remainder to John grandchildren, because he was previously married and had children with a previous wife. Anna had no children. When MS highway officials wanted to build a highway near the property, they went to John's children, of which none were found. John's grandchildren found out about the sale through notice and one of them. They offered Anna a portion of money they were offered. Anna was in a tough financial situation and she wanted to force a judicial sale of the land, because she would receive a lot more money ISSUE: Under property law, does a stake in the land in question give rise to the ability to use that stake to force a judicial sale of the land without consultation of the other party who has stake in the land? HOLDING/RULE: In equity, the court looks at what is potentially at stake to both sides in the transaction. Here, sale without the consultation of the other party which has an interest in the property is not equitable to the appellant. Sale of whole farm is too drastic, but sale of portion necessary to provide for Annas needs is OK WASTE: Either an affirmative act (affirmative waste) or an omission (permissive waste) that lessens the value of a future or concurrent interest in property

PROPERTY OUTLINE

1) It created an incentive for the life tenant to protect the remaindermens interest; it also seeks to prevent the life tenant from taking advantage of an economic interest that belongs to the remainderman -Ex. of affirmative waste: grantor leaves piece of land, underneath is minerals; grantor never drilled minerals and leaves property to life tenant for life with remainder -Ex. of permissive waste: occurs when life tenant allows situation to exist... remainder *act of omission rather than commission 2) The longer the life tenants interest, or the more contingent the remaindermans interest, the less likely the court will find waste to occur 3) Note that doctrine of waste also applies between concurrent owners, tenant and landlord, mortgagor and mortgagee, etc. Defeasible Estates 3 types of defeasible estates: 1) fee simple determinable 2) fee simple subject to a condition subsequent 3) fee simple subject to an executory limitation (will be discussed in future interest) I. Fee Simple Determinable A) An estate that automatically terminated on the happening of a stated event and goes back to the grantor; natural termination -possibility of reverter automatically becomes a fee simple B) Future Interest: creates a possibility of reverter -b/c grantees estate may end upon happening of stated event, there is a possibility that land may revert back to grantor -the interest that is left in a grantor who conveys this estate is called possibility of reverter -it doesnt have be expressly retained, it arises automatically in the grantor C) This is a fee simple estate that will automatically end if some specified event occurs. This is a fee simple because it may last forever, and can be passed on to heirs. It is determinable because at the occurrence of the specified event, it will automatically end. Typical language is to A so long as, to A while, to A until The grantors future interest is possibility of reverter D) Grantor is the only holder of possibility of reverter can convey E) Example- G conveys Blackacre to to school Board so long as Blackacre is used for an elementary school, or to A until my son Paul returns home from Rome, or to City while Blackacre is used as a public park. In each of these cases, G has conveyed a fee simple determinable. In each case, if the specified event occurs (Blackacre is no longer used for elementary school, Paul returns from Rome, or City ceases to use the land for a park), then the estate automatically reverts back to G. If G is dead, then it passes to Gs successors II. Fee Simple Subject to a Condition Subsequent (FAVORED- not automatic forfeiture) A) This is a fee simple estate (thus it may last forever) that will be cut short at the occurrence of some specified event. It does not automatically end, however. The grantor may end it, if he wished, after the occurrence of the specified event. Typical language is to A, but if A is ever adjudicated insane, then G has the right to reenter. The grantors future interest is a right to reenter B) Grantor is the only holder of right of reentry, usually conveyable, but not always C) Example- G conveys Blackacre to A and her heirs, but if A does not live to be 18, then G has the right to reenter. If A does not live to be 18, then G may, if he chooses, retake Blackacre. If G does not retake Blackacre, then it goes to As heirs in fee simple (or to whomever A specifies in her will). Once A

PROPERTY OUTLINE

has reached 18, the condition is satisfied and A has a fee simple absolute estate in Blackacre. G must affirmatively act to retake Blackacre in the event A does not live to be 18. D) Doesnt end automatically on happening of event, external force needed; not natural termination; O must reenter III. Difference between Fee Simple Subject to a Condition Subsequent and Fee Simple Determinable A) The key difference is the word automatically. Any fee simple determinable automatically ends at the occurrence of the specified event. Any fee simple subject to a condition subsequent may be ended by the grantor, if he so chooses, after the occurrence of the specified event. Of course, if the grantor is dead, then his successors are entitled to exercise the right of entry. Note also the difference between the respective future interests. The grantor of a fee simple determinable has the possibility of reverter since it is possible that the land will revert back to him. In the case of Fee Simple Subject to a Condition Subsequent, the grantor has the right to reenter, because at the occurrence of the specified event he has the right to reenter but does not have to do so. In case of ambiguity, the court will always declare the estate to be Fee Simple Subject to a Condition Subsequent. The reason for this is that courts disfavor the automatic divesting of estates B) Fee simple determinable uses language like so long as, until, while, during; Fee simple subject to condition subsequent uses upon the condition that, provided that, but if creation of interest limiting event/condition FSD I---------------------------------------------------------------I

FSCS I--------------------------------------------------------------I----------------------------> MAHRENHOLZ V. COUNTY BOARD OF SCHOOL TRUSTEES (pgs 208-215) FACTS: In 1941 Hutton transferred 1 and acres (of40) to school district, this land is to be used for school purpose only otherwise to revert to grantors herein Hutton transferred remaining 38.5 acres to the jacqmains, the Huttons died and Harry Hutton is their heir. In 1959 the Jacqmains sold remaining 38.5 acres to the Marenholzs. After 1973 land not used for classes. In 1977 Harry Hutton transferred reversionary interest in 1.5 acres to plaintiff and then to the defendant. ISSUE: Whether the language of the deed created a fee simple determinable or a fee simple subject to a condition subsequent. The reason this is significant is if it was considered a fee simple determinable, it would have a possibility of reverter and it would be allowed for harry to convey it to Marenholz because when they stopped using it as a classroom in 1973 it automatically would revert back to harry and he could convey it in 1977 to Marenholz. But if it was a fee simple subject to condition subsequent, Harry would have had a right of reentry, and since Harry never took any steps to reenter and take title back over the land, he cannot convey it to the Marenholz because he never acquired possession The trial court correctly ruled that the plaintiffs could not have acquired any interest in the property from the Jacmains by the 1959 deed because the court considered it to be a fee simple subject to a condition subsequent, and since Harry never took and steps to re-enter the land, he could not convey it.

MOUNTAIN BROW LODGE NO.82, INDEPENDENNT ORDER OF ODD FELLOWS V. TOSCANO FACTS: Mountain (non-profit) filed quiet title to a parcel of property gifted by Toscano, deceased. Toscano respondents argue language creates a fee simple to a condition subsequent and is valid and enforceable. Mountain argues the language amounts to an absolute restraint on its power of alienation and is

PROPERTY OUTLINE

void. Mountain argues purpose is not defined hence restriction is not on land use but on who uses it. Prohibits Mountain from selling or transferring land. -Deed: said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of all or an part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns. ISSUE: whether trial court determined that the conditions of the gift deed were not void; Whether the use condition created a defeasible fee as Toscano maintain or whether it is also a restraint against alienation and nothing more as Mountain alleges. HOLDING: Habendum clause created a fee simple subject to a condition subsequent with title to revert to the grantors if land ceases to be used for lodge purposes. When government takes land through eminent domain, who gets condemnation award? -Majority view the holder of the fee (life estate) -Restatement of Property fee owner if defeasible fee would probably not end within a reasonably short period of time; in practice, usually reaches same result as majority vie

Chapter 4- Future Interests

If that estate is less than a fee simple absolute, there is something left over that must go to someone else The part left over is a future interest and it goes either to: 1) the grantor 2) a third party Interests Retained by the Transferor (grantor) All come back to the grantor; exist now must they are future interests I. Reversion A) Becomes possessory upon the termination of fee tail, life estate, or leasehold estate B) Interest left in an owner when he carves out of his estate a lesser estate and doesnt provide who is to take the property when the lesser estate expires Possibility of Reverter A) Becomes possessory upon the termination of fee simple determinable (determinable life estate) B) O conveys Blackacre to Town Library Board so long as used for library purposes. C) Not allowed to be transferred during persons lifetime b/c there is a possibility of future interest? D) Common Law courts viewed possibility of reverted as a chosen action (aka cause of action) E) Today it is universally alienable and devisable Right of Re-Entry A) Becomes possessory upon the termination of fee simple on condition subsequent (life estate on condition subsequent or leasehold estate on condition subsequent) B) Not quite universally alienable (only in some states) C) O conveys Whiteacre to Town Library Board, but if it ceases to use the land for library purposes, O has the right to re-enter and retake the premises.

II.

III.

PROPERTY OUTLINE

Common Law Possibility of Reverter -inalienable -not devisable -inheritable -inalienable -not devisable -inheritable

Modern -alienable -devisable -inheritable -alienable (most often) -divisable -inheritable

Right of Reentry

Interests Created in a Transferee (3rd Person) 2 kinds of future interests in a 3rd party: 1) Remainder 2) Executory interest I. Remainder A) Created in a 3rd person -only pre-Statute of Uses allowed in 3rd person- all others were reversionary interests B) Created Simultaneously with the creation of the prior estate(s) -If created after the creation of the prior estate(s) conveyance of the reversionary interest * O to A for life, O to B and her heirs when A dies -If created before creation of the prior estate(s) there is a gap in seisin (springing interest) *not permitted before Statute of Uses because springing interest (executory interest) * O to B and her heirs when A dies, O to A for life -in order to be a remainder has to be created in some deed/will C) The estate(s) prior to it is of a lesser duration than the interest in the grantor; and -otherwise nothing left over for remaindermen D) It becomes a present estate immediately upon the natural termination of the prior estate -No gap (springing interest) or shift (shifting interest) in seisin -springing and shifting interest prohibited before Statute of Uses; following were prohibited: * O to A & his heirs to commence in 1 year *O to A & his heirs, but if used as a tavern then to B & his heirs -all of these ^^ are valid today but none of them are remainders, they are executory interests E) 2 kinds of remainders: 1) vested (3 Kinds) 2) contingent Vested Remainders 1) Vested (indefeasibly/absolutely)- A remainder that is NOT: A) Not subject to condition precedent or subsequent, nor -condition preceding: something has to happen before property will vest to you -condition subsequent: will vest to you now but if something happen you will lose that right B) Not given to an unborn or unascertained person C) Ex: O to A for life, remainder to B & his heirs - vested

II.

PROPERTY OUTLINE

-there is no condition preceding or subsequent 2) Vested Subject to Open- A remainder that: A) Is created in favor of a class of people that may increase in size; B) Has at least 1 member of the class born & ascertained; and C) Is not subject to a condition precedent D) Ex: O to A for life, remainder to As children & their heirs assume A is alive and has one child vested subject to open 3) Vested Subject to Divestment A) A vested remainder that may be defeated by a condition subsequent B) Condition subsequent cuts if off and shifts it over to a 3rd party (shifting executory interest) C) Ex: O to A for life, remainder to B & her heirs, but if B dies w/o children, then to C & his heirs -B has vested remainder that may be divested if she dies w/o children -the divesting interest is in C -Cs interest is an executory interest (which wasnt allowed before the Statute of Uses) D) O to A for life, remainder to As children & their heirs, but if none of As children survive A, then to B & his heirs -A is alive and has 1 kid III. Contingent Remainders A) A remainder that is: 1) Subject to a condition precedent, or 2) Given to an unborn or unascertained person B) At all times there must be someone who can take possession if the present estate ends; a contingent remainderman cant do that -Thus, if the ultimate remainder is contingent, there must be an implied reversion, which is vested C) Ex: O to A for life, and if B marries, remainder to B & his heirs B is not married -B has to marry for remainder to be vested in B (condition precedent) D) O to A for life, remainder to Bs heirs B is alive -B has no heirs until B dies (persons unascertained) E) Left Eyeball Test: -if the condition is placed before words that create the remainder (or incorporated as part of description of the remainder, then it is a contingent remainder -if the condition is added as a separate clause after the words creating a vested remainder, then it is a vested remainder subject to divestment F) Yo-yo test : -If vesting depends on a prior event contingent remainder *give the YoYo and string to the person -If occurrence of later event will divest remainder (take it back)- vested remainder subject to divestment *give the YoYo but hold the string Executory Interest b/c Statute of Uses executed the use, created executory interest Statute of Uses created- main purpose was to stop the feudal estate taxes (Henry VIII needed the money for alimony!) It executed all passive uses; i.e., converted the passive equitable estate into a legal estate of the same quality and quantity (almost always!) -person who had the legal estate was no longer there

IV.

PROPERTY OUTLINE

-just converted the equitable estate into the legal estate -got ride of the formal legal estate a future interest then becomes possessory by either: 1) divesting transferor- springing executory interest 2) divesting another transferee- shifting executory interest Interest with a Gap or Shift to a 3rd Party A) Springing Interest 1) reverts to grantor, then springs up in a 3rd party 2) Ex: O to A for life, remainder to B and heirs one year after A dies -O>A for life>O for one year>B and heirs B) Shifting Interest 1) Always shift over from 3rd party 2) Ex: O to A and heirs, but if used as a tavern, to B and his heirs -O>A if not tavern>B if tavern C) Shellys Case 1) remainder in heirs of life tenant 2) 2 step process; A has a fee simple absolute? 2) Ex: O to A, remainder to As heirs -Doctrine of Merger applied *remainder to As heirs viewed as limitation, not words of purchase if there is an intervening life estate -Changes to O to A and heirs -Apply merger after end of estate D) Doctrine of Worthier Title 1) remainder is in heirs of grantor (not in the heirs of life tenant) 2) Ex: O to A for life, remainder to Os heirs (A is Os oldest son) -seen as worthier to inherit rather than purchase -so covert this so that it in effect is inherited from O to his heirs, so still taxes E) Destructible Contingent Remainders 1) O to A for life, remainder to B if he is 21 : possible remainder, possible executory interest 2) Rule: if it can be construed to take place as a remainder, it must -so, if B is 21 at natural termination of estate, it is a remainder -if B is 10 at natural termination, remainder is destroyed and it reverts back to O