Questions & Answers

I will update these questions and answers in response to student emails. Two days before the exam, I will answer the last question and note that here. 1. The supplement uses language a little different than class, e.g. numerus clausus. Do we need to use the same language as the supplement? Expect to be tested on anything assigned in the casebook, discussed in class, or included in the supplement. Do not assume that a lack of discussion in class estops me from testing the material. Like with cases, I will not penalize or reward specific language. So, if you answer that the number of different property rights is fixed without mentioning numerus clausus, your grade will not be affected. Legal terms of art and cases are useful shorthand, so do not feel the need to define in lieu of using a term or case name. 2. In McAvoy v. Medina, does the shopkeeper have an indefinite better right to found property? In McAvoy, the court denied the suit by the plaintiff-finder for the found property. The opinion gave as a rationale that the shopkeeper was easier for the true owner to find. That rationale, however, would weaken over time, as the likelihood that the true owner will return will diminish. The opinion is silent whether the suit was premature or whether the plaintiff would always lose. 3. Is there a general rule in the found property cases? The finder has a better right than anyone who takes the property from her. So, if a chimney sweep finds a jewel, which a jeweler takes, then a court will order the jeweler to return the jewel. If the finder and the owner of the land where the property was found are contending over it, then there is no general rule. Some cases hold that the finder has a better right than the owner of the land (e.g. Hannah v. Peel), while other cases hold that the owner has a better right than the finder. 4. How should a court determine whether the party claiming adverse possession has evidenced the practice of ownership? Adverse possession does not require the party claiming ownership develop the land to

the full potential or never leave the land. Instead, the adverse possessor should be required to show that she used the land like other owners would. In Howard v. Kunto, the court found for the adverse possessor, even though the vacation home was only occupied during the summer. In Van Valkenburgh v. Lutz, the court misapplied the test. The (failed) adverse possessor had used the land like the farmer he was. 5. Is there a difference between a life estate and a life interest? A life interest is a property right measured by a life. A life estate is a life interest in land. 6. Many of the policy arguments discussed in class are economic. If it is appropriate to advance a policy argument on the exam, should students confine themselves to economic arguments? Economics is just one consideration. This class has spent more time on economic arguments because those arguments require more elaboration. Fairness or justice require less specialized knowledge and often less explanation. The time devoted to economics should be not understood to signal that economic arguments are better arguments, rather that economic arguments are often more difficult. 7. Can you describe the exam? There are 30 multiple choice questions, each worth one point. There is a single essay question, worth 30 points. There is no word limit. You will have 3 hours. 8. Supplements describe the hostility requirement of adverse possession differently than Mannillo v. Gorski. Are these different labels for the same rules or different rules? At least one supplement describes three rules: objective, good faith, and intentional trespass. Dukeminier identifies the objective rule as the English rule, even though several states follow the rule. The objective rule holds the adverse possessors knowledge and intentions are irrelevant. NB: Do not confuse this objective rule with the objective test for whether the invasion is open and notorious, which is close to uniform. Mannillo describes the good faith test as the Connecticut rule, which requires that adverse possessors must believe that they are the owners. Only those who occupy land by mistake can claim adverse possession.

In contrast, the Maine, or intentional trespass, rule requires adverse possessors to know that the land they are claiming belongs to another. Only those who know they are trespassing can claim adverse possession. 9. Does necessity have a single meaning in the law of easements? No; there are several, conflicting uses of the word necessity. Under the Restatement (Third) 2.12 , a party trying to show that an easement implied from prior use need only demonstrate reasonable necessity. Van Sandt v. Royster recognizes an easement implied from prior existing use. In contrast, 2.15 proposes that parties seeking an easement without a history of prior use show necessity. Several jurisdictions require strict necessity where the grantor seeks an easement. Even in jurisdictions that retain the old rule, the standard is more lenient where the purchaser seeks an easement. There are two rationales. Firstly, the grantor owned the land before and thus is more familiar with the parcel and the uses that might require an easement. Secondly, conveyances are generally drafted by the grantor and contracts are interpreted against the drafter. 10. What is an appurtenant easement? Easements are either appurtenant or in gross. An appurtenant easement benefits a dominant tenement. In contrast, an easement in gross burdens a servient tenement without benefiting any dominant tenement. The most common easement in gross is an access easement held by a utility company. 11. In found property cases, does the (assumed) time between losing and finding determine whether the finder or the landowner prevails? In McAvoy v. Medina, the court asserts that the shopkeeper (and landowner) is better-positioned to return the found property to the true owner. That rationale makes more sense when a short time has elapsed between losing and finding. The court concludes that the finder acquired no right in the found property, but provides little explanation for why the general rule (that finders have better right than all but the true owner) does not apply. Surprisingly, the opinion is silent on whether the shopkeeper has a better right than all but the true owner. The result seems to suggest that, but the opinion only discusses the finders right. 12. In found property cases, does the distinction between mislaid and lost property determine whether the finder or landowner prevails?

In McAvoy v. Medina, the court assumes the true owner left the property on a table in the shop voluntarily. Thus, the property was mislaid, not lost, and the court concludes the finder acquires no property right. Of course, it is rank speculation to purport to know whether the true owner put the property on the table or whether it slipped out of her hands. For the distinction between lost and mislaid property, McAvoy cites the earlier English case of Bridges v. Hawksworth. There is a fair argument that McAvoy misread Bridges, especially since Bridges concludes that finder has a better right to the property. Hannah v. Peel concludes that the only case (South Staffordshire Water Co. v. Sharman) that clearly states that landowners have a better right than finders is probably wrong. Hannah itself does not rely on the distinction between found and mislaid property. In many areas of the law, there is a general rule or several competing rules, but still a few cases come out differently. Found property is not one of those areas. While it is possible to thread a needle of reason through some of the cases, a more accurate conclusion is that there are few general rules, judges decide based on other factors than doctrine or precedent, and litigation is even more uncertain than usual. 13. Assuming the facts of Ghen v. Rich, but the law of Pierson v. Post, who owns the while? Pierson announces the rule that mere pursuit does not create a property right. Pierson is silent, however, on who owns the fox if one hunter kills it, but another takes possession of it. The opinion discusses Barbeyrac, who asserts that mortally wounding a wild animal and continuing the pursuit creates a property right, but the opinion notes that those facts are not present in Pierson. 14. A adverses possesses land owned by O, but abandons possession. After A abandons possession, B enters the land. Can A eject B? The adverse possessor must be in possession to claim title from the owner of record. A would have to sue in court and win to have any right to eject B. Since A and B are not in privity, then O can eject B. 15. On remand, Mannillo v. Gorski directs the trial court to consider whether the encroachment was open and notorious. Does the opinion accurately describe the law? In Mannillo, the instructions on remand are not consistent with how open and notorious is generally understood. Whether the landowner losing land to adverse possession knows

about the encroachment is irrelevant. All that matters is whether the encroachment is sufficiently visible to the ordinary landowner. For example, a tunnel dug under a neighbors land is not open and notorious. 16. In Woodrick v. Wood, does it matter that the party objecting owned only a quarter of the remainder interest? No. Any owner can object and every owner had the same rights, except when dividing income or the sales price. 17. According to Walter Rogge, Inc. v. Chelsea Title & Guaranty Co., when are title companies liable? Title companies are liable for defects one can find in paper records. Therefore, a title company is not liable for defects that a survey would discover, like discrepancies in the lot size. In this particular case, the title company had an earlier (and correct) survey in its records. 18. What is the relationship between permanent physical occupations under Loretto and public purpose under Kelo? The Fifth Amendment limits a pre-existing government power to take private property by requiring that property only be taken for public use. Kelo interprets public use as equivalent to a public purpose, not the literal meaning of use by the public. Loretto held that a permanent physical occupation authorized by law is a taking. All parties in Loretto acknowledged that New York had a public purpose in requiring the installation of cable equipment. There is no relationship except that all takings must have a public purpose. 19. The trustee hold legal title while the beneficiary holds equitable title. Does beneficial title exist? There is no reason why the property interest held by the beneficiary should not be called beneficial title. By convention, however, the beneficiary has beneficial ownership, but not equitable title. The convention reflects that courts of equity recognized beneficial interests, while courts of law policed legal title. 20. Can the trust document impose conditions on the corpus, beneficiaries, and trustee? Yes. The trust document can impose conditions on any element of the trust, including

the corpus, beneficiaries, trustee, and even grantor. Note that there are constitutional and public policy limits on what conditions a grantor can impose in a trust. 21. If the trustee is a beneficiary, is the income received from the trust considered self-dealing? No. Self-dealing is transactions with the corpus. For example, if the trustee bought land from the trust, that is self-dealing. 22. What is the difference between professional goodwill and a professional degree? Goodwill is the difference between the value of a business and its net assets. For example, if a business has assets of 10, liabilities of 4, then its net assets are 6. If the business is worth 17, then the goodwill is 9. Professional goodwill is goodwill in a professional business, like a legal partnership or medical practice. 24. Will spelling mistakes reduce grades? Like I said in class, I am not grading for spelling, punctuation, and grammar. That said, spelling, punctuation, and grammar contribute to clarity and meaning. (That is why language has spelling, punctuation, and grammar.) I urge you to re-read your answers, looking for anything that detracts from what you are trying to convey. Do not take the time to dutifully remove every last split infinitive, but please revise. 25. Do the Married Womens Property Acts have an effect beyond tenancy by the entirety? Yes, the Married Womens Property Acts authorized a married woman to own property in her own name, keep her income, and run a business. 26. If both spouses sign a release of dower rights, can a creditor reach the property? Creditor rights are unaffected by dower. 27. If land is owned in fee simple, but leased, does the surviving spouse have dower? Yes. Fee simple is a freehold, even if leased to another. 28. Are the life estate and fee simple future interests?

No. Both are present possessory interests. Note that the remainder or reversion interest is a future interest, since there is no present right to possess. 29. If an easement is extinguished when the dominant and servient tenement are owned by the same person, why does an easement by implication require a unity of ownership? For an easement by implication to exist, the dominant and servient tenement must be owned by the same person. Without common ownership, there is no conveyance to which a grant or reservation can be implied. After an easement is created, by implication or otherwise, it will be extinguished if the dominant and servient tenement come to be owned by the same person. 30. In Hannah v. Peel, the court notes that although a man possesses everything which is attached to or under his land, a man does not necessarily posses a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else. Does this mean that guests may be able to claim found property as their own? Yes, that is the holding of Hannah v. Peel. 31. Lucas recognizes an exception which the opinion describes as harmful or noxious uses; does this exception affect or modify the categorical rule in Hadacheck? No. Lucas is understood to preserve Hadacheck as the nuisance half of nuisance and other background principles. 32. What does Lucas mean by background principles of state property law? Lucas provides little guidance on what law is a background principle. If you are interested, Blumm & Ritchie provide an excellent summary of how the lower courts have interpreted the term. 33. Under Penn Central, if there remains a large decrease in value after weighing all the factors in the balancing test, has the government taken property? The Penn Central test is not an equation and there is no sequence in considering the factors. As the court has noted in Penn Central and later cases, the test is ad hoc and factual. Courts are directed to consider at least three factors: economic impact, distinct investment-backed expectations, and character of the regulation. Several later cases

interpret character of the regulation as whether the plaintiff has been asked to bear a special burden, one better borne by all. 34. In the law of found property, are the results identity-dependent or do the judges decide on other factors than rules and doctrine? Both. The doctrine is somewhat muddled and the cases do not show a clear pattern. Without clear rules and precedent to constrain them, judges decides cases based on other factors. One of those factors is the identities of the two parties. 35. Is the Mrs. Murphy exception to the Fair Housing Act limited to owner-occupied dwellings? This Q&A is not intended to be a substitute for re-reading the casebook. Section 3603(b) is unambiguous. 36. Can you explain the doctrine of merger? This Q&A is not intended to replicate either the casebook or the supplement. If after reading both, you have specific questions, I am happy to them. 37. Can I send you a fragment from my notes and ask you to tell me if I have it right? I am happy to answer specific questions, but this Q&A is not intended as quality control for your class notes or outline. 38. Do all states presume a conveyance of fee simple if the documents is silent? All states presume that the grantor conveys as much as she owns. If the grantor owns the land in fee simple, then the state presumes she intended to convey fee simple, unless the conveyance indicates otherwise. As White v. Brown shows, state law presumptions can be very robust, requiring quite clear language to defeat the presumption and convey less than fee simple. 39. When land is conveyed to a married couple, do states presume a tenancy in common, a joint tenancy, or a tenancy by the entirety? In states that recognize the tenancy by the entirety, there may be a presumption in favor of it when the conveyance is silent. In states without tenancy by the entirety, there

may be a presumption in favor of joint tenancy. More important than knowing which presumption is more common is remembering to check before advising a client, even informally. 40. In Sawada v. Endo, the court describes four approaches to the tenancy by the entirety. In Group II, the interest of the debtor spouse may be sold or levied upon for this or her separate debts, subject to the other spouses contingent right of survivorship. What does the contingent right of survivorship mean? There, contingent means that the right of survivorship is contingent upon surviving. Since the right of survivorship is always dependent upon surviving, the word contingent is extra. Note 3 on p. 369 of the casebook explains how New York governs the relationship between the non-debtor spouse and the creditor. 41. Do the rules discussed in Sawada v. Endo apply to joint tenancies also? No. 42. Are life estates alienable? Yes. The buyer owns a life interest pur autre vie, measured by the sellers life. 43. If you capture a wild fox (in a trap or net), do you own it? Yes. 44. Will the exam cover future interests, e.g. defeasible fee, fee tail? No. The only future interest we learned is the life interest. (The remainder or reversion interest is future.) 45. Can a life tenant improve the property? Acts that increase the value of the property are called ameliorative waste. The traditional rule was that ameliorate waste was waste nonetheless because the next owner (whether by reversion or remainder) was entitled to the property in the same condition as the life tenant received it. Many states, including Ohio, reject the doctrine of ameliorative waste. In Woodrick v. Wood, the life tenant could demolish a barn since it increases the value of the land. Confusingly, the owner of the remainder interest was

awarded the value of the barn. There is no good explanation for why. 46. Can a creditor of the manager spouse reach the other spouses community property? In most community property states, a creditor can reach whatever property the creditor spouse is entitled to manage. Therefore, if the wife is the manager, her creditors can reach her share of the community property and her husbands share. 47. Can an easement in gross be transferred to another person? Noncommercial easements in gross are generally not transferable, although several states enacted statutes to allow transfers. Commercial easements in gross are generally transferable. 48. Are trusts just a form of life interest? No. The trust document may specify that the beneficiaries of the trust are to receive income, or other consideration, for their lives. But, the trust might specify that the beneficiaries receive the income only while enrolled in school. While it is not uncommon for a trust to grant a life interest, it is only one of many ways to designate the beneficiaries and distribute the income or other consideration. Remember that trusts are an on-going legal relationship between the grantor, the trustee, and the beneficiaries. In contrast, life interests are both simpler and less flexible. 49. Husband and wife own property as tenants by the entirety. The husband conveys his share with the wifes permission. Are the new owner and the wife tenants in common? Does the wifes right of survivorship end with the conveyance? One spouse cannot convey his share of property held as tenants by the entirety. It is not clear whether spousal permission would have any effect, but there is a very good chance the attempted conveyance would fail. Instead, both spouses should convey the property together to the new owners. If the new owners take title as tenants in common, there is no right of survivorship. 50. Consider a trust where the trustee pays the net income to the beneficiaries each year. The trustee sells assets in the corpus and re-invests the proceeds. Why arent the proceeds of the sale considered income?

If the trust document is silent, the law presumes that sale proceeds are not income. Instead, the sale proceeds are considered the principal, which is not income to be distributed. If the law did not presume that distinction, it would be impossible for trustees to sell assets in the corpus since the proceeds would always be distributed as income. Of course, the trust document could direct the trustee to distribute part or all of the principal. 51. If the death of owner or renter has no effect on the duration of a term of years or periodic tenancy, does this mean that the heirs of the tenant must continue paying rent? No. The estate of the renter would pay rent, although the executor should attempt to terminate the lease. Even if the owner does not release the estate of the renter from the lease, the owner is now obligated to mitigate by finding a replacement tenant. If the estate cannot pay rent, the heirs have no obligation to pay the estates debts. Note that some courts terminate residential leases under the theory that those leases are personal. 52. If one joint tenant sells her interest, the time and instrument unities are destroyed. What about the possession and interest unities? Clearly, the previous owner cannot satisfy any of the unities, as she is no longer an owner. But, the new owner can satisfy the possession and interest unities because he has an equal right to possess as the other owners. Similarly, his share is equal to the other owners, even though he is a tenant in common. 53. O conveys Blackacre (in Ohio) to A and then O dies. Os husband, H, claims a one-third life interest in Blackacre. After A dies, what can his wife, W, claim? The surviving spouse is entitled to a one-third life interest in Blackacre. Thus, H can claim a one-third life interest in Blackacre because of his marriage to O. Also, W can claim a one-third life interest because of her marriage to A. The estate of A retains a one-third present interest in Blackacre and a two-thirds reversion interest. Unlike the elective share, dower creates management conflicts, while making land unmarketable. Very few buyers would be interested in Blackacre. Also, it may be difficult to lease Blackacre because renters see the potential for conflict between the owners. 54. Does every state require four unities to create a joint tenancy?

No. By statute, some statutes have abolished the four unities test, instead requiring explicit language in the conveyance. 55. Is this the last question you are going to answer? Yes.