Property Weinberger Spring 2015

CONCEPTS OF PROPERTY AND POSSESSION
Monday, December 22, 2014 9:22 AM
Introduction to Property
Property as Socio-Political Structure
• Centuries ago, property existed to define sociopolitical structure
○ Property tied owner into a web of social relations that defined the nature and pattern of his life
• Emergence of capitalism and the market unraveled this structure
○ Peasants moved off the land, with enclosures, and exclusive private ownership and into the cities
○ Resulted in the emergence of urban life and property-based markets
• Fundamental right of voting in the US used to be tied to property ownership
○ Constitution initially legitimated slavery
• Contract law began relationship of landlords and tenants
○ provided tenants with greater economic and political power
Property as Efficient Resource Allocator

• Many theorists argue that law should seek to maximize society's wealth by facilitating commerce and
operation of a free market economy
○ "free market, invisible hand"- private transactions to allocate each of society's scarce resources to
members of society who value resources most highly
○ Market accomplishes more than government regulation
○ People respond to incentives by altering behavior when the market creates an opportunity to
improve
Property as Guardian of Individual Liberty

• Property draws boundary between public and private power
○ Protects owner against governmental intrusion but enlists government in protecting against
intrusion of private actors
• Law recognizes number of limits upon an owner's freedom to act with respect to own property
Property and the Reward of Labor

• One's labor should have a vital place in allocation of property rights (Locke)
• Must identify the extent to which a person's labor influences legal rights and the extent to which those
rights can or should rise to the level of property rights
Property, Personal Identity and Community

• Process of commodification has potential to convert anything people are willing to sell and buy
○ Increasingly difficult to distinguish products and company who markets them
• Communitarian Movement
○ No longer connection/ deep roots to a particular community
○ More abstract concept of personal identity
Property ---> "Blackacre"

– Bundle of sticks of property
– What can you do with Blackacre?
○ Develop/cultivate it
○ Sell, exchange, gift it
Hold it, lease, grant easement
PROPERTY OUTLINE Page 1

○ Hold it, lease, grant easement
○ Fragment, subdivision, mortgage
○ Exclude others
Loretto v. Teleprompter: right to exclude, "most essential strand"

Jacque v. Steenberg: if you don't exercise right to exclude, the you right things such as adverse
possession
Fifth Amendment
Private property may not be taken for public use without just compensation
– Except for public use & except for just compensation (eminent domain)
– Why should the government be allowed to take property? Why did the framers allow for such?
○ Possibility of public infrastructures, such as roads
○ Government cannot acquire property in the way private companies/entities can (basis for the fifth
amendment)
– What is the meaning of the public qualification?
– Just compensation does not account for intrinsic value attacked to the property (idiosyncratic value)
○ Social capital
○ No compensation for the goodwill value of living in area for a long period of time
○ Autonomy value based on market prices
○ Relocation costs- out of pocket
○ Duplication value- can person find same quality at price in another location
○ Costs lost for businesses
– Can be used as a sword
○ Rezoning- reduces value of property
 Lawyer might argue that the compensation would not be just
Bertman v. Parker (1954)

• Two competing interpretations of public use requirement
○ Broad- public use= public purpose, title does not
○ Need to be taken by the government
• Court takes a hands off look at the decision made
○ Rationality basis, not going to second guess
▪ Voters will vote them out-political check on officials
▪ Courts are to look at interests of the minority
□ However it's too late and it won't happen at all as private pockets will pay for it,
not the public
• Property taken for urban renewal
○ Government takes property but then can sell to private company
○ Deference standard- minimum rationality standards of review for Congress
• Harm was blight in the plain meaning of the term
Poletown (1981)
• GM said it would open a new manufacturing plant if they provided land with specifications
○ GM pretty much drew a map of the area they wanted
• MI SC allows for the taking
○ Hawaii: had "robin hood" aspect, but this case was the opposite
An alliance of power

○ An alliance of power
• Reason the Supreme Court took the case and predict different results
Hawaii v. Midkiff (1984)

• Just as in England, prior to 1984, majority of private property was controlled by a small amount of
individuals
• Statute: allow to condemn to sale to tenants if they called for ability to own title
○ Challenged as a taking of private property-where's the public use
• Court gave same holding as Berman
○ Standard carries over for state legislatures
• Large concentration of land monopolized by a few
Wayne Country v. Hathcock (2004)

• Technology park to be built near Detroit airport
• Decided against the taking, overruled Poletown
Gateway (2002): IL SC initially ruled for taking, but then granted rehearing and reversed
• Majority and Dissent agree
○ Nothing would uphold the taking of a motel for a higher value hotel
▪ In Kelo, a finding by public officials that this area was economically depressed
□ Nothing wrong, benefit occurs after taking
How could legislatures improve review of such cases?

– Review and set what would constitute as public use and how much of an economic benefit there would
have to be
• Deferential review remains for narrow public use in MO
• MO requires actual blight in broad view of public benefits
• Farming can never be seen as blighted in MO
– In Australia, law requires a premium for taking of property to account for intrinsic value
• "legacy property" in MO there is 150% premium
United Steel Workers v. US Steel Corps.

• Court's opinion: legislatures are better suit to solve/review public policy issues
○ Better capacity to inform itself
○ At the will of the people
○ Courts are limited to relief, legislature can create a solution
• But judges represent minority, and legislatures respond to interest groups
Moore v. Regents of the University of California

• Majority Opinion
○ Does Moore have a property interest in excised cells to support cause of action of
conversion? No
▪ California statute
▪ No precedential cases
□ Cases relied on deal with public figure privacy, not about property
▪ Patent of the cell line and by product are distinct from cells taken from Moore's body
▪ For the legislature to decide
▪ Moore can be made whole based on another theory (can get another remedy)
• Dissenting Opinion
○ Just because something is property, it does not mean you have a right
▪ Purpose of statute did not include this issue
▪ There's no case that goes either way
▪ Cannot make Moore whole due to lack of informed consent (not at all clear that he will
win on another theory)
Newman v. Sathyavaglswaran: dignity interest in being buried in accordance with religious belief is
property right
Hecht v. Superior Court: cells that have the potential for reproduction are property, consequences of
calling it property is how courts decide
Pierson v. Post
• Cases from England cannot be precedent
○ Did not inherit English statutes
○ Cases involved interpreting law in concern of those who owned the property
• Public policy reasons for rationale
○ System must protect itself- it would be flooded if Post was given a property right for mere
pursuit
• What if the land was Post's land?
○ Pierson would be trespassing (unlike how where both are competing lawfully)
○ Post would have constructive possession- to discourage trespass- of all the wild animals on
one's land
○ Bounty for Coyote Example
▪ Court should rule that there was constructive possession due to the law
• Post's lawyer had another argument
○ Post was engaging in socially desirable activity- Pierson interfered with his ability to hung
▪ Associational activity
○ Ask judge for a different remedy
• First Possession in Time= First Right
○ Relativity of title (who had first in time- do not need to be the true owner to prevail,
relatively better claim than adversary)
Popov v. Hayashi
• Property law yields all or nothing results
○ Find or someone else
○ There is no splitting of property
• Popov was not able to deprive the ball of its natural liberty
○ Bad analogy: baseballs don't have the same free will as an animal
Johnson v. M'Intosh
• "Chain of Title"
• Johnson took title from an undisclosed individual who took it from the Native Americans
○ US got land from colonies, who received it through the treaty with GB
○ McIntosh received land in result from his services as a military officers
○ No lower trial-missing facts, except as filled in by scholars
• Johnson's predecessors were first-in-time, and thus, first-in-right
Is SC rejecting this concept?

○ Is SC rejecting this concept?
▪ First in time is first in possession
▪ Occupancy did not count as possession
□ Did not meet the same European standards to indicate possession
• Inhabitants rights were not completely disregarded-retain some rights
○ Get to stay on the land and occupy it until they become more like the European discover
○ Do not have power to convey land
• Goal of case: first look at chains of title, and first in time right interpretation
Edwards v. Sims
• Lee v. Edwards
○ Part of the cave was beneath Lee's land
○ Court order to have the cave surveyed- Judge Sims ordered the survey
○ Court of Appeals dismissed appeal of order- issuing interlocutory order
• Edwards is seeking a writ of prohibition on the order to survey the cave
○ Claim that it was pointless- Lee couldn't benefit from cave as there was no entrance on land
○ Lose profit during time cave would have been closed during the survey- incalculable
• Ad Coelum Doctrine
○ Whoever owns the land, owns from the surface up to the heavens and down to the inferno
○ If cave extends under surface, Edwards has the right to exclude
○ Lee had no ability to exploit the cave but Edward's discovery and use as a commercial
Venture (Lee is a freerider)
• Exceptions to the Doctrine
○ Case: sublease subterrain to gas company for extraction of natural gas
▪ Still had to pay rent after all gas extracted- injected back in for free storage
▪ She claims the company has trespassed
▪ Justice Stanley- once gas is inject back into the land, it's no longer in their control (like
releasing a wild animal)
▪ Legislature- statute that say there is no such thing as subsurface trespass

ACQUISITION BY FIND & BAILMENTS
Wednesday, April 22, 2015 9:19 AM
Bailment: entrusting of personal property by the bailor to the bailee with the expectation that it will be
returned (handled in terms with bailor's instructions) and acceptance by the bailee
– Three Types of Bailments
○ Borrow snow blower- sole benefit of bailee
○ Take care of another's dog- sole benefit of bailor
○ Groomer- mutual benefit bailment
Duty of Care Requirement
– Sole benefit for bailor: gross negligence
– Sole benefit for bailee: strict liability negligence
– Mutual benefit: ordinary negligence
Rules are default rules- freedom to enter into other agreements
First-in-Time Finding
Armory v. Delamirle
• Respondeat superior liability
○ Principal is strict liable for the agent's wrongdoing
○ Exception for actions that occur outside the scope of employment
• Damages: fair market value of the biggest Jewel to fit in the sack
• Holding: the finder prevails as against all the world except for the rightful owner and prior
possessors
Hypo: F1 v. F2
– F1 Claim: he was first in time between the two
– F2 Claim: that he is now the finder and prevails against except owner
 Between two, not a finder but a crook
Why does the law protect mere finders?

– If they aren't protected, then how could finders receive remedy? How would conduct change?
○ Purpose of law of finders is to facilitate return to true owners
○ Without law, how can the object found be returned?
Benjamin v. Linder Aviation, Inc.

• Benjamin has weakest argument
○ On the clock- would have had to give up the money to Linder Aviation
○ Found on property
• Holding: add to rule- Locus owners in certain circumstances
• Lost v. mislaid property
○ Finder benefits lost property
○ Locus owner benefits mislaid property
State Statutes blur distinction of lost/mislaid
– Hard distinction: should not be outcome determinative
– Distinction seen in common law
In most cases of locus owners- it will be real property (real estate), but could extend to other property

ADVERSE POSSESSION
Elements of Adverse Possession

1) Actual Possession (open and notorious)
2) Continuous Possession (uninterrupted, lasting)
3) Exclusive Possession
4) Hostile Possession
5) Period of Years (statutory based, differs per state)
• Party claiming adverse possession has burden of proof
• Must satisfy all elements
• Some facts can be used for all elements
Underlying notion of "earning the property"

– Requirement of actual possession
○ Punish landowners who are "sleeping"- focus on intention of the original owner
○ There has to be a trespass for which statute of limitations must run
○ Must use the land for its purpose
Color of Title
– Only goes into actual possession of a small portion of land, becomes owner of more
○ Eases the requirement for adverse possession
○ Writing that describes larger property (such as a deed) explaining why in possession of property
○ Substantial part of the property (more than 50%)
Mere Possessor has right to protect land from all trespassers except for the true owner
– "relativity of title" for mere possessor
– Mere possessor could take true owner to court
○ If mere possessor wants to sell property, true owner is still title on record and thus, could not get
actual market value
 Color of title would not have helped, do not have record title and thus, would not be able to
transfer record title
□ "title of fact" is not enough
○ "quiet title suit"- need a judgment
In order to prevent adverse possession, need to check on land every SOL period
– If you find out someone on property, sending a letter is worse than doing nothing
○ Helps demonstrate open and hostile
– Selling land won't restart clock on mere possessors SOL
○ Nothing stops the time on SOL
○ Only thing true owner can do is to file a lawsuit for trespass and stop the pendulum from swinging
 Can also get them to put signature on a lease to demonstrate permission, but in the year
before SOL, difficult to do
Cannot gain title of government land through adverse possession

– Administrative burden to have to check on land

Adverse Possession can be satisfied by a series of possessions
– Tacting
– Must be in privity to establish tacting
Constructive Adverse Possession

– X gets credit for the time L is in possession as L is possessing on X's behalf
○ Such as leasing
– Judge mostly won't find adverse possession solely based on constructive
Uninterrupted/ Continuous Element

– Can have the literal definition and you must be on property uninterrupted until SOL runs
○ Or, can be determined if the individual acted as a true owner would
Two Theories that justify Adverse Possession

– Earning theory
○ Earning right to remain on property
○ Such cases involve cultivating or other activity that would warrant ability to keep
 Such that deprivation would be burdensome
– Sleeping theory
○ Unreasonableness of TO's behavior
– Need to consult statutes if available to determine certain requirements
○ Source of law partly statutory and party judge made (common law)
 Color of title is not a requirement and not enough to gain possession, but eases actual
possession and potentially continuous
Disabilities and Statutory Period

– Disabilities in regard to the true owner
– Become possessor after the latter of the two
○ Either the SOL period
○ Or when disability ends (3 years)
– Tolling applies only to the true owner's disability that existed when the adverse possession begins
○ Disabilities cannot be tacked
Norman v. Allison
• Inquire into the subjective intent
• Requirement that there was an intent to claim to possess land as the owner
Future Interest: becomes real property upon the grant in the will and the true owner dies
– Before, it is "naked expectancy"
– Future interest, but property now
• Act like a property owner now- have certain rights
– Not unfair for to future interest for adverse possessor to become owner
• Future interest can take action to ensure future interest
• Even if the current owner will not act or cooperate with the future interest, future interest has a
fiduciary duty and can threaten to sue for waste

COMMON LAW ESTATES
Possessory Estates
Must account for the whole fee simple absolute
– Words of Purchase: describe who takes estate
○ Can be tinkered with
– Words of Limitation: describes the estate
○ Cannot be tinkered with
– Numerus Clausus- judges will not recognize estates other than those listed
○ Enforce only property interest that conform to the limited standard forms
– Freehold Estates: lifetime or longer
○ Non-freehold estates: less than a lifetime
– A life estate is transferable during the life tenant's lifetime, but under the derivative title rule, the life tenant
can convey no more than what the life tenant owns
Fee Simple Absolute

– Longest form of ownership, infinite possible in duration
– Three features
○ Freely alienable: can give/sell it to anyone even if in conveyance there was a restriction (it was invalid)
○ Freely divisible
○ Freely inheritable- can be left to descendants, ancestors or collateral relatives
 Without property estates to govern
– States now have statutes similar
○ If grantor had fee simple absolute to give and there's indication that he wanted taker to take less, fee
simple absolute is given
– Fee simple absolute can be in part a creation of a future interest
Life Estate
– Not an estate of inheritance
– Always a future interest created at the same time
○ Can be explicit or implied
○ Deed= reservation to the grantor
○ Will= leave reversion to someone in residuary clause, if none then partially intestate
 So heirs receive (intestate succession)
– After you identify all the estates, ask what would happen if Donald Trump wanted the property
○ Who to go to to get the deed
– No issue in common law as to the magic words as with fee simple absolute
○ Whatever manifested the grantor's intent to create estate measured by the life of the person (does not
have to be life of the grantee, but life of someone else is possible)
○ Life estate "pur autre vie"

– Two Step Shuffle
1) O ---> Clinton for Life
2) Clinton ---> Bush and H/H
▪ Bush has a life estate for the life of Clinton
□ This ensures it is never going back to Clinton
▪ If Clint ---> Bush for Life, and Bush dies first, reversion to Clinton for life
▪ O---> Bush for the life of Clinton and Christie
□ Longer of the two lives
White v. Brown
• Holographic will: entirely in the handwriting of the testator
○ Valid even though it does not comply with a consideration that must be account for in order to be
valid- some requirements are relaxed
○ Sometimes come up in times of emergencies
▪ Rationale fading away with modern advances
• Life estates or title in fee simple absolute (issue at hand)
○ If life estate, reversion to defendants and under partial intestacy, would go to nieces and nephews
• Court found title passed in fee simple absolutely
○ If children, court may have tried harder to determine intent of Ms. Lide
○ No explicit intent to give life estate, therefore under statute, give fee simple absolute
○ "to not be sold"- convey title in fee simple absolute
▪ But, just as inconsistent with life estate
Rule of Construction against Partial Intestacy

– Law prefers there not to be
• Explains overcome of White
1) O ---> A for life

2) Eminent domain
▪ Both receive just compensation, IRS has tables to configure
– Unreasonable activities by the present possessor gives future interest holder a cause of action for waste as
A's activity devalues the land
– Who has right to exploit natural resources on the estate?
○ Life tenant has ability under certain circumstances
▪ Extent that O gave A the right to express grant
▪ To pay for taxes, maintenance even if conveyance is silent- extract in order to maintain land
▪ Open mind doctrine: If O was utilizing/exploiting resources at time of grant, A can continue
▪ Land has no other value except for subsurface minerals assume A would not want O to have land
with no value
Two forms of Waste

– Voluntary Waste
○ Result of affirmative acts held by life estate that are unreasonable
○ Ex: cutting down immature trees for lumber
○ Actions that deplete the land
– Permissive Waste
○ Failure to act where it would be reasonable to do so
Failure to pay insurance premiums does not constitute waste (old case law)
○ Failure to pay insurance premiums does not constitute waste (old case law)
▪ No modern cases- if there are improvements, most likely mortgage and lender will want it to be
○ Life tenant has duty to pay taxes
– Remedies for committing waste
○ Damages
○ Injunction
○ Forfeiture
○ Treble damages
Course of Husbandry
– Ameliorating waste: increases economic value of the land
○ Courts have valued based solely from an economic perspective, not emotion or historical terms
– When a landowner creates a life estate and a remainder, the law tended to presume that the landowner
intended for the holders of the remainder to eventually take the land in the same condition as when the life
tenant received it
Baker v. Weedon
• Weedon ---> my widow, Anna, for life, then to my grandchildren
○ Contingent remainder if she has children
○ Vested remainder subject to open to grandchildren
▪ Each in existence at time of death gets no more than 1/x interest
▪ Subject to dilution, can get smaller
• Issue: she wants to sell property, why can she not sell it
○ She can sell it as a life estate, is transferable during lifetime
○ Files lawsuit to resolve problem created by estate planning- all she is entitled to is rent income
▪ Weedon clearly meant to keep her taken care of while alive
• Cannot come together with grandchildren to settle on a selling price, as she can still have grandchildren
○ Cannot transfer deed properly without all signatures
• What should Weedon done differently?
○ Can add a date cut off for children such as children before the reading of the will
○ Leave the property in trust
▪ More precise, flexible
▪ Fragmenting property into legal and equitable interests the power to act
• Fortify life estate with the power of sale either in trust or not
○ Gives holder ability to unlock value of property and the grandchildren receive nothing if power of
sale is used
O ---> A for life, with power to sale, then to SLU

– A fee simple would void SLU's future interest with sale
Defeasible Fee Simple Estates

Fee Simple Determinable
– Where future interest of grantor is possibility of reverter
• Signaled by: "so long as," "until," "while"
– In the instant, condition not met, it is automatically O's
Fee Simple Subject to Condition Subsequent

– Does not contain express durational language

– Does not contain express durational language
– Grantor should limit the fee simple using language that indicates that breach of the condition gives the
grantor right to terminate the estate
– Right to re-entry, possibility of reverter
– "provided that"
O ---> A but if the land is not farmed sustainably, O may reenter and recover possession
– States have begun to merge the two

• Keep fee simple subject to condition subsequent (conform to)- does not happen automatically and can
or cannot retake
• Forfeiture of title is less likely
○ Where conveyance is ambiguous (durational and language of reentry)
• Where a constructional preference for a fee simple subject to a condition subsequent
Scott ---> SLU for purposes of operating night law school

▪ SLU gets a fee simple absolute
○ Mere expression that property is to be used for a particular purpose will not in and of itself suffice
to turn a fee simple into a determinable fee
▪ Question becomes a contract question
Scott ---> deed to SLU provided that it operates law night school
---> will to Red Cross
• No language granting right to terminate
○ Some courts look to words (essential), some courts would say this example is enough
• SLU has a fee simple determinable
• Due to reading of deed, the narrow interpretation, SLU keeps property even if night school classes are
suspended
○ Law construed to avoid forfeiture
– Possibility of Reverter and Right to Reentry

• Future interests may not be property for all purposes
○ In some states, Scott cannot do this with his possibility of reverter
○ Under others, it is only inheritable and can only be left interstate to his heirs
○ Most jurisdictions have adopted the modern view that possibility of reverter and right of entry are
transferrable, devisable, and inheritable
Fee Simple Subject to Executory Limitation

– Future grantee interest= executory interest
Must look at substance of conveyance to ensure it is not contradicting public policy

• Total restraint on alienation
• "then to N so a long as he remains married"
○ Total restrain contrary to public policy
• "to N so long as he married within our faith"
○ Not contrary to public policy
• "to widow, so long as she remains unmarried"
May be enforced, but public policy to grow human race

○ May be enforced, but public policy to grow human race
– However, she was already married and had time to produce offspring
• " to sister Claire, so long as she leaves the order and returns to secular life"
○ Some courts have found some divorce or promote separation of some other family relationship
○ Courts have generally upheld conditions that seek to control grantee's personal habits, education
pursuits and occupation
Two Types of Deeds

– Warranty deed: grantor promises he owns property being conveyed
– Quitclaim Deed: whatever interest in property, that's what's being conveyed
Future Interests
– Can either vest in possession or in interest
– Remember: future interests own property
– Future interests in grantor are always vested
Reversions
– Future interest kept by grantor when convey less than what grantor has
– Has fee simple absolute but gets reversion when granting life estate
1) O ---> A for life

2) A ---> B for life
– A also has a reversion as he conveys less than what he has as with possibility A outlives B
O ---> A for life, then B and H/H if B survives A

– Reversion is not always certain, here it may not go back to O, dependent on if B survives A
Remainders
– Do not need to be in fee simple absolute
– Created by expression of grantor's intent
○ Never created by operation of law like reversion
○ Same instrument
– Remainder wait for naturalization of expiration of prior estate
○ Must be capable of taking effect immediately upon expiration
– Different categories
– Vested Remainder
○ It will vest in possession, nothing comes in the way of it becoming possessory
▪ No conditions as expiration of possession before
– Vest Remainder Subject to Open
○ Conveyed to a class of persons whose members are not yet fully known
○ Subject to dilution/partial divestment
– Contingent Remainders
○ Three situations that give rise to
▪ Condition remains to be satisfied at time of conveyance, before grantee is certain of becoming
entitled to possession
□ Ex: achieving certain age, passing the bar
□ Place saver: grantee not in existence, contingent on being born
□ Widow: identity unknown as wife is not yet considered a widow, cannot point to taker
□ Widow: identity unknown as wife is not yet considered a widow, cannot point to taker
○ Alternative contingent remainder: reversion in fee simple absolute for O
▪ Conveyance and then taking (divides between life estate and reversion)
– Vested remainder subject to divestment
○ Condition precedent is one that must be satisfied before the interest is considered vested
▪ Makes remainder interest contingent
▪ If placed in the granting clause or in a clause preceding clause
○ Condition subsequent is a condition attached to a remainder that is already vested, causing the
remainder to be completely divested if the condition occurs
▪ If granting clause makes an unconditional grant, but is followed by a separate clause containing
the condition
Executory Interest
– Future interest created in grantee that cuts short the proceeding estate
– Estate that follows a vested fee simple is an executory interest, not a remainder
○ Shifting: O ---> SLU so long as used for night school, then Wash U
▪ SLU has a vested fee simple estate (present possessory) and thus, Wash U has an executory
interest
– If it divests grantor, it's an executory interest
○ Springing: O ---> SLU when the drinking age is 18
– Executory interest divests at termination
G ---> AMW for life, then Noah and H/H, but if Noah fails to reach 30, then to NYU
– AMW= life estate
– Noah= vested remainder fee simple subject to divestment
– NYU= executory interest in fee simple absolute
Common Law Rules Governing Future Interests

– Future marketability of property by destroying future interests
Destructibility of Contingent Remainders

G---> AMW for life, then to Noah and H/H if and only if Noah attains 30, and Noah fails, then NYU
– Noah= contingent remainder in fee simple absolute
– NYU= contingent remainder in fee simple absolute
G---> AMW for life, then to Noah and H/H, if Noah marries Anna
– Noah= contingent remainder in fee simple absolute
– G= reversion in fee simple absolute
▪ Capable of being ready at death of AMW but if not, then goes back to G
Rule in Shelley's Case

– Rule changes status of title
O---> AMW for life, then heirs and H/H
▪ AMW= life estate
▪ Heirs= contingent remainder in fee simple absolute
□ A living person has no heirs, they are created by person's death

□ A living person has no heirs, they are created by person's death
▪ O= reversion in fee simple absolute as AMW might die heirless
▪ UNDER RULE: AMW= fee simple absolute
□ Would have been unmarketable in the lifetime of AMW without rule
– Rule also generated revenue
○ Device to avoid death taxes: property passes to heirs in original, but jurisdiction would lose one
generation of taxes
– Ways O can avoid violating the rule

○ Two Instruments
1) O ---> AMW for life
2) O ---> AMW's heirs and H/H
○ Creates one equitable and one legal estate

O (B of A in Trust) ---> AMW for life, and then outright and free of trust to AMW's heirs and H/H
○ Not a life estate

O ---> AMW for 100 years if he so long lives, then heirs and H/H
○ Just changing heirs to children avoids rule, but might not be what O wanted
○ Cannot avoid rule by stating so, it is a rule of law
 Many jurisdictions have abolished the rule
Doctrine of Worthier Title

– Only applies to conveyances made by grantor while alive
– Attacks and destroyed contingent remainders in grantor's heirs
O (deed) ---> AMW for life, then to my heirs and their heirs
▪ Common law- AMW= life estate, O= reversion
▪ "to my heirs" violates doctrine, as property is inalienable/not marketable
– Has not been abolished

○ Has been diluted into a rule of construction
○ Can draft around the doctrine
 "I intend that my conveyance does not apply to doctrine"
Rule Against Perpetuities

Three Future Interests Subject to the Rule
1) Contingent remainders
2) Executory interests
3) Vested remainders subject to open
– No grantor interests subject to rule
Must Ask: is the future interest valid/void?

– When will you know John Smith's interest is certain to vest? (entitled to possession?)
– You need to know within the perpetuities period: either it will vest or it won't
○ To be valid, future interest must be certain to vest/fail during the individual's life + 21 years
Look for a validating life- certain to vest or fail in B's life
○ Look for a validating life- certain to vest or fail in B's life
 Must be a life of being at time of conveyance to be a validating life
– At common law, not "wait and see" analysis
○ Use red pencil approach, cut out what would be void
Charity to Charity Exception

– Would not fall within exception if conveyed to individual before charity
Perpetuities Saving Clause: "to children alive at the time of this conveyance"
– Would deal with the issue of future children who could affect the future interests
Grandchildren Rules
– Conveyance of property to grandchildren of a living person violates the rule of perpetuities
○ Can change: "to grandchildren, born of the children alive at the date of conveyance"
– Conveyance to grandchildren of a dead person does not violate
Unborn Widow
– Refer to persons by a title rather than by name pose a similar problem in identifying a validating life
– "unborn widow" cannot serve as a validating life, and where conveyed to widow
○ Don't know who widow is, and it is possible she's not alive
○ May remarry someone
– Interest of heirs is void under RAP

CONCURRENT INTERESTS
Joint Ownership at the Same Time

Tenancy in Common
– Each own an undivided interest in property and an equal right to take each square foot
○ No boundary as to which portion in the land
– Partition property
○ Order partition by kind (physical division) or sale (judge auction land and go to highest bidder)
– Generally, co-owners can seek partition and terminate a co-ownership
Joint Tenancy
– Four Unities Required
1) Unity of Time- acquire at the same time
2) Unity of Title- by the same title/document
3) Unity of Interest- interests have to be equal
4) Unity of Possession- equal right to possession
– Differences with Tenancy in Common
○ Differs in how it begins as the four unities are required for joint tenancy
○ Differed in how it ends: cannot continue joint tenants with rights of survivorship
O ----> A ---> X (acquired at a later time)
O ---> B
Straw Conveyances
– At common law, necessary for an owner of land to create a joint tenancy between himself and another
party
– Modern jurisdictions, most still recognize joint tenancy and through statutes permit a person to create
a joint tenancy with another person by direct conveyance without the need for a straw party
○ Even in states without such statutes, many have permitted without this
○ Focus on more of the intent of the parties and less on the formalism of the four unities
– Unlikely that an American court would hold that an attempted conveyance into join tenancy failed for
lack of straw conveyance
What happens when there are more than two tenants with joint tenants with rights of survivorship
1) O ---> A, B, C as jtwros
2) A ---> X
– X becomes tenants in common, but his conveyance does not affect jtwros of B and C
– X= 1/3 tenant in common, B&C= 1/3 each jtwros
3) B dies
– X= 1/3 tenants in common
– C= 2/3 tenants in common
Secret Severance
– That who conveys does not need to inform other property owners, do not need consent
– BUT, can only transfer or convey during life time
Tenancy by the Entirety

Tenancy by the Entirety
– Married individuals
– Incapable of being severed
○ Cannot levy execution against property owned by both for claims of just one of them
– If conveyed as tenants in entirety but aren't married
○ Some courts go default way as tenants in common
○ But not what was intended, take a form that has non-severability and survivorship
B ---> H & W for their joint lives, then to H & H/H if he survives, and if not, then to W and H/H
▪ Dual contingent remainders
▪ Can have inequality with survivorship in this form
– Some states follow title theory of mortgage: title of property passes upon the signing of a mortgage
○ Mere execution is a severance
– Many follow lien theory of mortgage
○ Title does not pass until foreclosure, a mortgage conveys security interest, not title
Rules Governing Legal Relationship Between Cotenants

– Accounting: action where one cotenant seeks to compel another to share benefits
○ Cotenant in sole possession does not need to account tenant
○ But if one ousted other, then must provide share of rental value

LANDLORD AND TENANT
Commercial Leases/Space
– Need an anchor tenant lease to borrow the money
– Enter leases with other tenants
Revolution of Incorporating Contract Law into Landlord Tenant Law

– Duty of good faith and fair dealings
– Implied warranty of habitability
– Really applies to residential, not commercial
○ Must be aware of context
– Tenants have more rights, landlords more responsibilities
○ Hasn't translated into improvements (measurable) for urban areas
 Fear of eviction if assert rights
 Do not know the law
 Tenants can read a lease and not go to a lawyer, but many contain clauses unenforceable
Selling House Example

– Typical path: contract formation ---> closing on the house
○ Obtain financing, inspections etc. (reasons for hiatus)
– Asked by buyer to go into pre-closing occupancy?
○ Risks associated- discover defects in home, ask for adjustment in price
○ Lenders can back out, closing doesn't occur
○ With these in mind, how should pre-closing occupancy agreements be structured?
– Mistake to classify money paid in pre-closing as rent
○ Would give them rights as tenants
○ Relation to Shack- entitled to certain rights as a tenant
– Structure the same way as in Cook v. University Plaza
○ Negate tenant relationship
○ Should be structured by a license
First Issue: when is something a lease and when is it something else?

– YMCA Example:
○ Transfer for a right of possession in both
– In Cook, allowed to relocate students in dorms, while lease is an exclusive right
○ Inconsistent with lease
○ Right to relocate does not necessarily mean it is not a lease, depends on the facts and circumstances
○ 90 days' notice, students could be moved at will

Types of Leasehold Estates
1) Tenancy for Years
– Ends automatically @ conclusion of period described in lease
– Does not have to be years
– Neither has to do anything to terminate
– Do not need to know commencement- known on day it begins when it will end
 Most residential, most commercial
2) Periodic Tenancy
– Arrangement transferring a continuous possessory interest for a concurring term
– Automatically renews itself unless one of the parties gives notice
 30 days for month to month
 60 months for year
– Typically arise out of writing
 By implication: send in check., cashes check
3) Tenancy at Will
– Non freehold estate terminable at will of either party
– Most states require 30 days' notice
4) Tenancy at Sufferance
– When tenant doesn't pay but remains in a holding power, waiting to be evicted
Transferability of Leasehold Estate

Prime Lease: original landlord and tenant
– Dual legal relationship: privity of estate + privity of K
Lease: grant of exclusive possession of permanent space

– Characterized by breath of uses the tenant can make on the property
Landlord
Privity of Estate Privity of Contract
Tenant
Assignment Sublease
* Not the name that determines, but the rule assigned
– Assignment: transfer all of the remaining period of the lease

– Assignment: transfer all of the remaining period of the lease
– Sublease: given for a specific period of time
○ Original tenant remains in privity of estate with landlord
○ Something less than remaining period of lease
○ Can transfer less than whole property/space
– What happens if lease goes into default, who is liable?

○ Assignment: L wins based on privity of K
▪ Either relationship, independently, supports lawsuit-need at least one
▪ If chooses to sue A, L wins based on privity of estate
○ Sublease: L v. S, motion to dismiss, no theory to support
▪ L can get remedy of eviction- S's ability to stay remains on good standing of the lease
▪ S not liable to L as not in privity of estate or privity of contract
□ Only liable to ever move out
– Two Monetary Convents: keep fence in good repair and bring mail to secretary every week
○ Does tenant have right to assign or sublease?
▪ Default rule: tenant can when lease says nothing against
□ Law favors the free alienability of property
○ How can you turn a prohibited assignment into a permissible sublease?
▪ Make it for one day less than the rest of the lease
○ Who is liable when the two covenants are violated?
▪ Tenant is liable due to privity of contract
▪ A is liable to monetary due to privity of estate and to the fence as it is logically related to the
property, unlike the mail
□ "runs with the land"
– Runs with the Land
○ Binds remote parties
○ The covenant is so connected with the land that the party who possess the land is entitled to the benefit
of the covenant or is liable for its performance
○ Whether covenant touches and concerns the land
▪ Bears logical relationship to property- if performance of covenant makes land more valuable
▪ Can only run with the land if in privity
Julian v. Christopher
• Facts: commercial property with upstairs apartment, wanted consent to sublease upstairs apartment
○ Landlord said only if more rent is paid
□ Sublet without paying more rent
○ Lower courts held for landlord
□ Jacobs v. Klawans: held landlord could withhold consent for any or no reason
○ Court of Appeals overrules Jacobs
□ Should be modified due to changes post 1960's- leases became contracts and with such must
act in good faith
□ This clause of withholding consent is not acting in good faith
○ Modern trend: landlord have a commercially reasonable for refusing consent
• When a lease gives the landlord the right to withhold consent to a sublease or assignment, the landlord
should act reasonably and the courts ought to not imply a right to act arbitrarily or capriciously
Silent Consent Clause: standard by which landlord has to exercise its right to consent transfer

Silent Consent Clause: standard by which landlord has to exercise its right to consent transfer
– What if landlord refuses to let them sublease as lease has right to exclusivity clause against other
chocolatiers? Within Julian right to refuse
• What if there is no clause? Still within right, reasonable to withhold as desire for an optimal tenant mix
– What if base rent and % of profits and wants to sublease to an antique shop who won't produce profits?
Differs from Julian because in lease, landlord had expectation and would potentially lose money
– What if leasing to Barnes and Noble who wants to sublease to Planned Parenthood?
• Basis for objection needs to be financial
○ Such as losing alumni donations, wanting children to go to a certain type of school
• Objections
○ Financial irresponsibility or instability
○ Unsuitability of incompatibility of the intended use of the property
○ If the reasons for withholding consent have nothing to do with the intended transferee or use of
property, motivation may be suspect
• What objections are reasonable?
○ Yeshiva: bought building after lease had already been signed
□ There, knew dealing with a secular landlord, but here knew dealing with Jesuit University
– What if tenant wants to move out early and wants to charge more to an assignee lease? Can landlord refuse
to consent unless gives up profits?
What if landlord is leasing a property being used for crop

– Tenant cannot pay because crop was wiped out by weather and landlord is making moves for eviction
– What is tenant's best defense?
• Tenant can foresee such incidents- not an excuse
• But what about unforeseeable? Impossibility does not exist
○ If tenant does not pay in full no matter what because of landlord's duty to banks
• Court reasoned not excusable because landlord has no upside potential
○ Tenant has unlimited upside potential
○ Tenant entitled to extraordinary profits by whatever means arise
Bonus Value: Who's Entitled?

– Hotly negotiated in commercial leases and will provided that bonus value is split (standard solution)
– What if return and find them about to film a movie on the property?
• Nothing has changed about law, but relief changes outcome
○ Can actually prevent something from happening- vague notion of privacy
○ Money after is quantifiable
– Kendall court recognized that landlords and tenants are free to make express provisions regarding treatment
of bonus value in event of a transfer, and courts will freely enforce such express agreements
• Held that desire to capture bonus value is not a commercially reasonable basis on which to withhold
consent
What if space is being used in violation of a residential usage covenant?

– Landlords worry about waving usage for one (if for one, waive for all)
– Has to enforce to prevent future waive arguments
What if there is a lease to occupy a commercial space, but never occupies?

– Assuming silence, does actually need to occupy?
• What if covenant not to abandon?

• What if covenant not to abandon?
○ Never occupied, could not abandon
○ Lease viewed against drafter
• MO law: no duty for tenant to occupy unless lease contains language to such effect
• whether to apply covenant to occupy- whether tenant is an anchor tenant
○ Only factor where court will apply a continuously occupy covenant (anchor tenant)
□ Anchor there to bring in profits and other stores
○ % of rent feature does not lead to duty to continuously operate?
□ Landlord winning argument against antique store- have to worry about other tenants and if
not bringing in business could harm their business
• Remedy for breach of covenant to operate continuously
○ Landlord wants to move in
○ Why would a judge not want to sign an injunction telling store to operate their stores?
□ Slippery slope of imposing business
○ Implied not upheld by injunctions
Fair Housing Act

Does not protect against discrimination or occupation
– Can take apartment for sublease
• What if consent clause that must have prior written consent by landlord?
○ Whether landlord needed to act reasonably according to the state? Is this a reasonable consent?
○ Would want to keep out lawyers as they are more likely to enforce their rights- is there a
reasonable objection? (Page 420)
□ Financial responsibility?
□ Unsuitability of compatibility?
 Lawyers tend to be financially responsible and compatible- so only reason would be that
they will enforce rights
 Hand in that landlords are expected to protect rights of tenants and this rational
conflicts that
DVM Co. v. Bricker

• Use clause limited sell to souvenirs but seller wanted to expand
• Unduly ties hands of the tenant
Medicare Glaser and National Supermarket

• Both had gone under by time of case
○ Only two retail tenants @ time- they argued to get out of strip mall
○ Is there an implied covenant to operate shopping center?- if so, should be able to get out
• SC: Mo does not recognize implied covenants for tenants to operate (continuous) and thus, will not do
such for landlords
○ Can do so expressly
Structure and Interpretation of Rent Percentage

– Courts have implied operating covenants involve leases that obligated the tenant to pay some or all of its rent
based upon a specified percentage of some or all of the tenant's sales
Landlord's Responsibilities Related to Conditions of the Premises

Landlord's Responsibilities Related to Conditions of the Premises
Whether it says so explicitly or not, all leases contain clause of constructive eviction
– Commercial and residential acts and omissions
Implied Covenant of Quiet Enjoyment

– Prohibits the landlord from physically excluding the tenant from the premises
• Can breach through physically ousting tenant
• If tenant can show:
○ Active interference with its possession
○ That the interference is attributable to the landlord, agent or a paramount title holder then the
landlord has breached
– Remedy: Constructive Eviction
• A tenant who claims constructive eviction must behave as if she was actually evicted
• Must leave within a reasonable period of time after interference has remained uncured
○ Must notify landlord and give reasonable amount of time to fix before leaving
• Problem: tenant runs risk that judge will find it substantial enough to leave this way
○ Cannot have declaratory judgment because it's designed to be self-serving, show seriousness
○ Does nothing to improve quality of housing stock
□ Landlord will replace them
– Applies to residential and commercial, applies to acts of third parties, applies to malfeasances and omissions
Implied Warranty of Habitability

– Remedy: Withhold Rent or escrows rent (tenant isn't broke, has rent)If landlord sues for eviction based upon
unpaid rent, the tenant generally can raise the implied warranty of habitability as an affirmative defense
– Implied Warranty of Suitability (commercial)
• Not as well recognized, other is almost everywhere
– Landlord will deliver at lease commencement date and thereafter, maintain throughout the lease premises
that are safe, clean, fit, free from latent and patent defects substantial in nature and not caused by tenant, in
the essential facility
• Of dwelling or common areas that tenant has notified landlord about
• Just physical conditions? What about nonphysical?
• What about commercial? Just residential?
– Is warranty waivable?
• Not typically, but if bargained
• If state has implied warranty of suitability- yes
• If state has implied warranty of habitability- no
– Few tenants take advantage of the warranty
• Don't know about their rights and landlords make it difficult to find out about/conceal
○ Clauses in terrorem have no legal support but landlord uses in lease since tenant will not express
rights- claims are too small for lawyers to get into
○ Threat of eviction for tenants
– Retaliatory Eviction
• Forbid retaliatory action by landlords- subjects them to liability for any retaliation
○ Go for a longer lease with security that comes with
• Limited to tenants who report housing code violations
Very narrow doctrine, must be a good faith report

○ Very narrow doctrine, must be a good faith report
Javins v. First National Realty Corp.

• Created the implied warranty
• The code by the DC Housing would want it to be enforced and tenants must be able to provide self-help
Recovering from Holdover Tenants Depends on Approach

– American Rule
• Landlord has no implied duty to place tenant in actual possession as long as the tenant has the legal right
to possession and the standing to protect its own legal interest
• Cause of action against holdover only
• How should a tenant protect itself? Expressed covenant
• Rationale: landlord in a better position to evict, put fees on and prevent this from happening
– English Rule- majority of jurisdictions
• Holdover and landlord
• Implied duty to place tenant into actual possession on the first day of the lease term
• How should landlord protect itself? Provide that liability can back out of lease if not out in a reasonable
time but cannot sue
Landlord's Rights When Tenant Abandons

– Anticipatory repudiation
• Common Law
○ Not accept surrender: not explicitly, default is option 3 (hold tenant liable for rent for balance of
lease
○ Reenter to re-let for tenant's account to show to other tenants
○ Accept surrender (if not clearly stated)
• Jurisdictions that follow Frenchtown take away option 1
○ Requiring landlords to mitigate damages
○ Can landlords enforce policy of not allowing certain individuals to rent for mitigating damages?
□ Cases are split re: burden of proof
□ Landlords oppose duty to mitigate
• Restatement rejects duty to mitigate
○ Duty is an inducement to vandalism because tenant is more likely to abandon if he knows landlord
will have the duty to mitigate
○ Using self help through provision is contrary to public policy
○ Gorman and Ratliff: can no longer use self help as landlord as there are summary eviction
proceedings and specialty courts
○ Some jurisdictions still allow the use of self-help unless tenant raises an objection
□ If tenant consents after default, don't have to go through summary eviction- tenant may have
gotten something in exchange

SERVITUDES
Easements
Right to make limited use of a property of another
– Real covenants - promises regarding the real property
– Need to put all this into writing and must be signed and recorded
○ Recording solves problem if property sold, makes promises/real covenants binding as run with land
 Successor must be on notice- charge with constructive notice of obligations
□ Actual knowledge
□ Constructive notice- must search land records for title to become aware of obligations
 Even if no constructive notice because not recorded, can still be bound
□ Obligation to see property and expected to ask reasonable questions of a reasonable
purchaser
– Can a lawyer represent both sides?
○ Reciprocal interests in the easement and covenants
 Always more to the story
○ No per se rule against dual representation
 Rule permitting is designed for rural areas
 Always a primary client then a derivative client- must get informed consent
□ Disclosure not being made in a conscientious way since it continues so much
– Equitable servitude- when remedy being sought to enforce promise is injunction
○ When remedy sought is money damages, it's a real covenant
Easements= interest in the land of another

– Estate is a possessory interest, but an easement is limited use, narrowly defined purpose
– Generally created by expressed grant/ reservation in the form of a writing
– Owner of land continues to have sole possession of property, restricted only by easements
Servient Parcel= land subject to an easement
Types of Easements
Easements in Gross
– Only a servient parcel, only the land subject to easement (utility easements as they don't benefit
other property)
Easements Appurtenant
– Both parcels benefit
 Dominant parcel- land benefited by the easement appurtenant
 Benefit- incident of possession of the dominant parcel
– Easements profits are construed to be appurtenant unless said otherwise
Methods of Creation
By Expressed Grant
– When the grantor executes and delivers to the grantee an instrument conveying an easement over
the servient land
By Expressed Reservation
By Expressed Reservation
– Grantor executes and delivers a deed conveying a possessory estate in the servient land to the
grantee, but reserves or retains in herself an easement over the servient land
– Should be expressed clearly- "I hereby reserve to myself a right of way easement"
– Can reserve an easement of third party
 Some places is not allowed to reserve for a third party
– Transferability of easements
 Noncommercial easement in gross are personal to holder and nontransferable
– What should go in the easement recording?
 Time to use
 Scope of use
 Fixed location and width
 Right to relocate the easement
 Limited to specific parcel and no other land the owner may acquire
 Consideration for easement
 Limited by term of use, untransferable
 Liability- indemnified and held harmless
 How should disputes be dealt with
– Church Parking Lot Ex: what if church moves?
 Easement in gross- church even if moves, still gets it
 Easement appurtenant- new tenant gets it
– What if failed to reserve
 Cannot entitle through strict necessity
 Can from preexisting use
Alft v. Stewart
• Court holds it is an easement appurtenant
• Presumption for appurtenant
• Where drafter knew how to express himself and did so in one place but not another,
presumption
Implied from Preexisting Use

– Quasi-easement: must have been common owner but then sold off a part, must have been using
• Must be apparent to buyer of the use and apparent continued use
• Using benefit of one part of the land for another part of the land
– Three Requirements
• At time of serveance had to be making apparent use of the property
• With intent to continue
• Use be reasonably necessary
○ tags along as freebie if first two are met
Bob's Ready to Wear

• Courts more likely to find easement from preexisting in favor of grantee- when the quasi
dominant parcel is what's being sold off
• Court decides there needs to be a fourth requirement
○ Reciprocal benefits test: both grantor and grantee must both receive benefits
○ Judge concerned with future development of city property
▪ Increases costs of future by costs of negotiating to relinquish property- but parking
would be required if skyscraper is built

would be required if skyscraper is built
• Gives irrevocable license
Irrevocable License
Expenditures in Reliance + on a license = irrevocable license
(Improvements) (permission)
• When he denies easement by prescription because they had permission (Bob's case)
– Not as good as an easement

• If personal to the licensee- nontransferable or inheritable
• Lasts as long as necessary for licensee to recoup for expenditures made in reliance on license
(doesn't last forever)
○ Such as insurance
Implied from Strict Necessity

– Cannot be implied by preexisting use, as no apparent preexisting use
– Land locked property
• Becomes implied when last lot is sold- becomes easement
○ Alienability of property
○ Public safety issue
○ Public policy- highest and best use
– Lasts only as long as the necessity lasts
• Once gone, easement is gone
By Prescription
– Elements
• Open
• Notorious
• Continuous
• Uninterrupted Use
• Should have known (owner)
– Differs from adverse possession- exclusivity is not a requirement
• All issues in adverse possession can come up
○ Tacting- can acquire easement this way
○ Disability of true owner-extending time
○ Subjective intent
Problem Areas
Scope
– Remedies for expanding the Scope (Lake Access example)
• Money damages
• Injunctive relief
• Forfeiture of easement (termination)
Termination
– What constitutes impermissible expansions
• Physical expansion (per se impermissible- what are you entitled)
• Nonphysical expansions (change in how it is used)
• Nonphysical expansions (change in how it is used)
○ Must prove two elements (owner of servient parcel)
▪ Change was unforeseeable
▪ How you were harmed
– General rule
• Balancing of equities?
• An easement appurtenant to one parcel of land may not be extended by the owner of the
dominant estate to other parcels owned by him, whether adjoining or distinct tracts, which the
easement is not appurtenant
– Unless expressed, term of easement is perpetual
• Dennis: no matter how long not used, does not equal abandonment (mere non-use)
○ Must have some other evidence of intention of abandonment
▪ Actual writing "release" from easement
○ Sliding scale- longer non-use, less that is required for the plus factor
Heydan v. Mediaone
• Unforeseeable telephone lines would carry pictures but could not prove harm

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CONCEPTS OF PROPERTY AND POSSESSION

Monday, December 22, 2014 9:22 AM

Property as Efficient Resource Allocator

Property as Guardian of Individual Liberty

Property and the Reward of Labor

Property, Personal Identity and Community

Property ---> "Blackacre"

PROPERTY OUTLINE Page 1

Loretto v. Teleprompter: right to exclude, "most essential strand"

Bertman v. Parker (1954)

PROPERTY OUTLINE Page 2

Hawaii v. Midkiff (1984)

Wayne Country v. Hathcock (2004)

How could legislatures improve review of such cases?

United Steel Workers v. US Steel Corps.

Moore v. Regents of the University of California

PROPERTY OUTLINE Page 4

PROPERTY OUTLINE Page 5

Why does the law protect mere finders?

Benjamin v. Linder Aviation, Inc.

PROPERTY OUTLINE Page 6

Elements of Adverse Possession

Underlying notion of "earning the property"

Cannot gain title of government land through adverse possession

PROPERTY OUTLINE Page 7

Constructive Adverse Possession

Uninterrupted/ Continuous Element

Two Theories that justify Adverse Possession

Disabilities and Statutory Period

PROPERTY OUTLINE Page 8

Fee Simple Absolute

PROPERTY OUTLINE Page 9

Rule of Construction against Partial Intestacy

1) O ---> A for life

Two forms of Waste

O ---> A for life, with power to sale, then to SLU

Defeasible Fee Simple Estates

Fee Simple Subject to Condition Subsequent

PROPERTY OUTLINE Page 11

– States have begun to merge the two

Scott ---> SLU for purposes of operating night law school

– Possibility of Reverter and Right to Reentry

Fee Simple Subject to Executory Limitation

Must look at substance of conveyance to ensure it is not contradicting public policy

PROPERTY OUTLINE Page 12

Two Types of Deeds

1) O ---> A for life

O ---> A for life, then B and H/H if B survives A

Common Law Rules Governing Future Interests

Destructibility of Contingent Remainders

Rule in Shelley's Case

PROPERTY OUTLINE Page 14

– Ways O can avoid violating the rule

○ Creates one equitable and one legal estate

○ Not a life estate

Doctrine of Worthier Title

– Has not been abolished

Rule Against Perpetuities

Must Ask: is the future interest valid/void?

Charity to Charity Exception

PROPERTY OUTLINE Page 16

Joint Ownership at the Same Time

Tenancy by the Entirety