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Outline for Property

Possession

Actual legal possession (poss. in law): Exclusive physical control of a thing, combined with a manifest
intent to exclusively control the thing on the possessor’s own account and in his own name.

Constructive legal possession: what an actual legal possessor has after someone else acquires custody,
but not legal possession of a thing.
Common law larceny: Taking & carrying away of personal property from another with the intent to
permanently deprive the other without claim of right.

Unconscious possession: exclusive physical control of a thing without intent to possess. If one is
unaware that he has the object, this is unconscious possession.
-One can also own something without being aware of it.
-If one has actual legal possession of a container, he also has control of any contents in the container that
could reasonably be expected.

-Possession requires both physical control over the property and intent to acquire control. Control and
intent must be concurrent for the right to possess.

Trespass Rule: Mere pursuit of an animal does not grant property rights over the prey to the hunter.
Mortally wounding the animal or killing it does grant a property right, because it brings the animal under
the hunter’s certain control. (Pierson v. Post)

-If a chattel is delivered to another under a mutual mistake concerning its identity, the receiver
legitimately possesses it because he had no intent to steal it when it was given. (Queen v. Hehir)

-If parties have equally strong legal claims to a piece of property then they are equally entitled to
possession of the property, or the monetary proceeds from it.

-A domesticated animal is owned absolutely, and the ownership is not defeasible. Ownership is not lost
when the animal is lost. (Conti v. ASPCA)

Rule: When an abandoned object is found while being commonly possessed by multiple persons, all of
them have an equal claim to the property and it must be divided among them. (Keron v. Cashman)

Possession: Finding

Finder’s Rule: A finder of lost chattel has a right to keep that property against everyone except
therightful owner of that chattel. He does not have an absolute property right. (Armory v. Delamirie)

-A finder may keep lost chattel found on another’s property if he was not acting as an agent of the
property owner when he found it, and if the chattel was not embedded in the property. (Bridges v.
Hawkesworth)

-If an employee finds lost chattel on his principal’s land while working as the principal’s agent, the chattel
belongs to the principal. (South Staffordshire v. Sharman)

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-21 U.S.C. s. 881(a)(6) protects innocent owners of property from forfeitures. Innocent owner is one who
takes possession of abandoned chattel without knowledge of it.

Adverse Possession

Definition: The non-permissive occupation of another’s land which will grant the estate to the occupier if
he controls it continuously.
-There must be a statute of limitations limiting the period in which you can bring action to recover
possession of the taken land.
-Adverse possessor must have adversely possessed the land continuously for the statutory period.

Seisin: Possession, actual or constructive, claiming a possessory estate of freehold in land.


-Estate of freehold is an estate of greater duration than an estate for years.

-Only thing AP can acquire by adverse possession in any case is an interest in the land against those who
have a cause of action against him. AP acquires estate of the person he took seisin from.
(-See hypos in notes for Hostility.)

Elements: actual and exclusive possession; open and notorious; continuous; hostile & under claim of
right.

Actual & exclusive: actual legal possession of the land (control + intent). AP must intend to exclude
others from ownership of estate.
-AP acquires that part of the land he actually possesses.

Open and notorious: Possession must be publicly and openly known. Rightful owner must know about
the adverse possession  opportunity to recover land.

Continuity: Consistent actual legal possession of the land for the statutory period without interruption.

-Tacking: If AP consensually transfers adverse possession to another party, his time period is added to
second party’s period for continuity to meet statute of limitations.
-AP can pass on adverse possession this way, but not ownership.

Privity of estate: Exists only when AP transfers possession to 2ndparty by mutual consent—required for
tacking. AP can transfer possession orally or in writing for adverse possession.
-As soon as AP becomes legal owner, transfer must be in writing (statute of frauds).

Interruption: Leaving actual legal possession of land for any period of time interrupts statute of
limitations, if AP had no intent to return or possess land.
-If owner deprives AP of actual legal possession through ejectment or other means, it’s interruption.
If owner leases land to AP, it’s interruption since AP recognized owner’s right.

-AP’s possession must be appropriate for the nature of the land. AP should use land as the average owner
would. If land is “wild”, hunting or fishing may be enough to possess land. (Monroe v. Rawlings)

Hostility: Possession which is without true owner’s permission, without recognition of the owner’s right,
or not in subordination to the owner.

Under claim of right: Intending or acting to possess with a claim against the rest of the world.
-AP must use & enjoy land in manner that the average owner would do.

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-Possession can’t be hostile towards someone who doesn’t own the land.
-Caretaker or tenant who possesses property on behalf of owner is permissive, not hostile.

Connecticut view: AP’s state of mind is irrelevant for hostility as long as he uses the land like an average
owner would. Objective action by AP determines adverse possession. This is pragmatic.

-If party has legal disability, it cannot sue or be sued without a legal guardian. Disabilities include
minority, mental incapacity, imprisonment, etc.
-Statute of limitation doesn’t start running until disabled owner dies. This delays AP’s ownership.

Estates
Freehold: Those whose duration is potentially infinite, terminating only on death of all heirs. Includes
fee simple, fee tail, and life estate.
Non-freehold: Terminate on or before some ascertainable date. Ex: Tenancy for years; periodic tenancy.

Fee simple: Allows the greatest ownership interest. Owner may use the property as he pleases, and
property will descend to his heirs at death or according to his will.
“To A and his heirs”

Fee tail: Property passes only to owner’s children and can’t be inherited by collateral heirs.
“To A and heirs of his body”.

Life Estate: Terminates when the measuring life dies. “To A for his life”.
-Only a dead person has heirs to whom property will be transferred.

Estate for years: For limited duration; must specify beginning and ending dates. It’s transferrable inter
vivos and passes at its owner’s will or intestate succession. “To A for 10 years.”

-Absolute estates are held without conditions, besides natural termination.


-Defeasible estates can be terminated when a specified condition or limitation occurs, even before a
natural terminating event.

Determinable Estate: Grantor retains future interest. Created by words of duration such as “so long as”,
“until”, or “during”.
Estate lasts as long as condition does not occur. When condition occurs, estate automatically terminates.

Condition Subsequent: Marked by words of condition such as “on condition that”, “provided that”, “but
if”. When the condition occurs, termination depends on the owner of the future interest. It is not
automatic—owner must re-enter and re-possess. (Bring action to recover).

Executory limitation: Someone other than grantor retains the future interest. If condition is breached,
the estate automatically terminates. “To A for so long as land is used as a farm, then to B.”

Estate at will: Terminable at the will of either grantor or grantee. Can be created on purpose or from
failure to specify type of estate. Not alienable, and terminated by grantor’s demand for possession, death,
or grantee’s giving up land.

Present interest: Owner is entitled to immediate possession of land.


Future interest: Potentially entitled to possession in future.

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Possibility of reverter: Grantor automatically terminates determinable estate if condition is breached.

Right of Reentry (power of termination): Owner may recover land if condition subsequentis breached, but
he can decide not to exercise his right. Recovery is not automatic, and grantee can continue with his
estate after his breach if owner allows.

Reversion: Exists when grantor did not convey all his interest in the land. Relevant if future interest is
neither reverter nor reentry.

Concurrent Estates

Definition: Two or more persons owning land together with equal rights in quality and (usually) in
quantity.

Joint Tenancy: ownership by two or more persons together with right of survivorship. Requires all four
unities. If one cotenant dies, the others get the decedent’s share as a matter of law.
Interest of any joint tenant is freely alienable inter vivos (during one’s life).

Ex: To A and B, not as tenants in common, but as joint tenants with right of survivorship.
Tenancy by entirety: Can exist only between husband and wife. Cotenants have right of survivorship
and four unities are required, but this tenancy is not severable.
Ex: To H and W, husband and wife.

Tenancy in common: Tenant in common is owner of undivided fraction of the whole. Only unity of
possession is required. No right of survivorship. Freely alienable inter vivos.
Ex: To A and B; to A & B as tenants in common.

Unity of time: Interests of the tenants must arise at the same time.
Unity of title: Interests are acquired by the same instrument.
Unity of interest: Tenants acquired identical interests (in f. s. or otherwise).
Unity of possession: Common right of possession and enjoyment.

Future Estates

Remainder: Future interest created in someone besides the grantor which will become present estate
when its prior estate expires.

Executory interest: Exists when one of the rules for a remainder is not met.

4 rules for remainder:


1. Remainder must be created at the same time and by same instrument that creates the prior estate(s).
2. Must follow a life estate or leasehold estate.
3. It must only take in possession after natural termination of the prior estate.
4. Must be no built-in time gap between termination of prior estate and remainder.

-Remainder is contingent if: the taker is unascertainable (such as unborn heirs) or


Remainder is subject to unfulfilled condition precedent.

-Indefeasibly vested remainder is not subject to condition precedent and has ascertainable takers.

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-Vested subject to complete defeasance: subject to a condition subsequent or executory limitation. (Ex:
To A so long as estate used for residential purpose).

-Vested remainder subject to open: Conveyed to a class of people (such as B’s children) if at least one
member is ascertainable and more members can still be added to class.

-Grantee of a remainder subject to condition precedent doesn’t have any title until that condition occurs.
-Condition is precedent if it’s in the same clause as words of conveyance or in a separate clause preceding
the words of conveyance. See Nutshell pp. 58-59.
-Alternative contingent remainders: Two contingent remainders based on the same condition.

Destructability rule: Contingent remainder will fail (be destroyed) if contingency upon which it was
limited does not occur.
-Seisin returns to the grantor.
-Doesn’t apply if there are no contingent remainders.

-Anytime grantor gives away a life estate with one or more contingent remainders, O keeps a reversion.
-O has reversion b/c of destructibility rule; if contingency fails, seisin goes back to O.
-If there are no un-provided for contingencies, O doesn’t keep reversion.
-Estate for years is real chattel, not real property.

-Merger doctrine: When one person has two consecutive interests in land, those interests will merge into
one estate.
-Merger can destroy contingent remainders b/c they’re the only possibility of a property interest.

Marital estates:

-Rule in Shelley’s Case: When deed or will conveys an interest to grantee and future interest to grantee’s
heirs, the heir’s interest goes to grantee instead. If grantee’s interests are consecutive in time, they merge
to form one interest (merger).

This rule applies only if:


-grantee’s interest is a freehold estate (life estate or fee tail);
-Grantee’s heirs must have remainder
-Interests of grantee and grantee’s heirs must’ve been conveyed in same instrument;
-Remainder must use words of indefinite succession;
-Grantee’s and his heirs’ interests must both be legal or both equitable;
-Conveyance must be of real property.

Easements

Easement: A non-exclusive right to use another person’s property. Can last indefinitely, for life, or fer
certain term.
Profit: A non-exclusive right to take something from land of another (ex: extract soil from land).

-These interests are non-corporeal b/c the holders do not have possession over the land.
-They’re non-exclusive b/c they are enjoyed in common with the owner of the land. Also, more than one
party can have easement or profit on the same land.
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-Corporeal interest means some form of ownership of land.
-Owner cannot have easement to his own land. By definition, easement is right to use land of another.

-Easement holder is called the dominant tenant. Servient tenant is the owner.
Benefitted land is dominant tenement. Burdened land is servient tenement.

-Appurtenant: An easement which benefits a particular parcel of land (dominant tenement) regardless of
who owns it. Courts assume an easement is appurtenant.
-Cannot be separated from dominant tenement.

-In Gross: Easement benefits the holder only personally, not in connection with any parcel of land.
Courts assume that profits are in gross.

-Negative: Allows the dominant tenant to prevent the servient tenant from using property in a particular
way.
-Affirmative: Allows the dominant tenant to use servient estate for a particular purpose.

Ways to create easement: Expressly, by implication, and by prescription.

Expressly: Creates easement by deed or other written conveyance. Landowner can transfer land while
retaining easement in it.

By Implication: Implied based on grantor’s presumed intent. Two types: by necessity and by past use
(quasi easement).

-By necessity: It’s implied when parcel is subdivided in a way that landlocks some of the lots. Courts
assume the buyer and seller of the landlocked lot intended an access easement for the lot.
-Three elements: dominant and servient estates owned by same person;
need for access was created by subdivision of parcel;
easement must be necessary to use the dominant estate.

-Quasi-easement (past use): It’s implied at time of severance only if persons used it before severance of
estates.
4 elements. Same person must have owned both estates before.
Parcel split must have created need for easement.
Apparent and continuous use of the easement before the parcel split.
Easement’s reasonable necessity for use of dominant estate.

-Apparent means discoverable by inspection, not necessarily visible.


-Continuous: pre-existing use must’ve been permanent and continue after severance.

By Prescription: Creating easement through continuous non-permissive use, similar to adverse


possession.

Elements: Adverse & hostile; exclusive; uninterrupted.


-Adverse/hostile: user must act without owner’s permission and owner must know it.
-Exclusive: Prevent others from interfering with his use.
-Uninterrupted: Continuous use. Only actual interruption of use terminates prescription.

3 Methods of Termination—
-Release: Easement holder transfers E back to owner, becomes part of O’s estate.
-Merger: When E holder becomes owner of both dominant and serv. estates.
-Abandonment: Non-use of E by the holder + acts clearly showing intent to abandon E.
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-E can be retained even during merger if it’s expressly retained.

-Profits in grossare assignable but not divisible. They can be transferred to 2 or more parties only if they
use the profit as a common stock, not separately.
-They are inheritable but cannot be divided among the heirs.
If profit in gross is divided by a transfer, that profit is legally destroyed.

-Easement in gross is divisible if it’s required to be used as a common stock.


-If there was a proper division but grantees don’t use easement as common stock, this does not destroy the
easement. Instead, court in equity compels grantees to use easement as common stock.

-Easement appurtenant is assignable and inheritable.


It is divisible if division doesn’t overburden the servient tenement. Division = dominant tenement gets
subdivided into dom. & servient tenements.

License: When use of land is terminable at the will of the servient tenant. Similar to easement, except
easement is not terminable at will.
-License is revocable nonpossessory right to use land for limited purpose. It expires when revoked.
-License can be oral.
If person conveys easement without writing, it’s a license.

-License is irrevocableif licensee expended time/money in reasonable reliance on it. Then license
becomes an easement by estoppel.
-License by estoppel may be terminated when conditions change or licensee recovers value of his
reliance.

-License coupled with interest: When license authorized person to leave personal property on licensed
land, license can’t be revoked until licensee could recover that property.
Ex: Parking a car on a ramp.

Covenants
Covenant: A promise concerning the way the promisor’s own land will be used. Example: landowner
agrees to use or restrict use of his own land in some way.
-Promises have to do with interest in land owned by promisor, and with other interest of promisee in same
or different land.

-Persons may pass on benefits and burdens running w/ the land to assignees. Those assignees must fulfill
certain promises. Such promises must be closely related to interests in the land.

-Every covenant has a benefit (originally held by promisee) and burden (originally held by promisor).
-Ex: Tenant’s promise to pay rent to landlord. Tenant has the burden, landlord has benefit.
The burden runs with T’s leashold. Benefit  landlord’s reversion.

-Covenant touches & concerns land:


if promisor’s legal interest lessened by promise = burden.
If promisee’s legal interest is increased by promise = benefit.

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-Tenant’s covenant to pay money will only touch & concern if that money must be used on the land itself,
not for personal favor to landlord.
-If a promise is personal & doesn’t affect material value of the land, it doesn’t T & C the reversion.

-Externalities: economic benefits and detriments affecting lands nearby caused by building or modifying
one’s own piece of land.

Real covenant runs with the land only if three factors are met:
1. Subject of covenant touches and concerns land.
2. There is privity of estate between both parties to the covenant.
3. Original parties intended benefits and burdens of covenant to run w/ land.

-Restriction that limits use of land does touch & concern burdened estate b/c it controls the owner’s use
and enjoyment of the land.

-Horizontal privity: exists if original parties made covenant among themselves concerning an estate in
land. Any connection of interest between parties.

-Vertical privity: Passing on of interest between original parties to covenant and current owners of
dominant and servient estates.
-There must be unbroken chain of conveyances between original parties and current owners.

-Parties’ intentis usually found in deed or other instrument that created restriction. Court must also look
to language of instrument, nature of restriction, situation of parties, and circumstances surrounding
transaction. This determines intent.

3 types of landlord-tenant covenants:


-Party promises not to do act on leased land
-Doing or refraining from action elsewhere than leased premises
-Miscellaneous covenants outside other categories

Equitable servitude: Similar to covenant but is less strict with privity and T & C requirements. Court
may bind a party thru equitable servitude to perform covenant if that covenant wouldn’t run with land at
law.

-Doesn’t require privity between original parties for burden to be enforced against later owners.
-Benefit need not touch/concern land for either benefit or burden to run. But burden must touch/concern
land.
**Equity imposes burden only if covenantor’s successor took notice of C.

-Neighborhood plan: exists when all deeds in a common plan contain the same covenant. Common
owner grants lots in same area to different grantees.

-When prior grantee gave covenant restricting his lot, a later grantee from the same common grantor can
enforce covenant against the 1st grantee.
-Benefit of earlier C touched/concerned common granter’s retained land and ran w/ subsequent grantee.

-When common owner covenants with prior grantee to restrict all retained property for grantee’s benefit,
this covenant burdens all of owner’s retained land. It binds subsequent grantees.

Covenant can be terminated in such ways:

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-Restricted duration: C ends when its time runs out if expressly limited.
-Release: Beneficiary terminates C’s obligations, retransfers interest to promisor.
-Merger: Benefited and burdened parcels merge into one ownership.
-Abandonment: If owner doesn’t include restrictions for remaining lots. Or if parties are allowed to
ignore restrictions, they’re abandoned.

-Estoppel: Equitable relief, can only stop C by injunction.


-Laches: If P waited too long to enforce C to detriment of owner, court won’t give relief.
-Unclean hands: If P violated C imposed on his land, no relief.
-Acquiescence: If P permitted others to breach their covenants, no relief.
-Changed conditions: Changed conditions within neighborhood borders  no benefit in C.
Changes must have occurred within C’s borders.

Deeds
-Statute of Frauds require deeds to be in writing and meet requirements.

Three types:
-General warranty deed: Contains up to 6 title covenants that cover title defects from prior to when deed
was delivered. Grantee has most possible relief.
-Limited Warranty deed: Limits coverage to title defects from during grantor’s ownership. Provides
some but not all of title covenants.
-Quitclaim deed: Contains no title covenants. Conveys whatever interest the grantor has, if any.

-Mandatory deed: Must comply with the statute requirement for deed to be valid.
-Permissive: Deed is effective if you comply w/ statute, but other methods may be OK. Non-restrictive
on issue of writing.

-6 title covenants: covenant of seisin, C of right to convey, C against encumbrances, C of further


assurances, and coventants of warranty and quiet enjoyment.

-Delivery: Grantor’s words must vest title in grantee and surrender his control over title. G’s intention is
main thing. Physically handing over document is not necessary for delivery.

-Grantor must have present intent that deed immediately transfer title. Otherwise delivery didn’t occur.
-Grantor’s title isn’t recovered if deed is lost, recalled, or destroyed.

Formal requirements of deed:


-Execution must always be in writing and signedby the grantor. Grantee might not need to sign b/c
acceptance of deed = accepting its terms.
-Signature must be consistent on all documents; signed at bottom.

-Delivery: intention to vest title in grantee as mentioned above.


-Acceptance: Grantee must acknowledge receiving the estate.
-Recording: Required for certain conveyances of estate to be valid. Not required.

-Seal (mark by grantor), attestation, and acknowledgement may not be required.


-Part performance is OK if it’s enough to take deed out of Statute of frauds.

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-Description must be clear written statement about courses (distances) and monuments or map
references.
-If there’s conflict between description and map, monuments take priority over courses.
-Monument = any landmark such as building, tree, etc.

Priorities & Recording Acts


-Priority problem: when transferor grants interests in same parcel to two different parties.

-CL Priority: first person who received conveyance is first in right. First in time = first in right.
-Legal interests come before equitable interests.
-If O gives equitable interest to A and legal title to B: B has priority if he’s BFP (no notice of A’s interest)
and if he paid. Otherwise A has priority.

-Every state now has recording statutes, not common law.


-Generally protects a subsequent transferee from former unrecorded transfers.
-Unrecorded conveyance will be ineffective against certain protected parties.
-Recorded document is effective against world b/c it gives constructive notice.

Notice acts: Unrecorded instrument is invalid against later purchaser without notice of it. Protects
purchaser of property without notice of former unrecorded instrument.
-If first person records his deed, this = constructive notice. Recorder then has priority.

Race acts:Priority is based on which who recorded documents first. First person who records wins, even
if a later (recording) purchaser knew of prior unrecorded conveyance.

Race-Notice acts: Unrecorded conveyance is invalid against later purchaser who buys without notice of it
AND records before prior person records. Rewards ignorant buyer only if he records.

Riparian Rights

-Right to use water from a stream is riparian right. Similar to easement!


-Parcel is riparian if it’s reasonably close to a river or stream or contiguous to it.
-Upstream user can use water from stream for any purpose that doesn’t significantly affect quality,
quantity, or velocity of flow to lower riparian lands.
-But can use water for domestic purposes even if it affects downstream owners.

-Nondomestic use of water that affects nature of stream is limited by rights of downstream riparian
owners.
-Reasonable use doctrine: Lower riparian owner must show injury caused by alternation of flow in order
to enjoin upper owner’s use.

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