Property Outline:

I. First Possession: Acquisition of Property by Discovery, Capture and Creation

1. Acquisition by Discovery:
a. General Rule: the sighting and finding of unknown or uncharted territory, it is frequently
accompanied by landing and the symbolic taking of possession.
1. Must settle in the land and make an effective occupation
b. Conquest = the taking of possession of enemy territory by the conqueror
c. Johnson v. M’Intosh
1. π claiming land under purchase and conveyance from Indians but ∆ is claiming land under a
later grant from the US
2. ∆ wins b/c π doesn’t exhibit a title which can be sustained in the US Courts
3. Europeans (US continued the mindset) deemed them as discoveries b/c they didn’t view the
Indians as sovereign nations possessing the ability to own such vast territories; Indians were
viewed as roamers not colonizers
d. Principle of first in time = being the first somehow justifies ownership rights
1. Provides a starting point; from there you can move to transfer ownership
2. Problems: efficiency and fairness
3. Private ownership was introduced for the purpose of preserving equality of men’s rights; no
limit on how much property one person can occupy
e. Labor theory (John Locke)
1. When a person combines the labor of his body and the work of his hands and mixed it with
something else, he has created something that is his own property and nobody else has a right to
it
2. Flaws with Labor theory:
a. What constitutes labor?
b. How does this take into account different perceptions?
c. Depends on whether people already own it
3. Locke believed that the Indians didn’t contribute an adequate amount of labor to perfect a
property interest in the soil
2. Law of accession – when one person adds to the property of another
Ex: A chopping B’s trees and making flower boxes from them by labor and addition of
new material. Who is entitled to the final product?
a. Reasons for the disagreements with the labor theory
f. Principle of land = that discovery gave the title to the government of the discoverers, against all other
European governments, which title must be consummated by possession

2. Acquisition by Capture
a. General Rule: Mere chasing without mortally wounding, circumventing or ensnaring the animal, can
not be considered capture and doesn’t afford that person title to the animal, and another person has the
right to come in and acquire title by completion the capture
b. Pierson v. Post
1. π was in pursuit of a fox and ∆, knowing of π’s intention to capture the fox, steps in and kills
the fox
2. Court required physical possession of animal to award ownership rights; ∆ wins
3. Majority held first in time principle for ∆ for sake of preserving peace and order in society
4. Dissenting belief – property of a wild animal may be acquired without bodily touch, provided
that pursuer be within reach, or have a reasonable prospect of taking what he had thus discovered
with an intention of converting to his own use
5. Should have taken into consideration the local custom so the law could be adjusted to fit the
time (dissenting view)
6. Public Policy upheld – promote competition amongst fox hunters (promote productive use of
 resources)
c. Ghen v. Rich
1. π wanting to recover products produced by whale π killed that washed on shore and ∆
purchased from the person that found the whale on the shore
2. π awarded right to products; custom of whaling industry upheld in this case
3. Custom – person who kills a whale in the manner with a bomb lance or similar device, owns it
4. Public policy upheld – promote competition in whaling industry b/c if whalers can leave whale
once it has been killed, it can pursue more whales and come back once whale has risen to the
surface (promote productive use of resources)
d. Keeble v. Hickeringill
1. ∆ using gun to scare wildfowl away from π’s decoy pond
2. Rule: a person may not maliciously prevent another from capturing wild animals in the pursuit
of his trade
3. If ∆ had set up a decoy pond close to π’s, no cause of action b/c action was not intentional or
violent
e. Ratione soli = conventional view that an owner of the land has possession (constructive possession) of
wild animals on the owner’s land; the landowners are regarded as the prior possessors of any animals on
their land, until the animals are taken off
f. Trespassers:
1. Trespasser who captures wild animals on the land of another might still have no rights to the
animal as against the landowner, even though the landowner never had actual physical
possession or control and even though the trespasser does. Courts might rule that the landowner
has constructive possession of the animal.
g. Exceptions:
1. Trapping or wounding
2. Custom – a practice that by its common adoption and long. Unvarying habit has come to have
the force of law and the courts can adopt a norm of the local community as the rule of law and
enforce it as such (Ghen)
3. Business – a person may not maliciously prevent another from capturing wild animals in the
pursuit of this trade (Keeble)
h. Rule of offspring (increase) – owner of female offspring owns the offspring because providing
nurture, expenses incurred during pregnancy/birth (rewards investment)
i. Return to natural state – when a wild animal that is captured and then escapes to return to its natural
state, the finder’s ownership is extinguished
1. Illustrates the importance of certainty rule – reduce conflict with a rule commonly applied by
everyone
i. Oil and gas
1. General Rule = rule of capture applies so long as you secure such property from drilling on
your land
a. Reinsertion of oil or gas by A into the ground for storage remain the asset of A, the
original owner, even if it relocates to another’s property and there is no liability for rent
j. Water (3 views)
1. American rule of reasonable use– rule of capture with the addition that wasteful uses of water,
if they actually harmed neighbors, were considered unreasonable and hence unlawful
2. Western Rule – prior appropriation; the person who first appropriates (capture) water and puts
it to reasonable and beneficial use has a right superior to later appropriators
3. Riparian Rights (eastern states) – each owner of land along a water source (riparian land) has a
right to use the water, subject to the rights of the other riparians
k. Externalities
1. A social or monetary consequence or side effect of one’s economic activity, causing another to
benefit without paying or to suffer without compensation; resources are misused or misallocated
a. Exists whenever X, makes a decision about how to use resources without taking full
 account of the effects of the decision, X ignores, some of the effects – some of the costs
or benefits that would result from a particular activity, for example – because they fall on
others. These costs or benefits are external to X and therefore X doesn’t take them into
consideration
b. People experiencing side effects might offer compensation to stop the costs; possible
problems are transaction costs
c. Engage inefficient use of resources
2. Demetz’s theory = economic analysis of the law of property is ascertainment of the relation
between externalities and property rights
a. “What converts a harmful or beneficial effect into an externality is that cost of bringing
the effect to bear on the decision of one or more of the interacting persons is too high to
make it worthwhile
b. Internalizing = a process, usually a change in property rights, that enables these effects
to bear (in greater degree) on all interacting persons
c. Primary function of property rights = achieve a greater internalization of externalities
3. Property rights develop to internalize externalities when the gains of internalization become
greater than the costs of internalization
4. Forms of ownership:
a. Communal ownership – rights can be exercised by all members of the community; fails
to concentrate the costs associated with any person’s exercise of his communal right of
that property; claims for the present users far outweighs the consideration of the future
users because nobody is there to speak for them; results in greater externalities; problem
= overconsumption
b. Private ownership – takes into consideration not only the present use but also the future
use because the wealth and the wealth of his heirs depends on the condition of the
property
c. State ownership
3. Acquisition by Creation
a. General Rule = if you create something in the sense that you are first in time then that something is
yours to exploit b/c the foundation of proprietary rights is the expenditure of labor and money
b. International News Service v. Associated Press
1. AP wants INS to stop using their wire releases to run stories in their paper which some
potential clients purchase papers from INS instead of AP; AP claiming right to the news articles
2. News is not the creation by the writer but the article is the creation of the writer, which is
protected (dual character)
3. News = quasi property
4. AP has quasi property interest against INS because there is an interest due to direct
competition but no quasi property interest against public no interest to protect
c. Quasi property = work product in trade or business which is protected b/c of one party’s effort and
work invested in the property (protects from unfair competition)
d. Exception = in absence of any recognized right, a man’s property is limited to his chattels which
embody his inventions and others may imitate these at their pleasure
1. Cheney Brothers v. Doris Silk Corp.
a. Manufacturer of silk attempting to protect his silk patterns from being imitated by
direct competition in which his competitor undercuts his price and is causing a loss in
profits
b. To exclude others from the enjoyment of a chattel is one thing but to prevent any
imitation of it is allowing for a monopoly to be created
c. Ruling promotes competition in the market
2. Smith v. Chanel, Inc.
a. Chanel attempting to prevent Smith from claiming his product is the equivalent of the
more expensive Chanel No. 5 perfume
 b. Court stated imitation is the life blood of competition and the perfume was unpatented
so Smith has a right to copy it
c. Public interest upheld by ruling in favor of Smith by promoting competition; offering
the chance for the public to have comparable goods produced at lower prices
3. Baird view
a. Difference between tangible and intellectual property rights
b. Tangible product protection is effective way of allocating scarce resources
c. Intellectual property different because no scarce resources; public benefits with
competition that hinges on imitation of products
e. Copyrights
1. Protect the expression of ideas (not the ideas themselves) in books, articles, music, artistic
works, etc
2. Protection begins as soon as the work in question is set down in a tangible medium
3. Lasts 70 years after the death of the author or creator and they are subject to a right in others to
make “fair use” of the materials
4. Subjects of copyrights must be original (though not novel)
5. Nicholas v. Universal Pictures
a. P claimed that D copied her play by creating a movie that had many similarities
b. Court ruled that P’s content of the play went to public domain and therefore open to
the public; similarities weren’t that distinguishing
6. White v. Samsung Electronics (Right of publicity)
a. White sued because Samsung used a robot in a commercial that was wearing a dress
similar to White’s and standing in front of a Wheel of Fortune board
b. Court (majority view) – Samsung was in violation of White’s common law right of
publicity
c. Dissenting – law refers to an exclusive right to use her name, likeness, signature or
voice, neither of which Samsung did in the commercial; majority view was a
misinterpretation
1. “Intellectual property rights aren’t free. They’re imposed at the expense of
future creators and of the public at large.” Ruling takes away from this…there
should be a balance between them
d. General rule = persona of celebrities, deceased or otherwise, constitutes property and
may not be used without prior authorization from the legal representatives
1. Quasi property right
2. Assignable during life, descendible at death
f. Patents
1. Granted for novel, useful, or nonobvious process or products
2. Last for 20 years from the date of the original application
3. Non-renewable and when they expire the process or product in question enters the public
domain, where it can be exploited by anyone
4. Diamond v. Chakrabarty
a. Guy invents not a process to clean up oil spills that requires this bacteria; attempts to
patent the process for producing the bacteria, the materials complied for the material
floating on water and the bacteria; problem arises with patenting the bacteria
b. Court ruled that his discovery of the bacteria was not nature’s work therefore the
bacteria was patentable (past view)
c. Current view = broad scope of patent law taken, looking at the time the law was
established and the legislative history
h. Trademarks
1. Words or symbols indicating the source of a product or service
2. Owners of marks are protected against use of similar marks by others when such use would
result in confusion
 3. Aid consumers in making it easier to verify product, aid businesses by providing a way of
advertising
4. Lost when they are abandoned
i. Property of One’s Person
1. Locke – every man has a property in his own person
2. General Rule = once a person’s organs or cells are removed from his body, he doesn’t retain
ownership interest in them
3. Moore v. Regents
a. Regents, knowing of rare cells in Moore and the value of the cells for research, informs
Moore to proceed with the surgery and without informing Moore, used his cells in
research which returned large profits
b. Majority view = human biological materials are not viewed as belonging to the person
from whom they have been taken
1. Conversion – P must establish an actual interference with the ownership or
right of possession; where P has neither title to the property alleged to have been
converted nor possession, he can’t maintain an action for conversion
2. Fiduciary duty – to disclose facts material to the patient’s consent or
alternatives as the performance of medical procedures
c. Bundle of Rights – ownership of property is not an all-or-nothing concept but includes
the right to possess, the right to use, the right to exclude and the right to transfer
j. Right to include/exclude
1. The right to permit or deny, respectively, use or possession of the owned property by other
person
2. Jacque v. Steenberg Homes
a. Steenberg needed to deliver a mobile home on the other side of the Jacque property but
the entry to the other property was on a curvy road (much more difficult to enter this
way) and the other option was to cut through Jacque’s property b/c straight shoot to final
destination; Jacque refused but Steenberg did it anyways
b. Punitive damages may be imposed for intentional trespass to property; P has a legal
right to exlude D from crossing their land
c. Societal interest in upholding this right for private owners
3. State v. Shack
a. Shack tried to prevent state employees from entering his property to talk to immigrant
workers about their rights
b. A man’s right in his real property is not absolute. It was a maxim of the common law
that one should so use his property as not to injure the rights of others

II. Subsequent Possession: Acquisition of Property by Find, Adverse Possession and Gift
1. Acquisition by Find
a. General Rule = the finder of a lost article is entitled to possession against the whole world,
except the true owner or first possessor and if anyone converts that property they are liable for
conversion. However, the finder of mislaid property acquires no rights in mislaid property
b. Amory v. Delamirie
i. P finds a jewel in a chimney sweep, takes it to D’s shop for appraisal, D refuses to return
it and P sues for the value
ii. P wins because even though he doesn’t acquire absolute ownership, he is entitled to
possess it against anyone but the true owner
c. Possession derived from trespass
i. General rule – Even if the possessor has obtained his possession wrongfully, he will be
entitled to recover from a 3rd person who interferes with that possession
ii. Anderson v. Gouldberg
1. P cuts logs without consent of owner and D takes the logs from P
 2. P entitled to recover logs from D, even though obtained wrongfully
3. Reason: any other rule would lead to an endless series of unlawful seizures and
reprisals in every case where property had once passed out of the possession of
the rightful owner
iii. Courses of action:
1. Trover = common law action for money damages resulting from D’s conversion
to his own use of a chattel owned or possessed by P. P waives right to obtain the
return of the chattel and insists that D be subjected to a forced purchase of the
chattel from him
2. Replevin = a lawsuit to obtain return of the goods, not damages
3. Bailment = rightful possession of goods by a person (bailee) who is not the owner
a. Voluntary – occurs when the owner of the goods (bailor) gives possession
to the bailee
b. Involuntary – from the standpoint of the owner but not the finder (finder
assumes the obligations of a bailee)
Land Personal Prop (chattels)
Damages Trespass Trover
Return Ejectment Replevin
4.
iv. Person losing the property after finding it may still recover it from the 3rd person who
subsequently finds or takes it
v. Acquisition – taking possession
1. Must have physical control over the goods AND
2. An intent to assume dominion over them
vi. Conflict with the owner of real estate – when a person finds an item on another person’s
land that is not the real estate owner’s property; the possession of land carries with it in
general, by our law, possession of everything which is attached to or under that land and
in absence of better title elsewhere, the right to possess it also, it makes no difference that
the possessor is not aware of the thing’s existence
1. Trespasser – if the finder is a trespasser, the owner of the real estate where the
object is found is preferred
2. Other Cases – if the finder has consent to be on the property, the courts tend to
grant possession to the finder
a. Hannah v. Peel
i. Solider who had consent to be on the property found a broach in
the home, reported it to the police, owner of home claimed it and
sold it, solider brought action
ii. Owner of home (but didn’t reside in home) never had knowledge
of its existence or physical possession therefore brooch was
iii. Solider (finder) found the lost good and the original owner was
never found, therefore finder has the right over everyone but the
true owner
3. Affixed to Soil – where the object is embedded in the soil (rather than lying on the
surface) courts have tended to give possession to the owner of the real estate
a. Elwes v. Briggs Gas Co.
i. Gas company finds prehistoric boat embedded in ground of land
owner
ii. Land owner retains possession even though ignorant of its
existence
4. Lost vs. Mislaid property –
a. Mislaid = when object was intentionally put in a certain place and then
forgotten by its owner; mislaid property rights are in favor of landowner
 because gives the best chance for the true owner to find the mislaid object
b. McAvoy v. Medina
i. P finds pocket-book in D’s barber shop, leaves it with D in case
true owner comes back but after a reasonable time and no claim, P
asks for pocket book back stating it was his b/c he found it
ii. D wins b/c pocket book considered mislaid property
c. Lost property – owner has accidentally and involuntarily parted with his
possession and doesn’t know where to find it
d. Bridges v. Hawkesworth
i. P finds parcel of bank notes on the floor of D’s shop
ii. P awarded possession b/c notes had apparently not been
intentionally deposited in the shop and therefore never came into
D’s custody or protection
5. Abandoned Property – located in a place known by the true owner, but he or she
intentionally chooses not to retrieve it for whatever reason
a. Abandon chattel required by 1) actual or constructive dominion and
control over the thing and 2) intent to assess ownership over it
6. Treasure Trove – valuables which have intentionally been buried beneath the
surface and then never reclaimed by their owner
a. American rule – ownership is given to land owner, not the finder
b. English rule – property belongs to the state
2. Adverse Possession
a. To constitute adverse possession there must be actual possession which is uninterrupted, open
and notorious, hostile and exclusive and under a claim of right made in good faith for the
statutory period
i. Actual and Exclusive = require use of property by adverse possessor in a manner that an
ordinary owner would make
ii. Open and Notorious = means that the use of the property must be apparent and known to
those in the area; based on presumed notice (or constructive notice)
iii. Presumption of knowledge (constructive notice) if visible (one should know their
property line and under no circumstances should encroach another’s property)
iv. Exception: Urban setting, small boundaries requires actual notice, unless equity sets in
(if equity of property, too much to dig up property, then adjust accordingly for fairness,
mistaken person gets the land and compensates the true owner for the loss)
v.
vi. Continuous
1. Defined in FL at 7 years
2. Tacking = inclusion of adversely possessed property in transfer from one party to
another and also the ability to use a sequence of parties possession to adversely
possess
a. Privity can’t occur between adverse possessors
b. Privity = successive or mutual relationship
3. Disability – statute of limitations does not start to run against one with specified
“disability”
a. Must be established at the beginning of the adverse possession
b. Can’t tack disabilities
c. Disabilities include age, mental deficiencies and imprisonment
4. Seasonal use – where appropriate may be sufficient
vii. Hostile
1. Adversity element of adverse possession
2. Possession must be hostile to the record owner’s right
3. Use by permission of the record owner can’t be hostile
 b. Color of Title
i. Claiming under a written instrument, a judgment or decree that is defective (ie, that didn’t
actual transfer ownership)
ii. This is an alternative to the claim of right requirement
iii. Usually a better alternative for the adverse possessor
iv. Constructive possession of the entire premises described in the deed, even if only part of
it is being used as long as it meets all the elements of adverse possession, even if only
using part of the land, still get all of what is described in the deed
c. Claim of right (also claim of title)
i. One way of expressing the requirement of hostility or claim of right on the part of the
adverse possessor
ii. Enters into possession of only part of the property being used
iii. 3 views on intent
1. Objective – state of mind irrelevant (Connecticut view in Mannillo)
2. Good-faith – possessor thought she owned it, but it was a mistake, focuses more
on rewarding someone who earned it
3. Aggressive Trespasser – possessor thought she didn’t own it, but wanted to make
it hers; focuses more on punishing the one that sleeps on their watch of their
property (Lutz; Maine Doctrine in Mannillo)
d. Protects:
i. Owner’s interest with a property rule before the statute of limitations has run then
ii. Adverse possessor’s interest with a property rule after the statute has expired
e. Encroachment –
i. If the innocent trespasser of a small portion of land adjoining a boundary line can’t
without great expense remove or eliminate the encroachment, or such removal or
elimination if impractical or could be accomplished only with great hardship, the true
owner may be forced to convey the land so occupied on. Payment rendered of the fair
value thereof without regard to whether the true owner had notice of the encroachment at
its inception
ii. Mannillo –
1. Adverse claim based upon mistake is no longer upon which to deny title by
adverse possession as the matter of mistake and intent is irrelevant
iii. Inquiry notice – less than actual knowledge; should have reason to think there may be
encroachment
iv. Intentional encroachment – courts routinely require removal of the offending structure,
no matter how costly
f. Mistaken Improvers – to ease plight of innocent improvers, force a conveyance of land from
owner to improver; a variation is to give the owner the option to buy the improvement instead
g. Boundary of disputes can be resolved by:
i. Doctrine of Acquiescence – provides that long acquiescence – though perhaps for a
period of time shorter than the statute of limitations – is evidence of an agreement
between the parties fixing the boundary line
ii. Doctrine of Agreed Boundaries – provides that if there is uncertainty between neighbors
as to the true boundary line, an oral agreement to settle the matter is enforceable if the
neighbors subsequently accept the line for a long period of time
iii. Doctrine of Estoppel – when one neighbor makes representations about (or engages in
conduct that tends to indicate) the location of a common boundary, and the other
neighbor then changes her position in reliance on the representations or conduct. The first
neighbor is then estopped to deny the validity of his statement or acts.
1. Also applies when one neighbor remains silent in the face of expenditures by
another that suggest the latter’s notion of the boundary’s location
3. Acquisition by Gift
III. The System of Estates (Leasehold Aside)
1. Up from Feudalism (Background)
a) Feudalism Times
i) King held the title to everything in the land and he gives out portions of the land to tenants in chief
ii) Payment for receiving tenancy was from feudalism services
(1) Military
(2) Economic
(3) Religious
iii) 2 ways to transfer possession
(1) Substitute
(a) Required the lord’s consent and homage to the lard from the new tenant
(2) Subinfeudation
(a) Tenant could without the lord’s consent, add a new rung to the bottom of the feudal ladder
becoming a mesne lord himself and having a tenant who rendered him services
b) Decline of Feudalism (Quia Emptores)
i) Prohibited subinfeudation in fee simple
ii) 2 major consequences
(1) Established a principle of free alienation of land, which turned out to be a major force in the
development of property law
(a) Alienability = the power to transfer resources to another person
(2) Mesne lordships began to disappear because of escheat and forfeiture
iii) Movement to actual ownership, tenants gaining more rights
iv) Taxes began to be collected instead of requiring services
2. Fee Simple (largest estate)
a) Fee simple = an estate capable of being inherited by whoever turns out to be the heirs of the fee simple
owner and can have no limitations placed on its inheritability
b) Estate = a tenant’s status as a tenant of the fee or a tenant for life
i) Your estate is your bundle of rights (your right to use, exclude, possess and transfer)
c) Today’s presumption – if the grantor doesn’t specify in words what the heirs get, then the heir gets
everything the grantor has regardless of what it is
d) Remainder – gives property to another grantee
e) Reversion – property reverts back to the grantor
f) Heirs
i) If a person dies intestate, the decedent’s real property descends to his/her heirs
ii) No living person has heirs, heirs are only established after death
iii) Spouse is not an heir at CL
iv) Statutorily defined in each state and most statutes will include spouse in the definition of heir
v) Order of heirs: issue, and if no issue, then parents, and if none, then collaterals
g) Issue
i) Issue = descendents (includes anyone in the lineal path below the decedent…children, grandchildren
ii) Rule of Primogeniture – eldest son inherited the land (always males before females)
iii) Child born out of wedlock inherits from the mother and only if paternity is proven from the father
h) Ancestors
i) Parents inherit if there are no issues
i) Collaterals
i) All persons related by blood to the decedent who are neither descendents nor ancestors (siblings,
cousins, aunts, nieces)
j) Escheat = if a person dies intestate without heirs, the person’s property escheats to the state in which the
property is located
k) Standardization of estates -
3. Fee Tail
 a) Descends to A’s lineal descendents (“heirs of the body”) and expires when the original tenant in fee tail,
A, and all of A’s descendents are dead
b) Way to ensure that an estate stays within a person’s blood family (no passage by marriage)
4. Life Estate
a) Grants the grantee the rights to the estate for the duration of the grantee’s life; doesn’t include the right
to sell
b) 2 options once the grantee dies
i) Reversion – estate reverts back to the grantor or his heirs
ii) Remainder – estate is granted to a 3rd party
c) Pur autre vie – a grantee having a life estate and convey the life estate to a 3rd party, but the estate is
measured by the original grantee’s life span
i) The 3rd party’s heirs can be passed the life estate if the 3rd party dies before the original grantee dies
d) Statutory presumptions
i) Grant – presume a grant grants the grantee all interests of the grantor unless the intent to pass a less
estate or interest shall appear by express terms, or be necessarily implied in the terms of the
instrument
ii) Will – presume a will disposes of all the testator’s property to the testate unless a contrary intention
appear by its words and context
e) Restraints on alienation
i) Reasons for not allowing alienation
(1) Makes property unmarketable
(2) Restraints tend to perpetuate the concentration of wealth by making it impossible for the owner
to sell property and consume the proceeds of sale
(3) Discourages improvements on the land
(4) Prevents the owner’s creditors from reaching the property
ii) 3 Classes/Types
(1) Disabling restraint – withholds form the grantee the power of transferring his interest
(2) Forfeiture restraint – provides that if the grantee attempts to transfer his interest, it is forfeited to
another person
(a) Can be valid for a life estate
(3) Promissory restraint – provides that the grantee promises not to transfer his interest
f) When dispute between present interest holders and future interest holders, then the majority view is to
examine “best interest of all parties” (when the remaindermen are not known)
g) If the remaindermen are known, then the outcome would vary across jurisdictions
h) Waste Doctrine
i) If the tenant reasonably interferes with the expectations of the land in the future, then the tenant is
waster the land
ii) Affirmative waste = arising from voluntary acts, liability results from injurious acts that have more
than trivial effects
(1) Injurious = acts that substantially reduce the value of the property in question
iii) Permissive waste = arising from the failure to act; failure to take reasonable care of the property;
questions of negligence
i) Seisin
j) Legal life estates vs. life estates in trust
i) Trust – allows a trustee to hold the legal fee simple and as the manager of the property required to
handle the life tenant
ii) Trust powers usually give trustee the power to sell, lease, mortgage or do anything a prudent person
would do with respect to the property
iii) If property is sold, then the trustee invests the proceeds and continues to pay income to life tenant
5. Leasehold estates
a) Non-freehold estates
b) Also called terms of years
 c) Grantor/Landlord/Lessor retain the rights of the property (seisin), the tenant merely has possession
6. Defeasible Estates
a) Any estate can be created to divest or end upon the happening of a future event
b) Fee simple absolute = can’t be divested or end if any event happens in the future
c) 2 types of defeasible fee simple estates
i) Fee simple determinable
(1) Ends automatically once a stated event has occurred (favors the grantor)
(2) Grantor holds the possibility of reverter
(3) Needs words that represent a durational aspect
(a) So long as, while, until, during
(4) Adverse possession can start once the condition has been violated
ii) Fee simple subject to condition subsequent
(1) Not automatically terminated when the stated event happens (favors the grantee)
(2) Fee simple continues until next interest holder takes action to enter the estate
(3) Grantor holds the right of entry
(4) Needs words that indicate the estate may be cut short at the transferor’s election
(a) But if, provided that, however, on condition that
(5) Adverse possession statute of limitations begins to run once the next interest holder takes action
to reclaim the land
(a) Requires 2 elements be met
(i) The violation occurred
(ii) Reclaiming action started
iii) Right of entry and possibility of reverter are transferable inter vivos (majority and modern rule)
iv) Condition vs. Covenants
(1) Condition = imposed by the grantor in creating a defeasible estate; much stronger than covenants
(a) Breach of a condition may cause the land to forfeited to the holder of the future interest
(2) Covenant = a promise by the grantee that a specified act will or will not be performed
(a) Breach of covenant allows the promisee (grantor) to sue for an injunction or damages
v) A statement that has an invalid restraint on alienation doesn’t void the entire conveyance, only the
part that is invalid is removed, the remaining terms are enforceable

IV. Future Interests

1. Confers rights to the enjoyment of property at a future time
2. Allows testator to control inheritance of the land not only at his death but also at the death’s of the
grantees (future)
3. Types
a. Interests retained by transferor
i. Reversion
ii. Possibility of reverter
iii. Right of entry
b. Interests created in a transferee
i. Vested Remainder
ii. Contingent Remainder
iii. Executory Interest
4. Future interest don’t entitle its owner to present possession, it is a presently existing interest that may
become possessory in the future
5. Does give future holders legal rights and liabilities
6. Reversion
a. Interest remaining in the grantor, who transfers a vested estate of a lesser value than that of the
vested estate which he has
b. Takes place once the preceding estate has terminated naturally
c. When a reversion is retained, it may or may not be certain to become possessory in the future
 d. Transferable and devisable
7. Possibility of reverter
a. Follows a fee simple determinable
b. Occurs automatically
8. Right of Entry
a. Follows a fee simple subject to condition subsequent
b. Occurs when action to exercise entry takes place
9. Vested Remainder
a. Elements
i. Ascertained person AND
ii. No condition precedent
b. 4 types
i. Indefeasible vested – remainder is certain of becoming possessory in the future and it
can’t be divested (usually just referred to as a vested remainder)
ii. Vested remainder subject to open – remainder is open because there is a possibility that
others will be included in the shares and therefore number/amount is uncertain
iii. Subject to divestment
iv. Subject to partial divestment
c. Courts have a preference for vested remainder, where the instrument is ambiguous
10. Contingent Remainders
a. Elements
i. It is given to an unascertained person OR
ii. It is made contingent upon some event occurring other than the natural termination of the
preceding estates
b. Death is not a precedent condition
c. Destroyed if the condition is not met when the prior estate is ends
11. Executory Interests
a. A future interest in a transferee that must, in order to become possessory
i. Divest or cut short some interest in another transferee (Shifting executory interest)
ii. Divest the transferor’s (grantor) interest in the future (Springing executory interest)
1. Ex: To A for life, then to B 2 days after A’s death
a. A has a life estate, O has a reversion for the 2 days and B has a springing
executory interest
2. Ex: To E and his heirs 2 years from the date hereof
b. Follows a fee simple subject to executory limitation or fee simple determinable
c. Fee simple subject to executory limitation = a fee simple that upon the happening of a stated
event, is automatically divested by an executory interest to a transferee
d. Feudal Rule pre 1536 – No future interest in the transferee could cut short preceding estate
i. The grantor could not place a limitation on the transferee that if violated would cause the
estate to be passed to someone else, another transferee
ii. If O wants to create a defeasible estate, the only permissible future interests were
possibility of reverter and right of entry
e. Statute of Uses (Post-1536)
i. Provided that if any person or persons were seised to the use of any other person or
persons, the legal estate (seisin) would be taken away from the feoffee to uses and given
to the cestui que use.
ii. Allowed for grantor to place a limitation on the transferee that if violated, the grantor
could have the estate passed to another transferee
12. Trusts
a. Allows settlers to arrange their assets in ways that maximize flexibility in property management
as well as transfer wealth of future generations
b. There is a separation of legal and equitable title
 i. Trustee holds legal title
1. Manage that property for the benefit of the beneficiaries; has the power to sell
trust assets and reinvest the proceeds in other assets
2. Is fiduciary and must act for the exclusive benefit of the beneficiaries
ii. Beneficiaries have equitable title
1. Net income of the trust is paid to them and upon termination of the trust, the trust
assets as they then exist are handed over to the designated beneficiary, free of the
trust
c. Benefits
i. Protect beneficiaries’ interest by making their interest inalienable
ii. Spendthrift trusts = at that time the rules on restraints on alienation didn’t apply to
beneficiaries’ equitable interests
d. Consequences
i. Can be drafted in that doesn’t allow beneficiaries to transfer or borrow against the trust
interests and stops creditors from reaching the interest
e. Dynasty or perpetual trusts = trusts that can continue to control the disposition of wealth forever
into the future
13. Rule of Destructibility of Contingent Remainders
a. A remainder in land is destroyed if it doesn’t vest at or before the termination of the preceding
freehold estate
b. Destroying contingent remainders enhanced the alienability of land
c. Contingent remainders can also be destroyed by forfeiture or merger
i. Doctrine of merger = provides that if the life estate and the next vested estate in fee
simple come into the hands of one person, the lesser estate is merged into the larger estate
d. Only applied to contingent remainders, not executory interests
e. Ex: O to A for life, then to B if B graduates law school, but if B doesn’t then to C. Then A dies,
B. 2 weeks away from graduation.
i. At conveyance
1. A has a life estate, B has a contingent remainder in FSA, C has an alternative
contingent remainder in FSA and O has a reversion in FSA.
ii. After A’s death
1. The doctrine applies and since B has not fulfilled the condition precedent, his
interest is destroyed. C’s remainder is still contingent on B’s graduation and since
B is still alive and still might graduate, C’s interest is also destroyed because his
condition precedent is not met. Therefore O has a possessory estate in FSA.
14. Rule in Shelley’s Case
a. Provides that if one instrument creates a life estate in land in A, AND purports to create a
remainder in persons described as A’s heirs AND the life estate and remainder are both legal or
both equitable, the remainder becomes a remainder in fee simple
b. These are rules of property…don’t care about the intent of the grantor, the rule still applies
unlike in the rules of construction
c. Rules of Construction = when the ambiguity in the estate writing use these rules to fill the gaps
and are concerned about the intent of the grantor when choosing the gap fillers
d. Ex: O to A for life, then to A’s heirs
i. A has a life estate then A’s heirs have a vested remainder in a FSA. Shelley’s case turns
A’s interest into a vested remainder in fee and then the doctrine of merger makes A’s
interest a vested remainder in fee simple absolute.
e. Ex: O to A for life, then to B for life, then to A’s heirs
i. According to conveyance
1. A has a life estate, B has a vested remainder in life estate and A’s heirs have a
contingent remainder in FSA and O has a reversion in FSA
ii. Apply Rule in Shelley’s Case
 1. A has a life estate, B has a vested remainder in LE and A has a vested remainder
in FSA.
2. It becomes an interest in A because this eliminates the contingent remainder since
A is ascertained, the interest becomes vested, which is what the courts are trying
to achieve. There is no merger involved in this case because of the intervening
estate with B.
15. Doctrine of Worthier Title
a. A doctrine that creates a presumption that a grantor who conveys a future interest to his/her own
heirs actually intended to reserve that interest in himself/herself
b. This doesn’t apply to wills because this concerns inter vivos (gifts made during life)
c. Ex: O to A for life, then to O’s heirs
i. A has a life estate and O has a reversion in FSA because the worthier doctrine does not
allow an interest to be created in O’s heirs, rather that interest reverts back to O
16. Rule of Perpetuities
a. Rule works immediately when the conveyance is created
i. No conveyance occurs until a testator executes his/her will
ii. A will doesn’t become effective until the testator dies
iii. So conveyance occurs upon the person’s death
b. 3 Vulnerable Future Interests
i. Contingent remainders
ii. Vested Remainders subject to open
iii. Executory interests
c. A child is considered alive (that is a life in being) from the time the child is conceived if the child
is later born alive
d. Any person who is alive is considered capable of having more children, no matter the age or
physical condition of the person
e. Unborn widow
i. No living person has a widow or widower
ii. The persons who ultimately meet these descriptions might not be alive at the time of the
conveyance
f. RULE = no interest is good unless it must vest or fail, if at all, not later than 21 years after some
life in being at the creation of the interest
i. A future interest is void the moment it’s created if:
1. It is in a grantee (a remainder or an executory interest)
2. It is either contingent (given to an unascertained taker or subject to a condition
precedent or both) or subject to open; and
ii. It might still exist and still be contingent or subject to open longer than 21 years after the
death of the last person alive at the time of the conveyance
iii. Purpose – to permit a donor to provide for all of those in his family whom he personally
knew and the first generation after them upon attaining majority
g. The Rule defines the time period as 21 years after the death of the last life in being
h. The Rule will cause the contingent or open interest to fail at its creation if we can’t be sure that
its life span won’t exceed the permitted time period
i. Look at it from the negative view: whether there is any possibility that it might not??

ii. The interest violates the Rule only if its fate might still be undecided at the end of the
permitted time period
iii. To be valid you must prove that a contingent interest is certain to vest or terminate no
later than 21 years after the death of some person alive at the creation of the interest
i. Validating life (measuring life)– someone whose life proves that the interest will either fail or
vest and close within the permitted time period
i. This is the person who will determine whether and when the remainder will either fail or
 both vest and close
ii. This person must be alive at the time of the conveyance
iii. This person needs to have some causal relationship with the future interests, but doesn’t
have to be mentioned in the conveyance
iv. A person that is part of a class subject to open can not be used as a measuring life
1. Only a person that is part of a vested and closed estate
v. Ex of a violation: O to A for life, then to A’s children who reach 30. (A has 2 children, B
and C which are 30 and 32, respectively)
1. B and C have a vested remainder subject to open because there is a possibility that
A has another child that reaches 30 which would be added to the class
2. There is no life that can prove that all members of the class will be identified 21
years after the life of A, therefore since all class members can’t be identified
within the permitted time frame, the conveyance violates the Rule
j. Steps For Applying the Rule
i. Identify the different interests conveyed
ii. Look for future interests in a grantee (looking for remainders and executory interests)
iii. Once you have found a future interest in the grantee, determine if it is vested and closed.
If it is not then it is either contingent or subject to open.
iv. Then identify what needs to happen for the future interest to vest and close
v. Circle all the lives in being (people alive at the time of conveyance)
vi. Test the first vulnerable interest. Is it possible for the interest to still be contingent or
open longer than the lifetimes of everyone you circled plus 21 years. Need to find a
validating life (the person that will prove that the interest will be certain to vest and close
OR fail within that time?)
1. If the interest is certain to vest and close OR fail within the permitted time, NO
VIOLATION
2. If the interest might still be contingent or open longer than permitted time,
VIOLATION
vii. If the contingent interest violates the Rule, strike that whole interest and revise your
classification of the title
viii. If there is another contingent or open interest in a grantee, repeat this procedure
k. RAP Danger Signs
i. The condition is not personal to someone
ii. There is an identified age or time period of more than 21 years
iii. An interest is given to a generation after the next generation (for example, to
grandchildren)
iv. A conveyance requires that a holder survive someone who is merely described rather than
named
v. An identified event that would normally happen will within 21 years, but might not
vi. The holder won’t be identified until the death of someone merely described rather than
named
l. Reforms to RAP
i. Wait and See Approach
1.
ii. Cy Pres
1. Ex: R to A for life, then to A’s 1st child who reaches age 30. (A has 1 child O, age
15).
a. Under this reform, the courts would rewrite to express R’s intention which
would probably be “to A for life, then to A’s 1st child who reaches age 21.
b. This way the conveyance doesn’t violate RAP and the intentions of R are
kept.
iii. USRAP
 1. A set amount of years that is applied in all situations
2. Florida = 90 years
m. Saving Clause = designed to terminate the trust and distribute the assets at the expiration of
specified measuring lives plus 21 years, if the trust had not terminated earlier
i. This is to ensure that the trust will not be subject to RAP
ii. Purpose of this clause is to set an outside limit on the contingency (openness) of an
otherwise vulnerable interest

V. Co-tenancy and Marital Interests

1. Tenancy in Common
a. Separate but undivided interests
b. Interest is descendible and may be conveyed by deed or will
c. No survivorship rights
d. Modern view: tenancy in common is favored over joint tenancy
e. Partition is available
2. Joint Tenancy
a. Have the right of survivorship
i. Other tenants pick up the interest when one of the tenants dies
b. Must have the 4 unities to be in existence
i. Time = interest of each joint tenant must be acquired or vest at the same time
ii. Title = all joint tenant’s must acquire title by the same instrument or by joint adverse
possession
iii. Interest = all must have equal undivided shares and identical interests measured by
duration
iv. Possession = each must have a right of possession of the whole, after a joint tenancy is
created, however, one joint tenant can voluntarily give exclusive possession to other joint
tenant
c. Avoids probate because no interest passes on the joint tenant’s death, the decedent’s interest
vanishes on death and the survivors ownership of the whole continues without the decedent’s
participation
i. Probate = the judicial supervision of the administration of the decedent’s property that
passes to others at the decedent’s death
d. Option to change their interest to a tenancy in common either by mutual agreement or one can
unilaterally end the JT and make it a tenancy in common by transferring interest to a 3rd party
i. If done unilaterally can be accomplished by:
1. Strawman = conveying an interest to a 3rd party, who then conveys the interest
back to the party, the 3rd person conveyance is effective in terminating JT because
it destroys the title unity requirement
2. Trust = convey an interest in a trust which would terminate the title requirement
3. Court also allowed a conveyance to ones own self
e. Can’t pass interest by will
f. Can be divided by partition (sale or division)
g. Uniform Simultaneous Death Act =
i. Provides that ½ the property distributed as if A survived and ½ as if B survived, provided
that both A and B dies in a common disaster and there is no evidence of the order of
death between A and B.
ii. Also provides that if A and B are joint tenants, one murders the other, then the murder
severs the joint tenancy and converts it into a tenancy in common and the killer loses his
right of survivorship in the decedent’s share
h. Mortgages as liens
i. JT is not severed when one JT executes a mortgage on his interest in the property, since
the unity of title has been preserved
 ii. As long as we don’t view mortgage as a transfer of property, the lien theory is applicable,
and the execution of a mortgage by a JT on his interest in the property would not destroy
the unity of title and sever the JT
iii. While the JT is alive, the mortgage exists as a lien on his interest in the JT.
iv. Upon his death, his interest ceased to exist and along with it the lien of the mortgage
i. JT Bank Accounts
i. True joint tenancy
1. When the intention is to make both parties equal to half of the interest in the
account and provides right of survivorship
2. Rights to money during life
3. Survivorship rights
4. Most banks create this type because it is the safest of the 3
ii. Payable-on-death
1. Survivorship rights only
2. No rights to the money during life for one JT, only after his death
iii. Convenience
1. Rights to money during life
2. No survivorship rights
iv. Majority = the surviving JT takes the sum remaining on deposit in a joint account unless
there is clear and convincing evidence that a convenience account was intended
1. The burden of proof is placed upon persons challenging the surviving JT
v. Majority = during lifetime of the parties the presumption is that the joint account belongs
to the parties in proportion to the net contribution of each party
1. Minority = the parties to a joint account own, during the lifetime of the parties,
equal fractional shares in the account
j. Rents and Profits
i. A cotenant that collects from 3rd parties rent and other payments arising from the co-
owned land must account to cotenants for the amounts received
ii. Accounting is usually based on actual receipts, not fair market value
k. Taxes, Mortgage payments and other carrying charges
i. A cotenant paying more than his share of taxes, mortgage payments and other necessary
charges generally has a right of contribution from the other cotenants, at least up to the
amount of the value of their share in the property
ii. BUT if the tenant making such payments has been the sole possessor of the land, even
though a co-tenancy exists, and the value of use and enjoyment which he has had equals
or exceeds such payments, no action in any form for contribution will lie against the
others
l. Repairs
i. Necessary repairs – a cotenant making or paying for them has no affirmative right to
contribution from the other cotenants in the absence of an agreement
ii. If there is a partition in sale, then the cotenant will probably receive credit for his repair
m. Improvements
i. General rule = the interests of the improver are to be protected if this can be
accomplished without detriment to the interests of the other cotenants
ii. If the property is physically partitioned, the improved portion is awarded to the
improving cotenant if such a distribution would not diminish the interests of the other
cotenants as they stood prior to the making of the improvements
iii. Physical partition is impossible or would result in injustice to one of the cotenants, the
property is sold and the proceeds distributed in such a way as to award to the improver
the added value
iv. Owelty – when physical partition is possible but would jeopardize the interests of the
improver by awarding improvements to cotenants who didn’t contribute to their cost, the
 property is still divided but to order payment (the owelty) from noncontributing cotenants
to the improver in an amount equal to the former’s share of the enhanced value of the
property resulting form the improvements

3. Tenancy by Entirety
a. Same 4 unities of JT plus marriage
b. Still have right of survivorship
c. Different from JT also because both parties must be involved to sell the interest in the property
d. Can be terminated if both husband and wife come together to do it or by divorce
e. Different approaches
i. Group 1
1. Basically common law
2. Husband may convey entire estate subject only to possibility that wife may
become entitled to the whole estate upon surviving him
ii. Group 2
1. Minority
2. Interest of the debtor spouse in estate may be sold or levied upon for his or her
separate debts, subject to the other spouse’s contingent right of survivorship
3. Neither party can sell interest
4. Creditors of one party can attach to that party’s interest
iii. Group 3
1. Majority
2. An attempted conveyance by either spouse is wholly void and the estate may not
be subjected to the separate debts of one spouse only
3. Exception is IRS
iv. Group 4
1. Minority
2. Contingent right of survivorship appertaining to either spouse is separately
alienable by him and attachable by his creditors during the marriage
4. Marital Property
a. Everything attained after marriage
b. Professional degrees
i. Majority – not marital property
ii. Minority – is marital property which may be represented by direct or indirect contribution
of non-title holding spouse
5. Community Property
a. All marital property
b. Neither spouse can sell it without permission of other
i. One spouse can sell without other’s permission so long as it is done in good faith
c. No survivorship
d. Not transferable, but is devisable
6. Separate property
a. What you have before marriage
b. Can also be acquired during marriage by gift, devise or descent
7. Community Property vs. Separate Property
a. Inception of right rule = separate because she started paying before marriage
b. Time of Vesting Rule = community property because it will be fully vested (paid in full) after
she is married
c. Pro rata rule = how much was put in before/after marriage
8. Termination of Marriage by Divorce
a. Property becomes tenants in common
b. Professional degrees and careers
 i. Majority – courts reject idea that a professional degree can be considered marital property
because you can’t transfer rights to it
ii. Minority – spouse would have property interest in professional degree/career for divorce
situations
1. An interest in a profession or professional career potential is marital property
which may be represented by direct or indirect contributions of the non-title
holding spouse
9. Management of Community Property
a. If you hold personal property that is community property, one of the parties can sell the personal
property if the sell occurs in good faith
b. If it is a house, then this can’t be sold without consent from both parties
c. If we have property that starts off as community property, the property will stay as community
property even if it moves to another jurisdiction, it holds its original state
10. Characterization of Property
a. Depends on the domicile of the spouses when the property was acquired
b. Once property have been initially characterized, the ownership doesn’t change when the parties
change their domicile, unless both parties consent to the change in ownership