-Property

Why land plays an important part in property law?

- Not only because majority of property disputes involve land but because land ownership
commonly determines ownership and control of a host of other natural resources, such as wild
animals, water and minerals, peace and quiet, air and open space.
- Many of the general principles in real property also apply to personal property and intellectual
property

Discovery and Conquest

- Methods of acquiring territory in international law

Discovery – sighting or finding of unknown or uncharted territory (res nullius/ terra nullius). Frequently
accompanied by a landing and symbolic taking of possession.

In Johnson v. Mcintosh, discovery still played a role in favor of EU even if the land was not terra nullius
because the prior possession of the aboriginal populations was commonly thought not to matter.

Conquest – taking of possession of enemy territory by force, followed by formal annexation of the
defeated territory by the conqueror.

Acquisition of Property by First Possession

1. Acquisition by Discovery – Johnson v. Mcintosh
2. Acquisition by Capture – Pierson v. Post

Acquisition by Discovery:

Johnson v. M’intosh
Issue: Do the Indians have the power to transfer good and full title?
- Johnson filed an action in ejectment against M’intosh. P hinged their title under two grants from
Indian tribes constituting the Illinois and Piankeshaw nations. The P sought to have the US
government recognize the Ps to the lands which were allegedly passed under the grants.

How Europeans acquired land?

Discovery + Possession = TITLE

- J. Marshall preferred Discovery over Conquest. Discovery was discussed in greater detail in the
Opinion

Why Indians are only considered occupants and not possessors?

- Indians were referred to as hunters while Europeans are considered agriculturists
- Indians merely hunted and purely nomadic
- Indians hunted on land for generations
- EUs asserted ownership, built up fences

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Characteristics of Occupancy (Aboriginal Title) by Indians:
1. Retained possession
2. Use according to own discretion
3. But no power to dispose the soil to whomsoever they pleased except to the Government

Extinguishment of Occupancy:
1. Purchase by US
2. Conquest
3. Abandonment of land by Indians

Why the Court decided the case the way it did?

- Court did not have a choice. They cannot question the validity of EU title because that would
mean previous titles from which EU derives its title were also invalid.
- The SC was faced with a difficult situation which they cannot rule against as it would undermine
the authority of the Court – people will not listen to the authority of the SC

 The US govt can extinguish Aboriginal Title at will vs. Recognized title which is granted to the
Indians by the US and cannot be extinguished without just compensation.

Pierson v. Post
- Conversion of chattel
- Doctrine applied also in oil and gas extractions
- Post was out with his hounds chasing a wild fox when Pierson intercepted knowing that the fox
was being chased, shot and killed it. Post brought action against Pierson for trespass. Pierson
argued that Post had no rights in the fox merely because he was chasing it.

Issue: What acts amounted to Occupancy?

 In Johnson, the term Occupancy was not used synonymously to possession

 Here, Neither of the parties owned the land

Rules Adopted as Possession: (Majority Rule) – FIT (first in time) Rule

1. Actual Bodily seizure
2. Mortal wounding
3. Not abandoning his pursuits

Rules Adopted as Possession: (Minority Rule) – also FIT (first in time) Rule
- Pursuit + Reasonable prospect of taking

Public Policy Goal Ruled by Majority

- Certainty that would lead to greater peace and order as to who has title to the fox, and who is
going to win.
- Provides a bright line rule because Majority Rule is easily executable as it just involves
determining who had physically taken, wounded the animal
- Judicial economy = reduce disputes and litigation

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Bright Line Rule – predictable, mechanical, and occasionally harsh test that makes the outcome depend
on the answers to a straightforward yes-no question.

Tragedy of the Commons – results to over-harvesting (Majority Rule)

- Under Dissent rule, less depletion results because there is no requirement by the hunter to kill

Question 1:
- Post trespasses in Jones’ land and kills the fox in Jones’ land.
- Ans: Jones gets the fox
- Public policy is because Post was trespassing, Jones had constructive possession over the fox

Question 2:
- Post trespasses in Jones’ land and caught a fox. Post takes the fox and puts in a cage in his own
land. Pierson then trespasses on Post’s land and takes the fox.
- Ans: As between Post and Pierson, Post will win because he had prior possession (FIT Rule)
- Prior possession is relatively better title but not perfect title because it is inferior to that of Jones

Question 3:
- Farmer captures deer and puts in a cage
- Deer escapes
- Deer enters common land and hunter kills the deer. Who has the better title?
- Ans: Hunter has the better title. Possession was lost when the deer escaped.

Question 4:
- Same facts but animal is an elephant in Upstate New York where elephants are rare or out of
natural habitat
- Possession is not lost when elephant escaped because hunter had reasonable notice that
someone has possession of the elephant being away of its natural habitat

Rule on wild animals:

Loss in physical control – loss of possession – loss of title

Rule on domesticated animals:

Loss of control – does not lead to loss of possession

Acquisition by Creation

International News Service v. Associates Press = HOT NEWS CAUSE OF ACTION

Issue: Does a news gatherer have property in news such that a second news gatherer who copies the
news from publicly available sources and sells that news may be enjoined?

Why Associated Press cannot rely on Copyright Law? Copyright Law does not protect news.
- The Court in this case created a new Tort

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 - News is not within the protection of the Copyright Act. The allocation of words is what is
protected by copyright. Literary production is subject of copyright. (Idea-Expression Dichotomy)

Why couldn’t AP rely on trade secret protection?

- They cannot just gather the news and keep it secret because they will not profit.

Remedy sought by AP – Injunctive Relief

Duration of Injunction:

- Only postpones participation of INS and only to the extent necessary to prevent INS from taking
AP’s property or business. Until When?
- Until the news has been distributed from East to West. (Time difference of 3 hours)

INS and Cheney Compared:

Cheney:
Does a textile designer have property in the textile designs such that a second textile designer who
takes designs from publicly available sources and selling it may be enjoined?

- Copyright Law did not then protect textile designs. But now protected by Copyright Law
provided they meet the standard of originality – Peter Pan Fabrics v. Weiner

Peter Pan Fabrics v. Weiner

- A converter buys uncolored cloth upon which he prints ornamental designs, which he then sells
to dressmakers. P bought from Parisian designer a design known as the Byzantium which it
registered as a production of work of art with Copyright No. H.7290. They printed these designs
on uncolored cloth. The converted cloth had a tag of printed notice of copyright.
- The buyers of the cloth cut it into suitable lengths to make women’s dresses but they also cut off
the selvage which bears the notices or they sew the adjacent edges of the cloth together at the
seams in such a way that the notices are not visible
- Copyright Law protects textile designs provided they meet the standards of originality

Star Athletica v. Varsity Brands

Dicta: Cut off clothing (fashion design) is still not protected by copyright

Basic Type of Patents:

1. Utility
2. Design

Cheney cannot rely on Design Patents because patent process relatively take a long time while the silk
designs last only for around eight or nine months.

Feist Publications v. Rural Telephone Service Co.

- Work, effort, and labor is not the basis of copyright protection

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Public Policy: INS
a. Incentivizing gathering of news. If INS is allowed to just copy the news from AP, AP would bear
the cost while INS would undercut the cost and only rely on AP’s produce
b. Fairness – not to reap what they have not sown

Syllogism of Majority Opinion

P1 = Property cost money to create and can be sold for money (not logical because not all property cost
money to create ex. Intellectual property, song, poem etc.)
P2 = news cost money to gather and can be sold for money
C = News has all the attributes of property

But:
If P2 is changed to “Only Property” then the minor premise would be logical (correct)

Why Cheney decided differently from INS?

- If we would extend INS to all products of the mind, then where do we draw the line?
- Less competition. Bad for consumers because the prices will rise

 W/N ideas should be protected under Cheney

- It would stifle competition, restraint improvements (against protecting textile design)

Applying same argument to INS, protecting news would restrain improvements in the news
Opposing Public Publicies:

In Cheney, the product is textile design. It would not hurt the society much if there will be no new textile
designs.

In INS, it would be to society’s detriment if there will be no new news.

Hot News cause of action is a mere legal fiction created by the Court because essentially, all properties
have limitations

Hot News Doctrine elements:

1) The news gathering process involves significant expenditures
2) The collected news is time-sensitive
3) Def free-rides on the collected material
4) The freeriding directly competes with the newsgatherer’s market
5) The freeriding is likely to diminish incentives to collect information in a timely fashion

Property in One’s Person

Moore v. Regents of University of California

- Action for conversion because Moore claimed property interest over his human cells

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Issue: Does a patient have a property interest in tissues removed in consented to procedures when the
tissues are used for medical research without his consent even for profit

The term “patient” should be used because a patient consented to the medical procedure requiring
removal of his tissues while an ordinary person is deemed to own his tissues and did not consent to any
removal procedure.

Law of Accession – relied on by Moore in arguing that he has property interest in the cell line.

CA Syllogism

P1 = The essential element of property is control

P2 = We have control over our tissues
C: = Therefore our tissues are property

 Major premise (P1) not valid because there are properties which you have no control of such as
Trust (if you are the beneficiary)
 Major Premise is invalid because property’s characteristics vary everywhere. There are no
definite characteristics because property is a legal fiction.

Majority Syllogism

P1 = A characteristic of property is always control

P2 = We don’t control our tissues.
C = Tissues are not property

 Court fudges the difference between the cell line and the patent. Moore is not claiming rights
on the patent but on the cell line because Moore cannot hold the patent not being the inventor.

 What is the relevance of the patent to the existing cause of action if Moore had property
interest? It would affect the measure of damages for the conversion because of the existence of
the patent increases the market value

 Court used “Instrumental Approach” in finally arriving at a Decision. Balancing of interests and
Public Policy Considerations

Public Policies
1. We want medical research to go unimpeded;
2. Marketing body parts would lead to a return to notions of slavery (implication of property of
body parts)
3. Patient to have all the information material to give the consent

Competing Public Policies

We as a society want We want to protect

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patients to have informed medical research from
decision interference
This policy may be met
through an action for
Breach of Fiduciary Duty
(for failure by the physician
to obtain informed consent
from the patient)

 How is the outcome in the cells material to his decision to consent to the procedures? To protect
conflicts of interest because the Doctor may be financially motivated while Moore is subjected to
a procedure he does not really need.

Why majority thinks that the issue of conversion is better left to legislature?
- Because Congress can conduct research, study, hold hearings, extensive research program
- A licensing scheme, allowing profit sharing scheme may be created by Legislature. Detailed rules
the Courts cannot do.

 FINAL RULING: The Court gave medical researchers the right to use the tissues.

Property Rights:
- Merely a legal fiction to:
1. Prevent use of force
2. As incentive to develop lands/improvements
3. To prevent Tragedy of the commons – to avoid overuse

Public Trust Doctrine

Klinger v. Conan Doyle Estate

- Conan Doyle first published his Sherlock Holmes story in 1887 and his last in 1927. There were
56 stories in all plus 4 novels. As a result of statutory extensions of copyright protection
culminating in the 1998 Copyright Term Extension Act, the American Copyrights on those stories
will not expire until 95 years after the date of the original publication which is between 2018-
2022.
- Once the copyright of the work expires, the work becomes part of the public domain and can be
copied and sold without need to obtain license from the holder of the expired copyright.
- Klinger coedited an anthology. Klinger’s publisher obtained a license to do so from the Conan
Doyle Estate for $5,000. Klinger and his editor then decided to create a sequel. If Klinger did not
pay for a license for the sequel, the estate threatened to block distribution of the sequel.
- Klinger sued the estate seeking a declaratory judgment that Klinger was entitled to use the
material from the pe-1923 Sherlock Holmes stories that were no longer under copyright.
- Once a copyright on a work expires, the work becomes part of the public domain and can be
copied and sold without need to obtain a license from the holder of the expired copyright.

What Ownership Entails: Right to Exclude, Alienate, Abandon and Destroy

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Right of Property – sole and despotic dominion which one man claims and exercises over the external
things of the world in total exclusion of the right of any other individual in the universe
- J. Blackstone

Jacque v. Steenberg Homes

- Steenberg had a mobile home to deliver. The easiest route of delivery was across Jacque’s land.
Despite protests, Steenberg plowed a path through Jacque’s land.
- Jacque’s sued for intentional trespass.
- The private landowner’s rights to exclude others from his land is one of the most essential sticks
in the bundle of rights characterized as property.
- An individual has a strong interest in excluding trespassers from his land. Society has an interest
in punishing and deterring intentional trespassers. When landowners have confidence in the
legal system, they are less likely to resort to self-help remedies.

State v. Shack
- TEDESCO, a farmer, employs migrant workers for seasonal needs. The workers are housed at a
camp on his property. Tejeras is a field worker for a non-profit which provides health services to
migrant workers. Shack is a staff attorney of Camden Regional Legal Services.
- Defs entered upon TEDESCO property to provide services. TEDESCO offered to locate the person
injured and the person requiring legal services. TEDESCO also insisted that consultations should
take place within their presence. Defs declined arguing that they have the right to see the men
in private and without TEDESCO’s supervision.
- TEDESCO filed complaints for violation of trespass statute
- Title to real property cannot include dominion over the destiny of the persons the owner permits
to come upon the premises. The farmer is entitled to pursue his farming activities without
interference but there is no legitimate need to deny the worker the opportunity for aid available
from federal, state or local agencies. Hence, representative of these agencies may enter upon
the premises to seek out the worker, So too, the worker must be allowed to receive visitors of his
own choice so long as there is no behavior hurtful to others.
-

JACQUE
Did not allow interference on private property
Problem may be solved by improving the means
of transportation
SHACK
Allowed interference on private property
Workers were highly disadvantaged and had no
access to public aid
Doctrine of Necessity Not Applicable – Doctrine
of Necessity is a defense in the Tort of
Trespass/Interference. Here, there is no trespass
within the meaning of the penal statute

That Property is a Mere Legal Fiction:

“Property rights serve human values. They are recognized to an end and are limited by it.”
Recognized – means created
End – means purpose

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  Right to exclude is not absolute
 Right to roam on unimproved land does not exist in the US

Matthews v. Bayhead Improvement Association

- The Assn owns a parcel of land that runs along a beach. It is a non profit corporation whose
purpose is to improve and beautify the beach area. Only members of the Assn may use the
beach during the summer.
- The public trust doctrine states that ownership, dominion, and sovereignty over land flowed by
tidal waters is vested in the state in trust for the people.
- W/N the public have a right of access through and to use a beach area not owned by the
municipality but by a quasi public body
- The public trust doctrine guarantees to the public the right to use the portion of the ocean shore
for swimming, bathing, and recreational purposes. The state must preserve the public trust right
even when the beach property is transferred to private lands.
- Exercise of the right to swim and bathe in the ocean depends upon the right to pass across the
beach. Without some means of access, the public right to use the beach would be meaningless.
The public interest is satisfied so long as there is reasonable access to the ocean which is not
necessarily an unrestricted right to cross.
- The public must be given reasonable access through private property to get to the publicly
owned shore front. The public also has the right to sunbathe on privately owned dry sand areas.
- The public trust doctrine creates an easement that gives rights to the public generally
- Public trust doctrine extends to all land covered by the ebb and flow of the tide and all inland
lakes and rivers that are navigable.

 The court has given the public a quasi-easement through private property to get to public
oceanfront property under the public trust doctrine.

Issue: Does the public have the right to cross and use for recreation privately owned dry sand by quasi
public or individual land owners?

Quasi Public: Yes

Individual: No right as of this opinion because the lands held by the Assn were sufficient to satisfy the
need at this time.

Foreshore – wet sand

Upland sand – dry sand

Raleigh Avenue Beach Assn v. Atlantis Beach Club

- Public’s right to reasonable access to beaches extends to dry sand portion of the beaches owned
by strictly private entities.
- The beach on the Atlantis property was the only beach in the township. Matthews established
the framework for application of the public trust doctrine to private-owned upland sand
beaches.

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ACQUISITION OF PROPERTY BY SUBSEQUENT POSSESSION
1. Acquisition by Find
2. Acquisition by Adverse Possession
3. Acquisition by Gift

Armory v. Delamirie
- The sweeper found a jewel and did not know its value. He took it to Def’s goldsmith shop. The
apprentice took the jewel and acted as if he was going to weigh the stones to determine the
value. The master told the apprentice to relay to the sweeper that the stones were worth three
halfpence. The sweeper requested return of the stones.
- The master offered the sweeper the money but the sweeper refused. The apprentice then
returned the socket without the stones. The sweeper sued in trover demanding compensation
for the loss.
- W/N the finder of an object has a right of ownership that the court will recognize against
someone other than the rightful owner
- Yes, the sweeper as the finder has a right of possession that falls short of absolute. The right is
sufficient to enable the finder to keep the jewel against any claim save that of a rightful owner.
The trover action is proper.

 Sweep has relatively better title – not perfect title.

- Policy of protecting the possession of the finder to facilitate return of lost property
- To ensure return because the finder is nearest to the true owner and to avoid subsequent
transfers thereby enabling return to the true owner.

 How the rule that prior possessors of chattels also protect the true owner?
- The True owner does not have to prove that he is the T.O. He just needs to prove prior
possession.

 How the Court measured damages?

- Fair Market Value less likelihood of being found by T.O
- Look at the comparable prices of properties that were sold within the same timeframe at the
time of conversion
- But in this case, the Court did not reduce the probability of being found from the FMV as
measure of damages perhaps because the probability that the owner will claim title is incapable
of being determined.

Trover Action – claim for money damages and not recovery of possession of chattel

 Relation created between the sweep and the goldsmith is BAILMENT

 Causes of Action by T.O

- Claim from the sweep. Recovered money damages in Trover stands in the place of the jewel OR
- Replevin against the goldsmith

Anderson v. Gouldberg

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 - Anderson cut 93 pine logs on a parcel of land then hauled them to a mill. P did not know who
owned the land nor did he have permission to cut the trees. P obtained possession of the logs
by trespassing upon the land of a third party.
- Def Gouldberg subsequently took the logs from the mill believing that such logs had been cut
from Section 26 lot. Section 26 lot was owned by Ann River Logging Company which directed
Def to take the logs from the mill.
- P brought an action in replevin against Def
- W/N a person who has stolen property from a stranger has the right to possess over a 3 rd party
- Yes, even if a person may have unauthorized possession of a piece of property, his title to the
property is good against anyone except the T.O or someone who has the authority from the
owner to possess it. Bare possession of property though wrongfully obtained is sufficient title to
enable the party enjoying it to maintain possession over a mere stranger. The party in
possession has superior title against all the world except the T.O.

ACTIONS FOR RECOVERY OF PROPERTY

PERSONAL PROPERTY REAL PROPERTY

Trover – money damages Trespass – money damages
Replevin – recovery of possession Ejectment – recovery of possession

Mcavoy v. Medina
- P was a customer at Def barbershop and found a pocketbook on the counter which he left with
Def so that Def could attempt to discover the rightful owner. Money was enclosed inside the
pocketbook. When the T.O was not found, P demanded the return of the pocketbook which Def
refused.
- Was this property considered lost in such a manner as to allow the finder to hold a valid claim of
possession against all except the T.O?
- Gen Rule: The finder of a lost property has a valid claim to the same against all the world except
the T.O and generally the place where it is found creates no exception to the rule.
- Here, the property is not to be treated as lost property as it was voluntarily placed upon a table
by the customer who accidentally left it there. The P did not acquire the right to possess the
property from the shop but rather, it was the duty of Def, when the fact became known to him,
to use reasonable care for the safekeeping until the owner should call for it.
- To place upon a table and to forget to take it away is not to lose it in the sense in which
authorities referred to lost property.

- If finder is trespassing, then jewel belongs to T.O of property as constructive possession (Pierson
v. Post)

MISLAID PROPERTY LOST PROPERTY

Intentionally placed in its location and was left Involuntary and lost possession.
behind by T.O Involuntarily left the hands of T.O
Property goes to the owner of the premises Property goes to the finder

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 Benjamin v. Lindner Aviation
- P was employed as airplane inspector by Def hangar. He was inspecting a plane owned by State
Central Bank when he found foil wrapped packets of twenty dollar bills minted in the 1950’s.
The money totaled $18,000. The money was found concealed in the wing of the plane. P had to
remove panels and used a drill to remove a couple of screws.

- CLASSIFICATION OF FOUND PROPERTY

ABANDONED 1. Intent to abandon 2. Voluntary
relinquishment of all rights, title, and
interest in the property
- Belongs to the finder of the property
against all others including the former
owner
LOST Owner unintentionally and involuntarily parts
with its possession and does not know where it
is.
- Becomes the property of the finder once
statutory procedures are followed and
owner makes no claim
MISLAID Voluntarily put in a certain place by the owner
who then overlooks and forgets where the
property is.
- Finder acquires no right. Right of
possession belongs to the owner of the
premises upon which the property is
found as against all persons other than
the true owner
TREASURE TROVE Includes an element of antiquity. The property
must have been hidden or concealed for such a
length of time that the owner is probably dead or
undiscoverable
- Belongs to the finder

- Here, the money was accessible only by removing screws and panels. These support an inference
that the money was placed there intentionally. This inference supports the conclusion that the
money was mislaid.
- Concealment appeared intentional and deliberate, there can be no abandonment.

 The premises where the money was discovered: Airplane v. Hangar

- Premises is the airplane. If the T.O would attempt to locate the money, he would look for the
plane. It is unlikely that he would begin the search by contacting hangars. Therefore, the Bank
as the owner of the plane has the right to possession of the money as against all but T.O.

The Right to Abandon

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Hawkins v. Mahoney
- Hawkins is an inmate at the state prison who escaped. Prison officials packed up his personal
property, sealed it with security tape and placed his name on each box, and removed the boxes
from his cell to the prison storage room.
- Two days after, Hawkins was apprehended and returned to prison. He requested the return of
his personal property. Prison officials informed Hawkins that by policy, when an inmate escapes,
all of his property is considered abandoned and is subsequently destroyed.
- Hawkins filed an action against the prison officials. The Court concluded that Hawkins has
abandoned his property by his escape.
- Intent to abandon was inferred when he left the prison. This presumption of inference of intent
to abandon based solely upon the acts of the owner is a rebuttable presumption. Upon return to
prison and request for his property prior to it being claimed by anyone else, he effectively
rebutted the presumption that he ever intended to abandon his property. He regained the status
as the owner of his personal property against all others.
- The conduct of the prison officials in packing the materials of Hawkins is akin to bailment

Elements of Abandonment:
1) Owner’s Intent to relinquish all interests in the property with no intention that it be acquired by
any particular person
2) Voluntary act by the owner effectuating the intent

Property goes to the finder when:

1. Lost
2. Abandoned

When finder an employee:

- There is no case law fixed rules but the Court may look at the character of employment whether
it is usual in the ordinary performance of his functions to find lost/abandoned property. If not
within regular functions, then employee is considered the finder.

Bailment
- Rightful possession of goods by a person (bailee) who is not the owner
- Does not ripen into ownership while bailment continues. No cause of action is created
- Bailee has a duty of reasonable care
- Bailor has duty to pay reasonable costs
- Bailee has the duty to return property at the termination of the bailment.

Types of Bailment According to Beneficiary

BAILMENT TYPE EXAMPLE

For the Benefit of Only the Bailor
For the benefit of Both Bailor and Bailee
For the benefit of Only the Bailee
In case of finder of lost property. The bailment is
for the benefit of the T.O (who is considered the
bailor)
Laundry, coat check
When one party lends a chattel to someone else

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Level of Care – when liable

For the Benefit of Only the Bailor Gross negligence

For the benefit of Both Bailor and Bailee Reasonable care/ordinary diligence
For the benefit of Only the Bailee Strict Liability/ slight negligence

Parking Management v. Gilder

- Gilder parked his car at PMI parking area which is enclosed. He was directed to a space by an
attendant. He placed his friend’s cosmetic bag in the trunk and then locked it and kept the keys.
On his return he found out that his trunk lid was forced opened.
- W/N a park and lock agreement equates to a lease agreement such that a bailment relationship
did not exist and PMI had no duty of reasonable care as against Gilder.

IF THERE IS A LEASE AGREEMENT IF THERE IS NO LEASE AGREEMENT

No bailment Bailment exists
No duty of reasonable care Duty of reasonable care

- No lease in this case because the car owner has no control of the leased space as he is always
absent to protect his property. There is no fixed term as the duration of the parking being
usually at the option of the car owner.

Why is there no bailment in this case?

- Because the owner did not hand over the keys, then there is no possession
 Public policy in favor of cars not getting damaged when parked in garages
- Therefore, possession of the key is immaterial to conclude possession.

- Circumstances here sufficient to create an implied duty of reasonable care by the lot operator to
protect the car from malicious mischief. Protection of the car was not an unreasonable
expectation because as demonstrated by PMI, this was in fact among the duties of the
employee-attendants.
- There was conduct on the part of the garage that communicated the message that “we will take
care of your car.”
- Finding liability in this case does not mean liability on all parking lot cases.

Shamrock Hilton v. Caranas

- Sps Caranas were paying guests at the Shamrock where they had dinner in the hotel restaurant.
When they left the dining area, the wife accidentally left her purse behind which contained $13k
worth of jewelry. The purse was found by the hotel busboy who delivered the item to the
restaurant cashier pursuant to instructions of the hotel.
- The cashier gave the purse to a man other than Mr. Caranas. The couple sued alleging negligent
delivery of the purse to an unknown person.

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 - The Court found that a bailment for the mutual benefit of the parties existed and held that the
hotel owed the couple a duty of reasonable care in the return of the purse and jewelry and was
therefore liable for its negligence.

Bailment for Mutual Benefit

FOR HOTEL FOR GUESTS
Continued business for the hotel Guests are able to retrieve lost personal items

If busboy did not pick up the purse, but saw the purse, is there possession?
- Yes. Courts find possession when it wants to.

When Duty of Care by Finder ends:

- Duty of care of finder is not perpetual. It is limited by Statute of Limitations
a. Action for recovery of possession
b. Action for conversion

In Benjamin
Finder’s Law Question
Bailment Law Question
Who is entitled to possession of
found chattels when the T.O is
not one of the claimants
When a chattel has been
damaged or lost and the parties
are the T.O and somebody else
who has connection with the
chattel, who bears the loss?
The money was found and the
T.O is unknown.
The money is not damaged nor
lost. Bailment law does not
apply.

Adverse Possession:

Statute of Limitations – fix the period of time beyond which the owner of the land can no longer bring
an action, or undertake self-help remedies for the recovery of land from another in possession.

- Amplified by a body of case law that elaborates the kind of possession by another that is
sufficient to cause the SOL to begin to run and to continue running against the true owner. =
The Law of Adverse Possession is a synthesis of statutory and decisional law.

Purpose of Adverse Possession:

1. To quiet titles;
2. To provide proof of meritorious titles
3. Correct errors in conveyancing

Oliver Wendell Holmes: The Path of Law

Statute of Limitations and Law on Prescription:

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 - The foundation of the acquisition of rights by lapse of time is to be looked from the perspective
of the person who gains them, not in that of the loser. A thing which you have enjoyed and
used as your own for a long time, whether property or an opinion, takes root in your being
and cannot be torn away without your resenting the act and trying to defend yourself
however you came by it.

- No better justification than the deepest instincts of man.

- Neglect by the owner. If owner knows that another is doing acts which is on the way towards
establishing an association to the property, owner is bound at his peril, and if necessary, stop
the other.

Relates Back – Once acquired, new title relates back to the date of the event that started the SOL
running. The law acts as though the adverse possessor were the owner from that date.

Elements of Adverse Possession:

1. Actual and exclusive entry – because the entry creates a cause of action for Trespass. Shows the
interloper who is working at the property
- Entry must be exclusive. If not, then it is not adverse at all because adverse possessor is not
taking steps to exclude the others.
2. Open and notorious – put reasonably attentive owners on notice that someone is on their
property.
3. Continuous for a statutory period – not literally constant. In the ordinary course, given the
nature of the property in question.

Ewing v. Burnet
- Adverse possession of an unimproved lot in Cincinnati used principally for digging sand and
gravel, was established when the claimant paid taxes on the lot, from time to time dug sand and
gravel from it, permitted others to do so and brought actions of trespass against others for doing
so without his permission
- Adverse possession may exist even if the occupant does not reside on the property and for long
periods does not use it at all.

4. Adverse and under a claim of right – hostile under claim of title.

- Method of transferring interests in land without consent of the prior owner for assertion of
aging claims by reason of lapse of SOL to recover possession of land.
- Public policy of shifting the title after considerable lapse of time (SOL) in favor of the adverse
possessor.

Squatters – those who knowingly trespass/fully aware that they are trespassing

Howard v. Kunto

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 - Kunto had a deed to a land that described a 50-foot wide parcel on the shore of Hood Canal.
The error is that the parcel occupied by the Kuntos is not the parcel of land described by the
deed rather, the Kuntos house stood on the lot adjacent to the lot described in the deed.
- Howards whose deed stated that they own the lot on which Kunto’s house stood commenced an
action to quiet title. The TC denied Kunto’s claim of adverse possession stating that they failed
to show continuity of possession or estate to permit tacking of adverse possession from
predecessors. The TC also ruled that Kunto’s possession is not continuous as it only included
summer possession.
- Is a claim of adverse possession defeated because the physical use of the premises is restricted
to summer occupancy?
May a person who received record title to tract A under the mistaken belief that he has title to
Tract B (immediately contiguous to Tract A) and who subsequently occupies Tract B, for the
purpose of establishing title to Tract B by adverse possession, use the periods of possession of
tract B by his immediate predecessors.
- Summer occupancy of a summer beach does not destroy the continuity of possession required by
adverse possession. The occupancy of tract B during the summer months for 10 years by Kunto
and his predecessors, together with the existence of improvements on the land and beach area,
constituted uninterrupted possession.
- Yes, successive purchasers who receive record title to tract A under the mistaken belief that they
were acquiring tract B, immediately contiguous thereto, and where possession of tract B is
transferred and occupied in a continuous manner for more than 10 years by successive
occupants, have established sufficient privity of estate to permit tacking and thus establish
adverse possession.

Elements of Adverse Possession:

1. Actual entry
2. Open and notorious and exclusive
3. Hostile for a statutory period of time

 Residential property not normally surveyed prior to transfer

 Descriptions of property could only be understood by a surveyor
 Reference points of the technical descriptions may have disappeared

Optimal Solution Suggested by the Case:

- That all parties just claim adverse possession on the land that they occupy

Prescriptive Easement
- Someone walking on someone else’s land is still considered sufficient entry to establish
prescriptive easement but not sufficient to establish entry to acquire title.

Open and Notorious

- Reasonable opportunity to give notice to the T.O to see that somebody else was on the lot.
- In Kuntos, they established this through improvements on the house, possessions lying around
and so on.

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Adverse/Hostile
- Possessor does not need to be violent so long as the possession is without permission by T.O

Claim of Right – Claim of Title = SYNONYMOUS

*Absence of permission does not have to be expressed or implied.

Ex. T.O of Kunto’s land does not even know that they own the land occupied by Kunto. But this is still
considered as no permission.

Preble v. Maine
- One who, by mistakes, occupies for 20 years or more land not covered by his deed, with no
intention to claim title beyond his actual boundary, does not thereby acquire title by adverse
possession to land beyond the true line.

Requirement as to the state of mind of adverse possession in Kunto – GOOD FAITH

But this was already overruled in a case in SC of WA. Good faith as to the state of mind of the adverse
possessor is no longer required.

If AP moved to another state (even for one day), and later on changes his mind and returns. Can his
previous possession be tacked?
- No. Abandonment extinguished previous possession.

Conduct by the Owner that Interrupts the Running of SOL:

1. Successful suit – mere filing of case is considered successful suit
2. TO occupying the property. Entry should be open and visible
3. Grant of permission by TO
4. TO’s successful use of self-help remedies

CLAIM OF TITLE V. COLOR OF TITLE

CLAIM OF TITLE COLOR OF TITLE

Hostile claim/ without consent of the owner Claim founded on a written instrument ( a deed
or a will) or a judgment/decree that is for some
reason, invalid or defective

Ex. When grantor does not own the land

conveyed by deed or is incompetent to convey, or
the deed is improperly executed.

Rieddle v. Buckner
- Rieddles purchased a home from W plotted as Lot 140. W conveyed Lot 140 by a general
warranty deed. The Buckners owned Lot 141 along the eastern boundary of Lot 140. A 15 foot
wide drainage and utility easement is located between the 2 lots. The Rieddles subsequently

18
 learned that the fence that the Buckners erected when they purchased Lot 141 encroached
upon their lot.
- The Rieddles filed an action to quiet title to determine the boundary between Lots 140 and 141.
The Buckners countered asserting adverse possession.
- Notorious possession is possession so conspicuous that it is generally known by the public in the
vicinity. This element essentially alerts the owner that someone is asserting dominion over the
owner’s land. Possession is hostile so long as the claimant does not disavow his right to possess
or acknowledge that it is subservient to the title of TO.
- The transferor by means of warranty deed guarantees that the real estate is free from all
encumbrances and that he will warrant and defend the title to the same against all lawful
claims.
- Reasonable attorney’s fees and expenses the grantee expended in defending title are recoverable
from the covenantor for breach of warranty title.

TO’s subsequent sale of the property to a third party does not interrupt adverse possession because the
private sale does not give notice to the adverse possessor.

When is there Privity?

1. Invalid deed or will
2. Invalid judgment of intestacy
3. Voluntary transfer of possession of the land. (possessor conveyed to the subsequent possessor)

Public Policy of Tacking

- Early certainty as to who owns the land
- 1. Reduces conflict
- 2. To determine who is responsible for taxes
- To avoid idle lands so that it may be put to use

*Requirement of privity is an obstacle to tacking because privity requirement presupposes that the
transfer of possession is voluntary. If no privity, there is no voluntary transfer of possession.

*In a conflict between two Aps, can the first AP file an action for recovery against 2 nd AP?
- Yes, so as not to encourage a series of forcible tacking of prior possession.

Color of Title:
- Actual possessor under Color of Title of only a part of the land covered by the defective writing is
in constructive possession of ALL that the writing describes. To avoid the problem of needing to
determine which part is possessed. Applies to one whole estate with one owner and AP
possessed only a portion of the land.
- If the TO also occupies the same lot, AP takes only the portion possessed by him.
- If AP1 occupies a portion of a lot owned by X and Y, and the portion actually occupied belong to
X only and not Y. AP1 then transfers entire lot to AP2. Under Color of Title, AP2 gets whole of X’s
lot only and not Y because there was nothing Y could have done to interrupt adverse possession
because his lot was not trespassed on. Color of Title only applies to X.

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Applying Adverse Possession, what other solution would have been done in Johnson v. Mcintosh?
- It would have been argued that EU extractions were in adverse possession against the Native
Americans

ADVERSE POSSESSION AGAINST THE GOVERNMENT

- Common Law General Rule = adverse possession does not run against the government
- Other jurisdictions permit adverse possession against the government in the same manner as
private land
- Others permit for possession for a longer statutory period compared to private land

ADVERSE POSSESSION OF CHATTELS

O’Keefe v. Snyder (Discovery Rule)
O’Keefe’s allegations:
- Paintings were stolen in 1946 from a gallery managed by her husband
- They did not report the loss to the police
- The loss was not advertised in Art News or any other publication
- OK discussed the loss with associates in the art world and later to the Art Institute of Chicago
- In 1972 the theft was reported to the Arts Dealers Assn of America which maintains a registry for
stolen paintings

Frank’s allegations:
- Traces his possession of the paintings to his father. He does not know how his father acquired
the paintings but recalls seeing them in his father’s apartment as early as 1941-1943
- Claims continuous possession of the paintings through his father for over 30 years and admits
selling the paintings to Snyder.
- When OK’s cause of action accrued?
- To avoid harsh results from the mechanical application of the statute, Courts developed the
Discovery Rule. A cause of action will not accrue until the injured party discovers, or by exercise
of reasonable diligence, should have discovered the facts which form the basis of the cause of
action.
- Whether OK should benefit under the Discovery Rule, the TC should consider:
1. Whether OK used due diligence to recover the paintings
2. Whether at the time of theft, there was an effective method to alert the art world (other
than talking to colleagues
3. Whether registering the paintings with the Art Dealers Assn or any other organization would
put a reasonably prudent purchaser of art to constructive notice that someone other than
the possessor is the TO
- Inherent problem with many kinds of personal property that will raise questions whether their
possession has been open, visible, and notorious when the property is readily moved and easily
concealed.
- The Court ordered a remand for plenary hearing

*Adverse possession and Lapse of SOL for purposes of recovery of possession are the same.

Good faith purchaser/Bona fide purchaser = no good title from a thief.

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Other UCC defenses by Snyder:
1. Transferor had voidable title and that he is a BFP
2. Transferor is a merchant who deals in goods of the kind

UCC §2-403
- A person with voidable title has power to transfer a good title to good faith purchaser for value.
EVEN THOUGH:
1. Transferor was deceived as to the identity of the purchaser
2. Delivery was in exchange for a check which was later dishonored
3. It was agreed that the transaction was to be a cash sale

Entrusting Doctrine
- Any entrusting of possession of goods to a merchant who deals in goods of the kind gives him
the power to transfer all rights of the entruster to a buyer in the ordinary course of business

- If entruster is a thief, transfer to a merchant only transfers right of the thief (right to possession)
and not full title.

Entrusting – any delivery and any acquiescence in retention of possession regardless of any condition
expressed between the parties and regardless of whether the procurement of the entrusting have
been such as to be larcenous under criminal law.

 Frank’s purchase from his father may not be in good faith because it was done after the
registry of the painting in the Art Registry as stolen and it might be difficult to prove that he is
a good faith purchaser for value.

If entruster leaves a painting to a merchant for the purpose of display only, and the merchant sells to
GFP in violation of the Bailment:
- Recourse of the entruster is to recover damages for violation of bailment
- But as to GFP, he is considered to have good title

When Discovery Rule triggers SOL to run?

- TO discovers, or by exercise of reasonable diligence and intelligence, should have discovered
facts which form a basis of cause of action

SOL RUNS Not using Due Diligence OR Should have known the facts
SOL DOES NOT RUN Using due diligence

*If OK fails to qualify under the Discovery Rule due to lack of due diligence, then SOL starts to run from
the time of Frank’s father’s possession applying privity rules.

Discovery Rule:
1. TO knows the facts constituting the cause of action
2. TO fails to use Due Diligence to discover the facts constituting the basis of the cause of action

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  Open possession element not required under DR because OK Court found that the openness
requirement does not apply to chattel.
 Traditional adverse possession applies to Real Estate because it is fixed, and cannot be moved
and concealed. Therefore, easily discovered open and continuous.

Tacking under OKeefe

- Allowed only when the possessors are in privity with each other

Guggenheim Foundation v. Lubell (Discovery Rule not applied to works of art—paintings)

- DEMAND AND REFUSAL RULE APPLIED
- P owned a painting valued at $200,000. Sometime in 1965-1967, the painting was stolen by a
museum employee. P noticed that the painting was missing in the late 1960’s but did not
discover that it was stolen until 1969 or 1970. P took no steps to contact law enforcement
agencies or art galleries to inform them of the theft.
- Defs purchased the painting from an art gallery and owned it for 20 years. In 1986, a former
museum employee saw a transparency of the painting and recognized it. P then traced the
location of the painting to Defs and demanded its return. Defs refused and P brought an action
in replevin to recover the painting.
- Defs pled a number of defenses including SOL defensed based upon P’s lack of diligence in
recovering the painting
- TOs of stolen artwork do not have a duty to exercise reasonable diligence to recover the item in
order to defeat SOL defense to a replevin action. The three-year period of time in which to bring
a replevin action begins when the TO demands the return of the item and the current possessor
refuses. The Discovery Rule which would impose a duty on an owner of property to use diligence
to recover it has been rejected in this State. (New York)
- In a replevin action, demand and refusal are substantive elements of the cause of action.

 Sps purchased from an art gallery (merchant), hence, no reason to believe that there is a
problem on the state of the title

 Sps gets the rights of the entruster as they purchased from a merchant. Here, the thief’s bare
right to possession. Hence, Sps did not reply on the Entrusting Statute because Guggenheim
would still be able to recover.

Thief v. Guggenheim = Thief has right of possession because SOL runs from the time of theft regardless if
the owner is unaware

Lubell v. Guggenheim = SOL runs from Demand and Refusal rule

Why Demand and Refusal Rule was used?

1. Difficulty of determining due diligence in this case
2. Variation to the Traditional Adverse Possession Rule = Until demand is made and refused,
possession by the GFP for value is not considered wrongful.
3. The TO’s diligence remains relevant in that for unreasonable delay might permit assertion of the
equitable defense of laches.

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ESTATES
FREEHOLD NON-FREEHOLD
Normal tenures leases

POSSESSORY ESTATES

Estate system – processes by which property interests are transferred from one party to another inter
vivos or at death.
A owns black acre and leases to B
B leases black acre for one year
- When lease has not expired, B has a present interest, while A has a future interest
- Both A and B own an estate in black acre.

FEE SIMPLE
1) Tenant for a fee – fee simple
2) Tenant for life – life estate

FEE SIMPLE ABSOLUTE

- Usually just called fee simple

O to A and his heirs

Creation of a fee simple = “A and his heirs” as words of limitation
“To A” – words of purchase

At common law – “A and his heirs” necessary wordings to create a fee simple
Modern Rule – grantor is presumed in the absence of words indicating otherwise, to transfer the
grantor’s entire estate. (no longer required to put “A and his heirs” to create a fee simple. It is now
presumed.)

Estate in Land
- An interest that creates a right to possess now or in the future.

Estate Categorized Based on Duration (how long it will remain possessory)

1. Fee Simple Absolute – Indefinite possession
2. Life Estate
3. Fee Tail
4. Leasehold

Fee Simple Absolute = Fee Simple

- Given by will. Also called to devise
- Devisee (recipient of the land by will)

Real Property Devise Devisee

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Personal Property Bequeath Legatee

What happens if Decedent has no will?

- Decedent died intestate
- Estate passes on to the heirs under the State’s intestacy statute

Intestacy Statute – Default will

O to A for Life = Life Estate

O = always assume that he has fee simple absolute

O to A and his assigns = under English common law, “And his heirs” need to be indicated to create a fee
simple absolute

- If no “and his heirs” then only Life Estate is created

Rule: Grantor transfers entire interest unless the language of the instrument indicates an intent to
transfer less

Year 1600: O to A for Life then to B forever

A = present life estate
B = future life estate (not fee simple because there is no language of “and his heirs.”)

Year 2018: O to A for Life then to B forever

A = present life estate
B= future life estate (remainder)
B Dies = O now entitled to possession because he has fee simple absolute
= O had a future interest called Reversion
= The instant B dies, reversion became possessory

Today:
O to A for Life then to B forever
A = present possessory life estate
B = future possessory fee simple absolute
B dies = fee simple absolute pass on to heirs/intestacy

O to A and her heirs.

A unmarried with one child
A = present possessory fee simple absolute

Here, heirs did not have interest that may be attached by the creditors

O to A for Life – O has reversion

O to A for Life then B – B has remainder, O has reversion

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REVERSION REMAINDER
Interest left in the Grantor Interest created in the transferee
Does not have to be stated to exist Has to be stated in the deed to exist

Heirs – persons who survive the decedent and are designated as intestate successor under the state’s
statute of descent
- No one is an heir of the living

Issue – synonymous with descendants.

- Does not refer only to children but includes further descendants.
- Distribution is made per stirpes (by the stocks) = by right of representation

Rule of Primogeniture
- Eldest son inherited the land. If the eldest son predeceased the decedent leaving issue, his
eldest son or other issue represented him.
- Preference of males over females of equal degree of kinship
- If there are no sons, decedent’s daughters inherit

FEE SIMPLE FEE TAIL

Estate capable of being inherited by whoever
turns out to be the heirs of the fee simple owner
- Cannot have limitations put upon its
inheritability
Primogenitary heir as head
“To A and the heirs of his body” – to give the land
to A and his descendants, generation after
generation

A limitation that purports to limit inheritance to a
particular class of heirs creates a fee simple
inheritable by the heirs generally.
When A’s blood line runs out, the fee tail ends.
The land will revert to the grantor or the grantor’s
heirs by way of reversion or, if specified in the
instrument, will go to some other branch of the
family

Uniform Probation Code

§2-102 = SHARE OF THE SPOUSE

- Share of the Decedent’s surviving spouse
1. ENTIRE ESTATE IF:
- No descendant or parent of decedent survives the decedent
- All of the decedent’s surviving descendants ARE ALSO the descendants of the surviving spouse
and no other descendant of the surviving spouse who survives the decedent

2. First $300,000 plus ¾’s of any balance of the intestate estate

- No descendant of decedent survives the decedent
- But a parent of the decedent survives the decedent

3. First $225,000 plus ½ of any balance of the intestate estate

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 - All of the decedent’s surviving descendants are also descendants of the surviving spouse and the
surviving spouse has one or more surviving descendants who are not descendants of the
decedent

4. First $150,000 plus ½ of any balance of the intestate estate

- One or more decedent’s surviving descendants are not descendants of the surviving spouse

Bro - - - D - - - Husband

C C Illeg. C

- §2-102 (4) = One or more decedent’s surviving descendants are not descendants of the surviving
spouse
- First $150,000 plus ½ of the balance of the intestate estate

Descendants = issue
= from child, go further down the line (great grandchildren)

Son Daughter Husband by will

- daughter did not survive the decedent as she predeceased.

- Husband by will is not considered a descendant of the decedent
- Therefore, only the son gets the intestate

Rules of PRIMOGENITURE

Daughter Son

GC GC GC
GC

- Under primogeniture, first eldest grandchild of the son takes intestate

- The GC takes by Representation the ½ share of his father (son) had he survived
- The son did not pass on his share to the GC because he did not survive the decedent

Will not take anything because she is not in the frontline of death.

SHARES OF HEIRS OTHER THAN THE SURVIVING SPOUSE:

A.

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 - Passes in the following order to the individuals who survive the decedent:
1. Descendants by representation
2. No surviving descendant = decedent’s parents equally if both survive, or to the surviving
parent if only one survives
3. No surviving descendant or parent = to the descendants of the decedent’s parents or either
of them by representation
4. No surviving descendant, no parent, no descendants of either parent by representation, BUT
IS SURVIVED ON BOTH PATERNAL AND MATERNAL SIDES BY ONE OR MORE GRANDPARENTS
OR DESCENDANTS OF GRANDPARENTS
- Half to the decedent’s paternal side equally if both survive
- Surviving paternal grand parent if only one survives
- Descendants decedent’s paternal grand parents or either of them if both are deceased,
descendants by representation

5. No surviving descendant, parents, descendant of a parent, BUT SURVIVED BY A

GRANDPARENT IN EITHER PATERNAL OR MATERNAL SIDE
- To the decedent’s relatives on the side with one or more surviving members

B. No taker under section A, but Decedent has:

1. one deceased spouse who has one or more descendants
2. more than one deceased spouse who has one or more descendants

§2-105: NO TAKER – intestate estate passes to the state.

D
- No descendants
- No parent
= §2-103(3) collateral relatives

D
- no spouse
- no parent
- no descendant of a parent
= §2-103 (4)

FEE TAIL
- “To heirs and heirs of his body”

To eldest son under primogeniture

- Fee tail holder can alienate to 3rd party = Life Estate

O to A and heirs of his body, then to B and heirs of his body

B = Remainder in fee tail

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 If A has no son and B also has no son, then there will be a reversion to O

How to Control Mechanism in a Will?

1. Life Estate
2. Remainder

LIFE ESTATE
a. Grantor of the life estate could control who takes the property at the life tenant’s death
b. Trust management for the life tenant developed
- Today, most life estates are created in trust

Ex. O to A for life

A to B
= A has present possessory life estate
= B has a life estate pur autre vie. An estate that is measured by A’s lifespan and not B’s

 B dies
- Life estate passes to B’s heirs or devisees until A dies

White v. Brown
- Mrs. Jesse Lide left a holographic will:
- Leaving to Evelyn White “my home to live in and not to be sold.”
- Leaving personal property to Sandra White. My house is not to be sold.
- Lide was a widow and no children. Only 2 sisters survived her who both quitclaimed any interest
they might have over the residence. The 12 nieces and nephews of Lide are the Defs in the suit
for construction of a will.
- White alleged that she is vested with fee simple title to the home. Defs contend that the will
conveyed only a life estate, while leaving the remainder to go to them under the laws of
intestate succession.
- Two statutes of construction creating a statutory presumption against partial intestacy
- The caveat contained in the will that the home is not to be sold – is a restriction conflicting with
the free alienation of property.
- Under ordinary circumstances, a person makes a will to dispose of his or her entire estate. A
construction which results in partial intestacy will not be adopted unless such intention clearly
appears.
- The restraint on alienation of the home does not evidence such clear intent to pass only a life
estate as is sufficient to overcome the law’s strong presumption that a fee simple was conveyed.
The attempted restraint on alienation must be declared void as inconsistent with the incidents
and nature of the estate devised and contrary to public policy.

Objections on Restraints on Alienation:

1. Makes property unmarketable
2. Concentration of wealth by making it impossible for the owner to sell the property

28
 3. Discourages improvements on the land. An owner is unlikely to sink his money into
improvements on land that he cannot sell
4. Prevents owner’s creditors from reaching the property

TYPES OF RESTRAINTS
1. Disabling restraint - withholds from the grantee the power of transferring his interest (White v.
Brown)
2. Forfeiture restraint - if the grantee attempts to transfer his interest, it is forfeited to another
person
3. Promissory restraint - grantee promises not to transfer his interest

 Restatement 3rd: absolute restraint on a fee simple is void

 Restraints on Life Estate = absolute restraint is void
 = forfeiture restraint is valid
Trust – most common form of Life Estate today

Valuation of Life Estate and Remainder

Ex. The house is worth $10,000

 Assume the life tenant will die at the time predicted by a life expectancy mortality table
 Assume the market rate at 6%
 Ascertain the present value of the right to receive $600(6%)

O to A for Life
- A has a present possessory life estate
- O’s interest is future possessory fee simple absolute

T to A for life
From the moment of T’s death
- A has present possessory life estate
- When A dies, reversion to T’s heirs based on intestacy statute
- At the Time of T’s death, reversion passes through T’s heirs
- At the time of A’s death, T’s heirs have present possessory fee simple absolute

WHITE PARENTS

2 SISTERS
SIBLINGS MRS. LIDE EVELYN WHITE

quitclaimed
Sandra White
nephews nieces

- If Life Estate, then it would revert to the heirs (nep and nie) including the sisters who through
quitclaimed passed on to White.

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 - White then also entitled to reversion

Life Estate Pur Autru Vie = conveyance of life estate

- Sale of the life estate does not entitle the possessor to squander the proceeds of the principal,
but to the income of the principal only

Gift Over = Remainder

 If conveyance looks like a L.E but no express remainder, then the conveyance is fee simple
absolute

O to A for Life – Life Estate, Then

A to B (L.E pur autru vie) = L.E is measured on A’s life
B dies = B’s heirs gets A’s life estate

O to A for Life – Life Estate, Then

A to B for B’s Life = L.E is measured on B’s life
B Dies = A entitled to reversion for Life Estate

A dies ahead of B = reversion to O of fee simple absolute. Because even if B is still alive, A only
transferred a Life Estate to him based on his life. Hence, reversion to O.

Baker v. Weedon
- Anna Plaxico Weedon is the life tenant of a piece of property that was once used as a farm but
may no longer be used for agricultural purposes due to a highway bypass that runs through the
land. The land is appreciating in value due to the development in the surrounding area. Anna
wishes to sell the property to provide adequate income for the rest of her life as she can no
longer farm the land.
- Appellants hold a future interest in the land and do not wish the land to be sold as it will be
worth a great deal more in the future.
- The proper factors in determining whether the sale of land by a life tenant is proper is the
prevention of waste of the property and to whether the sale is in the best interests of all of the
parties including the life tenant and the remaindermen.

= Conveyance of Life Estate

- Person creating a life estate can give the life tenant the power to sell or mortgage a fee simple
or lease beyond the duration of the life estate

- Life estate can be coupled with any number of powers to do specific acts not otherwise permitted
the life tenant. (last par. P. 278)

LIFE ESTATES IN PERSONALTY

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 - Other states require legal life tenants of personalty to account to a court periodically as though
they were trustees.

Creating Trust
- Trustee holds the legal fee simple and as the manager of the property may be directed to pay all
the income to the life tenant
- The manager will have all the powers spelled out in the instrument creating the trust

Applying trust in Baker v. Weedon

 Weedon could have devised his land to his wife Anna as trustee in trust for Anna for life
 As trustee, Anna would have a legal fee simple and would be the manager of the land owing
fiduciary duties to herself and the remaindermen
 As trustee, Anna could sell the fee simple to the property

Who has interest in the will?

1. Anna
2. Anna’s children if issue survives Anna
3. No issue survives, F’s grandchildren = If Anna has no issue, only then would it go to
grandchildren.

Conclusive Presumption of Fertility

- It doesn’t matter even if Anna is already 73 years of age when the will was construed by the
Court, she is still presumed to be fertile.

 SC ordered to stop the sale of the entire property. The Court allowed the sale of only a portion
of the property if the parties cannot hypothecate.

WASTE
- Mediates competing interests of life tenants and remaindermen.
- A should not be able to use the property in a manner that unreasonably interferes with the
expectations of B

TYPES OF WASTE
1. Affirmative waste - arising from voluntary acts
2. Permissive waste - arising from a failure to act
3. Ameliorative waste - resulting from changes to the property specifically changes that increase
its value

Why Anna shares in the proceeds of the sale of the soil with the remaindermen but not with the
rental?

- Because the sale of the soil reduces the value of the property and is therefore an affirmative
waste, while the rental does not reduce the value of the property.

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 - The longer Anna’s life expectancy is would the Court less likely to consider her possession as
waste. But if she has shorter life expectancy, then the Court would be tilted towards finding
waste. More weight to be given on the claim of the remaindermen.

Main Disagreement:
- Heirs wanted to delay the sale to allow the property to appreciate

Was there Affirmative Waste in this Case? No because Anna was not doing anything that substantially
reduces the value of the property

- But the Chancellor found ECONOMIC WASTE because the land is not producing as much income
as it could. That the land is unproductive when viewed in light of its capacity.

Court’s Basis of Order:

- Necessary for the best interest of all of the parties
- Because the Court thinks that the value of the land will appreciate later on.
- Court favored the grand children

*Probable reason why only L.E was given to Anna is because in 1925, a woman cannot be made owner of
a huge estate. (bias/prejudice against women in 1925)

What could have been done by the lawyer who drafted the will to avoid litigation?
- Explicitly state in the will that Anna has power to sell a fee simple absolute of the whole or part
of the property

- Establish a Trust. Appoint Anna as Trustee so that Anna can sell the L.E and the income from the
proceeds be held in trust in favor of the remaindermen.

WILL EXCERPT:
- Husband has present possessory life estate
- Remaindermen is the trust comprised of John Doe, Jane Roe and the Bank as trustees (future
possessory life estate)
- Beneficiaries of the trust – children/descendants of D

Powers Granted under the L.E

1. Authority to mortgage fee simple absolute

2. To grant lease beyond husband’s death not just during L.E
3. To remove buildings – power to commit waste
4. Power to sell fee simple absolute
(implicit in the powers granted that they involve a fee simple absolute because banks or buyers would
not accept as mortgage, or nobody will purchase a property that only has a L.E

When No Property is Purchased:

- Executor holds proceeds in trust

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 - Executor to pay income. Which means that the Trustor should invest

Problem:

Husband sells Millers Hill Road property for $200,000.

Husband purchases house #2 for $400,000, of which $200,000 is proceeds from the sale of Millers Hill
Road property, and $200,000 is Husband's money.

Husband sells house #2 for $600,000.

Husband purchases house #3 for $600,000, using the proceeds from the sale of house #2.

How much of house #3 is subject to the life estate?

Answer: 1/2/ Portion means fractional share and not the dollar amount

Fee Simple
1. Fee simple absolute - it cannot be divested nor will it end upon occurrence of any future event
2. Defeasible - it will terminate, prior to its natural endpoint upon the occurrence of some
specified future event

DEFEASIBLE ESTATES:

FEE SIMPLE DETERMINABLE FEE SIMPLE SUBJECT TO FEE SIMPLE SUBJECT TO

CONDITION SUBSEQUENT EXECUTORY LIMITATION
Future interest left to the grantor Future interest to the grantor = Fee simple subject to
= POSSIBILITY OF REVERTER RIGHT OF ENTRY condition subsequent

Ex. Ex. Future interest – to a third

O to Hartford, its successors and
assigns so long as the premises
are used for school purposes
Possibility of Reverter becomes
possessory automatically when
condition is met
SOL runs from the time the
O to Hartford, its successors and party rather than the
assigns, but if the premises is not grantor himself
used for school purposes, the
grantor has the right to reenter and Ex.
take the premises O to Hartford, its
successors and assigns but
if it ceases to use the land
as school, to the City
Library
Right of Entry becomes possessory
when the Right of Entry is exercised
Ways to Exercise Right of Entry:
1. Demand letter
2. Suit to recover possession
SOL runs from the time the

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conditions are met conditions are met
Words with durational Conditional language “If”
aspect/durational language
If a specified event happens

 Whether the condition is met or not may be subject to litigation

 If these future interests become possessory someday, it is fee simple absolute

TYPES OF FEE SIMPLE:

1. Fee simple absolute – infinite. It cannot be divested. Nor will it end upon concurrence of any
future event
2. Fee simple defeasible – will terminate prior to its natural endpoint upon the concurrence of
some future event
Ex: - life estate ends naturally at the death of the life tenant
- defeasible life estate might end earlier
- O to A for life so long as the property is used for residential purposes

TYPES OF DEFEASIBLE FEE SIMPLE:

1. Fee simple determinable
2. Fee simple subject to condition subsequent
3. Fee simple subject to executory limitation

Fee simple determinable Will end automatically when a stated event

happens
Ex. O to Hartford and successors and assigns so
long as the premises are used for school purposes
- Words with durational aspect
- Future interest retained by the transferor
called a POSSIBILITY OF REVERTER

Fee simple subject to condition subsequent Does not automatically terminate but may cut
short or divested at the transferor’s election
when the stated condition happens

Ex. O to Hartford, its successors and assigns, but if

the premises are not used for school purposes,
the grantor has a right to reenter and retake the
premises.

- Future interest retained by the grantor is

Fee simple subject to executory limitation
a Right of Entry (power of termination)
Grantor transfers fee simple subject to a
condition subsequent and in the same instrument
creates a future interest in a 3rd party rather than
himself

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 Ex. O to Hartford, but if it ceases to use the land
as a school, to the City Library.

- If the condition is breached, forfeited

immediately regardless of any action on
the part of the holder of the executory
interest to take action.

Possibility of Reverter:
Express
By Operation of Law - O has transferred less than the entire estate when he creates a fee simple
determinable

Mountain Brow v. Toscano

- To MB: Property is restricted for use and benefit of the second party only, in the event the same
fails to be used by the second party or in the event of sale or transfer by the second party of all or
any part of the lot, the same is to revert to the first parties, their successors, heirs or assigns.
- Respondents: - the language creates a fee simple subject to condition subsequent and is valid
and enforceable.
- Appellant: - The language is an absolute restraint on its power of alienation and is void.
- Whether the use condition created a defeasible fee or whether it was also a restraint against
alienation
These conditions are restrictive and severable:
a. If the land is not used by the second party
b. In the event of sale or transfer by the second party
- The invalid restraint against alienation does not necessarily affect or nullify the condition on land
use.

 MB is a non profit corp organized for lodge, fraternal and similar purposes
 Decedent James Toscano was an active member of the lodge at the time of his death
 “Use” as applied to real property can be construed to mean a right which a person has to use or
enjoy the property of another according to his necessities
- Therefore grantors simply meant that the land was conveyed upon the condition that it would be
used for lodge, fraternal and other purposes for which the non profit corp was formed.
- The habendum clause created a fee simple subject to condition subsequent with title to revert to
grantors or successors if the land ceases to be used for lodge, fraternal and similar purposes for
which MB is formed.

Indirect Restraints on Alienation

Falls City v. Missouri Pacific Railway

- Falls City conveyed land to MPR as long as the land was used as a site for the railroad company’s
divisional headquarters and in case it should be abandoned for such use, the land was to revert
to the city.
- A condition attached to a defeasible fee simple is unenforceable indirect restraint against
alienation if it materially affects marketability adversely. If the condition subsequent in the

35
 conveyance expressly limits alienation of the property to an impermissibly small number of
persons, it is void and unenforceable.
- Here, by limiting the use of the property by the railroad to use as its divisional headquarters only,
the City, in practical effect, completely restricted alienation of the land.
- Condition is void as restraint on alienation.

Life Estate Defeasible Upon Marriage:

a. If coercing abstention from marriage - INVALID
b. Providing support until marriage without any desire to hinder marriage - VALID

Ex.
H devises Black acre to my wife W for her use and benefit so long as she remains unmarried
- H devises residue of his property to his daughter
- W does not remarry but moves into the apartment of her male friend, A
- W dies devising all of her property to A. Who owns black acre?

FUTURE INTERESTS:

Future Interests Retained by the Transferor:

1. Reversion
2. Possible of Reverter
3. Right of Entry

Future Interests Created in the Transferee: Gen Rule: Remainder unless one of the rules prevent it
from being remainder (Gap in time/ or Remainder cannot follow a vested fee simple)

1. Vested remainder
2. Contingent Remainder
3. Executory Interest

Rules preventing a remainder:

4. Gap in time
5. Remainder cannot follow a vested fee simple

 A future interest is not a mere expectancy, like the hope of a child to inherit from a parent. A
future interest gives legal rights to its owner. It is a presently existing property interest, protected
by the court as such.

REVERSION

O to A for life
- O has reversion in fee simple that is certain to become possessory. At A’s death, either O or his
successors in interest will be entitled to possession.

O to A for life, then to B and her heirs if B Survives A

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O – reversion in fee simple
B dies – O entitled to possession on A’s death
A dies before B – O’s reversion is divested on A’s death and will never become possessory

POSSIBILITY OF REVERTER

- An owner carves out of his estate a determinable estate of the same quantum.
- Most cases deal with fee simple determinable out of a fee simple absolute

Ex. O to Hartford so long as used for school purposes.

O – Fee simple determinable with a possibility of reverter

RIGHT OF ENTRY
- An owner transfers an estate subject to condition subsequent and retains the power to cut short
or terminate the estate
- Transferor has a right of entry

Ex. O to Hartford but if it ceases to use the land for school purposes , O has the right to reenter and
retake the premises.

Future Interests in Transferees:

1. Vested remainder
2. Contingent remainder
3. Executory interest

 A remainder and executory interest can be transferred back to the grantor, but the name
originally given the interest does not change.

VESTED REMAINDER CONTINGENT REMAINDER

Ascertained person Unascertained person
Subject to condition of termination of the Subject to condition other than the termination
preceding estate of the preceding estate

O to A for life, then to B and her heirs.

B – vested remainder in fee simple absolute
B dies during A’s life - B’s devisees/heirs
 B or B’s successors are certain to take possession upon A’s death

 A remainder created in a class of persons (ex. A’s children) is vested if one member of the class is
ascertained, and there is no condition precedent.
- Open OR vested subject to partial divestment

O to A for life, then to A’s children and their heirs. A has one child = B.
B – vested remainder subject to open

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 - B’s shares cannot be known until A dies
- If A has no child, contingent remainder because no taker is ascertained. Contingent remainder
subject to open.

O to A for life then to the heirs of B. B is alive

- Contingent remainder because the heirs of B cannot be ascertained until B dies
- “Heirs of B” refers only to persons who survive B and are designated as B’s intestate successor by
the applicable statute of intestate succession.

O to A for life then to B and her heirs if B survives A

- B’s remainder to a condition precedent

O to A for life then to B and her heirs if B survives A, and if B does not survive A, to C and her heirs
- B’s remainder to the condition of B surviving A
- C’s remainder to the condition of B not surviving A
(ALTERNATIVE CONTINGENT REMAINDERS)

O to A for life, then to B for life, then to C’s heirs. All parties still alive
- C is unmarried as has two children. X and Y
 A = Life Estate
 B = future possessory vested remainder in l.e
 C = f.p contingent remainder in fee simple absolute subject to open

O to A upon first wedding anniversary. A is alive and unmarried at the time of conveyance. O is alive
 A = f.p executory interest in fee simple absolute
 O = no reversion

O to A for 10 years, then to such of A’s children as attain age 21.

- At the time of conveyance, A and O were alive. A had 2 children, X and Y ages 20 and 17
 A = p.p vested remainder in fee simple subject to springing executory interest
 X = f.p contingent remainder in fee simple subject to springing executory interest
 Y = f.p contingent remainder in fee simple subject to springing executory interest

O to A for 10 years, then to such of A’s children as attain age 21.

- At the time of conveyance, A and O were alive. A had 2 children, X and Y
- X reaches 21 and Y is still 17
 X = present possessory of fee simple subject to open

O to A for 10 years, then to such of A’s children as attain age 21.

- At the time of conveyance, A had 2 children, X and Y
- X dies when he reached 22
- Y is 19
- O is still alive

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  P.p on X’s devisees/heirs of fee simple subject to open

O to A for life, then to A’s children.

A and O are alive at the time of conveyance
A has one child, X
 A = p.p life estate
 X = future p vested remainder in fee simple subject to open

O to A for life, then to A’s children.

- A and O are alive at the time of conveyance
- A has two children, X and Y
- A dies survived by X and Y and O.
 p.p fee simple absolute (tenants in common)

O to A and her heirs, but if land is used for any purpose other than agricultural purposes, then O has a
right to re-enter and take possession of the land.
A = Contingent remainder in fee simple subject to a condition subsequent
O = right of entry in fee simple absolute

A begins construction of several residences on land. O has died and devised her entire estate to B.
- If right of entry is devisable under state jurisdiction, then B has the right of entry.

O to A and her heirs so long as blackacre is used for residential purposes only.
- A = vested remainder in fee simple determinable
- A’s heirs = contingent remainder in fee simple subject to a condition subsequent
- O = possibility of reverter in fee simple absolute

A begins construction of a factory on blackacre. O has died and devised her entire estate to B
- B has present possessory fee simple absolute

O conveys greenacre to fingerlakes (an ngo) on condition that the greenacre remains forever
undeveloped and in its natural condition. If greenacre is ever developed, then to land conservancy in fee
simple absolute.
- FL = p.p fee simple subject to executory limitation
- LC = f.p fee simple absolute

O conveys wiseacre to A and her heirs, and A promises that wiseacre shall be used solely for agricultural
purposes
- A = p.p fee simple absolute with covenant that runs with the land

A begins construction of a factory on wiseacre

- The person who holds the benefit of the covenant may either enjoin the breach or seek damages.
(difference between a covenant and a condition or limitation. In the case of a condition or
limitation, the effect of breach of the restriction is forfeiture of the fee simple.)

O conveys whiteacre to A and his heirs, but if ever A drinks alcohol, then to B and her heirs.
 Later, B executes a deed purporting to convey her interest in whiteacre to C.

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  Later A drinks whiskey
- A = p.p fee simple subject to executory limitation
- C = p.p fee simple absolute

O (blackacre) to X in trust to pay the income to A for life, and then to pay the principal to A’s children who
survive A.
 X = present possessory legal fee simple
 A = present possessory equitable life estate
 A’s children = future possessory equitable contingent remainder
 O = equitable conversion

- X sells the blackacre for $200,000 and reinvests the $200,000 to white acre and General Motors
stock
 X = present possessory legal fee simple
 A = present possessory equitable life estate
 A’s children = future possessory equitable contingent remainder
 O = equitable conversion

POSSESSORY ESTATES FUTURE INTEREST FUTURE INTEREST

IN TRANSFEROR IN TRANSFEREE
Defeasible Fee simple:

Fee simple determinable Possibility of Reverter None

Fee simple subject to a Right of Entry None

condition subsequent

Fee simple subject to an None Executory interest

executory limitation
Fee Tail Same as Life Estate Same as Life Estate
Life Estate Reversion (indefeasibly vested Contingent remainder
or no remainder created)

Reversion (vested subject to Remainder vested subject to

defeasance) – when contingent open
remainders created

Possibility of reverter Remainder vested subject to

divestment
Right of entry incident to Executory Interest
reversion

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 Reversion (Vested subject to Remainder vested subject to
defeasance or indefeasibly limitational defeasance
vested.
Executory interests in unborn
None class members

None Indefeasibly vested remainder

Leaseholds same as with life estates Same as with life estates

Destructibility of Contingent Remainders

- A legal remainder in land is destroyed if it does not vest at or before the termination of the
preceding freehold estate

O to A for life then to B and her heirs if B reaches 21.

- A dies before B reaches 21
 B’s remainder is now destroyed. O now has a right to possession

O to A for life, then to B and her heirs if B survives A.

- If A conveys life estate to O
 Life estate merges to the reversion destroying B’s contingent remainder
Abolition of Destructibility Doctrine

O to A for life, then to such of A’s children as attain the age 21.
- 2 years later, A dies leaving two children, C and D ages 8 and 4
 O = present possessory fee simple subject to executory interest

Rule against Perpetuities

- To be good, the interest must vest
- Vesting must be not later than 21 years after some life in being at the creation of the interest

O to A in trust for life, then to A’s first child to reach 21.

 A = validating life. You can prove that anyone of A’s child will reach 21 within 21 years after A’s
death.
 The remainder is valid

O to A in trust for life, then to A’s first child to reach 25.

 There is no validating life. The contingent remainder is void

Steps in Applying the Rule against Perpetuities

1. Determine whether the future interest is subject to the Rule
- interests that are not vested at the time of conveyance that creates them
a. Contingent Remainders
b. Executory Interests

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 c. Class gifts

Does not Apply to:

Future Interests left to the grantor:
2. Possibility of reverter
3. Right of entry
4. Reversion

Present Possessory

2. Determine whether the given interest might not vest within the perpetuity period of “lives in
being plus 21 years.”
- 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.
- Look for the Validating Life = only one is needed. Enables you to prove that the
contingent interest will vest or terminate within 21 years from the death of said person
- Validating life MUST BE a life in being at the creation

Validating Life not mentioned in the instrument:

T – to my grandchildren who reach 21.

- T leaves 2 children and three GC under 21
 The validating life is the survivor of T’s two children
 All of T’s GC must reach 21 within 21 years after the death of the survivor of T’s two children
 The gift is valid

Jee v. Audley
- Edward Audley bequeathed as follows:
“£1000 shall be place out at interest during the life of my wife, and at her death I give the said
£1000 unto my niece, Mary Hale and the issue of her body lawfully begotten, and to be
begotten, and in default of such issue I give the said £1000 to be equally divided between the
daughters then living of my kinsman John Jee and his wife Elizabeth Jee.

- Sps Jee were living at the time of death of the testator. They had 4 daughters and no son and
were at an advanced age.
- Mary Hale was unmarried and at the age of 40.
- Wife was dead
Issues:

1. Whether the limitation on the daughters of Sps. Jee was too remote;
2. Limitation on daughter of Sps was to take effect only on a general failure of issue of Mary Hale
3. Not confined to the daughters of Sps living at the death of testator, and consequently, might
extend to after-born daughters in which case, it would not be within the limit of the life in being
and 21 years afterwards, beyond which time is void.

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 - General Rule: Children living at the time of the distribution of the funds should be let in
- Hard to adhere to such rule of construction so rigidly as to defeat the evident intention of the
testator in this case especially as there was no real possibility of Sps having children after
testator’s death, they being 70 years old.

Held:
Immediate Devise – Children living at the time of testator’s death only shall take
Interest in Remainder – Those who are living at the time the interests vests in possession

- The limitation may take in afterborn daughters which is against the Rule against Perpetuities bec
the Sps. Might have children born 10 years after testator’s death and then Mary Hale may die
without issue at age 50 years afterwards. The testator might possibly mean to restrain the
limitation to the children who should be living at the time of his death.

Class Gift
- Not vested in any member of the class until all the interest of all the members have vested
- A gift that is vested subject to open is not vested under Rule against Perpetuities
- The gift must be closed – that is each and every member of the class must be in existence and
ascertained, and all conditions precedent for each and every member must be satisfied within
the perpetuities period.

Ex.
O to A for life then to A’s children. A has one living child, B.
- B’s remainder is subject to open but is not vested under RAP until A dies.

Common Law Concurrent Interests

1. Coparceny
2. Tenancy in Partnership
3. Tenancy in Common
4. Joint Tenancy
5. Tenancy by the Entirety

TENANCY IN COMMON JOINT TENANCY TENANCY BY ENTIRETY

Separate but undivided Equal undivided shares and Can be created only in husband
interests identical interests measured by and wife.
duration

Unity of Possession Unity of Possession

Each interest descendible and Cannot arise by intestate
may be conveyed by deed or succession or by operation of
will law

Cannot be passed by will as the

joint interest of tenant ceases at
death.
No survivorship rights between Joint tenants together are single

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tenants in common owner. Each owns the
undivided whole property

- When one joint tenant

dies, nothing passes to
the surviving joint
tenant. The estate
simply continues.
- Decedent’s right is
extinguished by his
death.

Unities Essential to Joint Tenancy

Time - interest of each joint tenant must be acquired or vest at the same time

Title - All must acquire title by the SAME INSTRUMENT or by joint adverse possession

Interest - Equal undivided shares and identical interests measured by duration

Possession - Each has right to possession of the whole
th
(5 Unity for Tenancy by Entirety)
- Unity of Marriage

- If four unities do not exist, JOINT TENANCY is not created. Tenancy in common is created.

- If four unities exist at the time the joint tenancy is created but later severed, the joint tenancy
turns into a tenancy in common when the unities cease to exist.

 JT can change their interests into a tenancy in common by mutual agreement destroying one of
the four unities.
 Any one tenant can convert a joint tenancy into a tenancy in common unilaterally by conveying
his interest to a third party

Judicial Partition – if tenants in common or joint tenants cannot solve their problems by mutual
agreement, any one can bring this action.

O to A B and C as joint tenants.

A to D.
B devised to H. (B died)
1) (Tenancy in Common = D, H and C)
2) (Tenancy in Common = D, H and C)

T to A and B as joint tenants for their joint lives, remainder to the survivor = (Tenancy in Common)

Rembe v. Stewart

44
 - Joint tenant’s interest ceases at death. If a creditor acts during a join tenant’s life, the creditor
can seize and sell the JT’s interest severing the JT. If the creditor waits until JT’s death, the
decedent JT’s interest has disappeared and there is nothing the creditor can seize.

Riddle v. Harmon
-

Spiller v. Mackereth
- Spiller and Mackereth owned a building as tenants in common. When a lessee vacated, Spiller
entered and began using the building as a warehouse. Mackereth then wrote a demand letter
that Spiller either vacates or to pay half of the rental value to her.
- General Rule: In the absence of agreement to pay rent OR an ouster of a co-tenant, a co-tenant
in possession is not liable to his cotenants for the value of his use and occupation of the property.
Here, since there is no evidence of adverse possession, there must be evidence to establish
ouster.
- Ouster = 1) beginning of SOL for adverse possession 2) liability of occupying cotenant for rent to
other cotenants.
- AL cases involving adverse possession require a finding that possessing cotenant asserted
complete ownership of the land to support a conclusion of ouster = may be established in several
ways. The essence of finding an ouster in the adverse possession cases is a claim of absolute
ownership and a denial of cotenancy relationship by the occupying cotenant.
- In AL cases which adjudicate the occupying cotenant’s liability for rent, a claim of absolute
ownership is not an essential element. Rather, the occupying tenant refuses a demand of the
other cotenants to be allowed the use and enjoyment of the land, regardless of a claim of
absolute ownership.
- Here, the adverse possession rule is precluded by Spiller’s acknowledgment of the cotenancy
relationship by filing a bill of partition.
- To prove ouster, Mackereth relies on a demand letter to either vacate or pay half the rental
value. (occupying tenant is not liable for rent notwithstanding a demand to vacate or pay rent).
- Each has an equal right to occupy and unless the one in actual possession denies to the other the
right to enter, or agrees to pay rent, nothing can be claimed for such occupation.
- Thus, before an occupying tenant can be liable for rent in AL, he must have denied his cotenants
the right to enter. There can be no denial of the right to enter unless there is demand or an
attempt to enter. Simply requesting the cotenant to vacate is not sufficient because the
occupying cotenant holds title to the whole and may rightfully occupy the whole unless other
cotenants assert their possessory rights.

45