[A verbal gift of land is ineffective. Uncle
remained the TO of the land until he
conveyed it to Niece, when title passed
to Niece.]
A/P is the operation of the S/L so as to
preclude a true owner from bringing an
action to repossess land—thereby giving
the possessor the rights of ownership.
A/P preserves long-term expectations &
protects investment by good faith
possessors who mistakenly occupy the
wrong land or parcel. All A/P does is give
effect to the property lines people are
naturally observing. Its main purpose is
to quiet all titles which are openly and
consistently asserted, correct errors in
conveyance, and impose responsibility
on property owners, and to honor
expectations. Because of the serious
consequences of this doctrine, courts
have imposed a number of requirements
that a possessor must satisfy to take
advantage of the A/P doctrine. An
adverse possessor will have to show that
he was in…
- Excl. poss. (actual or constructive)
that is;
» poss occurs when possessor exercises
type of dominion/ctrl that an owner
would w/ respect to property of like
nature, condition, character and location
» must have CofT in order to have
constructive poss, like the example
where Penelope has constructive
possession of the subsurface because
she has CofT
- adverse and hostile;
» means possessor claiming as owner,
not subservient or subject to rights of
owner as with a lease or license
» you’re not there under permission of
true owner
- open and notorious;
» kind of poss that would put reasonably
prudent TO on notice someone was
making a claim of ownership to their
land. Notice can either be actual or
constructive.
» this element focuses on the TO and not
the possessor
» TO owner either must know or it has to
be shown that he should have known
that someone was in possession of the
land under the reasonable owner test.
E.g., you cannot expect owners of land to
know, with the exercise of reasonable
care, of underground occupancy.
- under GFCR or CofT;
» possessor must have GF belief they are
TO or have CofT which is a defective
deed purporting to give title
- continuously w/out interruption;
» to be continuous, possessor must
occupy the property as an owner with no
abandonment or ouster. A residence just
used in the summer is ok if that is the
normal use of the property. The question
to ask is whether the land was regularly
used during the time it was capable of
use?
» no interruption by abandonment
(unequivocal intent to stop possessing as
an owner would) or ouster by a third
party inconsistent w/ the possession as a
TO
» tacking is allowed when there is privity,
meaning some reasonable connection
between the parties. Landowners like
Krona will, in normal course of affairs,
convey the property to a successor
~ there is no privity if the possessor
was ousted by a successor or possessor
abandons and successor moves in
- for the statutory period
» title passes upon expiration of the S/L
» S/L tolled/extended for disabilities if at
the time the possession commences, the
TO is a minor, insane, military service on
foreign duty or imprisoned
» Shortened by CofT
“P can gain title by adverse possession if
she can show that she was: in actual or
constructive possession, which was
adverse and hostile, open and notorious,
under GFCR or CofT, continuously for the
statutory period.”
ACQUISITION BY GIFT
A gift is a voluntary transfer of property
w/out any consideration. There are three
elements of a valid gift:
- Intent!!! of donor to make the gift
» must be a present intent to transfer,
not future
- Delivery of the gift (can be actual or
constructive)
» actual physical delivery should be done
if practical, but it need not be physical; it
can also be constructive (e.g., keys to a
safe) or symbolic (e.g., a letter)
» modern approach is to subordinate
delivery to intent like in the Gruen case
where the father wanted to retain a life
estate in the painting but once he died
he wanted it to go to his son; he made
this clear in his letter to his son.
- Acceptance by the donee (rebuttable
presumption)
» when a gift is of value to a donee, the
law will presume acceptance on the
donee’s part
» can include third party acceptor like a
trustee but not an agent
Inter vivos gifts = gifts between the living
Transfers at death = a person can only
transfer title at death by will or intestacy
CONCURRENT OWNERSHIP
Co-ownership; concurrent rights of
present and future possession. The
common law recognizes three types of
concurrent ownership: tenancies in
common, joint tenancies, and tenancies
by the entireties.
- Tenancy in Common
» there is a modern default presumption
of T/C even if it satisfies the Four Unities.
» each co-tenant is the owner of a
separate undivided interest in the entire
property. It takes both to convey a
possessory interest like an easement
(e.g., the example where A and B agree
to convey easement to X, A does so in
writing by B does so only orally…this
easement is only enforceable as to A’s
50% interest)
» T/C can arise by an express
conveyance or devise to persons as
tenants in common
» there is no right of survivorship, when a
co-tenant dies their interest passes to
their devisees or heirs
» equal interests in the whole are not
necessary
» one can sell, give, devise, or otherwise
dispose of her undivided share as if they
were the sole owner
» there can be termination through
partitition
- Joint Tenancy (T/C + a will
substitute)
» there was a common law presumption
of joint tenancy. Today a joint tenancy
must be created expressly because of
the modern presumption for tenancies in
common – You need “To A & B with right
of survivorship, and not as tenants in
common.” Even a conveyance of “To A &
B jointly”, would create only a tenancy in
common today. The intent must be
explicit to create a joint tenancy
» the right of survivorship is the
distinctive feature of joint tenancy
» joint tenancy can be created by deed or
will
» joint tenancy not inheritable by
intestate succession
» because dying joint tenant’s interest
vanishes at death, she cannot devise it
by will
» each owner has an undivided share of
the whole and the surviving owner has
right to the whole estate
» any joint tenant can destroy the right of
survivorship by severing the joint
tenancy. originally needed a strawman to
convey to self and break right or
survivorship but today states permit joint
tenants to unilaterally sever by
conveying to selves without using a
strawman
» FOUR UNITIES requirement = because
joint tenants are seised of undivided
property as 1 fictitious entity, common
law requires that their interests be equal
in all respects:
1) Time – interest of each joint
tenant must vest at the same time
2) Title – all joint tenants must
acquire title by the same deed or
will, or by joint A/P
3) Interest – interest of each joint
tenant must be equal in an estate
of one duration
4) Possession – each joint tenant
must have equal right to the whole
» mortgage by joint tenant severs
depending on the state
Title Theory States – at common
law, a mortgage had effect of
conveying legal title to the
mortgagee & the mortgagor kept
legal title upon payment; mortgage
destroys the unity of interest &
severs the joint tenancy
Lien Theory States – mortgagee
does not have legal title, but rather
a security interest called a lien.
Legal title remains in mortgagor,
thus the joint tenancy survives and
is not severed
» a joint tenant has the right to lease her
interest in the property, even over the
objection of the other joint tenant. Half of
states say the lease binds the survivor
- Tenancy by the Entireties
» created between husband and wife
» like JTWROS in having the Four Unities
required but there is a fifth added, the
unity of marriage
» H & W considered as 1 person
» severance by one tenant is not possible
(need divorce)
» 50% interest is not transferable
unilaterally and creditors cannot get to a
50% share
» divorce or agreed upon sale are the
only ways to get out
» at dissolution, in community property
States H & W split 50/50 all property
acquired by time, skill, or effort of either
H or W during the marriage
RELATIONS AMONG CONCURRENT
OWNERS
Like a partnership, you cannot take
unfair advantage of your co-owners.
Indeed, while in the co-tenancy, you act
for all when you sell to create a profit.
The law holds concurrent owners to a
special relationship of trust & confidence.
The law prohibits lying, cheating &
stealing among concurrent owners. One
does not get to act solely on their own
behalf since not the sole owner!
» most states require concurrent owners
to share all profits (account for benefits
received). The universal rule is that when
a co-tenant rents the property to a 3rd
person, the net income must be shared
since the net profits from the property
belongs to all the cotenants
» in absence of agreement to pay rent or
an ouster of a co-tenant, a co-tenant in
possession is not liable to his co-tenants
for the value of his use and occupation of
the property (ouster is an act done by a
co-tenant that deprives another co-
tenant right of possession. An ousted co-
tenant can sue to collect his shear of fair
market rental value or partition)
» contribution expenses? Tenant in
possession cannot sue for expenses
» co-owners are accountable for profits
derived from use of land that
permanently reduces its value (e.g.
extracting oil)
» no co-owner has a duty to repair
property (if one of the owners does
repair, they cannot compel contributions
from the other owners
» improver should get value added from
improvements because they have borne
the risk in making them
» if a co-owner buys the property at a tax
sale and holds it in benefit of all co-
tenants, each have a right to preserve
their interests by contributing their share
of the sum expended
» co-owner can adversely possess
against other co-owner & if for the
statutory period the possession will ripen
into title in the adverse possessor
REMEDIES
Partition = a joint tenant or a tenant in
common may demand partition at any
time and for any reason. A tenant by the
entirety is not entitled to partition—the
effective remedy is divorce. Partition is
accomplished by a judicial proceeding
resulting in either (1) physical division of
the property or (2) sale and division of
the sale proceeds. Partition allows parties
holding concurrently to resolve
irreconcilable conflicts with regard to
use, accounting, and contribution.
However, it is costly and should not be
relied upon.
- Partition in kind:
» physical division of the property
» preferred common law method, but if it
(1) impossible or (2) very impractical or
not in the best interests of all parties a
court will order partition by sale
» the more owners, the more difficult to
partition in kind because it is more
difficult to divide up land evenly
» reduction in value of land because of
division in undesirable
» the whole exercise is too costly
- Partition by sale:
» quite common today because it is
impractical or impossible physically to
divide most property in America today
» property is sold and the proceeds are
divided among the co-owners in
proportion to their ownership interests
» agreements not to partition are
enforceable if they are clear, fair and
equitable, and limited to a reasonable
period of time
EASEMENTS
An easement is the non-revocable limited
legal right to use the land of another for
some specific purpose, whereas a license
is revocable permission to use the land of
another. Easements are tremendous
land-use planning tools. An easement is
an encumbrance on a fee and burden the
servient land
Appurtenant Easement = benefits the
holder in the physical use of the land.
The easement is attached to the
dominant land, not the holder, and
passes to subsequent owners
» benefits dominant estate and burdens
servient estate
» increases value of dominant land more
than it decreases the value of the
servient land
» can be sold, gifted, devised, inherited,
conveyed – it continues to run with the
land
» when parties are unclear, construe
deed to be appurtenant. It is INENT that
controls
In Gross Easement = is attached to the
holder, not the land. The servient estate
is burdened but there is no dominant
estate
» commercial in gross easements are
transferable, but non-commercial in
gross easements are usually not
assignable nor divisible (unless grantor
clearly intends
» when land is not mentioned it is
probably in gross
Exception v. Reservation
» exception = provision in deed that
excludes from the grant a preexisting
right
» reservation = easement reserved by
grantor over servient estate being
granted
Creation of Easements
» Express = in writing signed by grantor.
Formal deed by grant or reservation, if
not then it’s a license
» by Estoppel = where servient owner is
estopped from revoking a license. A
license that has been irrevocable (and
transformed into an easement) by virtue
of the fact that the dominant user has
reasonably and seriously relied to his
detriment on the license, and the licensor
knew of this reliance. Easement by
estoppel has five elements:
1) Granting of the license for use
by neighbor who will be relying
on the license for permanent
improvements, indicating an
intent that the license won’t be
revoked
2) Reasonable and foreseeable
reliance on the fact that the
license will not be revoked
3) Actual, detrimental reliance by
expenditures of resources (time,
$$$, effort)
4) The licensor has knowledge of
the reliance and the
expenditures
5) Balance the equities (reach a fair
and reasonable outcome)
» by Prescription = title to an easement
may be established by using the
easement as an owner would in a way
that is…
1) adverse and hostile,
a. a right to use easement,
not by license or
permission. “exclusive”
use as the easement
holder, even though other
may have easement rights
to use the same road
2) open and notorious,
a. did owner actually know of
the easement? actual or
constructive notice? If
sewer could be reasonably
discovered on inspection,
requirement is satisfied
3) under a GFCR and/or CofT, and
4) continuous,
a. uninterrupted; tacking
allowed
5) for the statutory period
a. “therefore X will succeed if
the S/L in this jurisdiction
is 10 years or less”
“If X can show that he used the
easement in a way that was adverse &
hostile, under a GFCR or CofT,
continuously for the statutory period, he
can establish an easement by
prescription.”
» by Implication = pre-existing use as
evidence of what parties unambiguously
intended. Surrounding circumstances are
such that, although the parties neglected
to sign an easement agreement, they
intended that an easement exist. Created
the instant the land is severed. Five
elements show unequivocal intention…
1) Unity of title – both parcels were
owned by one owner, and the
asserted easement was intended
to be created at the time of the
severance of the parcels
2) Pre-existing or prior use –
“quasi-easement” where the
common owner used the
easement prior to severance.
There cannot be an easement on
one’s own land
3) Apparent/visible – the pre-
existing quasi-easement must be
apparent so that the parties
intended it to continue
4) Continuous and permanent – the
pre-existing use is not just
temporary but of a nature that it
was intended to continue and
benefit the dominant parcel
5) Necessity – if there isn’t some
necessity, then why imply the
easement?
» by Necessity = land-locked; look to the
time of severance to determine what was
necessary then, not today. This is a last
case scenario with two requirements:
1) unity of title – both parcels were
owned by one owner and the
easement was created at the
time of severance of the parcels.
It is only at the time of the
severance that creates the
necessity that the easement
arrives. Pre-existing use is not
required.
2) Strict necessity – the easement
must be essential to the use and
enjoyment of the property
Scope of Easements
What use the easement owner can make
of the easement & what interference by
servient owner is permissible? Scope
depends on intention of parties at time of
grant. If dominant estate wants to
increase scope, court will consider
whether easement increase will
unreasonably burden servient estate. The
key is to look at the intent in the
document, and if not expressed then use
the “Rule of Reason” which asks what
reasonable people would have intended
at the time the easement was granted.
Reasonably foreseeable changes in
quantity & quality that do not unduly
burden the servient land are held to be
within the scope of the easement. Look
at surrounding objective circumstances
to determine the intent of the parties at
the time of easement creation.
» dominant subdivision = each
subdivided lot has a right to use
easement appurtenant to the dominant
estate. However, there is a limitation to
use of subdivided lots. The servient
estate is not to be burdened by increased
quantity & quality of use.
» use by nondominant land =
nondominant land cannot use easement
granted for the benefit of the dominant
land, even though the same person owns
both. Dominant owner can’t increase the
scope of the easement by using it to
benefit a nondominant estate.
» exclusivity v. non-exclusivity = grantor
can grant multiple easements over the
same area of land as long as there is no
wording of exclusivity in the grant
» location = once the location is
established on servient land, it must
remain there. The exception is where
both parties can agree to move it or the
servient owner can move it at its
expense as long as new location is not an
inconvenience to easement holder’s use.
» Express Easement: location and
duration established by the terms in the
creating document
» by Estoppel:
location – based on intent of then-
permissive servient land owner
duration – as long as equity
requires
» Prescriptive Easement:
location – actual use during S/L
period (scope is adverse use/terms
of CofT)
duration – continues indefinitely or
by necessity
» Implied Easement:
location – pre-existing use
established original scope
(reasonable intent of parties
duration – continues indefinitely or
by necessity
» Necessity:
location – place where causes the
least amount of harm to servient
land, use is only what is necessary
duration – only as long as
necessary
Termination of Easements
Easements are an interest in land and
are thus perpetual, but in some instances
easements are created for a limited
term. However, perpetual easements
may be terminated by several means:
» Express Termination = originating
document provides for express
termination at a stated date does not need it anymore. Servient
» Express Release = easement holder owner relies on this and builds her house.
reconveys the easement by a written Compelling facts which require an
instrument that meets the formality equitable remedy.
requirement for an effective deed » Prescription = use by the fee owner
» Implied Release (abandonment) = that is adverse & hostile, under GFCR or
really hard to show. Facts must show that CofT, openly & notoriously, continuously
the owner of the dominant parcel for the statutory period
unequivocally intended to release all » Merger = if the fee interest in both the
rights to the easement. Oral dominant & servient parcels come under
release/nonuse + failure to maintain the the same ownership then the easement
easement, permitting the easement to be is terminated. An easement can only
blocked by others. Inaction is not exist, by definition, as rights to use the
enough. land of another. However, possessor
» Estoppel = as a matter of equity, must have a fee in both, not a terminable
estopp dominant owner from asserting estate like a life estate.
rights. Dominant owner tells servient
owner she can build on easement, as he
I. POSSESSORY ESTATES
All estates exist now but the possessory rights contained within each estate can
be classified as present or future possessory rights. Thus, the fundamental
touchstone when interpreting a deed or a will to determine what estate or
estates have been created is the INTENT of the Grantor. A person can transfer
property by deed (inter vivos) & by will or intestacy (at death).

CARDINAL RULE  go with grantor’s intent within the four corners of

the document

Hierarchy of Possessory Estates: Future Possessory Estate:

• Fee Simple Absolute None

• Fee Simple with covenant None
• FS/CS Right of Entry (Power of Termination) in
Grantor
• Fee Simple Determinable Possibility of Reverter in Grantor
• FS/EL Executory Interest in 3rd party
• Life Estate Remainder (3rd person) or
Reversion (Grantor)

II. FUTURE INTERESTS – anytime a grantor creates a present possessory estate

that is not a FSA, there must be a future possessory estate that will “follow” the
expiration or termination of the present possessory estates. The future
possessory estates are estates now – they merely do not become possessory
until some time in the future.
A. GRANTOR’S FUTURE INTERESTS
• Reversion
“To A for life.” After termination of A’s life estate, possession reverts
back to Grantor. Any interest retained by the grantor (retained
seisen) when less than a fee simple is conveyed away – it will follow
upon the expiration of the prior possessory estate.

(O will not have a reversion if transfers Fee Simple or Vested

Remainder in FS)

• Possibility of Reverter
“To A but if alcohol is ever sold, the land shall automatically revert to
Grantor.”

This is a fee simple grant. Grantor’s interest is not a Possibility of

Reverter.

• Right of Entry
Expressly retained.

B. GRANTEE’S FUTURE INTERESTS

• Remainders (who owns this estate right now?)

“To Ann for life, then to Bob.” Rights of possession that follow the
expiration of a life estate or leasehold estate, created in favor of
someone other than the grantor, and will vest in possession upon the
natural expiration of the prior possessory estate.

• Vested Remainder – We will know exactly who will take and

there are no conditions. Stated another way, we know exactly
who to buy the estate from if we want to assemble a fee
simple.
o A vested remainder can be a vested remainder subject
to open
 “To Ann for life, then to Ann’s children.” – Ann has
two children, more may follow

• Contingent Remainder – We don’t know who the taker is

yet at the time of the grants, or there is some condition to
enjoyment of the estate other than the expiration of the prior
possessory estate.
o Courts don’t like contingent remainders so some
restraints are placed on them

• Executory Interests
Executory Interest is a future interest in a transferee that can take
effect only by divesting another interest. The difference between
taking possession as soon as the prior estate ends and divesting the
prior estate is the essential difference between a remainder and an
 Executory Interest.

The law of waste is a default doctrine that seeks to apportion rights and obligations
based on what an ordinary, reasonably grantor would have intended. Waste is any
material change in the character or condition of the property. Permissive waste is
allowing the property to deteriorate w/o undertaking the kinds of maintenance &
making the kinds of payments that should be allocated to the life tenant. Affirmative
waste is actively engaging in any voluntary material change in the improvements on
the land (regardless of whether or not it improves value), or removing improvements,
fixtures, timber or minerals, etc. Ameliorative waste is voluntary, material changes
that increase the value of the land. Allowed only if there are changed circumstances
and the changes will be ameliorative/value-enhancing.

Property is a bundle of rights with regard to an object, endorsed by the State

Property isn’t the object, it’s the expectations regarding rights and actions with
respect to it
Elements of property? The right to use and enjoy, the right to exclude others, the
right to convey dispose and destroy, and the right to possess

Acquisition by discovery = the first person to take possession of a thing owns it. This
provides incentives to discover things, prevents conflict between discoverers and
other inhabitants and protects possessors. Discovery principle gives the US good
title.

Acquisition by capture = must have actual possession for title (maintains certainty,
peace and order/upholds social value and recognition of worthy efforts/encourages
competition). Title by occupancy has two elements: the intent to possess and actual
possession. Title by occupancy occurs when physical possession is a substantial
certainty. Property rights to animals “free in nature is acquired by occupancy.

Acquisition by creation = property in one’s ideas and expressions. Requires being

first in time, expending labor, money, or both. Right to publicity is the right to
exclusively exploit a celebrity’s name and likeness, and it survives the celebrity’s
death.