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I. Original Acquisition
Original Acquisition Fera naturae: when you capture animal (deprive it of its liberty, take occupancy) in wild, its yours (mere pursuit is NOT occupancy.
(Pierson had possession of the animal since he captured it)

Actual physical possession is the best possession. To have property rights over animals (possession) exclude others. Ratione Soli: by right of the soil, anything on your land is yours When there is a violent or malicious act to a persons occupation, profession, or livelihood, there is a cause of action.
(Keebles trade was shooting fowl, so Hickeringill interfered by intending to shoot gun)

Trespassers cannot obtain ownership of an item on anothers land.

(Post was hunting for the fox uninhabited land, so no trespass)

Regaining Possession of Wild Animals Animus Revertendi: disposition to return, person must return animal when it is captured alive or escapes Right to retain possession, not to regain possession. Once animal regains natural liberty, you no longer have possession First in time, first in line first person to catch the animal owns it. However, if there is indication of ownership (tag on ear, comes when called), ownership is regained.

II. Nature of Property Rights: Rights against Others

Right to exclusivity is fundamental property right Property owner does not have to give up any part of land to help neighbor. Refusing to incur miniscule cost to prevent huge waste is fine.
(Jacques v. Steenberg Homes: Jacques did not need reason to exclude transport of motor home across his property).

Law of capture (based on fera naturae): whoever captures (produces) gas from land first owns it. In the ground, its in its natural state & belongs to no one.

Anderson v. Beech: Beech injected oil into reservoir under Ps prop lost ownership by injecting into ground

Percolating waters: ooze from the surface w/out defined channel English Rule: owner has absolute right to do what he wants w/all percolating waters (above & below) American Rule: owners use cant unreasonably injure others Unreasonable = resale, waste, negligent/malicious use
Finley: Ds quarry ruins Ps land b/c of excess water. Cant recover under either theory.

Support: Lateral support: right to have land supported by adjacent land. Subjacent support: right to soil underneath prop for support (only land, not h2o) Navigable-in-fact: If river can be used for commerce/transport travel, easement is allowed on river and its banks (if necessary?). Doesnt have to be navigable whole year; just enough for trade/trans.

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Adirondack League owns part of river. SC (D) has right to travel down river b/c nav-in-fact

Navigable-in-law: waters dedicated to public use, including right to fish

III. Property Rights against the Regulatory State

Property right (ownership, title): govt. enforces your exclusive right to the property Police power: govt. power to make regulations for the body politic in public interest Constitutional Clauses that Protect v. Govt. Takings: Contract Clause: no law can be made that impairs the obligation to contract. Due Process Clause: No person shall be deprived of property w/out due process Economic DP: if law has any rational basis to help public, ct. wont overturn Takings Clause: Nor shall private property be taken for public use, w/out just comp. Just compensation: full market value b/w willing buyer and seller Leaves open possibility of taking land for private use Tests Two-part test: 1) Substantially advances a legitimate state interest 2) Doesnt deprive owner of economically viable use State can destroy ones property to save other property of greater public value
Miller: State can order P to cut down red cedar trees to prevent disease from spreading

Even if regulation has a negative impact on land, that isnt necessarily a taking. A taking is when it is taken too far
PA Coal: Statute went too far (aka taking) when made it commercially impracticable for D to mine (and he had a right to do so by deed)

**If all value (90% or more) is taken by regulation, then it is considered a taking which requires compensation. ** Publilc Nuisance Exception: govt. can take for interference w/public welfare/safety

Lucas v. SC Coastal Council: SC Act is a taking barred P from erecting homes on two pieces of beachfront property. State agrees, and argues for public nuisance exception.

IV. Finders Rights

Finder is treated as owner against the whole world, except the true owner.
Armory found the jewel so its his, even though he gave it to a jeweler to see what stones value is. Hannah (P) finds brooch in Ds house. Ct. determines it belongs to P b/c D owned the house but didnt possess it so he didnt possess brooch. Elewes: Boat on land which owner leased to tenant who is digging hole (& discovers). Boat = ch. (landowner) Chattel not included in lease landlord recovers b/c first in time Part of soil/real estate (fixtures lights, pluming, cabinets, ect) included in lease

Hierarchy of entitlement to possession: True owner Earliest known possessor other than true owner 2nd earliest known possessor, 3rd earliest known possessor English Rule: Prefers earliest known possessor (includes unconscious possessors) Prefers owner of locus in quo (owner of the place) as earliest known possessor Exception: public/semi-public places Finder wins, owner does not have possession of everything on his land.
Bridges: Guy finds purse on shop owners floor right when they open it is a public/semi public place finder gets it (first in time).

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If $ was behind counter, owner would have possession & thats different. If shop had been locked overnight, shop owner = possessor.

American Rule: Only conscious possession counts (Homeowners didnt know they had $, so Hurley would get) Prefers the finder Exception: trespass When finder is a trespasser not possession New York Rule: American rule on steroids Stronger preference for finder, exception being if it is a crime. Courts usually dont split ownership claims too complicated. Categories of property: Abandoned: owner no longer wants to possess, voluntarily relinquished all rights.
Benamin: Humbach think $ in airplane wing carefully tied & placed there = abandoned (not mislaid)

Lost: owner unintentionally & involuntarily parts w/possession Mislaid: owner voluntarily &intentionally puts somewhere & forgets. Owner of locus in quo preferred person might remember where left it
McAvoy: P finds purse in Ds barbershop. Real owner never found. Ct. rules belongs to D.

Treasure trove: owner conceals coins or currency. Must be hidden really long. Distinction b/w lost & mislaid property eliminated. Possession/title to finder.
Hurley (P) finds $ hidden in pipe in Ds home. Ct. says not distinction.

V. Bailments
Possession of chattel is transferred from bailor to bailee for limited purpose
BAILMENT: transfer of possession (contract) Elements: Physical event Requires intent of bailee Bailee cant be forced, must agree Intent manifested by exerting dominion and control (excluding others/poss.) Must know what you are exerting control over Eg. Borrow sugar in a cup to bake a cake Sugar transfer of title; Cup transfer of possession equaling bailment Humbach: When a person takes possession of a container, they are taking responsibility for its contents.
Samples v. Geary: P puts fur piece in jacket & gives to coat check. Humbach says they were responsible coat = container, fur piece = contents Bailees intention to possess is what counts (Coat check boy did not intend to possess the scarf thing)

Negligence Level of care to prove negligence determined by props APPARENT value

Peet v. Roth Hotel: Hotel loses ring when left @ desk & doesnt realize its value. Ct. holds them to ordinary care what ordinary man would think in same situation. Holds hotel liable.

Rebuttable presumption of bailees negligence (acceptance of bailment + loss) Bailor: property bailed & not returned in good condition Bailee: loss did not result from his negligence (used ORDINARY CARE) Bailor: bailee is at fault (negligent)
Noworta: Ps cabinets were destroyed by fire at Ds office (D was fixing them). Bailor (P) would prove cabinets bailed and not returned in good condition, Bailee (D) can rebut by showing that he did not cause the harm D sucessful If bailee (D) succeeds burden shifts back to bailor to show fault.

If bailee is negligent, liable for ACTUAL value of property Strict Liability Strict liability for conversion (bailee refuses to return property)

4 Can be a converter even if the property is accidentally taken If bailee does something outside scope, bailor not required to take back Strict liability for misdelivery Bailee gives goods back to 3rd party rather then bailee Categories of Bailments: Sole benefit of bailor: must demonstrate gross negligence (lesser standard of care) Gratuitous bailment Reciprocal benefit: ordinary negligence Sole benefit of bailee: must demonstrate slight neg. (higher standard of care) TRANSFER OF TITLE (gift, sale, ect.) Elements: Non-physical (ideational) Requires intent of transferor/transferee Any objective manifestation of intent: dont have to know what youre control. Against a wrongdoer, possession is title. Wrongdoer cannot defend an action for conversion/damage to property by saying that bailee is not the true owner. Jus Tertii: right of a third person. Wrongdoer cant defend by claiming jus tertii
(Eg. I lend my car to Jenny and go to England. Bobby gets into an accident w/her and claim he doesnt have to pay Jenny b/c its not her car. Since he is wrongdoer, possession is title).

VI. Adverse Possession

I. Adverse Possession
Fundamentals of Adverse Possession Emerged from Medieval Concept of Seisin: Seisin: Possession of land coupled w/claim of right to be there indefinitely or for life Person who takes possession of land Can be owner or AP Only person who can sue trespassers True owners have right or re-entry (right to get back on land) AP gets his rights by just taking possession Rights against everyone besides true owner Even when S of L is running (NY is 10 years) True owner can sue AP by right of re-entry AP can sue any trespasser by right of entry Disseisor: person who has removed a right from person who has seisin. Has right to entry by lawsuit. Wrongdoers AP is treated as the true owner by wrongdoers AP treated as true owner while S of L is running, too. Wrongdoer cannot force an AP to prove he is true owner (Winkfield) Action in ejectment: an action to recover possession (put P in possession) Acquisition by Conquest: English Rule (OLD): had to occupy land to have possession Modern Rule: A person who has constructive possession (dont actually have poss. but court pretends they do) can bring action for trespass. To establish Constructive Possession: 1) Must own property 2) No adverse possession of land

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Gillepsie: D brings action against P who lives 20 miles away and owns land that D wants to cut down. Ct. holds P does not have constructive possession.

ELEMENTS: 1) Actual possession of the land 2) Open and notorious: possession is not secretive; apparent Must raise a flag and show the world Ordinary owner using reasonable, ordinary care would notice AP Using cave NOT open & notorious Sewer lines usually ARE open & notorious AP has no duty to tell true owner he is owner
Lawrence (husband) continues to live on land for 20 years after wife dies. He never tells anyone that the land was supposed to go to the town. Ct holds that fine, b/c his possession was open & notorious.

3) Hostile & under claim of right: possession must be w/ frame of mind of owner Must be adverse AGAINST true owner as opposed to under true owner Cant be subservient Presumed if other elements established Humbach: Objectively manifested intention is all that counts (actual intent doesnt have to be hostile) Humbach: NO requirement that owner know about possession AND NO requirement that AP actually know/intend that poss. = adverse Doesnt matter what AP was thinking just that he was ACTING like the true owner would act in the circumstances
Nome 2000: Ds activities of building cabin, picking berries, having fence constituted AP on northern part of land. Using trails & picking up litter on southern part wasnt AP). Ewing paid taxes & brought action for ejectment on gravel lot. He acted like true owner didnt need to erect a fence or anything b/c of the nature (gravel of the lot) Three views (Lawrence v. Town of Concord):

Requisite hostility depends on nature of the land

Majority: Hostility is presumed if person acts like true owner Honest Mistake Doctrine (Maine Doctrine): AP under a mistaken belief is not hostile NO AP Good faith Rule: AP in bad faith cant obtain possession AP must show occupation (of real property) by demonstrating: Usually cultivated Improved Protected by substantial enclosure

Birnbaums = AP over small parcel land behind their prop maintained grass/flowers & had fence

4) Continuous: possession for 1 period Doesnt require 24/7 Measured by what is normal for the land in question (eg. Seasonal use)
Rays overall preservation of cottage, in virtual ghost town, demonstrates occupancy.

Easement by prescription has less stringent continuous requirement

Bovas use path across Ds property seasonally = prescriptive easement

5) Exclusive: one party in possession While AP may have primary possession, owner may take actions for short period of time resulting in shared possession. Affects APs continuity. Court prefers true owners where there is conflict PURPOSE: To protect true owners from stale claims **Constructive possession follows title unless when theres an adverse possessor**

II. Tacking
Fundamentals of Tacking To tack onto a prior APs possession, the successor must show that there was a transfer and that the periods of possession were consecutive AP2 gets credit for AP1s possession Must be privity of estate (legal relationship to the land): 1) Transfer by Deed 2) Transfer by Will 3) Transfer by Inheritance No tacking when: AP2 ousts AP1 AP1 abandons property and AP2 takes possession Chain of AP broken by owners ejectment action Examples of Tacking If Blackacre was possessed in 1990 by AP, title will ripen in 2011 (if S of L 21 years). 1) In 1995, O transferred conveyed her interest to O2. This right of entry has 16 years left on it, due to AP that began in 1990. 2) What about change in AP? In 1994, AP transfers his interest to AP2. Gets credit for APs possession until 1994 pick up here AP left off AP takes possession in 1985 from O. In 1995, B takes possession when AP on vacation. When AP returns, B refuses to leave. AP just moves away, knowing there is nothing else he can do. If B remains in possession, when will she acquire title? AP has right of entry against B and right of ejectment against B 3) NO privity of estate one AP ousting another no transfer of interest 21 years from when cause of action accrues (2016) 4) AP brings action as soon as B takes possession. If AP acts like true owner and brings action relatively quickly, regains poss. 5) AP on vacation for 6 months and B takes possession. AP returns and brings ejectment action. Is 6 months too long for AP to maintain continuous possession? Probably. AP can abandon his claim on the land before title accrues. Exception to idea that you cant abandon title to real property. 6) AP comes back 8 years later and sees B in possession. Brings action v. B and wins. AP not acting like true owner. So S of L starts over.

III. Tolling
Fundamentals of Tolling for Disability Gives extra time to some classes of people to bring ejectment action Statutory Interpretation: An action to recover the title to or possession of real property shall
be brought within twenty-one years after the cause of action accrued, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person, after the expiration of twenty-one years from the time the cause of action accrues, may bring the action within ten years after the disability is removed

Cant get title by AP against government (S of L doesnt run) Two Periods: General Period: 21 years Begins when cause of action accrues AP takes possession Disability Period: 10 years Begins after disability is removed **Disability must have existed at time cause of action accrued

7 Disability includes: Minors, mental incapacity, imprisonment, military service Rules about the periods: Basic Rule: where disability exists when AP takes possession, time to Bring an ejectment action will expire either at end of S of L (21 yrs) or tolling period, whichever ends later. Either period could end after the other, depending on situation Entire 10 year period will not be added to 21 year period. If disability exists for 21 years, person will get ownership after 21 years. But, good portion of disability can be added on to 21 years. If disability is removed after 19 years, there would be 8 years added onto the 21 years. 21-year period is never shortened. Shortening would make it even harder for disabled person to lay claim. Problems for Tolling for Disability Stevens Hypos (SOL 10 years, Tolling Period 5 years): 1) X takes possession of Blackacre in 1990. In 1992, Blackacre is transferred (from a person with no disability) to Y, who is 3 years old. X's title will ripen in 2000. Tolling will not occur because the owner's disability did not exist at the time X took AP. Y was NOT owner in 1990 title transferred in 1992. Only matter if owner at TIME of AP had disability. 2) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 17 years old. X's title will ripen in 2000. The normal statute of limitations begins to run in 1990, when X takes possession. Tolling occurs because the disability existed when X took possession. Tolling period begins in 1991, when Y is 18 years old. Both the normal SOL & tolling period run concurrently. The 5 year tolling period will end in 1996, five years after it began in 1991. The normal SOL ends later, in 2000. Thus, the date the normal SOL ends is the time when title ripens and Y's right of re-entry expires. 3) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 5 years old. In 1998 (when Y is 13), Y's guardian sells Blackacre to Z, who has no disability. This sale marks the removal of the disability and starts the tolling period (The tolling period would also begin if Y had reached the age of majority. Tolling begins when the disability is removed.). Tolling occurs because the disability existed when X took possession. X's title will ripen in 2003 The normal SOL and the tolling period run concurrently. So, the SOL starts in 1990 and runs for 10 years until 2000. However, the tolling period begins in 1998 and runs for five years, ending in 2003. Thus, because the tolling period ends later than the normal SOL, the end of the tolling period marks the time that X's title ripens and Y's right of re-entry (right to bring an ejectment action) expires. 4) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 6 years old. Y continuously owns the property. X's title in Blackacre will ripen in 2007. The normal SOL expires in 2000. However, Y does not reach the age of majority until 2002. When Y turns 18, the disability is removed and the tolling period begins. The

8 tolling period runs for 5 years and ends in 2007. Thus, because the tolling period ends later than the normal SOL, the end of the tolling period marks the date that X's title ripens and Y's right of re-entry expires. Hypos (SOL 21 years, Tolling 10 Years): O owns Blackacre in 1975 and AP takes adverse possession on July 1, 1975. When does AP Acquire possession title in each of the following scenarios? 1) O is insane on July 1, 1975 and dies intestate in 1980. H is his heir w/no disability Disability period begins in 1980, ends in 1990 General Period ends in 1996 AP acquires title in 1996 2) O is insane on July 1, 1975, and dies intestate in 1995. H is heir and has no disability. Disability ends 2005 (10 years after O dies in 1995) General Period ends in 1996 (21 years after AP in 1975) AP acquires title in 2005 3) O has no disability & dies intestate on July 3, 1975. H (heir) is 6 at Os death. General Period ends in 1996 (21 years after AP in 1975) No Disability Period because O did not have a disability on July 1, 1975 (i.e. when AP began). Just matters if owner at time of AP had disability. Since O owned it at time of AP and didnt have disability, there is no tolling. H didnt get it until 2 days after AP. AP acquires title in 1996 What if O had died on June 30, 1975 instead??? General Period ends 1996 Here, H has possession BEFORE AP takes possession. So his disability IS accounted for. So, he would reach the age of majority until 1987 (disability ends) and tolling would begin then. Thus, it would not end until 1997. AP acquires title in 1997 4) O is insane on July 1, 1975, and dies intestate in 1995. H, his heir, is two years old at the time of his death. General Period ends 1996 Cant tack disabilities Just matters if owner at time of AP had disability. He did, but he died. Since H was not the owner at the time of AP, there is no tolling

IV. Mesne Profits

Fundamentals of Mesne Profits Profits captured by the AP between the start of possession and the lawsuit Any value derived from the land (i.e. fair rental value) Owner can bring trespass action to recover from AP Action in ejectment first, then action for trespass to recover mesne profits Two standards of damage: 1) Mesne value: value accrued; 2) Damage done to the land BUT, if title has ripened by AP, there is nothing he can do no mesne profits

VII. Gifts:

Transfer of an interest of property without consideration 1) Elements:

1) Donative Intent In praesenti: present intent, not in future 2) Delivery (Actual or Constructive) Core meaning transfer of possession is necessary (dominion & control) If both parties maintain dominion & control, then NOT valid gift Gift w/out delivery is just gratuitous promise that isnt enforceable. Delivery through Intermediary If intermediary is agent of donor, gift complete upon delivery to recipient If intermediary is agent for donee, then gift is complete upon delivery to inter. What about if you dont know who intermediary is agent for? Donor decides who the intermediary is the agent to.
(Int. usually equally close to both OR donor will die while gift possessed by int.)

Usually depends on the degree of donative intent If the court finds sufficient donative intent, will normally find that the intermediary is acting for the donee. If the court does not find sufficient donative intent, will normally rule that intermediary is acting for the donor. Sometimes its not easy to give donee dominion and control (eg. horses)
Irons: Dad gives son a horse but NO delivery b/c he doesnt act like he owns it & exert dominion & control over it (eg. hand over bridle, make it known to everyone else)

When actual delivery is easy & doesnt happen, likely that no donative intent If delivery is b/w family living together, delivery requirements are altered Cannot expect donor to move something out of the house Constructive delivery: not actual delivery, but treated as actual delivery b/c strong evidence of donative intent AND a shifting of predominant dominion & control If actual delivery inconvenient, then expressing donative intent AND giving donee the means to access counts as delivery. Example is key to a box: Donnee needs exclusive dominion & control for gift to take effect Opening container must occur before death, unless inconvenient or unusual circumstances Checks Delivering check DOESNT meet delivery requirement, but DOES show donative intent. Check must be cashed for delivery to be completed 3) Acceptance PRESUMED unless person rejects Constructive Delivery Hypos: 1) O hands a key to a safety deposit box to A and says, There are 100 shares of IBM stock in this box, and Im giving them to you now. A did not open the box until after Os death. Is the gift valid? YES, valid gift. 2) O, on his deathbed, tells his nephew, Theres a ring over on the dresser that I want you to have. Nephew goes over and picks up the ring. Does he have to give it to O, so that O can actually deliver it to the nephew? NO, gift is valid upon nephew picking up the ring. 3) Suppose O died before nephew picked up the ring

10 Then there is not a valid gift because dead donors do not have donative intent 4) If the ring was in the dresser across the room, and O only gave his nephew the key to the dresser, and then died. there would not be a valid gift because actual delivery was practical 5) If the key was to a safety deposit box across town, then constructive notice would have been appropriate and a valid gift would have been made 6) Uncle gives nephew a key to safety deposit box, but retains one himself. Uncle continues to access the box until he dies. Can nephew claim a valid gift upon Uncles death? NO. Since both parties maintained dominion and control, there was no valid gift, and nephew was not entitled to the contents 7) FINAL EXAM QUESTION: Giving someone a treasure map is not the same as giving someone a key because the donor still has access to the treasure (analogous to the 2 key sits) ***If both parties maintain dominion & control, then there is not a valid gift ***If actual delivery is relatively inconvenient, then expressing donative intent AND giving donee the means to access counts as delivery

II. Types of Gifts

1) Inter Vivos Gifts are made by donors who expect to live for awhile Ordinarily not revocable Inter vivos gifts give future interest to donee immediately
Gruen gave son future interest in painting & retained life estate. Ct. holds its inter vivos.

Person on deathbed can make inter vivos gift. Depends on intent of donor intent for it NOT to be revocable
Newell given ring by friend on deathbed. Newell insists he take ring back when doesnt die. When he actually dies, Bank refuses to give back to Newell. Ct holds it is inter vivos since not meant to be revoked.

2) Causa mortis Gifts made by donors in fear of death from existing disease or impending peril Allows for gifts with conditions subsequent b/c its revocable Assumed that deathbed gift is causa mortis, unless evidence of intent of irrevocability 3) Testamentary gifts Gifts made by wills (not enforced until 1540s Statute of Wills) Requirements: Must be in writing Must be subscribed by the testator Must be witnessed by 2 or 3 persons Upon writing a will, the future beneficiaries gain NO legal rights (until death) Therefore, the testator can change or revoke the will at any time Testamentary gifts give NO future interest doesnt commence until death

VIII: The Estate System

Types of Estates, classified by Potential Duration Greatest Duration 1) Fee Simple Absolute: potentially perpetual duration Defensible Fees: Conditions attached to Fee Simple Estate is set up to expire or be divested (cut short) if a specific event occurs Commonalities: 1) terminate by specific event, 2) terminate before line of heirs runs out a) Fee Simple Determinable: upon termination, land goes back to grantor b) Fee Simple on Condition Subsequent: c) Fee Simple on Executory Limitation: upon termination, land goes to 3rd par.

11 2) Fee Tail 3) Life Estate 4) Term of Years 5) Periodic Tenancy: Leaseholds that last week to week, month to month, etc. 6) Tenancy at Will Least Duration FEE SIMPLE Determinable Condition Subsequent Executory Limitation TERMINATES automatically grantors election automatically LAND GOES TO grantor grantor 3rd party FUTURE INT. possibility of reverter right of re-entry executionary interest

Breaking it Down:
1) Fee Simple Absolute
Fundamentals of Fee Simple Absolute Duration: Potentially perpetual All other estates are carved out of it All other estates are called particular estates Estate of general inheritability Descends to line of heirs Esheat: when line of heirs runs out, escheats to state Typical Creating Words: to A and his heirs Stating purpose of the conveyance in deed DOES mean that interest in land terminates once the purpose is over (majority) Minority: no language of reverter = fee simple absolute (minority
Station Associates: land granted, demised, released, and conveyed. Didnt say what would happen when ceased to be used as life saving station. Ct. follow minority no specific lang re reverter = fee simple abs.

1a) Fee Simple Determinable

Fundamentals of Fee Simple Determinable a.k.a. fee simple on special limitation Duration: Potentially perpetual (potential for termination) Key Feature: the special limitation The limitation does not have to be related to the land itself Typical Creating Words: To A and his heirs + words of duration Words of duration: during, while, until Examples
To X and his heirs so long as the land is used for agricultural purposes To X and its successors and assigns while the land is used for school. To X and her heirs while Cordville remains an unincorporated hamlet. To X during the time that he takes care of me. To X for 10 years, or until breach of covenant, whichever is first.

Right to repossess: Possibility of reverter: possibility that possession might revert to GRANTOR if specific event occurs Generally (in many states, including NY), you dont need specific language about reverter as long as there is specific language about duration Exception: North Carolina (as shown by the above Dare Co.)

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1b) Fee Simple on Condition Subsequent

Fundamentals of Fee Simple on Condition Subsequent Duration: Potentially perpetual Key Feature: the condition subsequent 1) Specific Event occurs 2) Grantor chooses to exercise his right or re-entry & take possession Typical Creating Words: To A and his heirs + words of condition + words of re-entry (not automat) Words of Condition: on the condition that, provided, but for, ect. Examples
To X and his heirs but if the land used for non-agricultural purpose, grantor may re-enter. To X and its successors and assigns on the condition that land used as school. To X and her heirs provided Cordville remains an unincorporated hamlet. To X for life but all rights to land return to me @ my choice when he stop taking care of me. To X for 10 years; in the event, however, that there is a breach lessor may immediately or as soon as practicable, resume possession.

Right to repossess: right of re-entry or power of termination (waivable): possibility that possession might revert to GRANTOR if specific event occurs Must be exercised through judicial process Right of entry is governed either by a special statute of limitations OR otherwise the statute of limitations of ejectment Courts today will generally look at the whole document, along with all of relevant facts and circumstances Courts Hierarchy of Preference Fee Simple Absolute Fee Simple on Condition Subsequent Right of Re-entry can be waived, and thus forfeiture is easier to avoid Fee Simple Determinable Differences b/w: FEE SIMPLE DETERMINABLE FEE SIMPLE ON COND. SUBS. Possibility of Reverter Right of re-entry Automatic Requires election Forfeiture non-waivable Forfeiture waivable Words of duration Words of condition, re-entry Holdover PCDG is ok Holdover PCDG is not ok

2) Fee tails
Fundamentals of Fee Tails CAN be conveyed, but CAN NOT be conveyed in a way that cuts off the heirs (unlike fee simple) Then conveyors heirs will still inherit the land upon the conveyors death Words of Conveyance:
To A and the heirs of his body To A and the heirs male of his body To A and the heirs female of his body To A and the heirs of his body

Estate of special inheritance lineal descendants only (not collateral heirs) Lineal = children, grandchildren, great grandchildren, etc. Grantor retains reversion or remainder (if required heirs run out, the land goes back to

13 the grantor which is likely since its only lineal heirs) Considered obsolete today

3) Life Estates
Fundamentals of Life Estates Limited to the life of the individual Life estate pur autre vie a life estate for the duration of a third partys lifetime Ex. to A for the life of B If A dies before B, Then nobody has a right to possession. So, whoever takes possession cannot be ousted. Once B dies, the land reverts to the grantor Life estates are NOT estates of inheritance (no heirs) DOCTRINE OF WASTE (applies just to LE?): right of future interest holder to receive the land as the present interest holder did. Ordinary wear and tear acceptable. Voluntary Waste: cause the waste yourself by affirmative action (cutting trees) Permissive Waste: permitting premises to decline by not taking care of them The tenant has to make ordinary repairs, but does not have to make extraordinary repairs (eg Must fix pluming, window, ect.)
Estate of Jackson: Before she dies, hail storm damages house. Permissive waste she had a duty to take care of hail damage during her life.

Ameliorative Waste: making positive changes to the property; however one persons improvements is anothers waste & future should get same state as pres. Failure to pay taxes on life estate can give rise to cause of action in waste NOT revocable (license is) Intent of testator, based on entire language of will & characteristics of conveyance, dictates interest beneficiaries will receive
Estate of Kinnert: Deceased lets adopted sons occupy house for rest of lives, as long as dont leave for more than 60 days. Ct. holds although it looks like license, its determinable life estate b/c of intent D claims was devise transfer of REAL ESTATE by will (wants inheritance taxes) P claims will bequested license: Bequest: transfer of personal property by will License: privilege to live on land & do certain acts, but not exclusive possession

Reservation: carves out a new interest for the grantor (eg. easement) Common law (Humbach hates): grantor can ONLY reserve interest for himself, not 3rd party (rule in NY) Humbach: should be able to have reservation in 3rd party.

Nelson grants Irene Parker life estate, then future interest to Daniel. Problem Nelson drafted deed as though life estate already existed. Ct. follows Humbach rule can have 3rd party reservation trying to follow intent of grantor.

II) Future Interests

Fundamentals of Future Interests Five Kinds of Future Interests Following a fee simple defeasible estate: Possibility of reverter (retained by transferor) Right of re-entry (retained by transferor) Executory interest (retained by someone other than the transferor) Following a lesser (particular) estate: Reversion (retained by transferor) Remainder (retained by someone other than the transferor) Reversion: if grantor of life estate doesnt specify who gets interest when life estate person Remainder: future interest in someone other than transferor that must take effect, if at all,

14 immediately upon the natural expiration of a preceding freehold, particular estate.** CONTINGENT: remaindermans right to immediate possession is subject to condition precedent. B doesnt get possession unless something happens first Three ways to be contingent: To unascertained persons
Remainder to Bs 1st child to reach 21, and his or her heirs

To unborn persons
Remainder to Bs next born child and his/her heirs

Subject to occurrence of some specified event

Remainder to B and his heirs if B marries C

Conditions: Condition precedent: pre-condition that must occur before possession Condition subsequent: something whos after the fact occurrence
that will cut off (divest) right to present/future interest

Vested subject to divestment VESTED: remaindermans right to immediate possession w/out preconditions B takes w/out further ado, once life estate ends All remainders except contingent remainders remainderman is born, ascertained, and no specified even need occur before possession. Other terms: Shifting Interest: future interest created to give property to 3rd parties Springing Interest: future interest created to cut off a grantors reversion on the occurrence of some event. Possession directly following grantors poss. Contingent Remainders cant spring out of term of years (vested rem. can) Statute of Uses Allowed for springing and shifting executory interests To A and his heirs, but if liquor is served on the property, to B and his heirs After Statute of Uses this conveyance creates a fee simple on executory limitation in A, and a shifting executory interest in B

IX: Statute of Uses & Rule against Perpetuities

I) Statute of Uses
Goal: to get rid of the uses (via trusts?) and to eliminate trustees Wants to turn trustees estates into NA & create bare legal titles in beneficiaries Method: To execute the uses, i.e. convert the equitable interests into legal interests It transferred the legal title to the beneficiary Primary impact: converts equitable springing & shifting interests into legal executory interests, makes possible to create exec. interests for first time (void before under the Rule) Result: the creation of trusts Trust: Allows you to split the title of the property into two parallel and simultaneous titles legal title and equitable title. Trustee gets LEGAL TITLE Beneficiary gets EQUITABLE TITLE **Trustee just has duty of ownership, beneficiary gets benefits Point is to evade certain legal consequences arose to get around restrictions on land use (e.g. for benefit of wife & clergy) Wording To A for the use of BTo A for the trust of B

15

II) Two Doctrines now Obsolete b/c Rule against Perpetuities

Rule in Shellys Case Two Conveyances: I. To A and his heirs II. To A for life, remainder to As heirs How it was read: Read II the same as I A gets a fee simple No contingent remainder to heirs Why is it now obsolete? Doctrine of Worthier Title Idea is that title is worthier if it is inherited rather than purchased Wills If a transfer by will is the same as what would have been inherited, then the will is invalid as to that point and the transfer is made through inheritance (passing through will is considered purchase in the law) Inter vivos grants: To A for life, remainder to Os heirs A gets a life estate O gets a reversion If Os heirs ever take, they take through inheritance from O Why is it now obsolete?

III) Rule against Perpetuities

A contingent interest is void if it does not vest within a life in being + 21 years Goal: to prevent dead hand control & to get rid of contingencies remaining open too long/prevent land from being tied up for long periods of time **Most important doctrine for people to control land after it has been transferred How to approach a problem: Look at the TIME of the conveyance Is there any possible way that the future interest will not vest within allotted time? You must KNOW the interest will vest w/in life in being + 21 years Measuring life can be anyone grantor, tenant, or person capable of producing members of a class Class gift: class must be closed must be IMPOSSIBLE to add new people to the class on the date that the trust closes. Three doctrines to avoid Perpetuities problem: *Some courts modify the Rule by these techniques*: Wait & See Doctrine: although may theoretically violate RAP, court should wait & see if it actually violates it It it doesnt violate it, its cool If it does, court will save it by adjusting age contingency ** Court takes this approach here Abolishing All or Nothing Rule w/respect to class gifts Implied Savings Clause: court will insert savings clause so that gift is effectuated as near as possible to donors intent.
Estate of Anderson: Educational trust created for 25 yrs to nieces/nephews, then to Howard (now 53). Contingent interest void Class is open b/c unascertainable whos in class (25 yr window where you dont know how many nieces will be born or die years 21 -25 can still be born/die What would make it vest? If Howard died < 25 years and could be determined who heirs are

 RoP designed to carry out testators intention applies wait & see doctrine Symphony Space: D sold SS (non-profit) for tiny amt w/multi-conditional buy back option. P defaulted, D tried to get it back purchase option void under RAP b/c option (multi-conditional buy back) is exercisable/open for more than 21 years void. HUMBACH HATES strict application RAP

16

Hypos

A has one child x who is age 2 1) To A for life than to As first grandchild and his heirs Void: Grandchild could be born more than life in being +21 years dont know when/if grandchild will be born 2) To A for life then to As eldest child to survive him and his heirs Valid: At the moment of As death, we know who has the interest 3) To A for life then to As first child to reach age 18 We may not know which child will be the first to reach 18 within As lifetime If X is the first child to reach age 18, then he could be the measuring lifetime If X is not the first child, but another child is the first to reach age 18, then that other child would reach 18 at the most 18 years after As death. Valid A is a measuring life if A dies now, X will reach age 18 in 16 years, which is less than 21 years. Thus, interest would vest in life in being (A) + 21 years 4) To A for life then to As first child to reach age 25 Void A is not measuring life if A dies now, X would reach age 25 in 23 years, which is more than 21 years after his death. Thus, soonest the interest could vest is A + 23 years X is not measuring life X could have kid reach age 25 more than 21 years after his death 5) To A for life then to As first child, now alive, to reach age 25 X is the only child alive at the time of conveyance, so he is the only one who can take 6) To A for life then to As children who reach age 25 and their heirs Class Gift All or Nothing Rule: all the members of the class must have valid interests, or nobodys interest is valid Void. We may have to wait more than 21 years after X and As deaths to find out if a child reaches age 25. When dealing with a corporation, theres no life in being at all, and so the Rule boils down to merely 21 years. Fee simple on executory limitation to a corporate body, rather than a human being, The executory interest will usually be void if there is a chance it will vest later than 21 years after the conveyance. You best do something to create a life in being, so that the Rule Against Perpetuity wont apply 7) To A for life, then to As widow for life, then to As eldest surviving child Void. Could be a different widow that wasnt born yet at time of conveyance

X: Leasehold Estates
I) Introduction to Leasehold Estates
NON-FREEHOLD ESTATES: Greatest Duration 4) Term of Years: on or before a definite date 5) Periodic Tenancies: from month to month, year to year, ect. 6) Tenancy at Will Least Duration

17

Breaking it down:
4) Term of Years
Fundamentals of Term of Years On or before a definite date when term ends, tenancy ends Usually, maximum term is 99 years Created by a demise: landlord demises interest to the tenant Creates a term and a reversion Landlord = reversioner Tenant = termor Statute of Frauds (1677): If the lease is for over a year, it must be in writing per SOF otherwise its void Oral leases for more than year become tenancies at will Eg. Oral lease for 15 months not valid for ANY period b/c TAW Void doesnt mean void only means the duration clause would be void Provisions other than duration will be enforced within TAW No additional notice is required (you get your notice when you start) Holdover Tenant or Tenant at Sufferance tenant who possesses > term of years Landlord can bring a trespass action OR hold tenant to a new term

5) Periodic Tenancies
Fundamentals of Periodic Tenancies Indefinite in duration Created by: Express agreement Implication upon a VOID lease (S of F) Key Features: One long continuous tenancy (not discrete terms) Weekly, Monthly, yearly The reservation period determines the kind of tenancy, not payment per. (eg. We have yearly reservation, but we pay month to month) Required notice to terminate: one term at end of previous term Must be definite & unequivocal
28 Mott Street: Must be in STRICT compliance w/statutory guidelines landlord did not state date landlord elected to terminate

At least one term beyond when the notice is given Eg month to month tenancy requires one month notice BUT, year-to-year tenancy requires SIX-month tenancy May be terminated only at end of a period need both term and period requirements to make notice valid Improper notice ineffective termination Eg: Suppose a tenancy from month to month beginning November 15 Earliest possible termination? January 15th As of November 16, the next period ends on Dec 15, but thats less than a month away, so it is not within the notice period Therefore, the earliest termination is January 15th Tenancy at will becomes periodic tenancy when rent paid/received on weekly, monthly, yearly, ect. basis.
28 Mott Street Never arrive at agreement & tenant moves in. Pays under yearly reservation &

pay bi-monthly. Landlord gives 30 days notice, tenant brings action. Tenancy at will periodic tenancy.

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6) Tenancy at Will
Fundamentals of Tenancy at Will Lasts as long as either landlord or tenant desires. No set duration. Both parties have right to terminate at will (so you just have to have 1 persons will? Garrish?) Often by statute, reasonable notice to quit or vacate must be given
Garner v. Gerrish: Lease to D said start date until date of tenants choice. Tenancy at will no duration in will & tenancy goes on for as long as either party chooses (but I thought it was terminated by either party as any time?)

Summing Up: Life estates measure by someones lifetime Term of years are set to terminate on a specific date Tenancy at will can be terminated by any part at any time Fundamentals of Tenancy at Sufferance Created when tenant wrongfully held over Endures only until landlord evicts or elects to hold over to another term. Landlord still entitled to rent from tenant at sufferance.

II) Landlord & Tenant

Landlord-Tenant Relationship, Landlord Breaches, Tenant Breaches:

1) Landlord & Tenant Relationship

Dual relationship leases have both property and contract rights Privity of Contract: Legal Relationship based on Promises Landlords promise to allow possession Tenants promise to pay rent Privity of Estate: Legal Relationship based on Ownerships Landlord conveys possession to Tenant, for whole term Rent is reserved by Landlord, captured by Tenant for Landlord (Like selling the cow but reserving the milk) Doctrine of Quiet Enjoyment (privity of contract or estate?) Right to quiet use & enjoyment of premises w/out interference from L Enjoyment by means of possession Applies to both residential & commercial leases Implied promise by landlord for quiet enjoyment Principle of overlap rights and duties in basic rent-possession relationship Strange Results that come about b/c of the interplay of the 2 privities Non-payment of rent no common-law forfeiture (Privity of estate blocks the K remedy of non-performance) Eviction extinguishes rent obligation But eviction requires ouster by: Landlord Paramount title holder Actions of 3rd parties, accidents no effect on rents T as owner bears risks of ownership T has ejectment action against 3rd party Independence of Covenants (covenant = promise in deeds/leases)

19 Promises in lease are INDEPENDENT not dependent on perf. of other partys promise (unlike K law) Usually overlap is indistinguishable but sometimes privities become unraveled Assignment: conveyance of leasehold for full term of the lease The basic relationship: T1 (assignor) assigns lease to T2 (assignee) Assignee (T2) takes tenants position in the Landlord/Tenant position and the original Tenant is no longer in any relationship (sort of) T2 and L are in privity of estate (b/c the ownership changes b/c its for good) So no chain of payment, b/c T2 now has ownership Assignee (T2) liable on covenants that run w/the land 3 things:
Intent to run with the land Touch and concern the land, about the use of real estate Privity of estate (always privity in estate b/w L & T)

T2 and L are NOT in privity of K L and T1 remain in privity of K, but do not remain in privity of estate T1 is like co-signer if T2 does not pay rent, T1 will have to pay
Tri-City: Mere fact that landlord contents to assignment does NOT release T1 from paying; must have clause that explicitly says it like here.

L could sue either, but T2 would have primary obligation to pay (poss) If T2 didnt pay, T1 could sue in subrogation to get reimbursed Majority: if tenant abandons, he is still liable for rent. Minority: if tenant abandons, NOT liable for rent
Tri-Cities abandon property. Minority rule not obligated to rent.

Novation: L and T2 make new lease T1 is off the hook and T2 has all the responsibilities in both privities Subletting: reversion (or right-of reentry) back to leasor
ACS: 2-day reversion is a sublease

New L/T relationship: Landlord Tenant Subtenant Subtenant becomes tenant of orig. tenant, aka T1 is prime tenant & landlord to subt. Prime tenant (T1): Remains in privity of estate and K w/landlord
B/c Im going to have a chain of payment to Rosa (Nicole me Rosa) Privity of estate is very valuable

Retains a reversion interest in land being transferred Prime landlord: Can refuse subtenants rent He has no relationship w/subtenant Traditional Rule: landlord can withhold consent to sublet for any reason, if it is not specified in lease Modern Rule: impose standard of reasonableness for w/holding consent???
Julian: Landlord will not allow sublet of upstairs apt. Modern rule landlord cant w/hold consent, unless its reasonable.

2) Landlord Breaches
Eviction severs the privity of estate & privity of K Cancels the obligation to pay rent Two Kinds Actual eviction or Constructive Eviction Constructive Eviction: landlord makes the premises untenantable Breach of duty by landlord

20 Notice Tenant abandons possession Need full abandonment (not partial) (Moes Pizza) Rent obligation ceases
Blackett successfully brings constructive eviction claim b/c bar playing music too loud. Case turned on fact that landlord owned premises & bar was his tenants.

Implied Warranty of Habitability: lessor is responsible for the quality of the product Main Exchange (traditional): Rent Possession Lessor NOT obligated to make repairs, unless it was written into lease Main Exchange (modern): Rent Possession + Services Reasons for Implied Warranty of Habitability: Custom, usual practice, practical necessity centralized repair & service responsibility
Residential T must rely on L for upkeep Legal Theories: Requirements of law are implied into lease Intention of parties: livable Standards of habitability (Park West) Housing codes (substantial violation = prima facie evidence) Suitable for purpose for which leased (residence) Threats to tenant health & safety More than de minimis More than merely not perfect or non-aesthetic

Implied Warranty of Habitability CANNOT be excluded from lease Remaining problem: independence of covenants Javins/Park West Solution Treat leases like ordinary contracts BUT Ks dont work b/c two K principles contradict each other:
Material breach by one party excuses the other Acceptance of a defective performance eliminates the excuse

BETTER SOLUTION Conveyance Theory Courts abhor forfeiture Anybody who has breached can cure it by $ if the violation can be cured by $, the court should relieve it against forfeiture. As a result, tenants can w/hold their rent w/out much fear of eviction! Modern Rule: Mutual/ Dependent covenants landlord breach is a significant inducement = tenant can disregard his obligations Traditional Rule: independent covenants (so are covenants dependent or ind????)
Wesson: D notifies landlord of leaky roof and after 4th repair, still not fixed. No constructive eviction, but can get out based on theory of mutual covenants landlord didnt fix roof which directly interfered w/his business (significant inducement), so D could disregard his obligations

3) Tenant Breaches (Rules of Mitigation)

If T wants to terminate early Surrender Traditional View Landlord can accept or reject the surrender Abandon (wrongful) If T wrongfully abandons, L may: 1) Do nothing & hold tenant for full rent 2) L accepts proffered surrender and L can relet for own account to new T Tenant gets off free **NOTE: 1 & 2 cant be done together

21 3) Notify T that L is entering & reletting on Ts account (Holy Properties) L rents the property as an agent for T and T will be responsible for any shortfall/deficency What about if T attempts to relet w/o notification? Emerging law is that L HAS OBLIGATION TO MITIGATE (find new T) In K law, there is no duty to mitigate **Depends on what state your in if there is a duty to mitigate

Holy Properties follows traditional rule no duty to mitigate landlord can collect full rent.

It = acceptance of proffered surrender Exception: survival clause L allows surrender but then acts as Ts agent. If relet is for less than Ts rent, then T is liable for the difference Note the difference: L sues for rent as it accrues (estate; no mitigation) L sues for damages, for anticipatory breach (mitigation required) Other Possible Rule: If T abandons possession w/out justification, L must make reasonable efforts to relet (aka MITIGATE) Criticisms of this rule not ordinary K law to require mitigation of this sort

XI. Concurrent Ownership

I. Background of Concurrent Ownership
Two or more people having right to possess land at the same time (1) Tenancy in Common (2) Joint Tenancy (3) Tenancy by the Entirety Community Property Civil Law Doctrine, only applies to 8/9 states (CA, TX) Each owner has an undivided right to possess the entire parcel**
Martin: One couple had 7/8 interest, other has 1/8. Couple w/7/8 rents to others. BOTH couples have right to possess whole, AND have to share income they receive from 3 rd parties.

II. The Different Types of Concurrent Ownership

TENANCY IN COMMON Each co-tenant has an undivided part interest in the property Can hold different shares; doesnt have to be equal (eg. 7/8 v. 1/8) Can hold different interests/estates (eg. A =life estate & B = a fee simple) **Modern rule presumption of Tenancy in Common** (ct. likes heirs) Interest is inheritable/conveyable will, deed, inherited via intestate succession If A or B dies, that ones heirs will get 50% Can rent the interest you have Conveyance O conveys Blackacre to A and B JOINT TENANCY Each co-tenant has an undivided equal interest in the property Right of Survivorship when 1 tenant dies, other(s) have automatic right of succ. The Four Unities Time interest in joint tenants must be created at the same time Title interest in both tenants must be created by same instrument (eg deed) Possession both joint tenants must have complete right to possession Interest both joint tenants must have identical interests

22 Eg. 2 people undivided 1/2s; 3 people undivided 1/3s Can convey interest, but then it becomes a tenancy in common NOT devisable/inheritable Conveyance: To A and B as joint tenants (Majority Rule) (NY), OR in some states
Downing: Words joint tenancy W/OUT right of survivorship is enough.

To A and B as joint tenants w/rights of survivorship Often used as a will substitute Traditional Rule presumption of Joint Tenancy Courts disfavor b/c passes to other tenant, not deceaseds heirs. Rude surprise could happen if people didnt know they created joint tenancy. TENANCY BY THE ENTIRETY Only possible between husband & wife Like joint tenancy Automatic right of survivorship Each has an undivided equal interest Not devisable, inheritable, conveyable Neither party can unilaterally convey Interests of each are indestructible (actually, are destructible by divorce) Conveyance presumptively created if married (Prario v. Novo) UNLESS, it specifically says its a joint tenancy or tenancy in common Note: If you think youre married but youre not joint tenancy Solutions for disputes about use of concurrent tenancy/disposition: Management Agreement better solution Partition: Voluntary Compulsory the court carves up the property Doesnt usually work by dividing up the actual property, but rather the court will order a sale and then divide up the proceeds Goal of sale partitions is equity Guaranteed way of getting lowest price for your property! Humbachs HYPOS A & B are tenants in common. B dies. A and Bs estates as tenants in common A & B are joint tenants. B dies. A owns the entire estate. Is a tenant in severalty (sole owner after a joint tenancy is extinguished) A & B are joint tenants. A conveys her interest to X. B & X are tenants in common If a joint tenant conveys his interest to a third party, then the third party and remaining joint tenant would be tenants in common Conveyance of a joint tenants half severs the joint tenancy and converts it into a tenancy in common After the above conveyance, B dies. X & Bs estate are tenants in common A, B, and C are joint tenants. A conveys her interest to X. B & C continue to be joint tenants of the 2/3 interest (1/2 each), and are tenants in common with A, who has a 1/3 interest A, B, and C are joint tenants. A conveys her interest to C C has a 1/3 tenancy in common

23 B & C have an undivided 2/3 interest as tenants in common with C, and B&C are joint tenants of the 2/3 interest (1/2 each) If B dies C gets Bs of the 2/3 interest, and thus owns the entire parcel If C dies B gets Cs of the 2/3 interest, and Cs heirs get the undivided 1/3 as tenants in common

III. Marital Stuff

Creditors & Tenancy in the Entirety: Two rules (states almost split 50/50) Creditor cant get anything b/c neither spouse can convey his share Creditor can get levy against one persons interest, but its not desirable b/c then he has to share it w/the other person
Sawdo v. Endo: Fraudulent conveyance where dad tries to convey his interest to son after car accident to protect from creditors.

Who owns the wedding gifts? Historically, the wedding presents all belonged to the wife Today, the couple probably owns the gift equally However, it is the donative intent of the giver that really counts Common Law Rule (and actually still the rule): In a marriage, each spouse is on his/her own footing with regards to property, UNLESS theres been specific intent of donating to the other Husband & Wife Seisin jure uxoris women could be owners, but seisin would be held by husband Married Womens Act overturned the hold common law of seisin jure uxoris Following is abolished by it: Dower: Gave surviving wife a life estate in 1/3 of all lands of which husband was seized at any time during coverture Curtesy: Life estate in all freeholds provided issues was born alive Dower & Curtsey have been abolished in favor of Statutory Share: Gives surviving spouse a right to or 1/3 of the husbands estate irrespective of what the wills says Is career marital property? Nature and extent of the contribution by the spouse seeking equitable distribution, rather than the nature of the career, should determine whether career is marital property.
Elkus did contribute to his wifes success as a singer, so he is entitled to equitable distribution

IV. Community Property

Civil law doctrine (borrowed in many common law jurisdictions) Exists in 9 western states (i.e. TX, NM, AZ, CA, WA, ID Basic notion: Everything shared 50-50 Acquired during marriage as: Earnings Income from community property Proceeds from community property (sale of community property) Community property, UNLESS Separate Property: Owned before the marriage Acquired by gift, inheritance or devise Income from separate property (except ID, LA, TX)

24 Control: Head and master rule Husband owned control sole decision making power 14th Amendment Mid 80s Head and master rule was found unconstitutional When community property is brought into a non-community property state, it becomes tenancy in common.

XII. Concurrent Ownership

Incorporeal Interests: interests that do NOT give a right to possess
Easements Real Covenants Equitable Servitudes

I. Intro to Easements
Fundamentals of Easements Incorporeal interest Right to make limited use of land, rather than general right of use to possess Most common = the right of way (i.e. driveway over a parcel of land) Easement for pipes or other conduits To Fishing, hunting, take turf, take firewood Profits a prendre (Profits) Benefits for the taking Right to go on someones land and take something from soil (i.e. mineral, timber, oil, goal, coal, ect). Easements dont have to be adjacent to the land they are benefitting Terminology: Servient Tenement: land subject to/burdened by the easement Dominant Tenement: land that gets the benefit of the easement Appurtenance of the dominant tenement: part of the rights of dominant tenement; Easements in gross: not a subsidiary right, but the whole entire property right in itself (personal right of E-owner) Kinds of Easements: Affirmative right to go onto someones land to do something Negative right to prevent the subservient owner from doing something Light and air Blocking a view Natural easements Licenses distinguished License = revocable; Easement = IRREVOCABLE license Personally indicates license (or easement in gross) Factors to look at when considering easement v. license: 1) Created by warranty deed suggesting an interest in real property 2) The word grant is used License: word permit is used 3) Specific words of inheritance were used 4) No rights of revocation are withheld Cooper v. Boise Church (Church allowed to put up electric sign on Ps land license) License b/c:
Price paid was nominal

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Not practical to have an easement for a large neon sign Person who granted the right was not the true owner

II. Creation of Easements

Types of Easements: Express language in deed (the normal way to create easement) Implication in a deed Prescription adverse possession equivalent Easements by estoppel (aka executed parol licenses) (Mund v. English) Easements in invitum

Breaking it down
Express language in deed (the normal way to create easement) Express grant
Brown v. PA Central (RR stopped operating & abandoned their right of way. Ct. holds its an easement when an easement is abandoned, its extinguished.

Express reservation: someone conveys land to someone else & retains easement over the land conveyed Personally is consistent w/license HUMBACH says easement in gross
Simmons v. Abbondandolo (Seller sold portion of land & reserved an easement Ct held it was license (not assignable/limited duration). HUMBACH = easement in gross.

Implication in a deed Implied grant (Grantee gets easement upon transfer) Implied reservation (Grantor keeps easement upon transfer) Has to be a specific deed that implies the easement (cant be implied out of nothing) Based on Prior Use Prior use ( = quasi-easement) Apparent (& continuous) Continuous: must look like permanent use Apparent: something about servient parcel that shows use is being made at time of conveyance Driveway, car tracks, etc Underground use (i.e. pipes) can be based on manholes, ect.
VanSandt v. Royster (P not aware of sewer line when he bought property). Something can be apparent but not visible.

Necessary Reasonably necessary for implied grants favors grantee Grant should be construed to give bargain to grantee Strictly necessary for implied reservations favors grantor Seller trying to impose on buyer (wants to retain a right) Courts more hostile towards By Reference to a Subdivision Map When deed describes property conveyed by referring to a subdivision map that shows streets Streets appurtenant to the lots are implicitly able to be used by the owners of the lots Majority Rule can use ALL of the streets on the maps NY Rule can only use most direct route By necessity Proof of severance

26 Must show WHEN your land went from common ownership to ind. Absolute necessity at time of severance When dom. & servient were severed, it was absolutely necessary Boat access does not cut off claim of absolute necessity.
Morrell v. Rice (Land accessible by boat. No easement was ever created). Ct. says there is easement by necessity. HUMBACH says necessity should have been viewed from TIME of CONVEYANCE.

No interruption of necessity Interruption of necessity cannot be revived Prescription adverse possession equivalent Adverse actual user When both parties use driveway for entire SOL, each has obtained an easement and is acting under claim of right. Its not permissive.
Paxson v. Glovitz (Glovitz built fence in middle of shared driveway. Since both parties occupied for full SoL (previous owners had easement), each acquired easement by prescription).

Continuous & uninterrupted Under claim of right (not subordinate) Without knowledge & Acquiescence of servient owner Exclusive Easements by estoppel (aka executed parol licenses) (Mund v. English) A license created by words alone (parol) that has somehow been effected by being executed Normally, easement only valid in writing (SoF). Oral easements only valid as long as grantor wishes licenses. BUT, if in reliance on the permitted use, the licensee makes improvements (spends money, etc), THEN, estoppel applies and the right to use becomes irrevocable easement by estoppel. Reliance must be reasonable.
Mund v. English (Son & mom install well on moms prop and share construction costs. Son builds house. Equitable estoppel b/c made valuable improvements (build house) in reliance on well.

Easements in invitum Easements by force Created when someone goes ahead and takes it Also known as private eminent domain Two Approaches: Disproportionate Hardship concerns: court imposes an easement on ones land for another b/c he needs it very much. Different (Minority?) Approach: court will allow owner to stay, as long as he pays fair $
Goulding v. Cook (Ct. orders Gouldings to move septic tank in Cooks yard min rule)

III. Scope of Easements

Fundamentals of Scope of Easements Generally determined by the language of the deed Can easements be relocated unilaterally? Davis v. Bruck, Lewis v. Young General Rule: No. Creation of an easement is for a specific location. Can only be moved if mutually decided. Minority Rule (NY): Yes. Can unilaterally relocate the easement if it doesnt burden the other party (or easement owner?). Scope of easement presupposes that needs of dominant tenement will change and

27 scope can expand to meet those needs Appurtenant easements have definite dominant tenement owner cannot add onto dominant tenement (aka cant add a piece of land to it) Increasing the physical burdens on an easement do not count as misuse of easement.

IV. Real Covenants

Fundamentals of Real Covenants Runs w/the land; attached to the land (like easement) Three requirements to distinguish from personal covenant: 1) Intention to run w/the land Binding upon and inures the benefit of__ and his successors Orange v. Rockland: Absence of covenant is not dispositive if it benefits the land to whom it is made, there is a presumption that it is valid. 2) Touches & Concerns: can only affect the person as applied to the land Ways it can touch and concern: Physical Effects Test if it physically effects the land, it touches & concerns Economic or practical approach if performance of covenant effects value/use of land, it touches & concerns Two biggest problems: Can an affirmative covenant touch & concern? YES (most states) Covenant to pay money touch & concern? YES. B/c it affect the way the land is being used Eg. Community associations 3) Privity of Estate: whoever owns land from time to time, bound by covenant MAJORITY: vertical and horizontal Minority: just vertical Vertical Privity (successive) continuous lawful succession, prove all the links in the chain of the title NO vertical privity when you have an AP Horizontal Privity (simultaneous) deed b/w covenator & covenate (Mally v. Hannah) Only have to show this property derives from the original
grantor and party burdened shows that his property derived from original grantee who took land subject to restrictive covenant HUMBACH: DONT need NOTICE

Power: Gives people total flexibility of K law to control future uses of land especially for negative control over future uses of land (pvt land use planning)

V. Equitable Servitudes
Three requirements to make equitable servitude enforceable: 1) Notice Actual Constructive: once a deed is recorded, all subsequent deeds contain covenant (dont have it written out, but purchaser is deemed to have notice) Buyer claims his title under a deed that is under the covenant **This has made covenants very useful very easy to get all the property under a covenant b/c only have to have it in one deed 2) Directive chain of title rule 3) Obnolescene Tulk v. Moxhay (Facts: Owner to Lester Sq transfer to buyer who must keep as park. Buyer sells to

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3rd party who knows about covenant but claims he doesnt have to abide by it). Equity attached to property if you have notice of the equity,

and you buy property, you are also bound by the equity (cant profit from own breach)

VI. Termination of Easements

Fundamentals of Termination: Express Agreement By prescription: if owner of servient land blocks the easement, and easement owner does not bring an action in time, then he will lose his right to sue By abandonment most Mere non-use does not extinguish an easement Abandonment: non-use coupled w/conduct inconsistent w/making future use Objective manifestation of intent Eg. RR stops using easement & takes up tracks & sells them Central Orgeon (Easment for hunting & fishing that hasnt been used in 30 years). Mere
non- use doesnt extinguish their right to the easement.