I. WILD ANIMALS

A. Pierson v. Post – Whose Fox Is It Anyway?If you catch a wild animal, its yours, if you don’t then its not. Possession is important. Look to malice, competition.

1. 3 Categories of LawThere are 3 purposes to having any law. Thinking about policy considerations:1) Certainty, repose (Hobbes)2) Incentives (Blackstone)3) Just Desserts (Locke)

2. The Case/The RulePost was chasing the fox, Pierson catches it. Post loses. He never occupied it or made it his possession. BUT, if you have the fox it is yours. {Dissent Rule You have to be within reasonable reach}

a. How they decided it:There were no statutes or precedents. So they looked to the ideas and principles of law.Locke – As long as you chase the hare, it is yoursDo you need possession (Puffendorf), or not absolute possession/grievously injure the animal (Barbarack). Court does not take Puffendorf that you have to have the animal in absolute possession.

3. Issue of Certainty, Peace and OrderCould have certainty on either side of Post’s proposed rule. {The moment you flush the fox its yours}. On Pierson’s side – Puffendorf; must have your teeth sunk into itOn Post’s side – Locke – the moment of engagement

Peace and Order – seems to go against Pierson. It is not conducive to neighborly relations to let one person wear out the fox and then allow someone else to take it.

4. IncentivesFoxes are bad, incentive to kill foxes. Blackstone’s basic argument. We want people to do socially beneficial thing. So we want to encourage people to hunt foxes. (L&E). So what rule will give you the result that you want?

B. Variations

1. CagePost puts the fox in a cage. Pierson takes it out.

Post should have it. He did the work, there is certainty, there are incentives to cage the fox.

2. Cage – Fox EscapesPost puts fox in cage. Fox escapes. Are property rights lost once escapes?Blackstone – animal is wild. If it returns to being wild then it is wild

This makes certaintyIncentives – 1) Build a stronger cage; 2) we don’t want the fox free, so let people hunt it.

3. BrandedPost brands the fox with name “Post”

It should belong to Post. But how far do we take this. The incentive is up to Post to get other to help him. For Pierson – There is no expectation that it is his for the taking. It is not wild because of the marking.

4. Bald Eagles/Elephants in Oak ParkBald Eagles: Different rules than foxes. Look at policy considerations. This law was for noxious beasts. If you don’t want the animal captured then there should be a different rule.Elephants: You know it is not wild, there is an owner. You know someone has captured it. As in branding, there is no expectation that it is yours for the taking.

5. Pierson Captures Fox on Post’s LandCan consider such questions as whether Pierson knows or not; whether he followed it onto the land or not. (But see end of this ¶)POSSESSION – physical control with the intent to exclude others.

So, Post doesn’t own the fox until he reduces it to possession, and Pierson can take it.

Counter – Trespass is illegal and you can’t gain from an illegal actionTrespass doesn’t require knowledge or malice, it does not matter if he followed or didn’t.

6. No Hunting LicenseThe Capture law is affected by the hunting laws. Only a licensed hunter is entitled to capture laws.

7. Other Resources/Capture LawsThis basically goes to the idea of incentives. How one community solves their incentives may be very different from how another community solves a similar but slightly different problem.Must look at the kind of property it is. Look at incentives.

a. Water by the Thames

You can take a little water but not too much. Rejected the capture rule – no desire to eliminate water.

b. Water in ArizonaWant to encourage irrigation. Under the English law, then there is no incentive to go to Arizona and get first rights. Problem with upstream guy taking away from previous downstream guy. Rule is one of prior appropriation – resembles the wild animal rule. If you go and take the water before, you can continue taking it forever. The first person to put the water to beneficial use as the right to do so in perpetuity.

c. CoalThe coal is found in the ground and someone owns that ground. Don’t need to leave it to first come. Coal doesn’t go anywhere. It is part of the land, the owner can either make the money from it or sell his land for more money.

d. Oil and GasOil Moves. So we are not sure that B is only taking their own property, may be taking from A’s property as well. Don’t want over-extraction, or exploitation. So there are limitations of how much you can take even from your own. There are statutory rules superimposed.

C. Winning Without Possession - Business(Keeble v. Hickeringill)Post didn’t have to argue trespass, or ownership.

1. Facts/Overview owns a decoy pond. shoots to scare the ducks. The ducks go away. Verdict for .

didn’t own the ducks, he didn’t possess the ducks.

2. Interference interfered with ’s lawful use of his pond, limited his employment. Any man has the right to use his property to get ducks. So, this is not a trespass, it is an interference in the use of land.

3. Distinguishing from PiersonIt wasn’t on Post’s land

Counter – Could argue that there was a trespass here. The facts are not so specific

BUT, even if was a trespass, that was not the court’s decision. Even if there wasn’t a trespass, there was an interference.

4. IncentiveWe want to give encouragement there to catch ducks (Although some of us may disagree with this )This was a business, and want to encourage the occupation (treating occupation as property, protecting both).

5. Unfair competitionThere was malice in Keeble as in Post, and we don’t want to allow unfair competition. BUT, competition is generally good as in the school example. Pierson is able to keep the fox because of competition.In Keeble, there was only malice, no competition.

No Malice and Competition – No recoveryMalice and Not Competition – Recovery

D. Winning With Out Control - Custom(Ghen v. Rich)

1. Facts/OverviewThere are competitors who hunt whales and end up putting marks on the whales. Ghen shoots a whale, the whale sinks and is discovered by Ellis. Ellis sells to Rich.

2. No Control? Basic RuleThe basic rule is that mortally wounding an animal with out abandoning the pursuit is enough. But, here there was an abandonment. Some cases say that you need to bring it in to control. Here, there was no control. The Animal was never caught.

3. Other Precedents Abandoning Basic RuleTaber – kill a whale and catch it and anchor it. Once you catch it, you own it. It is kind of like an escaped and marked animal. BUT, this is not escaped, it is dead. Dead animals don’t run away. Incentives are different.

Swift – the harpoon holds the whale. But, in Ghen there is no way for the Swift way of capture to work. As in Western Water, there needs to be different rules to keep the industry alive.

4. Rules/IncentivesWant to keep the industry alive. If the Barbyrac rule was alive (must mortally wound and ring under control), then the whale could never be caught.Like water/oil, the courts modify the common law to better serve the purpose.

5. CustomPros – 1) the industry knows about whales, the court will get their knowledge from the industry anyway. 2) If the industry knows the customs, they have formed a K together. There is autonomy and fulfillment of their expectations. 3) They can handle their own affairs. If they can handle it themselves then it is cheaper.

Main concerns are: autonomy, protection of expectations, expertise.

Cons – 1) Might not be in the interest of society (not here), 2) Could be a guild/interest group, and they are only protecting their own interests. 3) Could be an argument between certainty and bad rules.

E. In General – Wrap Up

1. Gain PossessionWild Animals are not normally owned by anyone. So once a person has gained possession he has right in that animal

2. Chasing is not enough (Pierson)

3. Trapping or WoundingOne who mortally wounds an animal so that capture is certain is deemed to have possession. Similarly the catching in a trap is sufficient. But the capture must be virtually complete

4. Business CompetitionThe courts will be more sympathetic to interfering if he acts out of business competition rather than malice. See Keeble

5. CustomCourts look to the customs or usages prevailing in the activity or trade involved.

II. FINDERS

A. Finder Has A Right vs. Anyone Except the Owner

1. Armory v. Delamirie – Jewel finds a jewel, takes to a goldsmith’s shop (Delamirie). The goldsmith’s apprentice took it to weigh it and wont give it up. wins, should get the property back. (Replevin, Detinue)

2. Policy ConsiderationsIncentives to pick up objects and put them back in circulation.Just Desserts – I put forth the effort, so I should be able to get it. Fairness

Certainty – clear rule for possession. Prevents squabbling.

But an owner may offer rewards for an object for incentives, or the law may provide a stick if you ignore the reward.

Maritime Law – there is a legal right to a percentage of the property of property found at sea and returned.

3. HierarchyThere is a clear hierarchy. Owner, 1st Finder, 2nd Finder, etc.The 1st finder, even the finder who loses it can win over a later finder (Clark). But, the finder doesn’t own it, the owner still owns it and has a claim against the finder. The finder holds it in trust for the owner (like a bailee).In contrast to Wild Animals, there is a previous owner, they retain their property rights, but through possession, the finder gets the rights against all but the rightful owner. This applies to real property: even though I am a trespasser, I kick another off the land since they are the second trespasser.

a. Even Bad Guys WinEven if the possessor obtains the item wrongfully, his rights are superior to those of anyone except the true owner

4. Different from Wild Animals1) A wild animal never had an owner, but in lost objects there was a right owner.2) Expectations are totally different when you find a wild fox or a jewel. Unless the fox was marked, you do not expect that there was a prior owner. Live up to expectations. 3) This is somewhat like a marked wild animal. Consider the interest of both parties.

5. PossessionPossession is still important. Not enough to start to the jewel, must have possession. (Maybe if you have done all that is practical, then maybe its enough).

i. Has to Have it in Controlii. Intent to Exclude

6. AbandonmentIf owner abandons then they give up their right.

B. Finder v. Land Owner

1. Hannah v. Peel – the soldierHannah was a soldier stationed at Peel’s house. Hannah found the broach brought it to the police. Police gives it to Peel. Hannah wins – he was the finder. Peel was never in possession. Finder wins (Armory)

2. To Argue Hannah’s holding – (its an English decision)Because it is Peel’s house. A landowner owns what is on his land. Counter – he was not in possession of the land at any point. The landowners claim is based on his possession of the land. Wild animals move and so you can’t have possession since it can move on its own.

a. Possession theory – control to keep others out. The land owner is in control of everything on his land but how can the landowner have the intention to keep others out. (Doesn’t work in Hannah since the landowner was never in possession of the house.

b. Similar to wild animals – Hannah has violated Peel’s exclusive right to hunt for jewels on his land. The lease might be only to live there and not to hunt for animals or broaches.

3. RULELand owner wins if: the party was a trespasser, employee of landowner, buried in the land, if property is deliberately put down and forgotten (mislaid and not lost).

Finders keepers except to those who have a previous claim – land owner has a prior claim – it was on her land.

a. Bridges – Lost Property. Finder winsMoney found on floor of shop. If I am on your property and I find something that was lost, I get to keep it if you never obtained possession of it.

b. Barker – Trespasser - landowner wins.

c. Sharman – landowner wins. EMPLOYMENT SITUATION If a man finds a thing as the servant or agent of another, he finds it not for himself but for the other.

d. Limitations to SharmanIn US – the employee has some rights to what he finds. For example: if he thinks of a song while working.

e. Elwes – Affixed to Land - buried boat – landowner winsThe buried boat was part of the land, the landowner owns the land. Distinguish SharmanYou have what is buried (sure this can be difficult – is there a difference between rocks and diamonds and something that was dropped on the and buried over). So issue of treasure trove. In England – valuables intentionally buried materials never reclaimed by the owner belongs to the state. In US consider this “mislaid” under the normal rules of McAvoy.

f. McAvoy – Mislaid property. Landowner winsWallet was left on the table, where it was intentionally placed. The property is mislaid – not lost (as in Bridges)

The courts make this distinction between mislaid and lost property. When the owner intentionally places it in a certain place, and the forgotten is mislaid.

WHY? – the owner will probably come back to get it. We want to make it easy for the owner to be able to get back his property. Still belongs to the owner. WHY NOT LOST AS WELL? – the owner that loses it is less likely to remember where is was left. So if you can prove that it was mislaid and not lost – then McAvoy rule applies.

4. PolicyAs in Hannah – want people to turn things into police.

Works for the mislaid and lost property. NY statute gives the incentive to the finder to turn it in.Some states require to turn over to the police/owner, and then after a time it is yours.Perhaps it is more valuable to keep it. Carrot/Stick issue

III. BAILMENTS

A. DefinitionIt is a transfer of possession, not a transfer of title. Involves a K, an offer an acceptance. A bailment is the lawful possession of personal property of one who is not the owner.

1. Causes of action:Trover – to get the value of the property back. {Of course we remember this because Trover is so valuable, even priceless – meow}Replevin – to get the item itself back

2. In K LawParties can modify the bailment but there are limitations of what parties can bargain for (unequal bargaining power, etc.)Need offer and acceptance – mutual assent.

B. Creating a BailmentThere are basically two requirements: control and intent to assume custody and control over it.

1. Need physical controlThe bailee must come into actual physical control of the bailed property.BUT, some courts have held (in parking lot cases) that the idea of control has two elements:

1) I can drive it myself (control it myself)2) I can prevent others from doing it

So that only one may be necessaryIn parking lot cases with a valet – sure there is a bailment.In parking lot cases with an attendant – most likely there is an implied or express assurance of security.But what about park-and-lock cases? The courts are somewhat split:

a. Allen v Hyatt Regency – Issue – when it was parked did the owner of the parking garage have possession. They don’t really have control, they don’t have the keys, can’t drive it away.Counter – although I can’t drive it away, no one else canCounter-counter – Obviously someone can – it was stolen.

Policy – we impose liability on the parking lot because they are in the best position to prevent the theft.

So we say there was control since they can prevent others from taking it.

2. Need Intent – Undervalue doesn’t matterThe bailee must have an intent to possess the bailed goods. No thrusting allowed.Sometimes there is an unconscious possession, the courts could come out differently for the case.

a. Peet – The Valuable Ring Mistake deposited a ring with the cashier of the hotel. The cashier realized that what had been deposited was a ring but did not realize how valuable it was. Even though did not divulge the value of the ring, there was still a bailment.

b. Sample – coat checkCustomer goes to a coat check, get a ticket. A valuable fur piece was stolen. The court says there was no bailment. Here, there were two items, and they weren’t alerted about the extra piece.

c. Rationalizing thisThe bailee is in the best position (SBPS). So there is an obligation for due care. But, if the bailee doesn’t know that the object is there, then it would be unreasonable to take precautions to protect a piece when the bailee thinks it was just a simple coat. The degree of care that I should exercise is dependent on what I know is in it – or more probably what I should know. But, undervaluing something is not really a defense.{Kind of like combining Hadley with Palsgraf}

C. Rights and Duties of BaileeIf you take your dress to the dry cleaners, they cannot turn it into shorts, they cannot sell it, they cannot give it to someone else, etc.But it is also a benefit in that the bailee can sue thieves, the bailee is entitled to recovery from someone who takes it from them. Bailment gives rights, benefits and burdens.

1. Bailee Cannot Convert the PropertyO takes horse to B and says please keep it in the stable, care for it. B eats the horse. O gave possession of the horse. The property remained O’s to get back. When B ate it – he converted it.

2. Mis-delivery/Strict LiabilityO comes to get the horse, B gave it to C. Can file suit in Replevin. Bailee Cannot Give the Property to Someone else

B thought he gave it to O (though C was O)No good – there is an absolute duty to return it to the right person. Strict liability – not negligence for misdeliveryBasically, the bailee has committed a trespass with an interference of property rights. Cowen – alleged

a. Cowen – Rescue Analogy, wrong deliveryCowen delivers the wrong bond to Pressprich. Pressprich tries to give it back to Cowen, gives it to the wrong courier. The wrong courier disappears. Between two good guys, who should lose?

Intention/No Bailment – Pressprich never wanted it. Maybe no bailment. No intent, no transfer, no bailment, no liability

Policy/Bailment – Pressprich was in the better position to prevent the theft. Policy says there was a bailment. (Analogy to rescue law – once you start the rescue – you are bound).

Similarly, once he picked up the ticket, he was bound. Liable even if use due care. Similar also to last clear chance.

3. Stolen/NegligenceIf the horse was stolen, the bailee is still responsible. There is an absolute duty to return it to the owner. When property is not returned there is a prima facie evidence of negligence. The has a chance to prove they were not negligent – but the burden of proof is shifted. Allen (car garage)

4. Stolen – Wrongdoer is foundO can sue T – its his propertyB can sue T – otherwise B is left holding the bag

The Bailee has an interest in the property, they are responsible to the owner (Blackstone passage)

BUT, if B is not negligent and does not have to pay O, B can still sue T. We think it gives O a better chance of recovery from B (T may be Pierson).BUT, as in Winkfield if the bailee sues T and wins, then the owner can’t sue T. Then, O has to sue B, but maybe B is Pierson (or the postal service and difficult to prove the bailment).

a. Winkfield – mail is sunk. The postmaster general is allowed by the British court to sue and win against the Winkfield which crashed into the boat. The PM were bailees to the owners of the letters. NOTE: this is a wrongdoer case, not a thief case

Same point as in finders rights. The bailee has a greater claim than the thief. The bailee is in possession. The possessor wins!!! It is true of a wrongful finder, so it is true of a rightful bailee. Same hierarchy.

IV. GIFTS

A. RequirementsSometimes you can’t just give things away and impose burdens on another. A gift is like a bailment which may bring burdens as well as benefits. We allow gifts because it is a right the owner has – it increases the value of the property, there are autonomy notions.3 things required :

1) intent of the owner to make the transfer2) delivery of the gift3) acceptance of the gift

1. IntentPeople can be coerced1) Must be a voluntary gift.2) Must be an intent for a present gift

a. O hands horse to E and says please wash the horseNo gift, no intent. There was a bailment – transfer of possession not of title

b. O hands horse to E and says, I will give it to you tomorrowNo gift. Must be intent for a present gift. This is not an intent for a gift right now. (Perhaps could be enforced on promissory estoppel)

2. DeliveryThere must be a present delivery. So that the control of the gift is passed from donor to donee.

a. O says to E with horse in hand, she is yours. I’ll transfer her tomorrow, I will keep her and ride her until then. No gift. There was an intention and an acceptance, but as in Irons, there was no present delivery

3. AcceptanceThere must be an acceptance.Acceptance is ordinarily presumed, unless someone rejects it – rejection is a right

4. Valid gift example – Gift then Bailment BackO hands horse to E, says she is yours. Let me borrow her and ride her til tomorrow. E then transfers possession back to O. O then wants to keep it

Valid gift. O can’t get it back. There was intention, acceptance, and a deliveryThis was a gift and then a bailment back

5. Why are there these obstacles?Evidence – delivery is the best evidence of a gift.

Counter – there is always the bailment. People give possession with out intent to give a gift

There are serious evidentiary problem in determining the intention

Oral statement isn’t good evidence: writing, authenticity may be better. You would really like a witness

***Require people to stop and think. There are cautionary values to it.

B. Delivery is the most difficultThe real purpose is cautionary. So many times actual delivery is not necessaryImportant features to satisfy: relinquish control, cautionary function

1. Constructive DeliverySometimes it is not practical to have actual delivery or it is impossible to deliver. Therefore constructive delivery is when the donors delivers the means of obtaining possession and control of the subject matter, rather than making a manual transfer of the subject matter itself.

Major q – relinquish control?

a. Key Case – Simple – Constructive DeliveryHand over the key to a safe deposit box. The contents are included as the gift. I have given you control to get it and I can not get it. Issue of control. (both elements)

b. 2 Keys – Difficult – In the MiddleIf there were two keys and I hand you one. Not giving up total control, but I give you the power. So the question is raised: do you have to do both – give up control and give the control to someone.When have you sufficiently parted with control so that the cautionary is met.

c. 1 Key, but need my signature – No GiftI have not given control of the box. I can still prevent the removal. I have divided control. We need each other.

d. Give you a car, leave it on your land, but I keep the keyIts like the signature requirement. In bailment we said transfer of possession in this case, but there may not be one here. The garage attendant cannot drive away with the car. Look to policy

e. Piano – wife has it delivered to their home, says it is a gift to her live-in husbandDoes he have physical access to the piano? YesHas she parted control? Not reallySame as the two safe deposit box keys

2. Symbolic DeliveryInstead of the thing itself, something else is handed over in its place. This can be a writing, such as a deed

a. Gruen – Letter as an instrumentThe court relies on the letter. To make one party deliver it and then give it back wouldn’t make sense – it is too burdensome.

Supplies the cautionary purposeBut then the deed must be possessed by the donee

b. Branded Horse “I give to Donee”If the deed in written on te horse, the deed needs to be delivered, therefore the horse needs to be delivered. The problem isn’t that the deed was written on the horse, rather that it wasn’t delivered.

3. 3 Kinds of DeliveryPhysical Transfer, Constructive, SymbolicSymbolic – “signed, sealed, delivered.” – the seal isn’t important anymore

C. Gifts Causa MortisThese are gifts on the death bed. A gift that is made in apprehension of imminent death is causa mortis.O says I’m about to die, take off a ring and hands it to donee and says its yours and dies. There is intention, delivery and acceptanceThis is a conditional gift.

1. It is conditional on deathThe intention is not to make it unconditional, therefore it is a conditional gift, not a gift per se. By the express terms of the gift itself, property returns to the donor automatically. {This is not true in every state anymore – the donor merely has a right to revoke it}The difference is just if the donor has to work to get it back.

2. Can make a death bed inter vivos giftThen it would be irrevocable. As log as you are alive then you can state your intent

3. 3 conditions assumed: *I die, **You are still alive, and ***I don’t revoke it1) If the donor lives, they can revoke it (see #1)2) If the donee dies before the donor (donor is sick makes gift, has a long struggle

– in the meantime the donee dies) then the gift is revokedThe gif is intended to this person, not for their heirsAnalogy to wills – the intention is to benefit the individual – this is a poor man’s will

3) If the donor makes the gift, then a week later draws up a will that contradicts the gift – there is no gift. The gift was revoked by the will.

a. WHY can it be revoked?This is intended to be a will, which can be revoked. The will doesn’t take effect until you are dead. A subsequent will revokes all prior

wills and prior gifts causa mortis. Relationship between wills and gifts causa mortis.The gift does not vest until death at which point the will kicks and takes effect

4. Intention of Testator Trumps AllImportant not to just follow the hard and fast rules above. Most important is the testator’s intentions. So if they give a ring causa mortis to A and then in a will gives “all my property to B” – then what is the intention? Important Qs: is the gift subject to a condition precedent or it the gift subsequent, subject to revocation? So, did she mean to give the ring to A? yes. Did she mean to include it in “all” her property? No. She would not consider it her property. So passing it in a general will of giving property.

5. A brief moment of revocability may be enoughOn death bed say “If I don’t survive the operation then I give you the ring.” I survive the operation but on the way home, I am hit by a car and die.There was a brief moment to revoke

1) In a state with automatic revocation – there was immediate revocation and donee doesn’t get it

2) In a state of potential revocation, if they didn’t revoke - ??? Could argue either way

If they die before the operation – then there was no moment of revocability. Counter – there was a specific provision of not getting through the operationCounter/Rule – But the intention was the demise, not just the operation – so the intent could be read as if I die…not simply the operation

6. What constitutes imminent death?This is a q that different courts might come out differently. If I am shipped to Bosnia? Lots of people die in war. If I am in Bosnia and told that I am going out tomorrow to search for land mines? The immediacy of death is greater but no physical illness. What is the apprehension of death standard?

7. Why allow gifts causa mortis (revocable)?Cons - Gifts causa mortis bump up against the statute of wills. SOW must be in writing, and other rules. Pro – the courts make a gift causa mortis so confined so that this exception to the SOW is confined. **Also, it falls within the purpose of the SOW, the courts feel bad for people in difficult situations and so have a narrow exception.

D. Gifts Inter VivosThese are gifts during life.There are 4 requirements: intention, delivery, acceptance and irrevocability (Gruen)

Example – O, perfectly healthy, takes off ring and hands it to A, and says its yours but I reserve the right to revoke it at any time. O dies w/o revoking it – it is not a gift – must be irrevocable

1. Reasons for Irrevocability RequirementIf I make a gift revocable then it only takes effect until death, property doesn’t vest until death. That makes it nothing but a will that doesn’t satisfy the standard required for the statute of wills. Would render the SOW meaningless

2. Gruen – Future Interests – Ways Around The RuleIn Gruen the father made a gift to transfer full ownership and retain a life estate in the house. This was not conditional on anything (the father couldn’t subsequently get back the ownership of the house). It is legal to create future interests in property. These gifts are irrevocable transfers of titleIt is possible for more than one person to have a property interest at one time

a. Can also make an irrevocable with an option in the gift

3. Some I.V. Gifts Are ConditionalGifts that are not really in the meaning or intention of the statute of wills may have a presumption attached. Example – A gives B a wedding dress, or a engagement ring. If the wedding is cancelled, then it was probably conditional. BE CAREFUL with this. Look at intention of statute of wills

4. Relinquishing Control May Make it IrrevocableIn the case of a joint savings account in the names of O and A. It is an inter vivos gift. Counter – O can revoke, can take out all the money of the account. Counter/Rule – so can A. O has done something that may have irrevocable consequences.Courts tend to uphold these.So, you keep some control, but give up some control and that will make it irrevocable

5. A Trust May Be A Revocable I.V. GiftO owns securities, in the presence of 40 bishops writes on a piece of paper, that I hold these securities in trust for the betterment of A. But I reserve the right to revoke.Leading case is Smith’s Estate – held that valid even though it is revocable and looks testamentary. Courts of equity would recognize this – not courts of law. As in Totten Trust – a revocable inter vivos trust does not eliminate the statute of wills.

V. BONA FIDE PURCHASERS

A. The General ProblemO owns a horse. Pierson steals it and sells it to BFP. O sues to recover possession of the horse from BFP. (Of course we would like to sue Pierson, but he is in Tanatuva)There are two innocents here – the owner and the BFPGeneral Rule – Pierson can not sell more than he owns, since he stole it he cannot sell it at all. BFP is screwed. The thief has no authority to transfer title.

B. ExceptionsBasically, these exceptions are desiged to promote commerce, transactions. Weighing of interests between promoting and securing property or securing transactions.

1. Merchants – UCC Statutory EstoppelThis entrust to merchants who normally deal with this item. A purchaser in the ordinary course of business wins over the owner. The mere act of entrusting goods is sufficient to estop the true owner from recovering them once they have passed to the BFP. Example – O takes the horse to a person who sells horses and gives possession to a horse trader who sells it to BFP. Owner loses the horse.

a. Expansion of Common LawThis expands the common law rule that merely entrusting someone is not enough. There would need to be something more. BUT, the UCC expanded it.

b. Porter – painting lentPorter owned the painting, leant it to Von Maker. VM sells it to Feigen. We try to make Feigen responsible?

c. Rationale1) We protect the consumer. The need to expedite sales of inventory by protecting the buyers in the ordinary course of business is the reality of modern commerce

2) The owner can’t select the thief, but they can select to whom they trust (merchant/bailee). The owner of the property can better prevent the loss

3) Counter – the buyer should be more careful/buyer beware. They lose it if it was stolen anyway so there is the extra incentive to check it out.

4) Each party could do something to help and the law chooses to promote normal commerce and put the burden on the seller.

5) Values the security of transactions instead of the property

2. Estoppel – MisrepresentationIf O deceives the world about the ownership of his horse, he may be estoped from recovering.Example – O is a piano mover and owns a wagon. On the wagon O writes Pierson’s name (Pierson used to run a moving company and wants to benefit from the name recognition – or any other reason) – Pierson sells wagon to BFP – O may be estopped from denying that Person had the right to sell

a. 3 Requirementsi. Make a representation (owner)

This is a statement by the owner to a potential buyer that this is Pierson’s wagon

ii. Reliance (buyer)Because of your representation, BFP is persuaded by the representation

iii. Change of position (buyer)I am out of pocket for this wagon

b. RationaleThis isn’t about two innocent parties. O actually went and misled the public. O helped to cause the loss.

c. A Bailment/Possession is not misleadingThere is no estoppel for a mere transfer of possession to another, because that is not misleading someone.

d. Zendeman – comes out the other wayGave diamond to diamond dealer. Told the dealer to put it in the window. This is misrepresenting the public.

3. Money/Negotiable InstrumentsThe person who takes money defeats the true owner. Simply because of the nature of the property in question – otherwise people wouldn’t trust money. Freedom of commerce, security of transactions. This interest is greater than that of the true owner. Example – A steals O’s money to buy a horse from BFP. A cannot get the money back from BFP.

4. Apparent AuthorityIf O hires an agent to sell it, but the agent sells it for less than what O commanded. Even where there has not been a change of position (one of the prongs of estoppel is not met) – the law of agency and the apparent authority may

protect the buyer. When they made it appear that there is agency, even where there is not.

5. Factor’s ActA factor is an agent in possession or the property. There is authority to do what was done, but there are other limitations (as in previous hypo), but not communicated to the buyer (perhaps conditions, etc.). Done to promote transactions.

6. Fraud Makes it VoidableCourts of equity recognized that although the legal title may have passed (through a fraudulent check, or other kinds of fraud) the title is voidable in equity. The law courts did not recognize this as a way to get out of a sale. But, really what is the difference between theft and fraud. Hence, equity

C. Scheme to Protect Both PartiesIn real property you have the recording statutes. When you buy a piece of land, you take the deed to the recording office. Really this is just making one of the parties not an innocent.

BUT, personal property is not static, can be removed from the jurisdiction. Do you have to check each state, each county.

If you can make one of the parties not “innocent” then they are the ones who should lose (estoppel)

D. Conditional SaleThe seller retains title in order to secure satisfaction of the credit obligation until the debt is paid off. This was a normal bailment, BFP loses.

E. Law v. EquityLaw preferred the owner (title), equity preferred the BFP (possession). In equity, no reason to disturb the possession unless there was fault of the purchasers. Let the loss fall where it falls unless there was a problem.

F. Who is a BFP?

1. Someone who pays for an itemB gives $500 cash for the purchaseA swap for a horse for cow. It doesn’t have to be negotiable instrument. As long as it is adequate consideration

2. Not if it was a giftA gives B the horse as a gift. The donee can be put back in the position from before the fraud, the donee is not out of pocket in any way.

3. A lender is a BFPB lends A $100 on the security of the horse. Yes, they are a BFP – if the horse is taken away from B, then they have lost the $100. B has lost the way to get back the money. (i.e. mortgage)This is true for a pre-existing debt as well.

4. An IOU may make a BFPB gives A an IOU for the horse ($500). B may not have lost anything if the horse is returned to the owner. Therefore, he is not a BFP. But if the IOU has been negotiated then they may be.

5. General Guidelines to Figure it Outa. Am I in a worse position then when this transaction began, if so then I

am a BFPb. The person who accepts the good under a prior debt is considered a

purchaser in the UCCc. If we take the horse away from the BFP, does that person suffer a

detriment.

VI. ADVERSE POSSESSION

A. General IdeaWhen there is a trespass, sometimes sue for damages – but really are seeking ejectment. But if the trespass satisfies the requirements of adverse possession (including the length of time – usually 20 years) then the adverse possessor gains title. Basically, the cause of action in ejectment is bared by the statute of limitationsBy limiting the time in which you can file a lawsuit, it ends up being a transfer of title. With out remedy of ejectment, there is no way of recovering the land

1. One Cause of actionThere was a new trespass every day so even if the statute expired for the first trespass, what about yesterdays? NO – the purpose was to quiet title. The statute says there was one action – it happens at the time of the original unlawful possession.

2. Why do we reward the thief? The purpose was to encourage the use of land. Reward a wrongdoer so the land can be put to its best use.Not all adverse possessors are bad people – perhaps the expert who did the survey was wrong. Its possible you are the right owner and just lost the deed. There was a presumption that the possessor was the real owner. A policy of repose to those who may be the owner but can’t prove it.

a. Meyer v. Law – limitationThis court took shots at the doctrine. They said that the purpose was to encourage the use of land, but today we want to slow down the development of land and left natural.

3. Relation BackOnce the SOL passes there is the belief that the adverse possessor was the owner all long. {Kind of a false-truth}So in 1922, O can’t get the ejectment so sues to get damages in trespass1) Presumption that it was A’s all along2) SOL for trespass may be 20 years so even with out relation back, can’t sue for

things that happened more than 20 years ago

Or short of that concluson of relation back can see it in 3 time periodsSince 1920 – no recovery. It became A’s property, no trespass1900-1902 – when done was a trespass, but SOL ran.1902 –1920 – only answered by relation back

B. 5 Requirements (ACE-HO)Must be hostile, continuous, open/notorious, actual, exclusive (ACE-HO, actual, continuous, exclusive, hostile, open).The real issue is whether there was a cause of action, if so when did it accrue?

1. Must be hostileA cause of action does not accrue until there was a wrong. The wrong does not occur until A has violated the rights of O. The possession must be adverse to the owner. SOL has not run because it has begun until its adverse. So, if there is consent to be on the land, there is no adverse possession and one cannot obtain title.

Example: A enters with permission. NOT HOSTILE

a. Deliberate TrespassIt is hostile, but we may not want to encourage this behavior. Courts usually don’t allow people to take possession with the knowledge of a wrong. Courts look to policy and may look to a claim of ownership as in Dillaha.

b. Dillaha v. Temple – Court says – Must claim titleLacks hostile intent. I didn’t claim it was my land. I didn’t claim it as my land. In the statute there is no claim of right, all that is required is a trespass. But, some courts use policies to trump the statute.

c. Mutual MistakeBoth O and A believe that A owns the property. The accidental trespasser can win. If the bad guy can win, then the good guy can win.

Not looking only at parties subject beliefs, not what the parties’ actual intentions were

2. Must be continuousIf there is discontinuity (A occupies in 1900, abandons in 1910, returns in 1912 and then O sues in 1922) – no adverse possessionThe first cause of action is eliminated when A leaves in 1910, so a new statute of limitations, a new cause of action in 1912If there is a significant break, a significant termination

a. Go away for the weekendYour possession, once established continues despite ordinary absences in possession.

b. Only use cabin during summer weekendsThis may be pushing too far.

c. Significant question to askWhether part-time is continuous. Whether the absence is significant enough to constitute a termination of the possession. Must draw the line somewhere, but where?

3. Must be open and notoriousNeed to allow O to know that A is in occupation – for fairness. Need to keep the balance of the interest of the possessor and the owner. Don’t want to cut off the rights of the true owner. SOL does not run for a hidden possession.Construe the SOL so the has a reasonable cause of actionExample – A enters tunneling under the property. O doesn’t know until 1922

4. Must be exclusiveO occupies in winter, A in summer. Anderson Or if weekends/during the week. Or if it is A and B occupying at different times adversely to O. It doesn’t belong to O but it does belong to A or B – but howThere is nothing in the statute, but the courts will not recognize this. The courts will divide property geographically between parties but not temporally (summer)

5. Must be ActualNeed to be in actual possession. You don’t take possession of land every time you trespass on it. Example – people come on land to have a picnic. (need control, intent to exclude others).

C. TackingThe general rule is that if the land was sold, or inherited, the purchaser buys all of the seller’s rights. They bought to cause of action.

Example: O conveys in 1910 to x, x sues A in 1922. A wins

1. Same applies when adverse possessor conveys to another partyA conveys to B in 1910, O sues in 1922.When B purchased land, they purchased all rights. B buys all of A’s rights. That right is to acquire title to the land by the pre-existing condition. Different but same cause of action.

Doesn’t matter how many intervening ownerships as long as the present possessor has derived from the original

2. ReasonIf every time there was a new cause of action every time the possession was transferred or title was transferred, then purpose of the statute would be subverted.

3. Must be derivative from the original owner – No StrangersIf A leaves in 1910, B enters later that day/next day. NO TACKING. There was no privity between the original owner and the new.

4. No Tacking in Future InterestsIf O has a life interest in 1900, dies in 1910 and O2 has a remainder. When O dies, his interest dies with him. The remainder derives his title from the original conveyer (x to O for life, remainder to O2).This is like the stranger.No privity between remainder-man and life tenantSame with a lease, the tenant has the possession and so they can sue but the landlord cant. Possessory interest.

D. Disability

1. RuleProvision that if insane, they have up to 10 years after they recover

Example – O is insane in 1900 (time of entry), recovers in 1920, sues in 1922. TIMELYExample – O is insane in 1900 (t.o.e.), recovers in 1920, sues in 1932. UNTIMELY

Counter – Some statutes say that the SOL doesn’t run at all until the disability is eliminated. So they would have 20 years from 1920 to file the action.

2. ReasonThese people can’t assert their rights, it wouldn’t be fair to ake property away from someone when they didn’t have their chance to claim it.

#3 (Need to fill in til fee simple)

Present Possessory EstatesPresent Possessory Estates1) Fee simple absolute, 2) fee tail, 3) life estate, 4) leasehold

VII. THE FEE SIMPLE

A. Fee Simple Absolute

1. Basic Principlesa. A freehold estate, as opposed to a leaseholdb. Basic unit of ownership of land and the greatest interest owner can

posses

2. Rightsa. Alienable, devisable, heritableb. Right to exclusive use and enjoyment for life, including to extract minerals on or under the landc. Not unfettered, i.e. can be limited, e.g. zoning, easement, mortgage

3. How to createTraditionally, at common law, the phrase “and his/her heirs” was necessary to create an estate in FS (as opposed to life estate) in IV conveyances. This was never the rule for wills.

4. Purchase/Limitation“O to A” are words of purchase (who takes it), “and her heirs” are words of limitation (nature of it) b/c don’t grant interest to heirs.

When A dies, heirs inherit by intestacy, not via conveyance.o Eldest son was the heiro If no surviving relatives then it escheats back to the state

a. IntestacyModern default rule in absence of will: 2/3 to children divided equally, 1/3 to widow. If no widow, all to children. If no children, ½ to widow and ½ to relations. If neither widow nor children, to relations. If no “heirs” to state.

5. FS TodayToday, presumption is in favor of construing conveyance of FS, even without magic words, i.e. “O to A” conveys a FS unless qualified by “then to B.”

6. Feudal History (1066) King parceled out land to lords, who parceled it to tenants. When O made grant of

land, O did not disappear. Much like the modern landlord, O retained interest in property. T “held of” the lord. (Latin for hold is tenere, like tenant].

Services (like modern rent) and incidents were due to lord: Before the 17th C – services were usually military service relief (modern inheritance tax)—mandatory payment from heir to lord based on

value of estate There could be no descent of the property w/o the consent of the lord (until

Henry I), who would charge to allow the heir to take the tenants place (even after Henry)

escheat—when T died d.w.h., land reverted to O. wardship—when T minor, O entitled to profits of estate in exchange for

“guidance.” marriage—if T single woman, O could determine whom she could marry and

would charge a feeSubinfuedation, which allowed conveyance to new tenant, lengthened the chain and reduced incidents for lord.

7. Quia Emptores (1290) “Henceforth every freeman shall be permitted to sell his land or tenement, or a part

of it, at pleasure: yet so that the feoffee shall hold that land or tenement of the same principal lord [of whom the feoffer held] and by the same services and customs by which the feoffor earlier held.”

Prohibited further subinfuedation in FS, not of estates less than FS, in order to preserve incidents. In exchange, Lords allow T to substitute buyer for T in chain, i.e. to alienate their land, establishing this important principle of property law. Lords are giving up their right to the personal services of the person they selected

below to preserve their interests Results: retention of incidents, shrinking of pyramid over time as members d.w.h. and

title escheats, makes possible the modern system of conveyance of property. Is in effect in many states today, except Penn. and Md., and paradoxically protects

tenants because requires severance of relation between seller and buyer.

B. Defeasible FeesFS created so that it is defeasible on happening of some event

1. FS Determinable FS with certain limitation attached so that it will automatically end when event

happens. Words of limitation.

“O to A and heirs so long as used for cat hospital.” If close hospital, FS terminates and Blackacre reverts to O.

Caveat: words of motive or purpose do not create FS determinable because they do not limit duration of estate.

a. Peters v. East Penn Township School District (p. 227)“As long as it is used for public school purposes” created fee simple determinable. To promote alienability, court looks to intent but otherwise interprets strictly against deed which creates limitations. AC reverses for .

b. O retains possibility of reverter in the event A closes hospital.

c. O to A and heirs so long as A does not convey Blackacre to another. In form, this is FS determinable on condition of sale, but in reality is void b/c absolute restraints on alienation are void as contrary to public policy. (Why should not selling be a greater restraint than how using, in other words, why restrict “how” but not “by whom?” Currie thinks the answer must be tradition, b/c there is no other good explanation.)

Also can’t limit alienation even for years. Can’t limit it to certain people.

Mountain Brew Lodge v. Toscano (p. 230)Issue is whether clause of deed of conveyance created fee simple subject to condition subsequent or an absolute restraint on alienation. Rule is conditions restraining alienation when repugnant to interest created are void. Court holds created fee simple subject to condition subsequent.

2. FS Subject to Condition Subsequent FS that does not automatically terminate but may be cut short at grantor’s election

when stated condition happens. Words of condition. “O to A and heirs but if used for cat hospital then O has right to reenter and

reclaim” O has right of entry for condition broken. Note that this interest is valid b/c is a restriction on use not on sale (see above).

Caveat: FS conditional is an entirely different beast. Presumption of courts if ambiguity between FS determinable and FS subject to

condition subsequent is for latter because forfeiture is optional, and general policy is to avoid forfeiture. “Equity abhors a forfeiture.”

3. FS Subject to Executory Limitation FS that upon happening of stated event is automatically divested in favor of third

party. to School Board but if not used for school purposes within next 20 years than to A.

a. Hall v. Hall (p. 224) – combination of two formsGrantor gave grantee an estate in land with an apparent unlimited power of disposition and conversely placed a condition on right of ownership. FS determinable with condition subsequent. Court looks to intent to subject estate to condition. SC holds acquired FS subject to condition so when she sold the property, she could convey no more than she possessed. therefore acquired property subject to forfeiture upon remarriage, i.e. an executory interest.

4. Reversions, Reverters and Powers of Termination in BriefGeneral - When O conveys or devises less than FS absolute, O retains an interest in the property. O’s rights arise by implication, although they are often expressed. RAP - All are exempt from Rule against Perpetuities, so they exist indefinitely unless statutes limit.Reversion - In the ordinary case of creation of a life estate or lease, this interest is a reversion. Reverter - Where a determinable fee, it is a possibility of reverter. Right of Entry - Where a fee simple upon condition subsequent, right of entry for condition broken, a.k.a. power of termination.

VIII. THE FEE TAIL

A. In General FS conditional created by O to A and heirs of body, where courts held A could convey FS

if had issue. Fee tail cannot be devised by will. Practically, is like having a life estate. Defeasible fee created by grant to B and heirs of B’s body. Lasts as long as grantee or any of his descendents survives and is inheritable only by

grantee’s descendents.

B. Die w/o issueIf A dies without issue, i.e. no heirs of body, land reverted to grantor or his heirs or to remainderman if grantor limited estate in remainder to follow fee tail. I.e. “O to A and heirs of body” grants A fee tail and O reversion in FS whereas “O to A and heirs of his body and if A dwi, to B and her heirs” grants A fee tail, B vested remainder in FS to become possessory on expiration of fee tail, B has remainder.

C. Words of Limitation/PurchaseHeirs of B’s body (i.e. descendents) are words of limitation not purchase.

D. PurposePurpose: controls the devolution of property from one generation to another, keep property in family. Takers in tail held a kind of FS but did not have power to alienate or devise.

E. Types1. General—lands given to one and heirs of his body (includes gift to man and heirs

male)2. Special—gift restrained to certain heirs of body, e.g. by particular wife (includes gift

to man and heirs female)

F. Statute de Donis ConditionalibusAt common law, once there was issue, the current tenant in tail could convey title in FS to child, which defeated the interests of the grantor. So, the Statute de Donis Conditionalibus established that the will of the grantor must be observed so donee has no power of alienation.

G. Use The Right Words!!! Armstrong v. Smith (p. 240)Estate in FS, or at least estate in fee tail converted by statute into FS, unencumbered by any estate in her children. Normal rule in operation. Used “offspring” instead of magic words “of the body,” so court interprets as conveyance of FS.

IX. THE LIFE ESTATE (O TO A FOR LIFE)

A. In General Estate in land measured by duration of life/lives. Normally, measuring life is that of person who holds the estate: O to A for life means it

is A’s as long as A lives, when A dies it reverts to O. O didn’t give away all he had (retains a reversion)

So A dies, then it reverts back to O and O’s heirs

B. Life in another person Can also have an estate for the life of someone other than owner of life estate, a.k.a. pur

autre vie. E.g. if A’s life estate passed to third party (B), then B holds it for A’s life. If the holder of estate p.a.v. dies, Blackacre passes to that person’s heirs in case of

intestacy, but what heirs obtain lasts only as long as measuring life. Same is true if estate p.a.v. is devised.

C. Freehold = SeisinOrdinary life interest is a freehold estate (so there is seisin!), and is not inheritable by devise or intestacy but can be alienated IV.

D. Can be Defeasible Life estates can also be defeasible, i.e. determinable, subject to condition subsequent,

or subject to executory limitation, e.g. “O to A for life so long as A remains single.” O to A for life then B for life. A has a life estate, B has a life estate, O has reversion.

When A dies, B’s life estate becomes possessory (i.e. seisin passes). If B dies before A, B’s estate terminates.

E. Can Have Subsequent Life EstatesO to A for life, then to B for lifeA has a life estate, B has a remainder in life estate, O retains a reversion{If B dies before A, A’s estate continues. Upon A’s death would revert to O}

X. LEASEHOLDS

A. Leaseholds include: Term of years Year-to-year Tenancy at will—landlord or tenant may terminate via notice at any time Tenancy by sufferance—tenant holds over after lease

B. Who has what/Examples

1. Basic SituationO to A for 10 years. A has a leasehold. O has reversion and seisin, because O’s reversion is a freehold while A’s leasehold is not. In other words, O has a FS subject to a term of years.

2. Determinable Term of Years O to A for 10 years if A shall so long live. A has determinable term of years, O

has reversion and a possibility of reverter. The natural end is the reversion If A dies, then it is an artificial end and it is a “possibility of reverter.”

3. Leaseholder Conveys to BO to A for 10 years, then A conveys her interest to B and her heirs? B has a term of years, O has seisin and a reversion, A has nothing.

4. If A dies:If A dies in the 10 years, then A’s heirs or legate would get it

5. Not a Leasehold:O to A for life then to B and heirs. A has life estate and possession, B has vested remainder in FS (not reversion because B is not the grantor), O has nothing. (Not a leasehold)

C. Rights Term of years can be alienated, devised, or descend.

D. No SeisinOnly freeholders, the one in possession (O)

E. Cases

1. Thompson v. BaxterIssue is whether the instrument created a life estate in . Also whether tenancy at will or tenancy at sufferance. TC for because life estate. AC affirms.

2. Smith v. SmithLife estate created. Waste.

3. Brokaw v. Fairchild - claims right to remove and improve house. Rule is any act of life tenant which does permanent injury to inheritance is waste. Use of estate ok, but no right to exercise act of ownership.

XI. FUTURE INTERESTS

A. In General

1. Possession?A future interest is a nonpossessory interest capable of becoming possessory in the future.

2. Example“O to A for life and then on A’s death to B.” A has possessory life estate, B has remainder, which is a future interest that will become possessory on A’s death.

3. Future Interests May be Legal or Equitable1. Legal—created without imposition of trust, e.g. O to A for life, remainder to

B and heirs2. Equitable—created in trust, e.g. O to X in trust to pay income to A for life

and on A’s death to convey assets to B.

B. ReversionFuture interest left in grantor after conveys vested estate less than what he has. Such as with a life estate, terms of years, etc.

1. Implicit/ExplicitImplicit: “O to A for life” or explicit: “O to A for life with reversion to O.”

2. RightsFully transferable IV or by will, and all reversions are considered vested (which matters for RAP.)

C. Possibility of ReverterWhen grantor carves out determinable estate, usually determinable fee

1. ExampleO to A and heirs so long as liquor is not sold on premises. A has determinable fee, O has possibility of reverter.

2. RightsCannot be created in grantor, and at common law could not be transferred IV although now in most jx it can.

D. Right of EntryWhen grantor creates estate subject to condition subsequent and has power to cut short

1. ExampleO to A and heirs, but if liquor is sold on premised, O has right to reenter and retake.

2. RightsCannot be created in grantor, and at common law could not be transferred IV although now in most jx it can.

E. Executory InterestFuture interest in grantee that, to become possessory, must divest prior estate or spring out of grantor in future.

1. Shifting/SringingShifting—O to A and heirs but if B returns from Rome to B and heirsSpringing—O to daughter A when she marries B

2. Not allowed at CLTraditionally, at common law:1) No springing interests, i.e. no freehold could be limited to commence in

future. O to A and heirs when marries B ineffective. Seisin remained in O. O to A and heirs tomorrow – no good. Springing

2) No contingent interest could be created to follow a term of years, because of gap in seisin. (Currie says this is partly wrong.) O to A for 10 years and then to B and her heirs – seisin is not in A (leasehold) so passes from O to B over 10 years.

3) No abeyance in seisin could exist between successive freehold estates.4) No shifting interests, i.e. no future interest could cut short an existing freehold

estate. O to A and heirs but if B returns from Rome to B and his heirs. You can’t create a condition to benefit a third party. The next interest has to be a

remainder in grantor, because creating future interests unknown to common law would reduce marketability and the value of incidents.

The only thing that can follow a fee simple determinable is a reversion to the grantorOtherwise, you are confusing the marketability of the land

5) Could not have a contingent remainder after a term of years. O to A for 10 years, then to B if B survives A. Seisin might spring forward from O to B.

3. Statute of UsesBecame permissible after passage of Statute of Uses with magic words “bargain and sale.”

4. Village of Peoria Heights v. Keithley (p. 286)Estate on condition subsequent. G to village but if used as a saloon then reversion. Then G conveyed his possibility of reverter to K. K has no c/a because this is not a transferable interest at common law. Violates rule against shifting interests. (Basically is a shifting interest in two conveyances)

5. Trustees of Cavalry v. Putnam (p. 288)Issue is whether grantor, on behalf of himself and heirs born and unborn, has power, prior to a breach, to waive all possible right of reverter and the heirs having the same power, after condition broken, can living heirs, prior to breach, waiver their own possible rights and foreclose those of unborn heirs? No rule why not.

F. Remainders (O to A for life then to B)Future interest in grantee w/ possiblity of becoming possessory upon expiration of prior posessory estate created in same conveyanceO may give up everything that O owns

1. Different from ReversionIt is created by the same interest at the same time. It is created in a party different from the grantor. Cant have a remainder in the grantor

2. Four features:1. Created simultaneously with and in the same document as a prior possessory

interest, and are what remains after that prior interest, 2. Prior interest must be immediately prior to the remainder and there must be no

gap in seisin between them except as an executory interest, 3. Prior estate must end naturally and cannot be cut short by a divesting event, or

the future event can take effect only as an executory interest4. Must be held by a person(s) other than grantor of document in which they are

created.

3. ExampleO to A for life then to B if B is then living. B has remainder because B’s interest is capable of becoming posessory on termination of the life estate.

4. What can/can’t it do: Can never divest or cut short prior estates but must always wait until it expires Can follow fee tail, life estate, or term of years but not FS.

Term of years – O to A for 10 years, then to B and her heirs. B has seisin, O has disappeared, even though B has no possessory interest. “B has title to blackacre subject to A’s term of years.

Can’t have a remainder in the grantor

5. Two types:i. Vested--transferor has created in an ascertained person(s) a present right to

take in the future. No conditions that could interfere. Presumption is in favor of vested remainders b/c alienable. Will become possessory whenever and however.

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

a. Indefeasible—holder is certain to acquire and retain possessory estate

b. Subject to open—vested in class of persons, at least one of whom is qualified to take possession (e.g. one children but there may be more to come). O to A for life, then to B’s children. This is a remainder vested subject to partial divestment or vested interest subject to open (as long as 1 child has been born – it is vested, until then it is contingent on B having at least 1 child)

c. Subject to complete defeasance—either subject to condition subsequent or inherent limitation of estate. O to A for life, then to B and B’s hers but if B does not marry C, then O has a right to re-enter. B will have a fee simple subject to a condition subsequent. O does not have a reversion, he has a right of reverter

ii. Contingent--subject to condition precedent or is transfer to unascertained person(s) or unborn either at time of transfer or later, up to time the prior estate end. Disfavored b/c not alienable. Does not go to remainder-man however and whenever. O retains a reversion

Ex. O to A for life, then to B and her heirs if B marries C (A’s estate may terminate w/o B taking to control). So A has life estate, B has contingent remainder, and O has a reversion

a. Selling contingent remainder – Still contingent. A contingent remainder may be transferred.

b. If remainder-man dies before life estate holder - There is no condition that B must outlive A. So if B meets the conditions, then it would pass to B’s heirs upon A’s death

c. There are no heirs of a living personA has a life estate, remainder in B’s heirs. This is contingent remainder b/c we do not know who B’s heirs will be until B dies. It will vest upon B’s death. Could be a reversion if B dies w/o heirs

6. Who Has the Rights:O to A for life then to B and her heirs (life estate and a vested remainder in fee simple)No reversionary interest, the whole thing was given awayA has possessory interestB is not entitled to possession, cannot make a cause of ejectment, but B can maintain a cause of action in unnecessary waste against A.

G. Rule in Shelly’s Case (O to A for life, then to A’s heirs)If you attempt to create a freehold in the ancestor (A) and a remainder in the heirs of A

1. TextbookWhen the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, “the heirs” are always words of limitation of the estate, not words of purchase.

2. GilbertsIf 1) one instrument 2) creates a freehold in land in A and 3) purports to create a remainder in A’s heirs or heirs of A’s body, and 4) the estates are both legal and equitable, then remainder becomes remainder in FS or fee tail in A.

3. How it works – A gets a FS“O to A for life then to A’s heirs.” “A’s heirs” become words of limitation rather than purchase. RSC converts remainder limited to A’s heirs into remainder in FS in A. Then Doctrine of Merger gives A a fee simple.

4. What you need:Prerequisites are 1) life estate, i.e. freehold and 2) remainder in A’s heirs either explicit or implicit

5. Rationale for Rule: Traditionally, attempt to preserve landlord’s incidents by not allowing grantor to

avoid descent by conveying instead (to screw landlord out of incidents) Modern, promotes alienability of land

6. Does Not Apply to Leaseholds/Executory Interests – Subvert the Rule

e.g. “O to A for 100 years if A shall so long live and then to A’s heirs.”Also can get around if one estate is legal and the other is equitable.

7. CritiqueUnder-inclusive, i.e. too may ways to get around it (as above). Operates regardless of O’s intent.

8. McCrorie v. Creswell (p. 294) – Must use “heirs” not issue or childrenConflict re: interpretation of will. TC interprets testator devised to RMT life estate and, by implication, devised the remainder in fee to her children, the s. RMT’s deed to Martin, therefore, conveyed only her life estate. So Martin’s deed to Mrs. Creswell gave her an estate pur autre vie, which her son, , inherited. Issue is whether Rule in Shelley’s Case means RMT acquired fee defeasible upon her death without children. Rule in Shelley’s Case requires term “heirs” or “heirs of body” be used in technical sense, not issue or children, etc. AC affirms TC.

H. Doctrine of Worthier Title (O to A for life and then to O’s heirs)

1. Textbook Converts a remainder professedly limited to heirs of grantor into a reversionary interest in the grantor

2. Currie’s WordsWhere attempt to create freehold followed by remainder in heirs of grantor, instead have reversion to grantor to preserve incidents and alienability. In other words, DWT does the same thing for IV conveyances that RSC did, which is ensure that property passes by descent rather than conveyance.

3. How it worksO to A for life, remainder in O’s heirs. DWT converts remainder in O’s heirs (which is void) to reversion in O.O must only give to heirs through rules of intestacy

4. Caveat – Must say “Heirs”Caveat: As with RSC, magic word is heirs, not issue or children

5. Cant create remainder in selfAt common law, cannot create remainder in self, e.g. “O to self for life.”

6. RationaleAs with RSC, protecting the landlord’s interests. O can grant to heirs but only through laws of intestacy.

7. Stewart v. Merchants National Bank (p. 298)Petition to revoke trust. Issue is whether is sole beneficiary of trust. TC held could not revoke because interests of minors and unborn heirs involved. AC holds for , since intent of trust was not to vest an interest in heirs. So this is a reversion via the Doctrine of Worthier Title.

I. Doctrine of Destructibility of Contingent RemaindersContingent remainder is destroyed if does not vest at or before termination of preceding freehold (life estate or fee tail) estate.

1. ExampleO to A for life, remainder to A’s children who reach 21. At A’s death, children are all under 21. Remainder is destroyed by the Doctrine and Blackacre reverts to O in FS absolute.

O to A for life, then to B’s heirs. At time of conveyance it is fine, it is a life estate in A with a contingent remainder in B’s heirs. But if A dies before B, then the remainder cannot vest (no heirs of a living person). So then it would revert to O (he is the only one who can have seisin) and when B dies, it would spring over the dead A and to B’s heirs.

It was valid, but then becomes void if it does not vest a or preceding the termination of the last prior vested freehold – the contingent remainder is destroyed when A dies before B.

2. RationaleAvoid abeyance of seisin to preserve incidents.

3. Termination1) natural, upon death of life tenant or 2) artificially, e.g. forfeiture or merger.

4. Does not apply to:leaseholds, vested remainders, executory interests, personal property, or interests in trust.

5. Avoided by:term of years rather than life estate or by creating trustee.

6. Ryan v. Monaghan (p. 302)No one has heirs while alive. Doctrine of destructibility of contingent remainders.J to Wife for life then to son’s heirs. The wife dies and the son does not have any children, who are the son’s heirs? There is nothing for the remainder to vest in – the contingent remainder fails.

J. Doctrine of MergerLife estate and next vested freehold can be merged. In other words, when 2 successive vested estates come into the same hands, they merge, with the lesser estate merged into the greater.

1. EffectThis has the effect of destroying intervening contingent estates.

2. ExampleO to A for life remainder in B and heirs. A has life estate, B has a vested remainder in FS. If then B to A and heirs, A has vested remainder in FS in addition to her life estate. These interests merge, so A is owner of Blackacre.

3. Destroy Contingent Remainders/Squeeze People OutSo, contingent remainder can be destroyed by doctrine of merger, as in Note 1 on p. 309. O to A for life then to A’s widow for life (and O is still alive) with a remainder to B and her heirs. A’s widow has a contingent estate; B has a vested remainder. If B sells to A, then A has a life estate and a fee simple – which merge – and A’s widow is squeezed out of the picture.

4. Does not apply if the life estate and merger were created by the same instrument

O to A for life, then A’s widow, then to A’s heirs. Looks like a Shelly’s case. There is no merger then.

K. Statute of Uses (1535)Where any person(s) is seised in any lands to the use, confidence, or trust of any other person(s) by reason of any bargain, sale, feoffment, they shall be seised of the same lands in such like estates as they had in use, confidence, or trust and shall have estate title, right, and possession.

1. Purpose & EffectProtect incidents by converting equitable right into a legal estateThe landlord is hurt – when there is an estate in A with use to B, then must either get rid of A or get rid of B. The SOU gets rid of A. Like quia emptoresThe person who has the use, has the seisin

2. Change in how to make conveyancesPrior to statute, livery of seisin was required to convey a legal estate. After statute, could convey via paper transaction, i.e. bargain and sale.

3. Springing/Shifting is OKCould also create future interests formerly not allowed under common law, including springing and shifting interests, a.k.a. executory interests.Before the statute, A had a valid equitable springing interest. The statute turns it into a valid springing interest at law.Must use magic words (B&S)

4. ExampleO to A and heirs for the use of B and heirs. B has seisin because B has use. Before S/U, O could not convey to B and heirs by bargain and sale, without livery of seisin. After S/U, can transfer legal freehold without livery of seisin by means of bargain and sale.Look at the intent of the grantor. A was the legal owner, B was the equitable owner. A drops out and B holds a legal fee simple.

5. Uses Limitation – Active UsesNote that the statute does not execute active uses or uses upon a use. (Currie’s analogy: one staircase only)

6. Does not affect Destructibility of Contingent RemaindersNote also that is does not effect destructibility of contingent remainders, although executory interests are indestructible. So you want to make a shifting or springing interest and not a destructible contingent remainder.

O (B&S) to A for life then to B’s heirs. Turns what was an equitable contingent remainder into a legal one, BUT it is destructible.

a. How to avoid it – springing interestO (B&S) to A for life (then need a gap), then to B’s heirs. SO say “O to A for life then to C and her heirs BUT IF B has heirs then to B’s heirs. This does not create a remainder, it creates a shifting executory interest.

b. To avoid it – term of yearsO (B&S) to A for 1000 years if so long live – no seisin.

c. To avoid it – springing interest #2O (B&S) to A for life, then one day after A’s death to B’s heirs. Creates a springing interest

7. RAPLed to creation of Rule Against Perpetuities to limit executory interests now made possible under S/U.

8. Can avoid rule in Shelly’s CaseThere is an assumption that there is a remainder in RSC.

9. Blackman v Fysh (p. 317)Executory Devise to get around destruction of contingent remainders

10. Use upon a Use – Only Works Oncea. 3 story structure instead of 2O to A and her heirs to the use of B and her heirs to the use of C and her heirs. The statute only executes the first set of uses. So A drops out, B has a legal fee simple and C has a use.

b. Consequence of 3 story structure:O (B&S) to A for the use of B and her heirs.B&S only gives A equitable fee simple (which turns into a legal fee simple). So then B is not under the statute b/c we already used it once.

11. Use after a use – It’s the Same DogThis is OK. And subsequent uses turn from equitable into legal.O to A and her heirs, to the use of B for life then to the use of C and her heirsB’s equitable life estate becomes a legal life estate, and then C holds a vested remainder in fee simple (whenever and however B dies, C gets it) and that becomes a legal fee simple.They both hold from AThe statute will execute all fleas on the same dog, but will not execute on the back of the fleas

12. Easy ways to get around the SOUa. Modern Trusts – give A affirmative dutiesO to A and her heirs for the use of B and her heirs, A to manage the property. In the modern trust, A is bank, B is a two year old. Convey the property to the bank to manage the estate for the benefit of B. The trustee has legal title, equity recognizes the rights of the trustor.

XII. POWERS OF APPOINTMENT

A. Basics Power given by owner of property (donor) to another (donee) to appoint the taker of

the property (appointees). Not an interest in property!!

Exercise of the power is not mandatory and terms under which it may be exercised may be circumscribed.

Appointees take property by virtue of grant from donor although they do not become known until donee has exercised the power.

1. O to A for life then as A shall appoint. A may be in a better position to figure out who should get it later.

Circumstances may change. i.e. the donor may die.

B. Types of P/A include:1. General—permit appointment of anyone donee chooses, including self2. Special—class of appointees limited (such as my children/my close friends –

Rowlands)3. Exclusive—if power allows donee to appoint one or more of appointees but not

necessarily all4. Non-exclusive—opposite of exclusive5. Mandatory/powers in trust—You must appoint something - c.f. Rowlands case

(must appoint something to the maid)6. Discretionary—grantor doesn’t give everything away, if it is not exercised there

is a reversion.7. Testamentary—to be exercised only in will, e.g. O to A for life then as A shall

appoint by will8. Inter Vivos—to be exercised only IV, e.g. O to A for life then as A shall appoint

during lifetime

C. No title vests in donee until he exercises the powerGilman v. Bell (p. 320)TC held did not take a life estate or fee simple, but held only power of appointment IV. Rule is no title or interest vests in donee until he exercises the power, and no court can compel him to accept. AC affirms that has no interest in property.The power to dispose is not a property interest and so the creditors of the holder of the power cannot take the property

D. Creditors cannot take, unless the settlor makes self beneficiaryBank of Dallas v. Republic National Bank of Dallas (p. 321)Issue is whether the income and/or the corpus of an irrevocable spendthrift trust created by the settlor for the settlor and her children be reached by garnishment for a debt of the settlor. No part of trust created for others can be taken by creditors, but where settlor makes self beneficiary of trust, void where creditors are concerned and they can reach the interest. P/A is testamentary.

E. Special, Discretionary TrustIn re Rowlands’ Estate (p. 325)Special, discretionary P/A. Criteria for trust: 1) certainty in subject, 2) certainty in object, 3) power must be imperative.

XIII. CONCURRENT ESTATES

A. Overview/What is it?Permit co-ownership of land by two or more persons. Each tenant has right to possess the whole, but may agree to give exclusive possession to any one of them and to share duties however they want.

1. Four types:1) Joint tenancy2) Tenancy in common3) Tenancy by the entirety4) Coparceny

O to A and B and their respective heirs

2. Rights/Duties No c/a for title by adverse possession by co-tenant because has right to occupy,

doesn’t have to pay rent. So no cause of action Unless B erects a fence or puts up a sign and makes clear that the intention is

to keep A out Depending on jurisdiction, if farm the land or rent to third party, duty to share

profits apportioned among cotenants. (c.f. Statute of Anne.) Same issues with drilling for oil and selling it, fixing leaky roof, etc. Moral of story is that co-ownership complicates things. When fixing things – if an efficious intermeddler – then no right to obtain

contribution But if necessary repairs – that is harder

No obligation for B to pay rent to A BUT, some courts say that although there is no wrong, it is unjust that one

party should enjoy it when it is owned by all (McKnight v. Basilides) BUT, the principle on the other side – no duty for rent (Pico v. Columbet) ALSO, see Statute of Anne

Action for waste

3. The unities/strawmanO to A and heirs as JT with O and heirs. Some courts would rule this is a TIC because unities of time and title destroyed and others not allow it at all. So how to accomplish that result? Convey to strawman! (c.f. Riddle)

B. Types of Concurrent Estates

1. Joint Tenancy Own by the half and by the whole, i.e. each owned undivided interest in whole

and upon death of one Traditionally, presumption of joint tenancy. Now TIC.

Property passed automatically to survivor without formalities of inheritance, a.k.a. ius accrescendi or right of survivorship.

a. Right of Survivorship Death of A, his share goes to B Doesn’t mean that B inherits it – only that A’s interest terminates and B’s

interest is the only interest and therefore it is the exclusive interest If A dies leaving a will for his property to go to C – A’s estate ends w/ his

death and there is nothing to pass by will. So C gets nothing.

b. Four Unities Four unities (title, time, interest, possession) required for creation of joint

tenancy, which become tenancy in common if any unity destroyed, e.g. by conveyance.

Title – must both gain title by the same instrument Time – the instruments must be acquired at the same time Interest – they must have the same kind of interest – i.e. can’t be a lie

estate and a fee Possession – they must have equal rights for possession

c. Conveyanceo In a conveyance the unity of time and title are destroyed. If A sells

his interest to C, then B & C acquire their interest at a different time, and by a separate interest.

o This can be done w/o the OK by the other tenant - Don’t need permission

o Just destroy the jt – turns it into a tenancy in commono Destroys the survivorship

d. To Destroy a JT:o Partition or Severance

2. Tenancy in Common Only unity of possession required. Tenants in common have undivided interest in property but no right of

survivorship, so upon death of each, undivided share passes to takers under that tenants will or by intestacy.

Modern day presumption of tenancy in common. If A & B are tenants in common and A conveys to C, there is then tenants in

common btwn B & C If they use the wrong words – like tenants in common with survivorship, the court

may disregard the intentions and call it a tenancy in common w/o survivorship (survivorship is only for jt), even though the technical term probably wasn’t understood by the non-lawyer who probably wanted to create a jt.

a. Camp v. Camp p. 274 – preference of which phrase came firstIssue is whether title acquired by mother and son to real property conveyed to them as TIC with right of survivorship, which is a contradiction in terms. TC says intent was to create JT and therefore estate passed to mother in FS . AC reverses, based on canon of construction that preferences the phrase that comes first.

3. Tenancy by the Entirety Can exist only between husband and wife, who hold as one person.

o This is only recognized by ½ states – and it is presumed; but you may want to use the magic words – “tenants by the entirety”

Surviving spouse takes whole upon death of other. (there is survivorship)o If A dies and wills to C – C gets nothing, upon A’s death, B has it

Acting together, they can sever the tenancy or partition, but not alone. o Partition is not allowed, even in a court

Divorce destroys unity of marriage on which tenancy by entirety is based.o There is a fifth unity – marriageo Some courts say this turns into a JT (to keep the survivorship), but some

courts say that the parties wouldn’t want this and so it is a TIC If a party tries to create it but are not married, then perhaps JT is the closest or

perhaps courts will presume TIC

4. CoparcenyObsolete

5. Disadvantages of JTIf you die first, then your family loses.

C. Statute of Anne 1704 Common law rule is that because each tenant is entitled to enjoyment of whole, no

action lies in favor of out-of-possession cotenants for such enjoyment. 1704 Statute of Anne required that where one cotenant received rent for land from

third person, he must account to others for share. Not to apply to lawful use of property by cotenants who occupied land themselves. Cotenants may not exclude others from enjoying right to possession of whole; if they

do, ousted may sue for ejectment. Action for waste. Can produce oil but can’t exclude others from doing it too.

D. Termination of Concurrent Tenancies End when property is conveyed to third person because destroys unities.

Destroys a JT, but has created a TIC May be severed by 1) lease, sale, and maybe mortagage or 2) by bilateral agreement

of parties or 3) by court.

Severance turns JT into TIC while preserving concurrent ownership. O to one half interest to A and her heirs as jt w/ O and her heirs creates a TIC. You can divide a parcel, not convey it to yourself and create a jt (although some

courts would disagree Partition destroys co-ownership by physical division of the property into two parts.

A physical division of the property into two partitions. Must be done by agreement or judicial decree.

Either tenant has the right to demand a partition of the property w/o having to show any reason

But, each party has an undivided interest

1. One JT may unilaterally sever joint tenancy w/o strawman (Riddle)

Previously, if A wants to turn her JT into a TIC, she would have to use a strawman to convey her interest to (can’t convey something to yourself). A to C and then C to A. The conveyance would destroy the JT.BUT, the court in Riddle said you can destroy the JT, just by saying that it is a TIC.

a. Riddle v. Harmon (p. 278)Whether Riddle unilaterally terminated joint tenancy by conveying her interest from herself as joint tenant to herself as tenant in common. TC says she did not. Court reexamining whether necessary to create strawman to create joint tenancy. AC reverses, saying one joint tenant may unilaterally sever joint tenancy without use of intermediary devise.

b. Criticism of the ruleThis allows “secret severance.” Can play both sides of the coin – if you die first, then you can say that there was a TIC, but if the other side dies first then say it was a JT.

2. Severance Complications with more than 2 partiesO to A and B and C and their heirs as JT. A to DThere is a severance from D, but not from B and C. So D is a TIC, but B&C are JT. So the joint tenancy is tenancy in common with . If D dies then D’s heirs or legatees get D’s interest. If C dies, then B gets C’s interest. B gets 2/3 of the interest. So B or C can have twice as much as D.

3. Partition via Court Judicial Decree (Allison)The court will divide the property physically or will sell it and split the proceeds. There is a right to partition – cannot be done unilaterallyAllison v. Powell p 283Does pending action to partition real estate owned by JT with right of survivorship survive the death of JT at whose instance the action was commenced? Yes. Because appellant’s decedent had not divested himself of interest in real estate before his death, his interest passed by right of survivorship

to surviving JT. Joint tenancy had not been severed and right of survivorship not defeated by pendency of action in partition.

4. Does a mortgage sever time, title or interest?o Can argue either way:o Originally, a mortgage was a conveyance in fee simple determinable (A to C so

long as the debt is unpaid with a possibility of reverter), or a fee simple subject to condition subsequent (A to C and her heirs but if the debt is repaid then the property reverts)

This would be a transfer of property and would sever titleo BUT, most states have abandoned that notion and say that all C has is a security

interest, but time and title are preserved. But, could argue that no longer are the interests joint

But, some states will say that a mere mortgage will not in itself make a severance

XIV. MARTIAL ESTATES

A. Basics – Who has what

1. In textbook’s words: At common law, H and W hold title to property they acquire during their

marriage, each in his or her own name, just as they hold property they brought to the marriage.

May choose to take title as joint tenants or by entirety but if they do not, income and property purchased with income belongs to them individually.

Historical exceptions: o H’s right iure uxoris to alienate property during marriage even without W’s

consent. o W entitled to support during marriage and would enjoy full ownership of

individual property at his death, but lost immediate control over it. At death of spouse, common law gave surviving spouse life estate.

o W entitled to one-third of lands of which H had been seised of an estate of inheritance at any time during their marriage.

o H entitled to life estate in any lands W held in fee simple or fee tail during marriage provided child had been born alive during marriage.

2. In Currie’s words: H and W continue to own separately all property owned before marriage as well

as acquired during. H’s duty of support translated into duty to pay alimony after divorce. H had right to control use and profits of W’s property until the enactment of the

Married Woman’s Property Acts. (each spouse not only owned but controlled their property)

3. No Right of InheritanceIf one spouse died, no right of inheritance of real property. Could have TE with right of survivorship, but not by virtue of marriage alone but by nature of conveyance of TE.

B. Dower & Curtesy

1. What they are – REAL PROPERTY Traditionally, right to dower/curtesy in any real property (does not apply to

personal property!!!) seised of an inheritable estate at any time during the marriage.

Dower—W’s share in real estate owned by H after H’s death. 1/3 interest. Applies only to legal estates (seisin). Right cannot be extinguished by being relinquished or by IV conveyance. Applies only to inheritable estates – no life estates. Only to interests in property – no appointments (its only a power) The dower applies not only to land that is owned by the husband but all

land that the husband was seised during the marriage

Curtesy—H’s share in real estate owned by W after W’s death. Applies to both legal and equitable estates. Full Life estate. Right can not be defeated by will or by IV conveyance. But requires there to have been issue that were born alive. (Hmmmm…interesting)

2. Purpose: Provide for support of surviving spouse – not a bad public policy

3. Cons: 1) curtesy’s need for issue born alive, (doesn’t work into the purposes)2) inequality between H and W, (H got more – she only got 1/3)3) impedes marketability, and in a way that is not apparent and can therefore cause problems, 4) no support if no real property.

But as between will, dower, or statutory share, each has costs and benefits (because we are at the U of C).

4. Modern rights still exist in some states but have been amended by statute, which usually

set S/L for c/a on right. Statutory share: 1/3 with kids, ½ if none. Uniform Probate Code (p. 265)

includes in statutory share the property that has been transferred as a scam to cheat the spouse.

Advantage – includes the estate, not just the land

Modern states may give a choice of 1) accept will; 2) take dower; 3) take statutory share. O owns blackacre, whiteacre, shares of stock. O to A and her hers (IV). O

dies, leaving everything to cat hospital in his will.a. Advantages of eachWill – wife doesn’t get anythingDower – she would have 1/3 life interest in whiteacre, blackacre, nothing in the stock – how old is she?Statutory – if there are children. 1/3 fs in white acre, and 1/3 of stocks. She gets none of blackacre (Can be defeated by IV conveyance)

5. Complications for a Potential Buyer of BlackacreSince the husband cannot convey wife’s dower interest, need to get her release of dower. But just like in recording, need to go back in time to make sure there aren’t outstanding dower interests. (only have to go back for a certain time – dower was a life estate interest – only go back as far as she may be alive).

6. To cheat the wife out of dower:Make it an equitable title (no dower in equity) – E to T for the benefit of F (married man)Make it a corporation – personal property, not real property

7. Having someone else hold the land in trust for Ho If it were a passive trust (H to S for use of H), then the statute of uses say the

person with the use has the legal title. The legal title would remain in the husband, and he would be seised.

o BUT, where there is only a promise to reconvey blackacre, H is not seiseda. Melenky v. Melen p. 262 – Don Juro Strikes Again seeks right of dower. Property was sold by H before marriage, so never seised of it during marriage as required. But there was an oral promise to reconvey, like a trust. The court finds this is an equitable interest, and therefore no dower. SC for .

C. Community PropertyThis is the rule in CA, Southwest, West and Northwest including IDAHO

1. The System Property earned by either H or W during marriage belongs to marital community

of which each is half owner. With divorce or death, is equally divided. Default rule is that property owned prior to marriage, or acquired by inheritance,

devise, or gift during, remains separate property, although parties can choose otherwise.

2. Three principals for determining what is separate/communal:1. Accrual—when services that earn money are performed (not when the money

is obtained)2. Tracing—what begins as separate remains separate but what acquired

communally remains communal.3. Apportionment—labor for profit is product of community, so have to

apportion, whereas pure profit from separate property remains separate

a. Exampleso Income earned during marriageo NOT income earned before marriageo NOT the salary earned after marriage for work pre-marriageo NOT inheritance, gift or deviceo NOT money from inheritance that wife uses to buy farm (tracing)o NOT dividends from stock earned during marriageo The labor she does on the farm (the farm isn’t community but the work

is (apportionment)

3. If they start in Comm Prop State and Move to OhioProperty acquired under community property regime retains character even if couple moves to common law state and vice versa.

a. In re Kessler’s Estate p. 266In this case, H controls community property, but note that this is now unconstitutional. Rule is that character of community property does not change where married couple move to common law state or vice versa.

4. Interesting income tax implication: In community property jurisdiction, H owns $50K salary and W owns $50K as opposed to total $100K (earned by one along). Because we live in a progressive tax system, where you pay a higher rate on the second $50K, couples were getting huge benefit until Congress amended tax law by allowing joint return for all states.

5. Putative MarriagesLaw recognizes putative marriage if acting under reasonable, good faith belief that are married because the purpose of community property regime is to ensure adequate support. There are also some theories that provide for obligations of support in domestic partnerships.o Wife is already married, and then a second husband thinks he is married to hero If they just say they are married – no ceremony (need to act reasonable)o Same sex?

a. Theories of allowing property interests in those not legally marriedo Express K – if 2 people live together then make a K. This may be

deemed illegal – trading sex for money, but in Marvin – court held that wasn’t what this was about.

o Implied K – K was never spelled out. The behavior made them understand there was a K

o Quasi K – Unjust Enrichment. It would be unjust for one party to benefit from the other

o Constructive Trust – equitable version of unjust enrichment.

6. Why Illinois didn’t pass itThe women’s bar was against it – 1) they didn’t want to learn a new system; 2) they were afraid of dead beat husbands – they thought of themselves as the bread-winners getting screwed

D. Homestead RightsAnother marital interest is right to homestead exemption from claims of creditors of either spouse. It is a property interest that cannot be defeated by conveyance without other’s consent. Objective to protect from claims of creditors and from alienation by one without permission, thus ensuring home during marriage and life of surviving spouse.

XV. RULE AGAINST PERPETUITIES (RAP)

A. Rule and General PointsNo interest is good unless it must vest, if at all, not later than 21 after some life in being at the creation of the interest.

A conveyance is void if it may vest more then 21 years after the death of the life that is given the life estate. A conveyance is void if it may vest more then 21 years after the death of the life that is given the life estate.

An interest must vest or fail to vest before the end of the period equal to: (1) a life in existence at the time the interest is created plus (2) an additional 21 years.

1. Policy ReasonWe want the land to be alienable, and we don’t want it to be tied up for an unreasonably long period of time. Created after the statute of uses 1535 (SOU), b/c now springing and shifting interests are able to tie up land for long periods of time.

2. Include Gestation period So its really 21 years plus gestation. This is to avoid after-born children of the conveyor being limited

3. Does not apply to reversionary interests even though they do provide uncertainty and do muddle alienability.

4. Beware the fertile octogenarian/after-born children (Jee)An 80 year-old might have a child who is not a life in being at the time of the conveyence and might violate the RAP

5. Beware the Precocious ChildA life not in being, who within a few years after birth has children of their own

6. Beware the Unborn WidowSomeone marries a person who is not a life in being at the time of the conveyence

7. Gifts to classesIf it is void to one member of the class, it is void to the entire class

8. Power of appointment valid if w/in time period not violating RAP

B. How it works. Jee v. AudleyThis is the lodestar case of RAP. It violates the RAP

1. FactsEdward Audley’s will leaves 1000 pounds to:a) the interest to is wife for lifeb) then after her death to the niece Mary H & the issue (this includes all decedents) of her bodyc) if dies w/o issue (dwi) then Jee Daughters will get it

This is not a fee tail, b/c not real property (this is personal property)This is a vested remainder b/c we know that the wife ill die (a) and then the 1000 will go to Mary H (b)

(c) violated the RAP. There is an interest in the niece that is subject to a condition subsequent. When she dies w/o issue, the property shifts to the Jee daughters.

a. How can she die w/o issue 21 years after her death?Dying w/o issue is a technical term that is meant to include any of her heirs that dies w/o issue. Any time her line is stopped.

2. Way to do the test - stepsi. When is the interest created?

Created when the property is first tied up – on death of Audleyii. Who are the lives in being?

Those alive at the time the property is tied up – this can be the people named in the will, or Currie’s 10 healthy babies concept – the important fact is that they are alive at the time when the property is tied up

iii. Kill em alliv. Add 21 years

Question: Is it possible that after all of the people who are still alive at the time of the will +21 years, for the daughters of Jee to take the property. (Can (c) happen after deaths of lives in being plus 21?)

3. How it violates RAP (according to the ct in Jee)1) there might be an after-born daughter. The will states “the daughters still surviving,” but a daughter born after the death of Audley is not a life in being. The Jees may have a daughter after the will takes affect (on Audley’s death). Then the lives in being die, Mary H dies w/o issue, plus 21 years and the after born child would get the property.

Mary H might die w/o issue many years after her own death (direct line dies out). If ever the chain of offspring is broken, then there is a death w/o issue. You can die w/o issue 1000 years after your own death.

4. How the ct. may have avoided the resulta. Wait and See approach:

Don’t ask might this vest too late, but wait until it vests and then ask – did it vest too late. Then you could see if there was an after-born child.BUT, would cause uncertainty in property

b. Jees were too old to have more kidsBUT, afraid of a slippery slope

c. Could have interpreted “daughters” to mean daughters now livingThis plays into the drafter’s intent interpretation. The ct. admits that if the will said the money now to the Jee’s daughters – it would have been the current daughters; but there was a life estate in the middle, so the future taking of the property changes the interpretation

d. Interpret die w/o issue differentlyTo mean die w/o issue herself, not in the fee tail concept of die w/o issue

e. Severability Only the afterborn child is voidPushes for severability. Strike it down as to afterborn children b/c it will be too late. When you have a gift to a class, if it is void to any one in the class it is void to everyone in the class. Strike down the bad parts of the will, uphold the good pars. Notice that severability is already taking place – we sever the wife’s interest, and Mary’s interest – it is just thereafter

f. Do away with RAPA court created the rule, so what a court creates, it can destroy

C. RAP and FS Subject to a Condition Subsequent: Shifting InterestsThe RAP may destroy shifting interests – severableO to A and her heirs but if the property is ever used as a cat hospital then to B and her heirsB’s interest is a contingent interest (not a remainder). It’s a shifting executory interestNOT valid under RAP

The cat hospital can be built after all the deaths of lives in being and 21 years elapse (while it is in control of A’s heirs)

1. So its invalid, now what?Do you strike the whole thing? Does it go back and belong to O or A?Just strike the void part, and A has a fee simple absolute

This is severabilityAsk about the grantor’s intentions. Would they have given A a fee simple absolute if they knew?

Court could call the whole thing off (I like Potato, you like potato)

2. ResultFee simple absolute

D. RAP and FS Determinable: Shifting InterestsThe RAP may destroy this shifting interestO to A and her heirs so long as there is no cat hospital, but if there is a cat hospital then to B and her heirsIt is invalid under RAP

Same as in previous example.It can never go to B. BUT, If there was no shifting interests, then there is a possibility of reverter.

SO, eliminate B and give A a fee simple determinable

1. RAP doesn’t apply to reversionary interestsSo even though the possibility of reverter may happen after death of lives in being +21 yrs; the RAP doesn’t apply to what happens when the interest terminates and reverts back to O

2. ResultFee simple determinable, the only difference btwn this and previous is the possibility of reverter goes to O instead of B

E. Conveying to children as remainders

1. In general – its okO to A for life, then to A’s children

Although an after-born child would not be a life in being, that child will be born during A’s life. The child doesn’t need to be born during the life of its father. The rule is 21 yrs and 9/10 months afterA child that is in utero is considered to be a life in being for purposes of the rule.

a. Sperm BankPerhaps this would be a problem b/c child would be born later

2. Children at age 21 (or 25)O to A for life, then to A’s children at the age of 25A could have children after the conveyence who would not be lives in beingThe extra child would be ok at age 21, but perhaps not at 25 (parents/lives in being die at birth)With “at age of 25” – would be void for all children (if void to one, void to all)

F. Destructibility of Contingent RemaindersBasically in a jurisdiction where the rule of destructibility of contingent remainders is followed, a conveyance that otherwise may be barred by the RAP would be saved by the destructibility of contingent remainders. For example: if the only way that the RAP would be violated is w/ a contingent remainder – the destructibility rule would say that the remainderman would not get it if it didn’t vest/become possessory at the appropriate time. (the precocious toddler could be saved by this)

O to O’s children for life and then to their children and their heirs.o As an inter vivos transaction, is it valid? Yes. What about the life estate in O’s

children? Yes, because this is an estate that is immediately possesory, it is only the children that are now alive.

o What about O’s children’s children? o We revisit the rule of destructibility of contingent remainders

Contingent remainders are destroyed if they do not in fact vest upon the loss of the previous property.

o One of the questions you have to ask is do we have the destructibility in this case and does it obviate the chance of the transfer under the RAP.

OO’s children for life and then grandchildren and heirs by revocable inter-vivos trust.o The life estate in the children is valid – all of O’s children must be born in his

lifetimeo The remainder: it is okay too, because as long as the will is revocable, it is not

tied up, and therefore when you have a revocable trust, the period of the transaction does not run until death.

o For perpetuities purposes it is treated like a will, and the period does not begin to run until death, and O can’t therefore have any afterborn children, b/c O is dead, so no violation of RAP.

O to A for life then to A’s first child to reach 25o After born child of A, who doesn’t reach 25 until lives in being are there

o Counter – rule of destructibility of remainders then this is not void. Either it vests during lives in being or it doesn’t vest at all because it is destroyed

o The child would have to be 25 when A dies for it to vest, or there would be a gap in seisin. If there was a child who reached 25, then it would fine for the rule of destructibility and the RAP.

If a child has not reached 25, then the estate is destroyed. It is destroyed unless it vests in time.

The rule of destructibility saves this conveyence

G. Afterborn WidowO to A for life, then to A’s widow wife, then to A’s issue then aliveViolation – what if A marries someone who is not a life in being at the time of the conveyance, then A’s issue could get the property >21 years after the deaths of the l.i.b.It could be that at the time of the conveyance A is 2 years-old and is not unreasonable to think that his widow would not be a life in being.

a. In Re Manson’s Estate (334)o Testator gave $150,000 in trust to pay the income to his son, Thomas Mason for

life, and upon death, the principal to his issue surviving him. But if no issue, and a wife, the wife acting as a trustee, should hold the sum in trust for testator’s daughter. Testator died. Thomas died leaving behind a wife – whose life estate was contested.

o The life estate attempted to be created for the son’s surviving wife cannot be sustained. Where a secondary life estate is limited upon the life of any wife whom the primary life tenant might marry, it is void as violating the Rule against Perpetuities. Such wife may be a person born after the death of the testator and not in being at the date of the creation of the estate.

o The odd thing about this opinion, is the ct. strikes down the conveyance to the widow herself, b/c she is not a life in being. Her life estate vests upon the death of A, and at that time A is a life in being. NY law states that if you have 1 life estate followed by another life estate, then the second one is void unless it is given to a person who is a life in being at the time of the original conveyance

H. Precocious Toddler O to A for life then to A’s grandchildren born w/in the next 5 years when they reach 25Violation: A is a life in being but could have later children who are not lives in being, those children can then have children w/in the next 5 years, wipe out the lives in being and there will be the grandchildren reaching 25 after the 21 years.Reality: Can A have children and grandchildren w/in the same 5 years? But, if the Jees can have children at 75, a 5 year-old can have children as well.

I. Powers of AppointmentIt is an authority to convey a property – that you do not own in fee simple, and that you might not own at all.General – you can grant to anyone including yourselfSpecial – specific group who you ay convey to

2 questions: 1) is the power itself valid; 2) is its exercise validExample of danger: O to A for life, then as A shall appoint. If this is a will, O will not be around. Suppose after A dies, A by will appoints to A’s children at 25

1. General AppointmentO to A for life, and then as A shall appoint (by deed or by will)

It is advantageous to have a general power that can be exercised both by deed and by will.

It is then valid, if the power is obtained w/in the period of the RAP. This one is – the power begins at the point of A’s death. It is then conveyed on A’s death, and the land is therefore not tied up. Therefore there is no concern under the rule, and the general power to convey by deed or by will is valid if it is obtained w/in the period of time of the RAP.

2. Special Appointment, Second Look Doctrineo O A for life, and then to such children of A as A shall appoint by deed or will.

This is a special power to appoint. The land can only go to A’s children, and therefore it is tied up.

B/c the power ties up the property, the power itself is invalid if it can be exercised beyond the period of the rule, b/c it is tied up during the existence of the exercise. This clog on alienability is what invalidates it. You have to include the power was created b/c the land is tied up – it then runs from the creation of the power, you therefore determine the lives in being when O conveys to A, and then A might have an afterborn child. And this could violate the RAP.

Caveat – when you are applying this rule, you take a second look. Where this comes from, Currie doesn’t know – b/c by the time the power is exercised you know if there are afterborn children – this is called the second look doctrine.

J. Checklist of things to be careful about w/ RAPo When making a will think about problems with afterborn people triggering the

RAP.o Be aware weather or you are exercising a power of appointment

What kind Look at from the time of the will Special or testamentary

o Beware of age requirements past 21 (when reaches 25 years old for example is too late and triggers the RAP)

o Be careful that someone must be alive in the future, who is not alive now.o Describe people by nameo Include a saving clause, b/c you can never be sure that you have predicted all of

the scenarios that might cause remote vesting Any interest that has not vested w/in 21 years of the death lapses. This

clause will insure that any interest that might have inadvertently been

created that would violate the RAP would be destroyed by the conveying document itself.

XVI. LAND CONVEYANCES

A. 4 Steps1) Hiring of an agent2) Making a K of sale3) Closing4) Recording

B. Hiring of an agent

1. Find an agent – your own agent!!!o the broker is likely to be the agent of the seller, so he is then your adversary rather

then your agent.o It is wise to hire an agent when trying to buy a house. Usually the agent wants to

be compensated for his work through a commission, which is commonly a percentage of the price (another reason why it is not a good idea for the buyer to trust the agent, b/c he might be on the side of the seller). If the contract does not specify the commission %, it is inferred, and set at the reasonable market value.

2. When the agent gets the commissionYou earned the commission under the common law, by producing a willing buyer. A buyer willing to enter into a contract of sale – therefore the owner of the property can not refuse to pay the commission, b/c he doesn’t want to sell anymore, or if the owner wants to go behind the broker’s back to make a separate side deal. Therefore the common law does not require sale, only the finding of a willing buyer produced by the broker – Even if the buyer defaults it is still no defense.

In Tristram’s Landing, Inc. v. Wait – the Mass. Ct. states that the common law is contrary to the contract itself and the seller would not pay for the commission if there has been no complete sale.

C. Making a K of Sale

1. Must be in writing – statute of FraudsThe statute of frauds demands that the K must be in writing, as well as the deed itself.

a. Why? Evidentiary reasons Prevents frauds Cautionary value, that the solemnity that signing your name to a

piece of paper, is a big thing and should not be undertaken lightly (looking Dobin in the eye, and saying goodbye)

b. HistoryThe Statute of Uses (1535), did away with the livery of seasin requirement, and you no longer had to transfer land by handing over sod. In 1677 the Statute of frauds mandated that a sale of land must be done in writing. c. Exception – Doctrine of Part PerformanceWhen a buyer pays consideration for the land and takes possession of it or improves it, those actions constitute an adequate substitute for a writing. Some cts require that the buyer have aid at least some consideration, payment alone is never sufficient to satisfy the doctrine of part performance. So cts go further and require that the buyer improve the land, as well as take possession of it. UCC takes position that part performance is binding for both parties

2. Must include:o The partieso The land – described to the point where it is different from other plots of lando The priceo What type of deed are you going to give

general warranty special warranty quit claim

o (optional) the fixtures, are they supposed to be part of the land conveyance or not. It is better to specify this, and not leave it up to the court.

o (optional) specify what happens to the earnest money (down payment/deposit), is it retained by the buyer, the seller, or is it applied to the purchase price

o Who bears the risk of land damage in the interim time between the negotiations and the closing.

o Is there a warranty of marketable title? (not just possession of blackacre, but the right to sell it as well – this can often be implicit; however, a buyer will often insist that a warranty of marketable title is also explicitly included in the contract).

Not enough that I own blackacre and can prove. Means that it is “reasonably free of encumbrances and other title defects and free of the risk of litigation.”

There is marketable title even if I own it by adverse possession If you, the seller, do not wish to give marketable title, you can give

insurable title (as long as there is an insurance company willing to insure the fact that the title is marketable.).

3. Installment Land Sale K/Mortgages – Alternative K for land saleo This is usually done on credit.o This is commonly done through a mortgage

title is immediately transferred, and the mortgage is given to the lender who is often not the seller.

In case the mortgage is not paid, the lender gets the land to sell and cover the debt.

o Can be done by financing by the seller and retention of title as securityo The installment land substitute includes retainment of the title by the seller as

security for the payment of the loan. The buyer gets to occupy the land, but does not get title to the land until the installments are satisfied.

o O contracts to sell blackacre to A on installments. A goes in possession and begins making payments

o At common law a mortgage was a grant of a fee simple subject to a condition subsequent. If I don’t pay off the debt then it reverts. If I pay off ¾ of the debt, then the mortgager would get a windfall – the land and the money. But courts of equity softened it

a. Remedies when A defaults on payments there is a forfeiture of the sums that have been paid and the contract can be

dissolved at the whim of the seller. The common law often enforced such a provision, it is a common provision to see forfeiture and cancellation.

Cts will allow a late redemption of the value of the land etc. –sometimes – Clearest is to sue for actual damages There comes a time when it is clear that it will not be paid back, the right

of redemption is foreclosed, and the land belongs then to the creditor. There is a judicial sale, or an auction of the property – selling it to the highest bidder, and collect the price – then the money, which represents the value of the property, goes 1st to the buyer, because of the mortgage itself which gave a superior interest to the creditor. So 1st you pay off the remaining portion of the debt –

therefore the creditor gets no more and no less then they were entitled to. The debtor is already satisfied, so the surplus goes to satisfy the buyer. We have therefore eliminated the harshness of the old laws of forfeiture, and we have eliminated the perpetual right of the buyer to redemption whenever they wanted in the future.

Suppose there is not enough money from the sale of the land to cover the remainder of the debt? The ct. is the likely to enter a deficiency judgment against the debtor, but bear in mind the debt is still in existence – there can then be a simple contract remedy for the repayment of the remainder of the debt.

b. What happens w/ 2 mortgages? O in purchasing BL borrows money to the 1st national bank (M1) a

mortgage to the property. And then in order to fund a project he takes a second mortgage with a second bank (M2).

There is nothing wrong with that in a lien mortgage state, b/c O is still the owner of the land, and his interest is worth something. The second lender looks at this and said that there is already a mortgage that is going to devalue my security interest in the land, and would have to be sure that there still was significant value in

BL to cover the amount of money lent. M1 then forecloses b/c O has defaulted on the mortgage. What then happens to the M2 interest?

M2’s interest is in O’s remaining interest after M1’s interest, and is therefore subordinate to M1’s interest. So there is money received at the judicial sale, it goes to M1, and if there is any surplus, it would go to M2, and not to O. If M2 forecloses, not M1, it does not affect M1, b/c all M2 has an interest in, is O’s interest in the land.

c. Buyer’s Remedy when all payments have been made and O refuses to convey the land

You can sue for breach of contract. You can sue for the diff. b/n the current market value and the contract price that you have paid.

Or you can sue for specific performance, b/c the remedy for money is not enough – it is inadequate – this is the traditional contractual grounds for specific performance, and this is the paradigm case for specific performance, because each piece of land is unique.

One corollary of this is the doctrine of equitable conversion

4. Doctrine of Equitable conversionNot only for installment land Ks, for all Ks for the sale of land. Equity considers done that which ought to have been done, if you are supposed to convey blackacre, it considers blackacre to have been conveyed, therefore giving the property rights to the buyer. Upon mking the K, equitable title passes to the purchaser for any kind of K (even installment) – purchaser becomes equitable owner of the land.

O contracts to sell blackacre to A on installment:a. O marries and dies. Is there dower in O’s wife?O only had right of action in the price, not in real estate. Also, the marriage was after the conveyence – dower is in anything that the husband was seized during marriageb. There is no dower traditionally in equitable estates. c. No one has seisin – theoretically that is impossible except for thisd. O cannot then mortgage (or convey) to BThis is an anticipatory breach. O has conveyed an equitable title and the promise for a legal title. Luette court says no anticipatory breach and A must keep paying until the entire thing is paide. Buyer has equitable title and can exploit the land.A can cut down the timber – it is a corrolary of the right of possession. Counter – the timber was part of the security for the seller. The security is worth less when you cut the trees.

f. Seller cannot cut the treesg. Paying taxes on the land should be in the K.h. Risk of house burning down – majority says the risk is with the

buyerMechanical application of the idea of equitable conversion. Should be in the K. If there is no change of possession, then perhaps the risk should be on the seller. SBPS.

5. Deeds – General WarrantyBest for buyer, gives the most assurances as to the rts that they gain by the transfer.

Present Covenants – (if they are broken the statute of limitations runs at the time of the delivery of the deed).

The covenant of title – the seller does in fact own the land; the rt. to convey the land Covenant against encumbrances – not only do I own the property

but I own it in full, there are no easements or mortgages, etc., that would encumber the land.

Future Covenants The covenant of quiet enjoyment – if anyone bothers you by

asserting a right against you b/c of some claim to ownership or otherwise. It is a future guarantee against defects in the title, and it can be enforced later on, not simply at the time of the transfer – it does not happen until someone interferes with your enjoyment of the land.

These guarantees are what make the gen warranty deed the best deed for the buyer – not only for the present buyer but for all of the subsequent buyers

6. Deeds – Special Warrantyo Less protection to the purchaser.o The grantor warrants that he or she has not impaired the rt to sell or has not

encumbered the property – and enjoys quiet enjoyment against anyone, on the face of O’s transference.

o All it says is that the conveyer has no encumbrances himself on the title of the land. The only one that is guaranteed is the seller himself.

o They do not make any promises about the people who owned the land before them

7. Deeds – Quitclaim As is. I don’t tell you anything about the land, and you have to take the land the way it is. You have no claims whatsoever against the seller.

8. Deeds - ShortformYou can put in magic words. If you say things “warrant” then you make all the promises of a general warranty deed.

9. Must be “signed, sealed and delivered”

D. Delivery of Deeds

1. Largely a question of intentThere must be an intent of the grantor for the transfer of title.Even if I hand the deed over to the grantee, it may not be delivery. Similarly if I don’t hand the piece of paper over to the grantee there still may be delivery.In gifts – used to show intention, use for evidence, a kind of assurance against fraudulent assertions. But here there is a written deed – which is better evidence.Does it subvert:Statute of frauds helps determine intent - ???Parole evidence rule

a. Brtek v. Cihal (No delivery) The Urbanek estate – was acquired by a family in the name of Joe, then

Joe executes a deed to himself and his sister Mildred – in joint tenancy. The deed was then put it the Mother’s dresser, and was not given to Joe’s sister until after the Mother’s death, and then the question is was the deed delivered?

The deed was never handed over to the grantee, but we know that from gifts of personal property there can be a delivery to a 3rd party for the benefit of the grantee, so the question hinges on the intent of the grantee, or in this case, did Joe intend to deliver the deed.

2. Conditional DeliveryThere are 2 different paradigms here – they are analytically similar, but functionally differentUntil the condition occurs the title doesn’t passCan be great protection for the seller

a. Intra-Family arraignment (basically a substitute for a will)Make out a deed that transfers blackacre to my son, but I hand it to a 3rd party and I say “hand over the deed when I die.” The deed goes to B with instructions for it to go to the son when O dies.b. Commercial escrowIt is an arraignment of the delivery of a conditional deed. It is often but not always a commercial transaction. OA on the condition of $x. The deed is handed to the bank, which acts as the escrowee (or escrow agent) – with instructions to hand it over to A on the happening of a condition (usually the payment of a provided sum).

This is a way of insuring the closing of a sale, and that the payment of a price happens in such a way that neither party looses anything from the non-performance of the other party.

3. Commercial Escrow Agreemento The escrow is the deed itself – (until it is transferred)o The escrow is used by the bank to ensure the delivery of the money.o There is a commercial escrow, or the delivery of the deed to the bank for the

benefit of the buyer, on condition that the price is paid to the escrowee. If the price is not paid, and the bank hands over the deed to A the

condition for completing the delivery was not met, and therefore there is no delivery – it was conditional, the condition was not met, and delivery is based on intent, therefore there was not delivery.

a. absconding escrowee exampleSuppose though, that the price is paid to the bank, and the bank transfers the deed, the bank teller takes the money and runs off to tanatuva with Pierson! The condition for making the delivery final, for transfer of blackacre was to get the money to the bank, not to the seller. Therefore the seller bears the risk of having the bank teller abscond, and run off with your cash.

You always have a remedy against the teller, but the teller is judgment proof- b/c he is in tanatuva

You also have a remedy against the bank But the transfer is complete.

b. The nature of the escrow agreement. The role of the escrowee. The escrowee is not an agent of the seller with the responsible of turning

the deed over when the payment has been received, because by the law of agency, an agent can be revoked at any time – and a commercial escrow agreement is irrevocable. Some cts will interpret a commercial escrow to have an implied promise not to revoke in this manner. An escrowee is a trustee which is a conveyance.

This promise is part of the K to convey land – so this works ONLY IF THERE IS A WRITTEN K OF SALE!!!!

There are cases were this theory for preventing revocation has failed where there is no written memorandum of sale, and therefore failing the statute of frauds.

Although the theory of irrecovability is suspect, to allow revocability would be to destroy the whole purpose of the transaction – the idea is that once the buyer puts the money in, the seller can’t welch

4. Conflict with the Statute of WillsConveying a deed to someone for Sally when I die – looks very much like a will. If it is a will, it is testamentary and is revocable until death – and must conform w/ the statute of wills.

To fix: write them so they are irrevocable. Make clear that it is a present irrevocable grant of a future interest (springing interest). O to A on O’s death. (Gruen)With escrow agreements – no problem b/c the condition is not death, it is not testamentary.

5. Cannot Make a Conditional Grant to the Grantee – It Must be a 3rd PersonThere can be no conditional delivery to the grantee – if it is made at all to the grantee, it is unconditional – Why? They are worried about fraud, for the opportunity of misleading people.

XVII. RECORDING SYSTEMO to A. O to B. W/o recording system A would own – O can’t sell something he doesn’t have, once he sells to A, he can’t sell to B.So we make A record and we make B check the recording. In this case if A didn’t record then B wins.

A. General Points/History There was a doctrine of estoppel

o O A and O B the only way that B has title to the land is if A misleads people to believing that O still owns the land, and B relies on that misleading. A is estopped from claiming title to the land. O can’t convey something he doesn’t own.

Now a purchaser goes down to the recording office, and records it – therefore a later purchaser is on protective notice of the title.

Recording system enhances the marketability of land by enabling prospective purchasers to rely on the record

Before you go and buy the land, you do a title search. We make A record and we make B check the recording In this case, if A didn’t record then B wins

1. What the buyer should do: You either have to look at a grantor / grantee index or the tract of land index;

depending on what each county has. Also may want to check the deed itself The next thing that you should do is go to the tax office – b/c the seller or someone

before the seller might owe back taxes on the land. Taxes don’t have to be recorded in order to be on the record, and therefore might be binding to you.

BFP – bona fide purchaser presumes that the purchaser did not have notice, and was buying in good faith.

There are both grantor – grantee indexes, and tract indexeso In order to be safe, you should check both the record, and the indexes to makes

sure that they match.

o There have been amendments to the recording act that state in order to properly record, you must index and show in the record, but this is not everywhere.

Also see #2 below

2. If there is a gap in the record: It could be b/c of an adverse possession. It could be due to the laws of intestacy, or I make a will. Wills don’t have to be recorded

– wills are recorded in the ct, and not necessarily in the record of the deed. You then have to check the probate records as well – b/c the recording system does not

pick up everything that affects the recording of the title.

3. Grantor/Grantee Indiceso No single page, have to look from conveyance to conveyance. Could go back to LA

purchase from Napoleano More likely, states will have a time limit on when you have to go back from . Takes

the burden off the person with the titleo So find your grantor and trace them back to the original owners in the grantee index,

then go forward in the grantor index to make sure they haven’t conveyed it twice, etc.

B. Statutes

1. BFP wins in every state when 1st purchaser does not recordO to A unrecorded; O to B (BFP) and records. In every state – B wins.

2. Notice Statute Iowa – “No instrument affecting real estate is of any validity against subsequent

purchasers for a valuable consideration, w/o notice, unless filed in the office of the recorder…”

o OA doesn’t record; O B does record.o has B been mislead by the record here? Yes. Was it his fault? No. Was it

O’s fault? Maybe. Was it A’s fault? YES!!! B was a BFP with out notice – therefore A is at fault, and B is acting in good faith, B’s title trumps A’s title.

o BUT, if B is not a BFP and knew about O to A, then B does not win

3. Race/Notice Statute Wash – “every… conveyance not.. recorded is void as against any subsequent

purchaser or mortgagee in good faith and for valuable consideration from the same vendor whose conveyance is first duly recorded.”

o OA doesn’t record; OB doesn’t record A retains the property – in Wash, B’s deed is invalid until he

records – b/c the statute requires the BFP first register. It would be unfair to tell A that since he didn’t record, he doesn’t get it, but B

who also didn’t record gets the land. This is an additional incentive to the statute.

So B must be a BFP (does not know about O to A, and must record before A) Incentive: B already has an incentive, B may lost to C – it is an additionally

incentive to record. Clean hands idea – how can you expect someone to record if you didn’t

4. Race Statuteo Only three states have a pure race statute (where B’s title is valid so long as he

records before A) Delaware, Louisiana, and North Carolina. o North Carolina - “No conveyance of land… shall be valid to pass any property

interest as against lien creditors or purchasers for a valuable consideration from the donor… but from the time of registration thereof.”

o Doesn’t matter if B knew about O to A, only that he records first.

5. PurposesIn figuring out complex issues think about the purpose of each of the statutesIn Notice – to protect someone who is misledIn Race – to create further incentives to recordIn Race/Notice - both

C. Variations/Details

1. An heir acts with the rights of OO to A unrecorded, O dies, H (O’s heir) conveys to B who recordsH acts with the rights as O and passes the tile as though O had. B will search through the records and see that H inherited and is a BFP. B records and so he wins in every jurisdiction.

a. Same VendorThe language seems to go against the BFP, this is a Washington case. But, H is the same vendor as O – the people who inherit it are the same vendor.

2. When BFP doesn’t record:O to A unrecorded, O to BFP unrecordedIowa/notice – no requirement that BFP records. B was misled and winsWashington/race/notice – A still has it. B didn’t meet the requirement of the statute. It is only void against the subsequent purchaser whose conveyance is first duly recordedNC/Race – No one. O doesn’t own it, when a suit is filed, then you know and then you go and record it.

3. After the sale to B, then A recordsIowa/notice – it was void when B made the purchase, can’t later bring it back to life. B was misled and the later filing does nothing to help

Washington/race/notice – A would retain the title. Absent any recording A is the owner so then the recording just makes it official and blocks B.NC/Race – A won the race, A wins

4. If B doesn’t record then A to C is validA to C (BFP) who recordsIowa/notice – B owned against A. But, B’s instrument is of no use w/o recording. C had no way of knowingWashington/race/notice – C had no notice. Before A conveyed it to C, A owned it. Don’t even need to make B’s deed invalidNC/Race – C won

5. If B knows about A’s deedIowa/notice – B is not a BFP. He had notice, didn’t buy in good faithWashington/race/notice – same resultNC/Race – If B records first, then B wins.

a. If B then conveys to C who is a BFP and recordsIowa/notice – B did not have title and cannot pass it. BUT, C didn’t have notice, he was a BFP – he was misled by A’s failure to record. C winsWashington/race/notice – C is a BFP who had no noticeNC/Race – C wins the race.

6. Unresolved Circular Title OA unrecorded

OB notice and recordsOC (BFP) with no notice and records

Except in a race jurisdiction A still has title, b/c B is not a bfp, b/c he knew about it.

C owns at this point, b/c C is a bfp, w/o notice who records. The deed to A, though good against B, is not good against C. C is the owner in a notice jurisdiction, in a race-notice, and in a race jurisdiction.

o Further complication – after the above 3 conveyances, add the following 4th: CD notice of A’s unrecorded deed.

D has notice, and therefore the statute (notice) doesn’t make D’s deed good against A, and therefore A’s deed is once again good. The statute states:

o No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, unless filed in the office of the recorder. – IA statute.

Does D need the statute in order to win? No. B/c C owned the property. One of the rts in the bundle of rts that go along w/ ownership, is the right to sell. C is therefore the owner, and can do whatever he pleases, and he CAN sell it to D.

SEE BFP FILTER RULE

7. BFP Filter Rule (Chergosky v. Crosstown Bell, Inc) 627“a bfp of property which was subject to a prior outstanding unrecorded interest may pass title free of the unrecorded interest to a subsequent purchaser who otherwise would not qualify as a bona fide purchaser under the recording act.”o This means that in the hypo above, that C owns blackacre, and can convey the

title to anyone he pleases, and A is cut off from the land by the BONA FIDE PURCHASER FILTER RULE (aka shelter rule).

a. Exception “prevents a holder of the title from using the bfp as a filter to cleanse his

defective ownership.” The RECORDING ACT makes C the owner, and the BFP FILTER

RULE, allows C to sell to someone who might have notice, as long as that person is not B.

8. Mortgages Circular Title works the same way with mortgages, instead of conveyances Mortgages encumber title to the land, and therefore have to be recorded in order

to be held against the subsequent bfps. At an auction, the 1st mortgage would be satisfied 1st, the 2nd 2nd, and so on. Some cts would assign the remainders according to culpability, blame

a. If there wasn’t enough $$? If 3 mortgages for $5,000 and there is only $10,000 totalOption #1 – split it three ways#2 – maybe C did everything right. Give C $5G (C expected to get the second 5G, so give C expectations.) Btwn A & B, B knew that A didn’t record – A started the problem, B just didn’t fix A’s wrong. So give B the second $5g. BUT, B took with notice so maybe not.

b. If there was only 5gCan’t give it to C – C expected to get the second 5g – would be a windfallBoth B&C expect to get the second, so maybe A ends up with it

D. When is a deed recorded so there is notice against a BFPCan argue that a deed is not recorded until it is done so in a way that the searcher can find it. There is a statute which would amend the recording statutes to make clear that this is the rule. So it can be found by the reasonably diligent person.

Conditions:o Must be indexedo Must be in same name

ProblemsThere is a chain of title problem if your grantor’s deed is not recorded

If your grantor granted the property either before the record shows they obtained title (too early) or if the record shows your grantor conveyed after (too late)The courts are all over the placeTract index is better

1. ACTUAL NOTICE - Needs to be Recorded AND IndexedThe statute doesn’t require that the deed is indexed, but should A make sure that when she hands it over to be recorded, it gets indexed as well. A is in the best position to prevent the loss. B would have to look through thousands of deeds. Not such a burden to make A check in a week that it was indexed.Especially if A knows. BUT, in Frank v. Storer – court said it was recorded even though not indexed. Goes against the purpose of the act, but most courts uphold it.Why? Legislature’s duty. Could have said that recording meant indexing, but didn’t

2. ACTUAL NOTICE – Married Woman Changes NameO to Jane Smith who records. Jane Smith then marries Taylor and becomes known as Jane Taylor. Under the name Taylor conveys to A who records. Then there is a divorce and she resumes the name Smith. As Smith conveys to B. A didn’t correct it – A should have seen Taylor and asked why the title previously said Smith. A is in the best position to prevent loss. Simply put in that Smith conveys to Taylor, that would avoid the problem

3. Estoppel by deedA, who doesn’t own b/a sells to B on the representation that A owned it. B relies. A is estopped from claiming ownership over B. So when O to A, it automatically goes to B. BUT, when A conveys to C, C will not find the deed from A to B (it was before O to A). Split of authority. BUT, B was supposed to re-record to make sure and protect herself.

E. Falls short of Enabling BFP to rely on the record

1. Forged deed does not protect BFPAlthough B relies, O has no fault – has made no misrepresentationThe statute says “an instrument affecting real estate”

2. An undelivered deed is no good as wellAn undelivered deed is invalid

3. If Procured by fraudThere is something O could do – get a declaratory judgment. The statute still does not protect BFP. We make BFP check tax system and others, so make them check if there are any judgments.

4. DowerIf O was married and retains a dower interest, there is no way for A to find out. O could have put in – but it’s the wife who’s interest is at stake. Wife keeps it

XVIII. EASEMENTS

A. Definitions

1. Easement A non-possessory interest in land that entitles a person to use the land.

2. Affirmative easement Right to go onto land and use

3. Negative easement Right to force the owner to refrain from a particular use. Always appurtenant.

4. Easement appurtenant Benefits attaches to the land. Passes with the land. If instrument is ambiguous, courts usually construe easement as appurtenant.

5. Easement in gross Benefit attaches to particular person. Either transferable or personal.

6. Profit a prendre Right to take a thing off the land that is part of the land, like crops, timber, minerals, etc.

7. License Permission to go upon land. Revocable unless relied upon, in which case court could estop the licensor from revocation. Not transferable.

8. Lease Granted possession of the land. Control plus intent to exclude.

9. Quasi-EasementsIn an implied easement by prior use, the pattern of your use before the conveyance of the land creates an expectaton of continued use which will ripen into an easement of prior use when the property is divided. Like the path to The Law School, if the school were sold to Disney.

B. Distinction btwn license, lease and personal easement in grossBoth licenses and personal easements in gross are non-transferable. If there is a limitation in the right to revoke (right to renew), that’s indicative of a personal easement in gross. Licenses are revocable. Cannot have a revocable easement. Court attempts to interpret the parties’ intentions.An easement is an interest in land, a license is basically permission to do what would otherwise amount to a trespass.A lease is possessory, an easement is a non-possessory interest

1. Parties intention to govern; a right to renew destroys revocabilityBaseball Publishing Co. v. Bruton (708) o Held that right to maintain a sign was an easement in gross, not a license.o The word “maintain” suggests some permanenceo Gave right to renew, eliminates the right to revokeo Even though they used the term “lease” – there was no possessiono Looking at the parties intentions to govern

2. Transferability of Easementso You can’t transfer a license, but sometimes you can’t (sometimes you can)

transfer an easement. o The parties intentions should govern. o If it were appurtenant, then with the sale of blackacre, perhaps there is also the

sale of the easement. o Would not expect an easement in gross to be transferable – it is intended as a

personal one.a. Bunn v. Offutt p. 710Contract of purchase between Wynns and Temko (D) stated that Wynns could use the Temko pool. P bought home from Wynns.Held that the contract was a license b/c non-transferable. Court fails to consider that a personal easement in gross is also non-transferable.Mirantha case came out differently

C. Express Creation

1. Express GrantCreate expressly in a signed written document

2. By Reservation (CANNOT RESERVE TO 3rd PARTY)o The grantor may reserve an easement in the land he conveys. o In Thomson, Noble the grantor reserved a personal easement in his

conveyance to the defendant.

o Grantor CANNOT reserve an easement in favor of a third party (as Noble attempted in Thomson

This is the NY rule b/c of uncertainty of title, worried about BFP

BUT, in CA you can do it – comes out the other wayo Can draft around this rule by:

1. Grant easement to third party first then convey the land subject to the easement.

2. Convey land on condition that the purchaser convey the easement to the third party before getting the deed.

3. Convey the land to the third party. Then the third party conveys the land reserving the easement for itself.

4. Just need to be creative

D. Implied by NeccesityBasic case is where O conveys to A a portion of blackacre and renamed whiteacre. Retained blackacre, nothing is said about an easement. Whiteace is surrounded on all sides by blackacre. The only road in the state runs on the boundary of blackacre. The easement is appurtenant to whiteacre (to benefit the land)

1. Conditions1. Common prior ownership of the dominant and servient estates.2. Transfer of one of the estates by the common grantor3. STRICT necessity of the easement for use of the transferred estate. Consider

effective use not a particular use.4. Necessity exists at the time the deed is created (because the easement is

implied in the deed). 5. Is always appurtenant to the land

2. RationalePublic policy – make full use of landIntended – in the minds of the parties

3. Necessity is interpreted strictlyThe court considers the need for effective use, not a particular use

a. Chandler Flyers v. Stellar DevelopmentP wants easement of necessity over D’s property for aircraft access. Court determines that that use is not necessary for effective use of the land. Can access by car.

b. Thomson P’s land was cut off from the road by D’s land.

Could argue for easement of necessity of access to the road but could get to P’s land by boat (as in Kingsley)

4. Not “real impossible/necessity” just extremely impracticableAfter all a helicopter could get there. But a helicopter isn’t normal.

a. Kingsley – the outer-limit of non-necessityCut off land was accessible by boat so there was no strict necessity.

(see also Hollars)

5. Private Necessity/Eminent Domain – Bargain for itSome states (le Arizona) passed statutes by which a landowner can pay for a private way of necessity over his neighbor’s property. The necessity standard is more lenient when the use is paid for. in these states the statute was intended to replace the common law – it trumps it. So even in cases of strict necessity you must pay for it. So in adjacent parcels of land owned by A and B respectively. A builds a house on the property line and claims an easement of necessity to go onto B’s land to paint it.

There was no necessity until A efficacy built the house. A made it on her own. A could get an eminent domain statute, can condemn a right of way. You have to pay for it. To protect A who messed up, but at least B gets paid for it.There can be necessities that arise after the transfer

a. Is it constitutional to allow one party to condemn his neighbor’s land?It requires just compensation, kind of like takings. Must be private property, but it isn’t public use. Selling private land to other private people. BUT, could argue that it is to increase the value of the nighborhood – so public use read into it.

6. Just b/c part of property has impossibility, doesn’t make “necessity”

a. Hollars v. Church of God of Apostolic Faith (718)Missouri statute provides that the owner of tract with no public road access can ask for a private road across neighbor’s property. P’s land was geologically divided (no road access to southern half b/c of hollow), but the court held that the statute doesn’t cover tracts with portions that can’t access the road.

E. Implied by Past Use

1. Main IdeaIf prior to the time the land is divided into two lots, a use exists on the servient part that is reasonably necessary for the use of the dominant part and which the court finds the parties intended to continue after the tract is divided, an easement is implied. CANNOT create an implied easement in gross.

2. Conditions1. Prior common ownership 2. Transfer of one of the estates3. Benefit from one part for the other4. Previous use was continuous

5. Previous use was apparent.6. Previous use was reasonably necessary (not as high a standard as for

easements by necessity), and reasonably ascertainable7. Look at the intentions of the parties

3. Prohibitive Costs Can Used to show Easement (Flax)Flax v. Smith 721Lot A is serviced by water and sewer lines, in existence and continuous use, which run under lot C from the main lines on the street. Apparent upon reasonable inspection.Although could drill through rock ledge and connect to main lines without easement, the cost is prohibitive.Implied easement by prior use.

F. Policy Concerns with Implied EasementsThere is a tension with all of the answers

1. Not in writing / violates Statute of Frauds?The deed was in writing and the easement is implied in the deed.

2. Parole evidence rule?Doesn’t contradict the deed; it interprets the silence.

3. Recording system? How will the BFP know about it?Check out the land and see if the use is there. Look for adjacent conveyances by O in the grantor index.

4. How can a grantor reserve an implied easement?Courts are less likely to find implied easements in this situation (Cant give stuff away and then claim to get it back) but Currie doesn’t find a difference. A general warranty deed only guarantees against encumbrances outside the deed. There is the same necessity whether the easement is needed by the grantor or grantee.

G. Prescriptive Easements

1. Easements by adverse useCan acquire an easement by adverse use. Found in situations in which there is not an implied easement b/c there is nothing to imply it n. Ether the adverse user was not a party to the deed (no grant of land from a common owner) or the use arose after the deed.

2. Conditions1. Adverse2. Continuous – prescriptive period ends f owner interrupts use3. Hostile – no prescription f owner provides permission4. Open5. DOES NOT NEED EXCLUSIVE (as in adverse possession)

3. Rationale1. Fiction of the lost granto Presume that exercise of the right to walk over land proves that the

right existed at one time. Owner’s acquiescence strengthens that presumption. In states where a letter suffices to interrupt the use the idea is that the owner thereby denies acquiescence and rebuts the presumption of the lost grant.

o Lost grant theory is problematic b/c silence isn’t necessarily indicative of acquiescence – people often sleep on their rights, may be an absentee landlord.

2. Public policy analogous to adverse possession. Reed case – open and notorious? Did A have O’s permission. Doesn’t have to be exclusive. Did not talk about a statuteBut, that was about quieting title. The theory went with the statute of limitations of ejectment. Here this is non-possesory and the S/L for trespass is probably short.

4. Prescriptive Easements to the PublicAllowed in most jurisdictions except in Idaho (they argue: how can the public acquire something like this – each individual would need to – there wouldn’t be a grant to the public.)To defeat public prescriptive easement:

Can’t get one if there is permission. Give permissionGo to Rockefeller Center – the public wanders around there. Close it for a day – make it not continuous.

Hannah v. Fox 724Public used private beachfront for many years. Idaho court ruled that prescriptive easements require continuous use by the same person. The public can’t acquire prescriptive rights

5. No negative prescriptive easementsBritish courts recognize a doctrine of ancient lights based on lost grant idea. But American courts hold that where there is no violation of a right (no trespass as is the case with negative easements) there is no prescriptive right. There is no wrong when I simply use my property that is consistent w/ a non-existing negative easement

6. To destroy prescriptive easementAs in “public” can give permission, can make not continuousSome jurisdictions acknowledge a letter saying “stop it” as interrupting the S/L

Conn. needs to have a statute to do this – but in some states can stop the running w/ just the letter.

This has to do with the fiction of the “lost grant” as opposed to the theory of adverse possession.

H. Easement by EstoppelA license may become irrevocable (and therefore le an easement) under the rules of estoppel. F the licensee has made expensive changes in reliance upon the license the licensor is estopped from revocation. Could argue that the licensor’s silence when the licensee undertook the changes constitutes a representation. Representation, reliance, and change in position on reliance

I. Scope of an EasementCourts attempt to interpret the intent of the parties. Foreseeable changes in the scope of the use or changes that preserve the utility of the easement are permitted.

1. Subdivided Dominant EstatesF dominant estate is subdivided each subdivided lot has a right to use easements appurtenant to the dominant estate to the extent that the burden on the servient estate was contemplated at the time the easement was created.

2. Use for benefit of non-dominant landAn easement granted for the benefit of lot A cannot be used for the benefit of lot B even though the same person owns lots A and B.

a. Brown v. Voss (731)P had private road easement over lot A for “ingress to and egress from” lot B. P later acquired adjacent lot C and built a house that straddled lots B and C. No additional burden placed on lot A. Held that P had no right to use the easement to get to lot C but no injunction was granted b/c there was no harm.

There is no harm, so there is no need for the injunction – would only result in P moving the house.

3. Change in intensity of the useGenerally changes in intensity are permitted so long as they were within the contemplation of the parties. But, there must be a limit at some point. Solution – limit the use more explicitly in the deed.

a. Hayes v. Aqua Marina (736)Easement of way over P’s land for access to D’s marina. D increased the size of marina substantially. Held that an increase in the “degree of burden” would not impose an additional burden upon the servient estate and was therefore permitted.

b. Cushman - counterThere was a farm, there was a road to get from one farm to another. One person wanted to change the nature and increase. It was limited to the nature of the original easement.

4. Scope narrower for implied and prescriptive easementsIn a landlocked property, can I then build a house on it? Courts will look at reasonability, and intention. So, probably not allowing to create a truck terminal.

5. Even if it is implied it may still be extended, but probably notThomson case – A and A’s children would walk across, so there was a prior use. Does that support the business of the hotel on B? Not when it is a commercial venture.

J. Termination1. Expressly expire2. Merger of title of dominant and servient estates3. Release in a written document4. Not nonuse but unequivocal intent to abandon (Lindsay)5. Misuse6. Necessity ends of easement by necessity7. Change of conditions – doesn’t make sense anymore8. Determinable easements (cat hospital)

XIX. REAL COVENANTS

A. What is it?A real covenant is a promise that runs with land so that each person who owns the land subsequently is entitled to enforce or is burdened by the covenant.In most states, you can’t create a covenant in favor of a third party (although the 3rd Restatement permits it).

B. “Run with Land” RequirementsBasically making someone who was not privy to the K, enforceable againstNot worried about the original covenant makers, only about their subsequent purchasers

1. In writing (Statute of Frauds)

2. Parties must intend it to run with the land.

3. Privity of estate – both horizontal and verticalHorizontal Privity – Promisor/Promiseeo In US – between a grantor and grantee. Burden runs if the covenant

was contained in a conveyance of an interest in land. BUT, In MA – must be a continuing relationship. Landlord

and tenant must both possess an interest in the land (ex – O conveys blackacre with covenant to A, but reserves easement for himself)

In England – only between a landlord and a tenant. So the burden of a covenant runs only if it is contained in a lease.

o At common law, the benefit of a covenant could run w/o horizontal privity.

o Neighbors who agree w/ each other not to do something, there is no horizontal privity – they were not a grantor/grantee

A free standing agreement btwn neighbors is not enforceable Need a straw-man

Restatement 3d changes this

a. Feider v. Feidero Although the court held that no horizontal privity existed

between the parties b/c the covenant was not in a conveyance, Currie questions whether it’s necessary.

o The D was the original promisor; therefore, it was not necessary for the burden to run with the land; only necessary for the benefit to run to the P, a successor in title to the original promisee.

o Must be in the deedo Rogers tells us grantor/grantee is sufficient for Horizontal, but

this case tells us it is necessary As with easements, the conveyer cannot reserve a covenant for a third

party (although 3rd restatement permits)

b. Criticism of this requirementThe Feider case involved the same promisor. We are not asking if the burden runs, only the running of the benefits. Can the benefit run other than the original promisee? Under theories of K law, there is the 3 party beneficiary. So don’t need to jump through hoops. There is no privity requirement at equity. So 2 problems: equity not law, benefit not burden.

c. To get around this problemNeighbors can use a strawman. A to C w/ covenant. Then C to A (vertical privity) – then there is horizontal and vertical. You do the same thing with B.

Vertical Privity – Promisee/Assignee Assignee is the successor in interest to the estate, successor in land

4. Covenant must “touch or concern” the land:In general a covenant touches the burdened land if it limits its use

There has to be a good reason to tie up the property – the only justification is that it affects the property

In general a covenant touches the benefited land if it increases the value of the property

a) The burden must touch and concern the burdened land and the benefit must touch and concern the benefited land.

Rogers v. Watkinso Covenant to not put mobile homes on property. Touched the

burdened land b/c it restricted its use. Touched the benefited land b/c mobile homes decrease the value of land in the neighborhood. Restricted the use of the land.

b) Very hard to define. Usually it’s a thing done on the land. Usually need more than change in value that results from burden on the owner (because any burden on the owner would affect the value of the land).

o Ex - a covenant that requires a land owner to water his neighbor’s lawn obviously affects the value of the land, but it doesn’t touch and concern the land.

c) Some courts hold that the burden touches and concerns the burdened land if it benefits it.

Neponsit Property Owners Ass’n v. Emigrant Banko Covenant to pay for maintenance in the residential community

touched and concerned the land b/c it benefited the burdened land.

o Payment to repair the lands counts as the burden that touches and concerns the land

d) A covenant in gross, for which there is no benefited land, cannot run with the land (although depends on jx)

o In Neponsit, the property association was the alter ego of the owners whose land was benefited. Gets around the covenant in gross restriction.

o If the city reserves a future interest, they are benefited. But, they are benefited as an entity. A covenant in gross does not touch or concern the land – so can’t do it. BUT, some courts will allow this. (alter-ego like in Neponsit)

C. Equitable Servitudes A type of covenant that doesn’t necessarily run with the land; that equity will enforce

against assignees of the burdened land.o In England – only enforceable in equity, but in US can get damages as well as

injunction Assignee must receive notice of the covenant. Remedy is injunction. Privity of estate not required. Must touch and concern the land.

Idea is that it is inequitable for the purchaser to buy the property inexpensively b/c couldn’t build on it and then sell it for a higher price free of the covenant. Takes from the owner what wasn’t paid for. Also, courts consider these promises valuable and important. Enhances the value of the retained land.

1. Tulk v. Moxhay P conveyed the garden in Leicester Square to Elms. In the deed there was a

covenant by Elms to maintain the garden and not build on it and permit the neighbors to use it. Elm’s deed was passed to D.

o Permission for neighbors’ use – not easement. Cannot reserve an easement for third parties.

o Promise not to build – England recognized only 4 kinds of negative easements (light, air, support, unobstructed artificial waterways). US may have recognized this negative easement

o Promise to maintain garden – easement cannot require a landowner to undertake an affirmative act.

P has no easement, no interest in the land, but the court enforces the covenant. Established equitable servitude.

o Covenant didn’t run with the land b/c not contained in a lease, so not a “real covenant”

Court did this through a K theory, but now it is recognized as property interesto The English courts recognized the policy reasons for this

D. Reciprocal Negative Easement Imposes a restriction on the land I grant, I implicitly restrict the land I retain

o Notice may be a problemo But, the court says that the general appearance of the other lots should tell the

prospective buyers that and give them constructive knowledge Houghton says you can’t do this

o But maybe this contradicts the party’s intentions. Like implied easements - talking about presumed intentions, so even though it wasn’t in writing – the deed was in writing.

1. When can you create a covenant w/o saying anything in the deed?Anderson – there is a subdivision plat. All of this were restricted. It was in the recorded plat by reference, but you can’t restrict your own land – must have a covenant. The beneficiary is the owner of the burdened land. Can’t limit the use of your own land.Rsment 3rd allows thisAs in Grant Park – the writing was on a plat that said forever open and free

E. When the covenant ceases to have legal formWhen it is no longer useful. So that if the covenant says for residential use only, but over time other land owners have sold it and there is a neat circle of glue factories, then there is no purpose to keep this house residential.

Courts will allow this when it makes sese

XX. NUISANCE

A. Overview Nuisance - interference with right to use and enjoyment of someone else’s land. No one has absolute right to use his property as he wishes. It’s a small planet – people have to put up with things sometimes Matter of degree (aesthetic injuries are usually not nuisances) The law of nuisance is useful for issues btwn a few people, but not for huge cities

o Private nuisance – tort. Affect only one person or small group of persons.o Public – compendium of offenses against the state. Interference with a right

common to the general public. So it is a crime. For an individual to sue in a public nuisance – they need to

show they are injured differently than the general public

1. Who can sue? Anyone with a right to use the injured property can sue – owner of a fee

simple, leasee, tenant at will, easement holder. Remainderman can only sue if there is a permanent injury

2. “Come to the nuisance” theory is weak b/co Doesn’t alter the cost-benefit analysis.o Cost of the nuisanced land will reflect the value of the nuisance. So already

paid for diminution in value caused by the nuisance b/c already paid for it.o The purchaser bought a worthless piece of property w/ a cause of action

3. Careful about Statute of LimitationsCloser analogy is prescriptive easements. Allows me to use my neighbor’s land as a sewer. Here we are talking about a right to use.

B. Inquiries/2 Requirements 1) Plaintiff suffer substantial harm?

Standard is the reasonable person of ordinary sensitivity (not the sensitive ears)

2) Defendant’s conduct was unreasonable – gravity of the harm outweighs the utility of the conduct?

Boomer v. Atlantic Cement Co. – omits this inquiry. Considers only the balance of damages.

Post Boomer analysis used this weighing for remedies. Its easy to miscalculate in whether to grant an injunction or damages – but they can bargain around the rule (while keeping in mind – transaction costs)

C. Remedies Traditionally, injunction was granted.

o Argument against an injunction – it may harm more people to shut it downo The value of the ’s land is greater than the harm that is done – can’t take

someone’s land b/c you can use it better. Think Lev’s rules/Calabresi article Boomer liberated the courts. Courts could determine there was a nuisance, but the benefits of the use that caused the nuisance point against injunctive remedy. Cost-benefit analysis. Permits defendant to continue to harm, but pay damages for the harm.

o Only use this in the manner of the damages, but not in whether there was a nuisance

1. Zoning LawsThese are kind of a pre-emptive remedy against a nuisance happening. But then what if there is a permit?

D. Light and Air No traditional right to light and air, so not a nuisance

o Fountainbleu – any building would conceivably interfere Exception for spite fence. Action that is not tortious becomes tortious if motivated by malice

XXI. TAKINGS

A. Overview

1. Government has power of eminent domain. The 5th Amendment limits that power: “Nor shall private property be taken for

public use without just compensation.” o Gvn’t taking is “condemning” the property

2. Must compensate for taking of any property interest – fs, terms of years. leasehold, easement, etc.

o A license is not a property interesto Compensation is market valueo Applies to personal property as well as real propertyo Applies even to a smidgeon of my propertyo My property extends ad cellum – all he way to the skyo If the gvn’t says you cannot no longer exclude the public from your

land

3. Government compensates the property holder b/c –o Reflection of what it means to possess a property right. “It’s my

land.”

o Security incentive for people to put their property to use.o Incentive for govt to take selectively and consider the costs.

Internalizes costs / maximum efficiencyo Equality – the public benefits and only the owner gets harmed. The

public ought to pay the costs.

B. Land Use Regulation - Zoning Some land use regulations will infringe upon a property owner’s rights sufficiently to constitute a taking Regulations that take away exclusion possession constitute takings Euclid v. Ambler Realty

o Perhaps an apartment building lowers the value of the communityo It was never a nuisance to build an apartment, therefore there is a taking

when there is a zoning law. See public policy

C. Physical IntrusionKaiser-Aetna Government regulation connected marina to navigable waters so that the

marina owner couldn’t exclude anyone from the marina. SC held that govt must pay – right to exclude is a fundamental property right.

Loretto Govt law that required property owners to permit installation of cable

facilities on property constitutes a taking b/c it was a physical intrusion on the property.

Pruneyard – shopping center There are war protestors who set up a table. The property owner wants to kick them out. The shopping center has lost its exclusionary use (Kaiser-Aetna) SC says there was no taking. Interference w/ property rights is so essential as to rise to the rights of a taking

D. Nuisance Property ownership is not an absolute right. Owner has no right to create a nuisance. If government regulates the use that

would constitute the nuisance, it’s not a taking b/c the owner never possessed the right.

Lucas – a taking is a deprivation of an existing property right. You do not have the right to cause a nuisance. Therefore, limiting a nuisance is not a taking. You never had the right to create a nuisance.

o The gvn’t may be making him do an affirmative act for his neighbors

a. Penn Stationo Grand Central Station was designated as a landmark; limited owner’s

use of the property.o Distinction between conferral of a harm (nuisance) and refusal to

confer a benefit. No duty to benefit neighbors. This doesn’t seem like a nuisance.

o Scalia reject the harm/benefit distinction in Lucas.

E. Public Policy The government could hardly go if had to pay for every change in the general

law. All property is held under implied obligation that use is not injurious to the community. Very broad principle. (Mahon)

Explains zoning regulations

F. TaxesThey are not takings, the framers didn’t mean to end taxation. Construed as compensation in kind (Brandeis’ discussion in Mahon)

The gvn’t gives you lots of things

EXAMPLES OF RECORDING STATUTES

NoticeNo conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.

RaceNo conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.

Race-NoticeNo conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.

THE SALE OF LANDParties enter into land sale contract

Time between contract and closing

Closing Recodation

1. contract must be in writing (statute of frauds

1. Buyer investagates seller’s title. If defective, buyer must notify seller and give him an opportunity to cure.

1. Title passes if deed is validly executed and delivered. Valid execution requires a writing signed by the grantor containing an adequate description of the parcel. Valid delivery requires intent by the grantor to immediately part with legal control.

1.Buyer records deed to protect her title against a subsequent bona fide purchaser.

2. Presumption that time is not of the essence unless otherwise stated

2. During this time the risk of loss is on the buyer

2. When title passes, the land sale contract usually is extinguished by merger into the deed (along with the implied warranty of marketability).

3.Implied warrenty of marketability arises.

3. The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:

SEISINRight to convey Against incumberancesQuite Enjoyment

WARRANTYFurther Assurances

SUMMARY OF NONPOSSESSORY INTERESTSEasement Profit License Real

Covenant/Equitable Servatude

Definition A grant of an interest in land that allows someone to use another’s land

Rifght to take part of the land or a product of the land of another

Permission to go onto another’s land

Promise to do or not to do something on the land or related to the land

Example Owner of parcel A grants owner of parcel B the right to drive across parcel A

O allows A to come onto O’s land to cut and remove timber

O allows the electrician to come onto his land to fix an outlet

O conveys an adjoining parcel to A. A promises not to build a swimming pool on the property

Writing Generally required.

Exceptions- Less then one year- Implication-Necessity-Prescription

Required Not required.Note: An invalid oral easement is a license

Required

Exceptioin: Equitable servitude may be implied from general plan of development of residential subdivision.

Termination -Unity of the title (merger)-Release-Nonuse-Abandonment-Alteration of dominent tenement-End of necessity-destruction of servient tenement-Perscription-Change of conditions

Same as easement

Usually revocable at will. May be irrevocable if coupled with an interest or licensor estopped by licensee’s expenditures.

-merger-estoppel-hardship-change of conditions-abandonment-Eminent domain

PRESENT POSSESSORY ESTATESPresent Estate Examples Duration Correlative

Future Interest in Grantor

Correlative Future Interest in Third Party

Fee simple absolute

“To A and his heirs”

Forever None None

Fee simple Determinable

“To A and His heirs so long as…”until…”while…”

As long as condition is met, then automatically to grantor

Possibility of Reverter

(See Fee Simple Subject to an Executory Interest, Below)

Fee Simple Subject to a Condition Subsequent

“To A and his heirs but if…” upon condition that…”provided that…”Provided however…”

Until happening of named even and reentry by grantor

Right of entry (See Fee simple Subject to an Executiry interest, below)

Fee Simple Subject to an Executory Interest

“To A and his heirs for so long as… and if not… to B”

“To A and his heirs but if…, to B.”

As long as condition is met, then to third party

Until happening of event

(See Fee Simple Determinable above).

(See Fee Simple Subject to a Condition Subsequent above.)

Executory Interest

Executory Interest

Fee Tail “To A and the heirs of his body”

Until A and his line die out

Reversion None (but remainder is possible)

Life Estate (May be defeasible)

“To A for life,”or “to A for the life of B”

“To A for life, then to B”

“To A for life, but if… to B”

Until the end of the measuring life

Until the end of the measuring life

Until the end of the measuring life or the happening og the named

Reversion

None

Reversion

None (but see below)

Remainder

Executory Interest

event

DISTINGUISHING CHARACTERISTICS OF REAL COVENANTS AND EQUITABLE SERVITUDES

Real Covenants Equitable ServitudesCreation Writing is always required Writing is usually required

but may arise by implication from common scheme of development of a residential subdivision

Running of Burden Requires:Horizontal privity (shared interest in land, apart from the covenant by origional covenanting parties; or covenant put in a deed from grantor to grantee) andVertical privity (successor holds entire interest held by covenanting party)

No Privity Required

Running of Benefit Vertical privity required No Privity requiredRemedy Damages Injunction

EXAMPLES OF INTERESTS UNDER THE RULE AGAINST PERPETUITIESExample Validity Explanation“To A for life, then to A’s children for life, then to B.”

“To A for life, then to A’s Children for life, then to A’s grandchildren.”

Valid

Invalid

B’s remainder is vested on creation

A may have a child after the interest is created and so may have grandchildren beyond the perpetuities period

“To School Board so long as it is used for a school, then to the Red Cross.”

“To School Board so ling as it is used for a school, then to A.”

Valid

Invalid

This falls within the charity – to – charity exception.

The interest may vest in A’s heirs or devisees hundreds of years from now (A’s interest is stricken.)

“To B for life, remainder to those of B’s siblings who reach age 21.”

“To B for life, then to such of B’s children who become lawyers.”

Valid

Invalid

B’s parents can be used as measuring lives.

B may have a child born after the disposition who becomes a lawyer more then 21 years after B’s death

“To A for life, then to his wife, W, for life, the to A’s surviving children.”

To A for life, then to his widow for life, then to A’s surviving descendants.”

Valid

Invalid

No unborn widow problems because the gift is to W, a life in being.

Unborn Widow problem“To X for life, then to Y, but if at her death Y is not survived by children, then to Z.”

To M for life, then to M’s children for their lives, then to M’s grandchildren” M is 80 years old and has had a hysterectomy.

Valid

Invalid

Y is the measuring life

Fertile octogenarian problem

“Trust income to Polo Club. At the death of A, B, C, D, and E (all born today at Obie Hospital, the corpus to Z and his heirs.”

Valid A, B, C, D, and E are measuring lives.

“The residue of my estate to my descendants who are living when my estate is distributed.”

Invalid Administrative contingency – the slothful executor problem.

THE TECHNICAL RULES OF THE COMMON LAWDestruction of Contingent Remainders

Rule in Shelly’s Case

Doctrine of Worthier Title

Rule Contingent remainders are destroyed if not vested at the time of termination of the preceding estate.

If an instrument creates a freehold estate in A and a remainder in A’s heirs, the remainder becomes a remainder in fee simple.

An inter vivos conveyance attempting to create a future interest in the grantor’s heirs is ineffective so grantor has a reversion.

Example “To A for life, remainder to A’s children who reach 21.”

“To A for life, then to A’s heirs.”

“To A for life, then to my heirs at law.”

Result If A has no children who are at least 21 at time of her death, property reverts to grantor.

A has a fee simple A has a life estate; the grantor has a reversion.

Modern Status Abolished in must jurisdictions.

Abolished in most jurisdictions.

Generally treated as rule of construction (i.e. raises a rebuttable presumption); does not apply in this country to testamentary grants.

Modern Result Property reverts to grantor; A’s children have indestructible contingent remainder or executory interest.

A has a life estate and A’s heirs have a contingent remainder.

Grantor’s heirs have a future interest given to them under the instrument.

FUTURE INTERESTS IN GRANTEESFuture Interest Example Reversion in Grantor

Following Furutre Interest?

Transferable?

Indefeasibly Vested Remainder

“To A for Life, then to B.”

No; remainder certain to become possessory

Yes; B’s remainder transferab;e during life and at death

Vested Remainder Subject to Open

“To A for life, then to A’s children.” A has a child. B. B has a vested remainder subject to open.

No; A’s children are certain of possession

Yes; B’s remainder transferable during life and at death

Vested Remainder Subject to Divestment

“To A for life, then to B, but if B dies before A, to C.” B has vested remainder subject to divestment by C.

No; no possibility of property reverting to grantor

B’s remainder transferable during life but not transferable at B’s death if B predeceases A.

Contingent remainder (1) “To A for life then to A’s children” A has no child.

(2) “To A for life, then to A’s children who survive A.” A has a child, B.”

(3) “To A for life, then to B if B reaches 21.” B is 17.

(4) “To A for life, then to B’s heirs.” B is alive.

(5) “To A for life, then to B if B survives A, and if B does not survive A, to C.”

Yes

Yes

Yes

Yes

Yes

No; no child is alive

B’s contingent remainder is transferable during life, but it is not transferable at B’s death if B predeceases A.

B’s remainder is transferable during life, but remainder fails if B dies under 21.

No; No one is heir of B until B dies

B’s remainder transferable during life, but fails if B predeceases A; C’s remainder transferable during life and at C’s death if A is then alive

Executory Interest (1) “To A, but if B returns from Rome, to B”

(2) “To A for life, then to B, but if B does not survive A, to C.”

(3) “To A upon her marriage

No

No

No reversion, but grantor has passessory fee until A’s marriage

Yes

C’s executory interest is transferable during life and at C’s death if A is alive

Yes

COMPARISON OF FUTURE INTEREST IN GRANTORReversion Possibility of

ReverterRight of Entry

Correlative Present Interest

Life Estate Fee Simple determinable

Fee simple Subject to a Condition Subsequent

Example “To A for life” “To A so long as alcohol is not used on the premises.”

“To A on condition that if alcohol is used on the presmises, O shall have the right to reenter and retake the premises.”

Rights of Grantor Estate automatically reverts to grantor on life tenant’s death

Estate automatically reverts to grantor upon to occurrence of the stated even

Estate does not revert automatically; grantor must exercise his right of entry.

Alienability Transferable, descendible, and devisable

Transferable, descendible, and devisable

Descendible and devisable, but some courts hold not transferable inter vivos

SUMMARY OF LEASEHOLD ESTATESType of Leasehold Definition Creation TerminationTenancy for Years Tenancy that lasts

for some fixed period of time.

“To A for 10 years.” Ends at the end of the stated period w/o either party’s giving notice.

Periodic Tenancy Tenancy for some fixed period that continues for succeeding periods until either party gives notice of termination

“To A from month to month.”Or“To A, with rent payable on the first day of every month.”Or“Landlord elects to bind holdover tenant for an additional term

Ends by notice from one party at least equal to the length of the time period (e.g. one full month, for a month – to – month tenancy). Exception: Only six months’ notice is required to terminate a year-to-year tenancy.

Tenancy at Will Tenancy of no stated duration that lasts as ling as both parties desire.

“To T for and during the pleasure of L.” (even though the language gives only L the right to terminate, L or T may terminate at any time.)or“To T for as many years as T desires.” (even though the language gives only L the right to terminate, L or T may terminate at any time.)

Usually ends after one party displays an intention that the tenancy should come to an end. May also end by operation of law (e.g., death of a party, attempt to transfer interest.)

Tenancy at Sufferance

Tenant wrongfully holds over after the termination of the tenancy.

B’s lease expires, but B continues to occupy the premises.

Terminated when landlord evicts, the tenant or elects to hold the tenant to another term.

PROPERTY FOUND IN PUBLIC PLACE – COMPARISON OF LOST, MISLAID, AND ABANDONED PROPERTY

Circumstances Example Finder’s RightsLost Owner accidentally

and casually parted with possession and does not know where to find property

O does not notice that his watch has slipped off his wrist and landed on the street

Finder entitled to possession against all the world except the true owner (exceptions: if finder is a trespasser, employee, guest, or licensee, or if property is found in a highly private locus or buried, owner of locus gets possessory rights

Mislaid Owner intentionally placed property in the spot where it is found and thereafter forgot it.

O lays his watch on the sink in a hotel room and forgets to pick it up

Owner of premises entitled to possession against all the world except the true owner(because the owner might return to the locus looking for the item.)

Abandoned Owner voluntarily and intentionally relinquished ownership with intent to give up both title and possession

O throws his old watch into a garbage can because a new battery for it would cost to much

Finder obtains both possession and title if he exercises control over the property with intent to assert ownership.

SUMMARY OF CONCURRENT OWNERSHIPType of Tenancy Definition Creation TerminationTenancy in common Each tenant has a

distinct, proportionate, undivided interest in the property. There is no right of survivorship.

“To A and B.” Only unity required is possession.

May be terminated by partition.

Joint Tenancy Each tenant has an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivorship)

“To A and B as joint tenants with the right of survivorship.” (Without survivorship language, it may be construed as a tenancy in common.) Joint tenants must take:- identical interests;- from the same instrument;- at the same time;- with an equal right to possess(the four unities).

The right of survivorship may be severed and the estate converted to a tenancy in common by, a conceyance by one joint tenant, agreement of joint tenants, murder of one joint tenant by another, or simultaneous death of joint tenants. A joint tenancy can be terminated by partition (voluntary or involuntary).

Tenancy by the Entirety

Husband and wife each has an undivided interest in the whole estate and a right of survivorship

“To H and W.” Most states presume a tenancy by the entirety in any joint conveyance to husband and wife where the four unities (above) are present.

The right of survivorship may be severed by divorce, mutual agreement, or execution by a joint creditor. Tenancy by the entirety cannot be terminated by involuntary partition.

SUMMARY OF BAILEE’S DUTY OF CAREStandard of Care When Applied ExampleSlight care/liability only for gross negligence

Bailment is solely for the benefit of the bailor

X leaves her car at a gas station operated by her friend Y for a free car wash

Ordinary care Bailment is for the mutual benefit of bailor and bailee, as in bailments for hire

X leaves her car with a mechanic for service

Extraordinary care Bailment is solely for the benefit of the bailee

X gratuitously lends her sports car to her friend Y to drive to Y’s class reunion.

Absolute Liability Bailee departs from terms of bailment or fails to redeliver item (exceptions: involuntary bailee, and possibly delivery to impostor holding “indispensable intrument”)

X has turned the keys to her sports car over to Y’s parking garage; employee drives X’s car to his class reunion. (But probably no absolute liability if X loses the claim check and Y’s employee, without notice, turns X’s car over to dishonest finder of claim check).