Frequently accompanied by a landing and the symbolic taking of possessiona.Acts that give rise to an inchoate title that must (on one view) subsequently be perfected, within a reasonable time, by settling in and making an effective occupation

b.

The sighting or finding of hitherto unknown or uncharted territory1.

This is an anti-canonical casea.

Right to possess and right to transfer (can be split)a)Issue is whether the title by the Indians can be recognized in U.S. court?1.

Facts: Action of Ejectment (get off my land) for lands in Illinois claimed by Ps under a purchase and conveyance from the Piankeshaw Indians, and by the D under a later grant from the US

b.

"Hitherto unknown territory"1.Res nullius/terra nullius -- a thing or territory belonging to no onea)

Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror

1.

Right to Mere Possession - cant transfer, can only transfer to U.S. gov't and no one elsea)Right to exclude from propertyb)

Monopsony - U.S. is the only one who could buy land from the Indians2.

Chain of Title - Record of transfer of property from one to another3.

England had possession by discovery, but gave all land taken that way to U.S. by treatyc.

More value in the way Marshall says U.S. is going to use the land than Indians are using ita)Giving them right that has little value 1.

Indians have right to inhabitant the landd.

Issue: Do the Native American tribes have the power of conveying absolute title of their lands to others?

e.

No. The discovery of the Native American occupied lands of this nation vested absolute title in the discoverers, and while the Native American inhabitants retained title of occupancy, they were nevertheless incapable of transferring absolute title to others. Therefore title cannot be recognized by U.S. courts.

f.

Johnson v. M'Intosh, pg 32.

Absolute title - exclusive title to land3.

Take something and make it new (??)1.By labor and addition of new material alonea.

Things get tricky when someone's done some dramatic work1.Ex. Haslem v. Lockwood manure case2.

Owner of original material is typically the winnerb.

This area of the law is often muddy why, in other words, cases often are decided in inconsistent ways, with results that appear arbitrary.

c.

Law of accession, pg 154.

Done something to it/used it for some purposea.Labor theory of Property (Locke's) - Person who labored land has more right to it5.

Best way to do it1.Keeps the peace, minimizes conflicta.

First in time theory - notion that someone who was there first should 6.

Possession is a legal conclusion, not a given fact.a.Possession/labor theory - legal conclusions, kind of end product7.

Simple/Cheap/Easy to administer1.Will/deter conflict/litigation2.Pierson v. post majority3.

Promote/Establish certainty while minimizing controversy and/or deter future conflicta.

Recognize the pre-legal expectations or customs of a particular community, or that may fit with various natural forces

b.

Arguments about property can often be categorized as arguments that seek to:8.

Acquisition by DiscoveryA.POSSESSION, COMPETITION, CREATION, AND PERSONHOODI.

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Law shouldnt get in the way of what people are doing anyway1.Livingston's dissent in Piersona)

Takes advantage/maps on to custom/nature1.natural forces

Court decides who should posess thema)Dont wanna drive up the costs for everyoneb)This is an example of that kind of reasoningc)

Keeble's majority view1.

Livingston's dissent a little but not really 2.

Create greater overall utility/promote efficiencyc.

Appeal to notions of fairness, justice, or equity.d.

Actual possession - the usual method of acquiring a property right in a wild animal is actually to possess it - dead or alive

a.

Carruth if a pregnant cow wanders off of your land and births cows on your neighbors land and your neighbor cares for your cow and the calves, theyre still your calves.

b.

Rule of Capture - wild animals may be one of the few things that are unowned and susceptible to capture1.

Post (Plaintiff) - Fox hunter1.Pierson (D) - Fox killer2.

Facts: Post found a fox upon certain wild, uninhabited, unpossessed waste land. He and his dogs began hunting and pursuing the fox. Knowing that the fox was being hunted by Post and within Post's view, Pierson killed the fox and carried it off.

a.

Issue: Has a person in pursuit of a wild animal acquired such a right to or property in the wild animal as to sustain an action against a person who kills and carries away the animal, knowing of the former's pursuit?

b.

Mere pursuit vests no right in the pursuer.1.

Clear-cut rule - whoever has the dead foxa)What acts amount to occupancy?2.

Held: No. Property in such animals is acquired by occupancy onlyc.

Go by custom, this has happened before, custom says give to the person who's been looking for it all day.

1.

Law ought to mirror peoples pre-legal expectations2.

Livingston's dissent - A new rule should be adopted - that property in wild animals may be acquired without bodily touch provided the pursuer be in reach or have a reasonable prospect of taking the animals.

d.

Pierson v. Post, pg 182.

Facts: Rich purchased a whale at auction from a man who found it washed up on the beach. The whale had been killed at sea by the crew of Ghen's whaling ship which left Ghen's identifying bomb-lance in the animal. Ghen claimed to be the owner of the whale under the trade usage and sued Rich for the value of the whale.

a.

Issue: By the trade usage, was the whale placed under sufficient control by the capturing whaler so that it became his property?

b.

This particular trade usage was necessary to the survival of the whaling industry, for no one would engage in whaling if he could not be guaranteed the fruits of his labor.

1.

Yes. By using the identifying bomb-lance, Ghen did all that was practicable in order to secure the whale. Custom can be enforced when it is embraced by an entire industry and has been utilized for a long time by everyone engaged in the trade.

c.

Ghen v. Rich, pg 263.

Court says he had possession of the ducks even if he hasn't reduced them to capturea.Not as good as real possessionb.Legal conclusion that the landowner should prevail?c.

Constructive possession - ducks wandered onto Keeble's property, 4.

Duck decoy case1.Guy invests in pond to attract ducks, other guy shooting to scare them away2.

Facts: Keeble owned land containing a duck pond. He loaded the pond with decoys to seduce game to come to the pond so that he could hunt them. Hickeringill discharged a shotgun near the pond which induced the game to stay away. Keeble sued and was granted recovery. Hickeringill appealed contending Keeble had no title to the game and thus no cause of action existed.

a.Keeble v. Hickeringill, pg 305.

Acquisition by CaptureB.

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Guy invests in pond to attract ducks, other guy shooting to scare them away2.Issue: May recovery of damages be had for the frightening of wild game off one's property? b.Held: Yes, although no title to the game existed, K was using his land in a lawful manner and thus H interfered with this lawful use & is liable for damages.

c.

Better off if we figure out the best result for society, what's going to promote the economic efficiency, get law out of peoples business

d.

All factors point in the same direction, unlike accessiona.

Contributes to economic utility and overall efficiency; 1.It is simple, certain, cheap, and easy to administer.2.It fits in with or takes advantage of existing natural forces or tendencies and human habits, customs, or intuitions.

3.

It appeals to widespread notions of fairness.4.

Tends to be widely followed, even across different legal cultures, and that cases involving this rule tend to be relatively consistent, because all four categories of fundamental arguments about property rights tend to line up behind it. In other words, people tend to agree that the rule of increase does all of the following:

b.

Note: These are not magic words, simply concepts you should be familiar with going forward, so that you can recognize and use arguments that relate to them.

c.

Rules which are not supported by all of these considerations may be more controversial, or more inconsistently applied, than the rule of increase.

d.

Rule of Increase - Offspring follows the mother6.

"Protection of expectations"a.Utilitarian Theory of Property - efficiency7.

Elliff owns and is drilling on land adjacent to land that Texon is using to drill (common well)a.Texon well blew out, burning up all of the oil in the common well and causing destruction to Elliffs land

b.

Issue: Does Elliff have claim to the oil that came from under her land or did Texon own all of it via law of conquest?

c.

Texon didnt have a right to waste the oil1.Oil is no longer analogous to a wandering wild animal2.

Elliff and Texon have right to drill for oil. Elliff has no claim to the oil that was captured by Texon via drilling.

d.

Eliff v. Texon8.

Another explanation of the genesis of property rights based on evolutionary game theory - individual self interest led early human ancestors to respect the possessions of each other, such that a convention of deference to possession developed naturally even though no individual or group ever intended such a uniform practice in the first place.

9.

You dont bear the cost of it1.

Those costs or benefits that arise out of your action, and which you fail to fully consider, because some of these costs or benefits fall on other people.

a)

An externality is not simply an effect of one persons activity on another person; rather, it is an effect that the first person is not forced to take into account X's activity benefits x $100 and costs A $50. A offers X $50 to change his activity

b)

Externalities - Cost that you dont have to take into account, on other people1.Transaction costs - The costs of arranging an offer or deal between parties.a.

Inefficiencya)

External effects of using resources are unlikely to be fully considered through bargaining when transaction costs are high, which increases the likelihood that those resources will be misused.

1.Relationship between transaction costs and externalitiesb.

Assume away transaction costs1.Land under smoke is worth less than if it wasnt, smoke from T. 2.

Pay more to have pollution free property than to get rid of something already polluteda)Pay more to live with it than you would to get rid of itb)

Property could be worth more to spend more3.

Idea is people will bargain away the existence of externalities (costs that someone creates but 3rd party has to pay)

4.

Coase Theorem - in absence of transaction costs it is irrelevant from the standpoint of efficiency whether X is liable to A for costly effects or not. Resources will be put to efficient use in either event.

c.

Intro to law and economics10.

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party has to pay)How important transactions costs were/rules & laws5.

Wealth effects - Disparity between parties1.

Both show how important the legal rules area)People over-value status quob)

Endowment effects - people will pay more to keep something they already have2.

Inefficient way of business, over consumption too many people too many rights to exclude

i.

Doesnt care about Heller that muchii.

Moscow1.

The problem with the anti-commons is not that the right to exclude is too weak, but the right to exclude is too high (too many people have a right to exclude)

a)

Tragedy of the Anti-Commons If you have a strip center with everyone owning a shop in the strip-center, any one owner can act inefficiently for the entire center.

3.

"Tragedy of the commons" - tendency to over-exploit a common resource because the full costs of the exploitation are not borne by each user, while the former is an uncritical application of the first possession doctrine to circumstances where sound public policy might warrant a different approach

4.

Different people have property rights inefficient results, overconsumption equals too many rights to exclude

5.

Wealth/endowment effectsd.

Not Locke, just in general - Issue with creation is degree of exclusivity1.

John Locke - you own the fruits of your labor in consequence of having "a property in your own person."

a.

The assertion is that if you create something (if in that sense you are first in time) then that something is most certainly yours to exploit because Libling argues "the foundation of propriety rights is the expenditure of labour and money (which merely represents past effort)."

1.

Tendency to over-consume with commonly held propertya.First person to get their hands on it to possessb.Exhaust the resource because incentives are to push to get as much as you can get otherwise it'll be gonec.Limits over consuming of resources...d.

Common property and the rule of capture2.

Facts: AP sued to enjoin International News Service from publishing as its own news stories obtained from early editions of AP publications

a.

Issue: Is the publication for profit of news obtained from other news-gathering enterprises a misappropriation of a property right?

b.

Yes. News itself is a collection of observable facts which obviously cannot be owned vis a vis the public at large. The nonprofit communication of news, regardless of source, is endemic in a free society and involves no property right. However, when 2 competing news organizations are involved each gaining livelihood from beating the others deadline, the use of news for profit is misappropriation.

c.

Only congress can give that kind of commercial right1.Bray Notes: Everyone who has an idea - we'd be giving them a monopolyd.

This is the only really precedent for business of gathering news copyrighte.I think Bray said something about maybe the court didnt come to the most efficient solution, like copy away everyone else because it will leave us better off -- encourages competition, cheaper, etc

f.

International News Service v. Associated Press, pg 563.

Facts: P designed and marked silk garments. D copied a design and successfully marketed it. P which could neither patent nor copyright the design sued for damages and equitable relief under general property law

a.

Issue: If a person obtain a patent or copyright on its product, can it recover for the copying of it by others?

b.

(Hand) No. In the absence of statutory protection given a man's creations by parent or copyright law, a mans property is limited to the tangible objects which embody his invention. When another creates a chattel through imitation, the imitated person has no remedy.

c.

Only congress can give that kind of commercial right1.Everyone who has an idea - we'd be giving them a monopolyd.

More copying drives price downe.

Cheney Brothers v. Doris Silk Corp., pg 614.

Smith v. Chanel, pg 625.

Acquisition by Creation - "part of common law"C.

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Lower court rules in favor of Chanel, Smith appeals1.Facts: Smith is producing a knockoff fragrance and advertising that its as good as the Chanel originala.

Issue: We must weigh incentive for Chanel to create perfume vs. consumer benefits of cheaper competition

b.

Extends Cheney to not only copying products but also claims that the copy is = the original1.Even today, Chanel is still in business and people are willing to pay a premium for a brand name, so allowing copiers doesnt necessarily eliminate profitability of producing.

2.

First-movers still have advantages, even if widespread copying is allowed3.Society may be better off if we allow copying culture disseminates faster & cheaper4.Not misappropriation/compare to Cheney Brothers5.

Held: Smith may continue to advertise their knockoff as being as good as the originalc.

Smith v. Chanel, pg 625.

Conversion - the wrongful exercise of ownership rights over the personal property of another6.

Conversion is chief legal claim made my Moore1.

Facts: Researchers at UCLA unbeknownst to Moore, used specimens of his tissue to produce a potentially lucrative cell line.

a.

No ownership because he never expected to retain possession of the spleen.a)Would chill medical researchb)Moral issues involved out to be left to the politically accountable legislaturec)Still had available claims based on asserted breach of fiduciary duty by his medical care providers.

d)

Four points made by the majority to support this holding (4 arguments for property).1.

To maintain such an action a P must prove interference with ownership or right of possession. Moore clearly had no right of possession, so a conversion action would necessitate interference with a proprietary interest. Cannot be said that a persons tissue is "property."

2.

Held: Majority of the California Supreme Court reject Moores conversion claim, on the basis that he lacked property rights in the cell lines derived by the defendants, f

b.

Bundle of rights, supra1.Bray: If you give him the right to possess it, would also have to give him the right to sell it c.

Concern about legislative deference and creating a market in human organs.1.

Justice Arabians concurrence - human tissue should never be viewed as property, even by the person whose tissue is at issue.

d.

Possessa)Useb)Excludec)

(by sale or gift)1.Dispose d)

Introduced a bundle of property rights metaphor, including the rights to:1.

Justice Mosks dissent - a person should have at the least the right to do with his own tissue what any other person can do with it. To allow a person to economically benefit from the non-consensual use of another's tissue can be considered a modern version of slavery or indentured servitude.

e.

Fait accompli - irreversiblef.

Moore v. Regents of the University of California, pg 707.

Unrelated but in my notes: maybe property right is especially important when uniquea.

Initial, basic, first-in-time rule in the law of finders: the notion that a finder prevails against all but the true owner or rightful prior possessors. Armory

1.

Facts: Armory found a jewel which he took to D, a goldsmith, for appraisal, but D's apprentice removed the stones which D refused to return.

a.

Issue: Could Armory, who lacked legal title to the chattel, maintain an action to recover its value? b.Held: Yes. Finder of lost property, although he does not acquire absolute ownership, does acquire title superior to everyone else except the rightful owner. Such title is a sufficient property interest in the finder upon which he maintain an action against anyone (except the rightful owner) who violates that interest.

c.

This rule might be justified for many of the same reasons we protect first-in-time possession in other contexts.

1.

Introduced basic, first-in-time rule in the law of finders: the notion that a finder prevails against all but the true owner or rightful prior possessors.

d.

Armory v. Delamirie, pg 982.

Acquistion by FindD.

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other contexts.

Might not allow some property to be abandoned, cannot walk away from, things youve done make impossible for others

a.Abandonment - Intentionally or voluntarily left behind, no intent to get it back3.

Bailment: the rightful possession of goods by a person (the bailee) who is not the owner. 4.

Finds it and takes it to the policea)Police give him receipt, no one comes to claim it so he gets it back & eventually sells itb)

P is soldier who found brooch1.Facts: D is owner of house quartered by soldiersa.

How fairness by a judge is influentiala)Because P did all the right things morally, court says it seems fair to reward that1.

Can also say in some situations where someone is behaving morally right or fair, might make things easier for all of us,

a)

Could call good faith case, maybe if its a close call Hannah suggests tie breaker b)

Hannah is commendable by bringing it back2.

Held: Court says we might be better to reward the good guyb.

Similar situation doesnt have to do with finders, but if someone's doing the same type of thing as him then could say it may be reasonable to give it to good guy (Hannah) and cite Hannah

1.

Maybe different if Peel ever lived there2.

THIS CASE IS ABOUT GOOD FAITH, THE GOOD GUY BECAUSE HE DID THE RIGHT THINGc.

Hannah v. Peel, pg 1015.

Felix Cohen - property as a relationship among people that entitles so called owners to include or exclude use or possession of the owned property by other people

A.

Right to include (to sell for example) does not of itself result in a fully effective power to transfer1.

Some believe this is the most important right/stick in the bundle a.Need right to exclude as well2.

These 2 rights are necessary and sufficient conditions of transferability3.

Importance of free transferability of property rightsB.

Trespass1.Conversion2.

Protects right to excludeC.

P has strong interest in protecting their landa.Society has interest in punishing and deterring trespassers so they dont pursue self help remediesb.Outcome probably doesn't promote certainty?c.

Court upheld a landowners right to bar an unwanted trespasser from moving a mobile home across Jacque's land, declaring that a person has the right to "exclusive enjoyment" of his own land "for any purpose which does not invade the rights of another person"

1.Jacque v. Steinberg Homes, pg 89D.

Held that a landowner had no right to bar a poverty agency worker and a legal services lawyer from his farm where they sought to visit a migrant worker who was an employee and tenant of his farm.

1.

Rights are relative.a.

Held: Landowners right to exclude ended where the tenant worker's need for reasonable access by visitors began.

2.

State v. Shack, pg 90E.

Jacque owned the property and was protecting his land alone, Shack was keeping them away from protecting people residing on Shack's land

a.Maybe the reasons why they wanted them off their land1.

Why did the court allow Jacque to exclude but not Shack?F.

Civil rights legislation forbidding various forms of discrimination1.Rent controls and other limitations on a landlords right to evict tenants2.Law of adverse possession3.Bodies of doctrine granting public rights of access to private beaches4.Legislation protecting homeowners who have defaulted on mortgage payments5.

Limitations on rights you can exclude now but not in Blackstone's time:G.

Singer - Reliance interest in property - "non owners have a right of access to property based on need or some other important public policy" pg 93

H.

Epstein firm right to exclude - absolute rights simply establish the conditions for subsequent market transactionsI.Howard v. Kunto, pg 142J.

THE RIGHT TO EXCLUDE AND ITS LIMITATIONSII.

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Everyone lives one house over1.

Common or successive relation to the same right in property1.

Privity of estate means the voluntary transfer from the first possessor to the second possessor of either an estate in the land or actual possession of it

a.

Tacking - a common problem with continuity is whether one possessor can add (tack) the possession of a prior possessor to his own. If privity of estate exists between the prior possessor and the present possessor, tacking is permitted.

2.

Owner - Tacking follows automatically on the owners side. Once the statute of limitations has started to run, the cause of action for ejectment (together with its expiring limitations period) goes along with ownership.

3.

Minority1.Unsound mind2.Imprisonment3.

Disabilities include:a.

Only disabilities that matter are those that exist at the time the cause of action accruesb.

DISABILITIES: Statute of limitation typically provide for suspension of the limitations time clock if the owner is disabled from bringing an action to recover possession at the time the cause of action accrues.

4.

Howard v. Kunto, pg 142J.

Law of adverse possession is a synthesis of statutory and decisional law1.Adverse possession functions as a method of transferring interests in land without the consent of the prior owner and even in spite of the dissent of such owners

2.

Passage of reasonable time period should assure security to ownera.Rests upon social judgments that there should be a restricted duration for assertion of "aging claims"3.

Theory this (AP) rests on - Adverse possessor may acquire title at such time as an action in ejectment (or other action for possession of property) by the record owner would be barred by the statute of limitations

4.

Intro to Adverse Possession: Powell on real property, pg 116K.

Law of adverse possession is a synthesis of statutory and decisional law with judicial rules supplementing the statutes of limitation that make up the core of adverse possession

L.

The traditional doctrine of adverse possession, very widespread not just in common law jurisdictions but, in some form or another, in many other legal cultures, is a specific limitation on the right to exclude that we examine in some detail.

A.

O wants to get A off his propertya.Either an action for ejectment by the original owner O, against the would-be adverse possessor A;1.

A seeks title from O to land theyve been APinga.

Or an action to quiet title in the property at issue by A, where A thinks she has met the requirements and moves to snatch the title (often in advance of sale).

2.

Procedurally, most adverse possession cases arise in one of two ways:B.

An actual entrya.

Entry also helps stake out what it is the adverse possessor might end up claiming1.

One reason entry is required - adverse possession depends on a statute of limitations running against a cause of action and the entry (without permission adverse to the rights of the property owner) creates that cause of action for trespass that triggers the statute

b.

An entry that is1.

Sufficiently so they would put reasonably attentive property owners on notice that someone is on their property

a.Open and notorious2.

Reflects both earning and sleeping principlesa.Continuous for the statutory period and3.

State of mind is irrelevanta)The Objective rule1.

Required state of mind is "I thought I owned it" a)Tend to win more oftenb)

The Good-Faith rule2.

The required state of mind is "I thought I didnt own it, but I intended to make it mine."a)The Aggressive Trespass rule3.

Three approaches to a would-be adverse possessors state of mind that jurisdictions may impose:a.Adverse/Hostile and under a claim of right/title4.

ADJECTIVAL ELEMENTS: The essence of these supplemental rules is adverse possession requires that there be

C.

Adverse PossessionIII.

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Occupants must intend to take the property even if they know it doesnt belong to them1.The required state of mind is "I thought I didnt own it, but I intended to make it mine."a)

Obligation to compensate would be imposed to punish and deter the consciously wrong activity

1.

One way of dealing with this type is to award title but only if adverse possessor agrees to pay fair market value to the former owner

b)

Dont want to reward consciously dishonest people1.He doesnt like the aggressive trespass2.

Doesnt matter whether or not the mistake was intentional or not, going to go for the objective standard because we dont care about what's in peoples head.

c)

Color of title/objective rule of hostile part1.Intent of the Ps is irrelevant.2.Ps get property because they were using it as an average owner of similar property would.3.

Nome v. Fagerstromb.

Might shorten1.The possible effects of color of title on the statute of limitations element;a.

The potential for color of title to provide a would-be adverse possessor on part of a piece of property to make a claim of constructive possession to the entire lot at issue.

b.

Color of title is NOT REQUIRED for adverse possession in most jurisdictions, and therefore is not typically understood as an element of adverse possession, but it may confer various advantages to a would-be adverse possessor:

1.

Color of title is not claim of right2.

Color of title - a claim of adverse possession founded on a written instrument, judgment, decree, or similar writing, which purports to provide title to the property but which is defective or invalid for some reason. Look at Nome

D.

Objective test of hostility?a.

In such situations, the limitations statute does not begin to run until and unless the owner has actual knowledge of the encroachment.

1.

Came into possession by agreement to purchase, husband died, P is suing because thinks its his land? a.More typical context of adverse possession - where its is used to resolve a conflict over the boundaries of particular lots

b.

Rule: to claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another

c.

Trial Court concludes D has possession because exclusive continuous uninterrupted visible notorious and against the right and interest of the true owner.

1.

Abandoned "Maine Rule" which put a knowing wrongdoer in a better position than an innocent party - a result the law ought not to condone.

2.

State supreme court rejected what weve called the aggressive trespass standard in favor of the objective rule for the state-of-mind issue related to the adverse/hostile component of the adjectival element.

d.

Aggressive trespass standard - doesnt matter whether or not the mistake was intentional or not, going to go for the objective standard because we dont care about what's in peoples head.

e.

Mannillo v. Gorski, pg 1362.

Boundary disputes - encroachments by one neighbor onto the land of another are not open and notorious if the encroachment is of a small area and is not "clearly and self-evidently" an encroachment.

E.

Everyone lives one house overa.

Took possession of a summer home under a deed which, unbeknownst to them, described the adjoining property.

1.

Common or successive relation to the same right in property1.

Privity of estate means the voluntary transfer from the first possessor to the second possessor of either an estate in the land or actual possession of it

a.

Owner - Tacking follows automatically on the owners side. Once the statute of limitations has started to run, the cause of action for ejectment (together with its expiring limitations period) goes along with ownership.

b.

Tacking - a common problem with continuity is whether one possessor can add (tack) the possession of a prior possessor to his own. If privity of estate exists between the prior possessor and the present possessor, tacking is permitted.

2.

DISABILITIES: Statute of limitation typically provide for suspension of the limitations time clock if the owner is disabled from bringing an action to recover possession at the time the cause of action accrues.

3.

Howard v. Kunto, pg 142F.

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Minority1.Unsound mind2.Imprisonment3.

Disabilities include:a.

Only disabilities that matter are those that exist at the time the cause of action accruesb.

owner is disabled from bringing an action to recover possession at the time the cause of action accrues.

Replevin - an action to recover personal property wrongfully takena.

Facts: P (GoK) brought an action against D (Snyder) for replevin for her 3 small paintings that had allegedly been stolen.

1.

Question is did she act reasonable due diligence/reasonable person who owned these paintings would've acted

2.

Rule: The discovery rule controls in actions involving the adverse possession of chattels3.

Statute of limitations doesnt begin until actual owner actually knows & demands return of the items

1.

Focuses on due diligence2.Some people think discovery rule is not protective enough3.

Discovery rule in this context is going to be more protective for original owners than adverse possession in real property context

a.

Due diligence - the standard of care as would be taken by a reasonable person in accordance with the attendant facts and circumstances

b.

Discovery rule - a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action.

4.

Guggenheim alternative to discovery rule - not require diligence from true owner reasoning that such an approach would encourage illicit trafficking in stolen art by putting the burden on the true owner to demonstrate that it had undertaken a reasonable search.

5.

Georgia O'Keefe v. Snyder, pg 151, adverse possession of personal propertyG.

Oral agreement is not a conveyance but has all the effect of one (would violate the SOF)a.Agreed boundaries - neighbors can agree on a new boundary and record a conveyance to carry it out.1.

Acquiescence - if one owner acquiesces in a known encroachment for an indefinite but long time, the acquiescence is evidence of an agreed boundary

2.

Other neighbor changes their position as a result of their indicationa.Estoppel is an equitable doctrineb.

Equitable estoppel - if one neighbor does or says things that cause the other neighbor to substantially rely to his detriment on the first neighbor's actions, the first neighbor is estopped from denying his statements or actions

3.

Boundaries are hard to police4.

Alternatives to adverse possession in boundary disputesH.

By requiring people to do stuff before the sale, were building failsafes in place to keep transactions on track

a.

Other function: Executory Nature the contract is designed to allow the parties to fulfill various contingencies to take various steps at different points before closing.

1.

One of the chief functions of a real estate contract is smoking out problems with property before deed changes hands

A.

Steps before it have to happen before parts of the deal can go forwarda.Contract that is not the end of the transaction1.

Executory contract B.

Purchase Price & how its to be paid1.Legal description2.Good Title furnished, title ins.3.Warranties of title incl. restrictions4.Date of transfer of possession5.Proration of taxes/utilities6.What if fire? Whos responsible?7.Itemization of personal property included in sale8.Escrow details9.Provision for return of deposit10.Signatures11.

Some things a RE K should include:C.

REAL ESTATE TRANSACTIONS AND THE RECORDING SYSTEMIV.

Outline Page 9

Signatures11.

Buyer has equitable title - still has to pay for burned down house1.B has equitable ownership of the propertya.

S has legal title as trustee for Bb.Often K around or buy insurancec.

Traditional majority rule here is that the buyer bears the risk of loss if the house burns down between contract/closing

1.

If youve closed than the buyer is maybe on the hook a.Minority rule - If the loss is substantial and maybe if the sellers still in possession than its the seller2.

Equitable conversionD.

Fiduciary - person holding a legal obligation to act for the benefit of another1.

Fiduciary duty - a legal obligation to act for the benefit of another, including subordinating one's personal interests to that of the other person

a.

Must exercise fidelity and good faith; 1.Cannot put themselves in a position antagonistic to their principals interest, 2.and therefore must make a full, fair, and prompt disclosure of all facts which are or may be material, or which may affect their principals rights and interests.

3.

Fiduciaries:b.

Making material misrepresentations;a)Making false promises likely to influence, persuade, or induce;b)Acting for multiple parties in a transaction without the knowledge of all;c)Any dishonest, fraudulent, or improper dealings.d)

Fiduciaries can breach their duties by:1.

Breach of fiduciary duty: The failure of a fiduciary to observe the standard of care exercised by professionals of similar education and experience.

c.

Fiduciary duties and the possible breaches of these duties:1.

Facts: Six siblings enlisted a real estate broker to help them sell a home they had inherited and the broker in turn enlisted another broker for further assistance. The second broker himself bought the home for less than market value and sold it six days later for $45,000 more than his purchase price.

a.

Issue: Must real estate brokers fully, fairly and promptly inform their clients of all known facts that might be material the transaction for which the brokers where employed?

b.

Held: Yes. Real estate brokers are fiduciaries and accordingly they must act with the highest fidelity and good faith in promoting their clients, and not their own, interests. Those duties flow to a broker who acts as a subagent of another broker if the subagent has the primary broker's express permission to act on the clients behalf.

c.

Defendant subagents of the broker, who was directly in privity (common relation to the same right in property) with the plaintiffs, also had the relevant fiduciary duties to the plaintiffs

d.

Licari v. Blackwelder, pg 5302.

Fiduciary Duties and brokers in real estate transactionsE.

In writing1.Signed by party to be bound2.Describe real property at issue3.If price has been agreed to has to state it4.

Requirements:a.

Requires proof of an oral contract and reasonable reliance on the contracta)Equitable doctrine wherein we award relief to somebody who party performs, to their detriment, a contract that fails SoF (Hickey v. Green, Walker v. Ireton)

b)

Part performance1.

May be used to enforce an oral sale contract if the seller has caused the buyer reasonably to rely significantly to his detriment upon the sellers oral agreement to sell.

a)

Different from partial performance because B is doing things to improve property or in reliance on contract that arent specifically part of the agreement

b)

Estoppel2.

Two exceptions to the statute of fraudsb.

Requires that unless there is some exception available, a contract for the sale of land must be in writing and must be signed by the party against whom it is sought to be enforced . Because both parties wish to enforce the agreement, if necessary, against the other, this means in practice that both parties must sign the contract for sale.

1.Statute of FraudsF.

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reliance on contract that arent specifically part of the agreementBoth ^^equitable doctrines and thus are generally available only when a buyer seeks specific performance of an otherwise unenforceable contract of sale

c.

A lot of people put a high percentage of their resources into their home so we insist you get it in writing

1.

Will carve out an exception to SOF if its really unfair 2.

SOF is to help people frauded out of their homed.

Facts: Green (D) orally agreed to sell a parcel to Hickey (P) and accepted his check as a deposit. In reliance Hickey sold his home because he was build on the parcel he bought from D. Green found out and refused to sell. P sued for specific performance

a.

Issue: Can an oral contract for the sale of real estate be specifically enforced if the party seeking enforcement changed his position in reasonable reliance upon the contract?

b.

Yes, specific performance. P reasonably relied & D was fully aware of this when she refused to honor the contract. Would be manifestly unjust to refuse specific performance.

c.

Hickey v. Green, pg 5422.

Held - Walkers sale of his own farm was not reasonable reliance on the oral contract because the parties had neither discussed that action nor was it foreseeable by Ireton.

1.

Because selling his own farm was not within the contemplation and understanding of the parties and not foreseeable by the seller.

2.

Facts: Walker entered into oral contract to purchase farm from Ireton for $30,000. A written contract was discussed but Ireton said he was honest and they didnt need one. Walker gave Ireton $50 check as part payment. Walker sold his own farm without informing Ireton of his intentions. Ireton then refused to convey.

a.Walker v. Ireton, pg 5463.

Difference between Walker and Hickey is Hickey told Green he was selling his house in order to buy hers/build on her lot.

4.

Pp through specific performancea.Es recognized as defense b.

Part performance/Estoppel originated in equity5.

Burden on the title, such as mortgages, judgment liens, easements, or covenants. a.General rule that zoning laws are not encumbrances and do not impair marketability of titleb.Easements that are open, visible, available, or enhance property aren t encumbrancesc.

"Encumbrances 1.Free from encumbrances and any reasonable doubt as to its validitya.

And such as a reasonably intelligent person, who is well informed as to the relevant facts and their legal bearings,

b.

And who is ready and willing to perform the contractc.Would be willing to accept in the exercise of ordinary business prudence. d.

Marketable title is title: 1.

The title to land is unmarketable where it is of such a character as to expose a purchaser to the hazard of litigation by reason of palpable defects in the title, outstanding claims, or some disputed question of fact or of law of such importance as to lead to a reasonable belief that by reason thereof the purchaser may be called upon to defend possession or title, or be involved in litigation with reference thereto.

a.

Defect in title must be substantial and likely to injure the buyer b.

Hazards of litigation"2.

While undisclosed problems with the land may provide many grounds for legal claims by a purchasing party, they may not provide grounds for rescission based on marketability of title grounds.

a.Distinction between marketability of title and marketability of the land: 3.

Marketable TitleG.

Fraudulent misrepresentationa)Affirmative misrepresentationb)Active concealmentc)Confidential/fiduciary dutyd)Partial disclosuree)

Traditional exceptions to this rule:1.

Limited in Stambovsky2.

Caveat emptor (buyer beware)a.Three different approaches to the duty to disclose:1.

Duty to DiscloseH.

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Limited in Stambovsky2.

Compare to the caveat emptor standard and its traditional exceptions.1.Johnson, pg 5572.

The duty to disclose latent and material defects known to the seller, and unknown and not reasonably discoverable by the buyer;

b.

Objective (value of house on market/if defect has decreased value)a)Subjectiveb)

2 approaches to materiality (how we determine something's material)1.The duty to disclose all known and material defects, latent or patent. c.

P contended that he should be entitled to rescind the contract of sale and recover his down payment because D (owner of the house) did not disclose that the house was haunted

a.

Rule: Where a condition that has been created by the seller (deliberately fostered) materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity

b.

Not familiar with that village's folklore, could not readily learn home was haunteda)

"Nondisclosure constitutes a basis for recession as a matter of equity. The unusual facts of this case clearly warrant a grant of equitable relief."

1.

Equity - fairness/justice/the determination of a matter consistent with principles of fairness and not in strict compliance with rules of the law

2.

Limited Caveat Empor rule while being moved by the spirit of equity.c.

Stambovsky v. Ackley, pg 553, Ghost case2.

D failed to disclose to P certain roof defects prior to conveyancea.

Since fraud occurred after contract execution it was irrelevant1.

Rule: Where the seller of a home knows of facts affecting the value of a home that are not readily observable, the seller is under a duty to disclose - latent defects rule

b.

Latent defects - a defect that cannot be discovered upon ordinary examinationc.

Johnson v. Davis, pg 5573.

Basically, the sales contract doesnt matter after closing1.

Contract merges into deed B cannot sue S for promises in K but not in deed, but must sue on warranties in the deed

a)

When B accepts deed, B is deemed to be satisfied that all of the contractual obligations have been met.

2.

All the obligations in the contract have emerged into the deeda.

Argue that duty was collaterala)Collateral to the contract 1.

Independent of contract2.

How to get around the doctrine of merger? b.

Namely fraud and contractual promises deemed collateral to the deed1.Merger is getting riddled with exceptions, easier to make argumentsc.

Principally applies to questions of title or quantity of landd.

Doctrine of Merger4.

Everything in the title is good, anything problematic1.Warrants title against all defects2.

Grantor promises that he owns what he is conveying1.Ownership/right to quiet possession/entitlement 2.

Covenant of seisin a)

Covenant of right to conveyb)Covenant against encumbrancesc)Covenant of general warrantyd)Covenant of quiet enjoymente)Covenant of further assurancesf)

Six covenants of title3.

Seisin, right to convey, encumbrancesa)Present covenants - broken at the time of transfer4.

Future covenants - only find out whether they're going to be honored in the future5.

General Warranty deedsa.Three types of deeds: 1.

Types of DeedsI.

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General warranty, quiet enjoyment, further assurancesa)Future covenants - only find out whether they're going to be honored in the future5.

Warranty only against the grantors own acts 1.Special Warranty deedsb.

No warranties1.Quitclaim deedsc.

Name of grantor & granteea.Words of grant (make clear that its transferring)b.Description of the landc.Signature of grantord.Notary seale.

Elements of a deed2.

Keeps the actual purchase price out of the public recordsa.Not necessary to convey land, just the fact of consideration is stated in deedb.

Consideration - stated in deed in order to raise a presumption that the grantee is a bona fide purchaser entitled to the protection of the recording acts against prior unrecorded instruments.

3.

Forged deed - void, just throw out4.Deed procured by fraud -is voidable by the buyer5.

An installment land sale contract or a contract for deed is an arrangement whereby the purchaser takes possession and the seller contracts to convey title to the purchaser when the purchaser has paid the purchase price in regular installments over a fixed period of time

1.

During mortgage crisis1.D was predatory lending, contends they were following fairness standards at that timea.

Loans were adjustable with a preliminary rate for 4 years1.The initial rate was typically 3 points lower than the usual mortgage rate on 30 year loans2.The debt to income ratio would exceed 50% after the introductory period expired3.The loan-to-value ratio was 100%4.

Rule: Mortgage loans with the following 4 characteristics would likely be unfair under the MA consumer protection statute

b.

Held: D knew or should've known these would be difficult to repayc.

Commonwealth v. Fremont Investment & Loan, pg 6302.

Financing real estate transactionsJ.

What kind of notice/priority recording counts to make you a bona fide purchaser1.

Evidence beyond record necessary to prove actual noticei.Real, actual knowledge of the prior unrecorded transaction. 1.

Actual a)

Unless not within chain of title (& other things so this prob isn't important?)i.

Record - If an instrument is validly recorded, everyone in the world has constructive notice of it and cannot be a BFP

1.

Ordinary person of average prudence would inquire as to its truthi.

Inquiry - maybe some aspect of deal or As use of land that let B know they should investigate further. (Harper v. Paradise & Waldorff Ins. v. Eglin)

2.

Constructive b)

Types of notice2.

BFP under race recording act is first to reporta)Who counts as a BFP is going to change under certain recording acts3.

Under all recording acts - A subsequent bona fide purchaser is protected against prior unrecorded interests

a.

The American recording system is an attempt to keep track of the various interests that may exist in a single piece of property, and a way to give potential purchasers relatively easy and trustworthy information about the nature of title.

1.

BFP = whoever records first1.

Race statutes - under which, as between successive purchasers, the person who wins the race to record prevails, and which protect subsequent purchasers only if they record first;

a.

BFP = subsequent BFP (for value/without notice) prevails1.Notice statutes - protect only subsequent purchasers without notice; b.

Race-notice statutes - under which a subsequent purchaser is protected against prior unrecorded c.

Three types of recording acts: 2.

Recording SystemK.

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Is without notice of the prior instrument, 1.

Has been suggested that a race notice statute is preferable because by punishing nonrecording, it provides motivation to record, making the public records complete

a)And records before the prior instrument is recorded. 2.

BFP = Subsequent BFP (for value/without notice) who records first3.

Race-notice statutes - under which a subsequent purchaser is protected against prior unrecorded instruments only if the subsequent purchaser:

c.

A notice statute protects a subsequent purchaser against prior unrecorded instruments even though the subsequent purchaser fails to record

a.

Important to closely read a recording statute to see who comes within the statutes protectionb.

In addition to protecting only subsequent purchasers without notice, a notice statute differs from a race statute because Race statute protects subsequent purchaser only if the subsequent purchaser records first

3.

Has not given value/considerationa.

General rule that recording statutes often do not protect donees or devisees as subsequent purchasers, even in race jurisdictions

4.

Shelter rule - protection given to a BFP under a recording act ends to all takers from the BFP, even if the taker knows of the prior unrecorded conveyance

5.

Let P have land & pay Z for it -> Court chose this one1.Award Z equity in land proportionate to what Z has already paid2.Allow Z to complete purchase, but pay remaining balance to P3.

Pro tanto rule protects buyers to the extent of payments made prior to notice but no further. So we can:a.

Rule: One cannot claim BFP status if he receives actual notice of an unrecorded interest in real estate prior to taking title

b.

Didnt raise his argument at trial so the S. Court waived itc.

Daniels v. Anderson, pg 6866.

Lis pendens - a pending actiona.Rule: A person who records an interest in real estate after a BFP takes title thereto is inferior to the BFP, even if that BFP has not paid for the property

b.

We dont have to use Davis. If we apply Davis, we penalize an innocent purchaser & Davis is antiquated vs. current industry practice

1.

Held: Any purchaser without notice who makes a down payment and obligates himself to pay the balance, has every reason to believe that his rights are secure in the property.

c.

Here, Court abandons 99-y/o Davis precedentd.

Lewis v. Superior Court, pg 6897.

Cant give more than you get/Cant give interest past deatha.

Adverse possession argument - people haven't possessed the land long enough1.On notice that Document only for replaced - so there's a document out there, 2.

2 argumentsb.

Be careful about occupancy in this case1.Mere occupancy vs. possessionc.

D had constructive notice of the prior claim when they acquired title 1.Recorded reference to an unrecorded instrument - purchaser is under obligation in many states to inquire about substance to which record refers

2.

Rule: A deed which specifically refers to an earlier unrecorded deed puts a subsequent purchaser on notice of the existence of the earlier deed; thus the purchaser claiming under the later deed is not entitled to property, though the later deed was recorded first

d.

Shows how far some courts may stretch, based on the recorded documents, to find a duty to inquire by subsequent purchasers.

e.

Harper v. Paradise, pg 6938.

Rule: Subsequent successors to legal title, after a contract to convey title has been executed, take title subject to all equitable interests of which they have notice

a.

Possession or occupancy of a single condominium unit, even in a large complex, could give rise to inquiry notice by a subsequent purchaser.

b.

Waldorff Insurance and Bonding, Inc. v. Eglin National Bank , pg 6979.

The donors intention to make a gift to the donee a.And the actual transfer of possession from donor to donee.b.

Two important components of a gift: 1.Acquisition by GiftA.

THE RIGHT TO DISPOSE (GIFTS, POSSESSORY ESTATES, AND FUTURE INTERESTS)V.

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And the actual transfer of possession from donor to donee.b.These can be understood as necessary elements -->c.

Intenta.

Grantor must relinquish dominion and control of gift1.Affirms intent/proves gifting happeneda)

Revocable i.Gift causa mortis - gift made contingent on the donor's anticipated death 1.

Rule: A constructive delivery of a gift causa mortis will be effective where it plainly appears that it was the intention of the donor to make the gift, and where the things intended to be give are not present, or where present, are incapable of manual delivery from their size or weight.

2.

Newman v. Bost, pg 167b)

Constructive delivery - when actual physical delivery is possible but impractical, delivery of some object that is the means of obtaining possession of the property constitutes constructive delivery

1.

Symbolic delivery - when actual physical delivery is impossible or impractical, delivery can be accomplished by delivering some object that is symbolic of possession

2.

Deliveryb.

Assumed when gift is valuable to the donee1.Acceptancec.

Necessary elements of a gift: intent, delivery, acceptance. 2.

Facts: Dad sent son a letter saying wanted to give him painting as a gift, but Dad would keep until he died. Stepmom wouldn't give it to him when Dad died arguing that donor retained a life estate and no delivery was made.

a.

Gift inter vivos - a gift that is made and is to take effect while the parties are living1.

Issue: May a valid inter vivos gift of chattel be made where the donor reserves a life estate and the donee does not take physical possession?

b.

Bray: Future interest is something that's hard to deliver1.

Held: Yes, a valid gift was made. Donative intent was established constructively through the document of transfer (the letter). Acceptance is implied because the painting had value.

c.

Introduced Life estate and a remainder. Next headingd.

Gruen v. Gruen, pg 1743.

Issue - children and descendants1.First people we look to?a)

Ancestors1.If no issue?b)

Collaterals - related by blood pg 1961.If no issue, and no ancestors?c)

Government takes iti.Escheat1.

If none of the above?d)

Heirs1.

Dont know who someone's heirs are until they die2.

People who take dead persons property when they die intestate?a.Intestate - die without will4.

Fee Simplea.Life Estateb.Leaseholdc.

Hierarchy of Estates1.

Largest, and conceptually the most expansive, estate one can own. 1.An estate of indefinite or potentially infinite duration a.

WHEN YOU SEE & HER HEIRS = FEE SIMPLE - on estates problemsb.

Vested - remainder is vested if it is created in a known person = will have letter/name on exam1.

Remainder - future interest created in a grantee that will become possessory (if it ever becomes possessory) upon the natural expiration of the preceding possessory estate

c.

Fee simple2.

Estates Problems stuff3.

Estate system - Designed to make clear who is transferring what to whom not just what physical parcel of land or item of personal property but also what sort of ownership measured in terms of the duration of the transferees interest

B.

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Not in old times1."O conveys to A" = Fee simplea.

A has life estate1.O has a reversion (when A dies)2.

"O conveys to A for life"b.

A has life estate1.

Would call this a remainder (& fee simple)a)When it becomes possessory B gets his hands on it - B will have it and it will be Fee simpleb)

B has future interest2.

O conveys Greenacre "to A for life then to B"c.

Will be A's for 50 years1.Term of years2.

O has reversiona)Then what?3.

O conveys Greenacre "to A for 50 years"d.

Rolls on forever thats ita)A has a fee simple1.

I think because you never know who heirs are until they die so right now B has nothinga)B has nothing (may say 'mere expectancy' - fancy way for nothing)2.

O conveys Greenacre "to A and her heirs" at the time of conveyance, A has one son, B. e.

If it starts with 'to A for life' then you always know its LIFE ESTATE1.A - life estate2.

When C gets hands on it, she's going to have fee simple so its ^^^a)

Might say 'vested subject to open' because B could have some more kids - between the time of conveyance and the time that it vests (becomes possessory) C might be joined by some siblings who also might join in this remainder

i.

When the conveyance is made C is alive, so O knows when he makes the conveyance that A is going to get a life estate and then one child in whom that remainder is vested(know who its going to)

1.C has vested remainder in fee simple at the time of conveyanceb)

C- remainder fee simple3.

B has absolutely nothing4.

O conveys Greenacre "to A for life, then to the children of B." At the time of conveyance (and at the time of A's death), B has one daughter, C.

f.

Estates Problems stuff3.

May only be created in a grantor1.Reversion - back to the grantor after death of person it was first granted toa)

Third party1.Remainder - interest that remains after the termination of the immediately preceding estateb)

Always followed by some future interest- either a reversion in the grantor or a remainder in a third party

1.

Ways that one can convey a life estate, both at early common law and in modern practice 2.

An estate that lasts for the life of the life tenant a.

Two separate estates representing different interests in the same property, entitling first the life tenant to possession, and then, after her death, the holder of the remainder (sometimes called the remainderman).

1.Life estate and a remainder: b.

When you have something thats ambiguous1.That courts/lawyers will apply - great argument2.

Easy/certaina)Ought to construe things as a fee simple3.

Rule of constructionc.

The more we can concentrate more sticks in the bundle for as long as possible things will 1.The more simple we can makea)

Numerus clausus - prohibition of new or customized property interests, pg 1971.

Standardization of estates - once the estates system developed, judges decided that standardization of estates furthered alienability by facilitating standardized transfers of the same resources, either by the owner or by the owners heirs or devisees.

d.

Life estate4.

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The more we can concentrate more sticks in the bundle for as long as possible things will be easier

1.

Applies to estates and all types of property interestsb)

Heller: purpose is to limit fragmentation of ownership and thus promote the easy transferability of property rights

1.

By requiring that owners create only legally recognized property interests, which have a standardized form, the principle directly restricts freedom of ownership

c)

When the duration of a life estate is measured by the life of a person other than the estate holder, it is a life estate pur autre vie - for the life of another

1.Life estate pur autre viee.

Sometimes said that a restraint on alienation is "repugnant" to a fee simple, and void for that reason. Pg 208

1.

Withholds from the grantee the power of transferring his interest1.O conveys Blackacre to A and his heirs but any transfer hereafter in any manner of an interest in Blackacre shall be null and void

2.

White v. Brown, pg 2023.

Disabling restraintsa)

If the grantee attempts to transfer his interest, it is forfeited to another person1.O conveys Blackacre to A and his heirs, but if A attempts to transfer the property by any means whatsoever; then to B and her heirs

2.

Forfeiture restraintsb)

Grantee promises not to transfer his interest/alienate the property1.Enforceable by the contract remedies of damages or injunction2.Rare except in landlord/tenant3.O conveys Blackacre to A and his heirs and A promises for himself, his heirs, and successors in interest that Blackacre will not be transferred by any means

4.

Promissory restraintsc)

Types of restraints on alienation2.

General rule is that a restraint on alienation that is for a reasonable purpose and limited in duration is valid

1.

Most are void2.Might just be bounded in time3.

Partial restraint - limiting conveyance to certain persons or putting a time limit on the restrainta)

Economic efficiency - restraints prevent property from moving into the hands of the person who would use it most productively

i.No matter what type of restraint, a total restraint on alienation of a fee interest is void. 1.

Absolute restraintb)

Distinction between absolute and partial restraints, pg 209 3.

Alienabilityf.

Facts: Lide died leaving a will that expressly stated he didnt want his home to be sold but for White to live in it.

1.

Issue: Will a will be interpreted as conveying a fee estate unless the words and context clearly evidence an intention to convey a lesser estate?

2.

Holding: Yes. Interpreting the language here as only a life estate would create a partial intestacy. There is a general policy against creating intestacy where a reasonable alternative interpretation exists. Fee estate in White.

3.

Rule: Unless the words and context of a will clearly evidence an intention to convey only a life estate it will be interpreted as conveying a fee estate

4.

White v. Brown, pg 202g.

Equitable interest give to the beneficiaries who will enjoy the use and enjoyment of the property1.

For the interest of the beneficiary not his owna)No misrepresentationsb)

Take legal title and give to trustee who runs the trust who has fiduciary duties to manage the property, but only for the beneficiaries

2.

Take property and split the legal & equitable interest in the propertya.

You could have another beneficiary if you want anna to have life interest1.When you split it you make the beneficiary of the trust the person you want to help you out with the giftb.

What is a trust? 1.TrustsC.

Outline Page 17

You could have another beneficiary if you want anna to have life interest1.And you want some other people to have it you name them as beneficiary interest with some remainder

2.

Trustee is going to be bound by fiduciary duties by beneficiariesc.Problems that can arise out of legal life estates (that is, life estates not created in trust)d.

Facts: Weedon's will gave his property to his wife for life, remainder to his grandchildren. She ended up needing to sell some because necessary for her support. Court was asked to permit sale of certain real property.

a.

Issue: May a court order the sale of property which is encumbered by a future interest?b.Holding: Yes, but only if a sale is necessary for the best interests of both the life tenant and the remainderman. Remanded so Anna can motion to sell only enough to provide adequate support for her unless compromise can be reached.

c.

Rule: A court may order the sale of property which is held subject to a future interest, but only if a sale is necessary for the best interests of both the life tenant and the remainderman.

d.

Baker v. Weedon, pg 2102.

Life estate not created in trust ^^ 3.

For example - start storing toxic wastea)Actively doing something that makes the property less valuable clearly waste1.

Affirmativea.

Dont do enough to take care of it and it just goes to shit1.Permissiveb.

Someone has done something that makes the property more valuable but future interests in it are still upset

1.

Woodrick, pg 2182.

Ameliorativec.

Different types of waste1.

Whether the holder of a remainder interest in a parcel of land may prohibit the life tenant of such property from destroying structures on the land

a.

Rule: For an act to constitute waste in Ohio, the act must diminish the value of the propertyb.Daughter got paid twice - court said you can take down the barn but must payc.

Woodrick v. Wood, pg 2182.

Concept of wasteD.

Any estate can be made to be defeasible1.

Every fee simple determinable is a fee simple that is limited so that it ends automatically when a stated event occurs.

1.

so long as"a)while used forb)until c)

Typical language of duration usually used to create a fee simple determinable, such as:2.

NEVER SAY POSSIBILITY OF REVERSIONa)This is automatic, thats the difference between FSD & FSSCb)

Possibility of Reverter: the future interest that accompanies a fee simple determinable. 3.

The fee simple determinablea.

Such an estate is a fee simple that is limited so that it may be cut short or divested when a stated condition occurs.

1.

but ifa)provided, howeverb)on condition that c)

Typical conditional language usually used to create a fee simple subject to condition subsequent, such as:

2.

Analogous interest in grantee is executory interest1.When grantor retains the power to cut short the conveyed estate before its natural terminationa)

Right of entry or the power of termination - two terms for the future interest that accompanies a fee simple subject to condition subsequent

3.

The fee simple subject to condition subsequent b.

Fee simple subject to executory limitation. c.

Three types of defeasible fee simple estates: 2.

Defeasible estates: Any estate that ends, or may end, prior to its natural end point and upon the occurrence of some specified future event.

E.

Outline Page 18

Fee simple subject to executory limitation. c.

Restraint against alienation - provision restricting the transferees ability to convey interests in the conveyed property

1.

Use restriction - a restriction on the right to utilize one's personal or real property2.

Facts: P acquired real property by a gift deed from Toscano. Included in the deed was a clause which purportedly restricted the use and ownership of the property to the P. Upon violation of the restriction, the property was to revert to D. P sought to a court ruling that the restrictive condition was void as a restrict against alienation and that P owned the property outright.

a.

Issue: Is a limitation on the use of property which also has the effect of restricting its transfer void as a restraint against alienation?

b.

Hold: No. Limitations on the use of property, although they might also serve to impede its transfer, will not be void as a restraint against alienation. Thus the part of clause that limits use of property is valid, but language expressly restrict the sale/transfer will be stricken as impermissible restraint against alienation.

c.

First, that some state courts have rules of construction for ambiguous conveyances - rules which may state a preference, for example, for a fee simple subject to condition subsequent over a fee simple determinable (a rule which we discussed in connection with an earlier problem);

1.

Second, that there are mixed views as to whether and when restrictions on land use should be regarded as restraints on alienation.

2.

Two key points to take away from this case:d.

Notes and problems after Odd Fellows, pg 241e.

Independent Order of Odd Fellows v. Toscano, pg 2363.

When the use restriction materially affects marketability adverselya.

When does a use restriction embodied in a defeasible fee become so onerous that it amounts to an invalid restraint of alienation?

4.

One very formal, concerned largely with the language at issue, essentially the approach adopted by the majority in Odd Fellows;

a.

A second approach, considered by the dissent in that case, which looks at the effect or substance of the restriction, such that a restriction on use might fail as, in effect, an unreasonable restraint on alienation.

b.

Two general approaches that courts may use to address restrictions on use that may appear to be restraints on alienation:

5.

First, the remedy involved.a.Second, the effect of the use restriction on alienation.b.Third, the potential benefits or harms of the restriction to other land.c.Fourth, the extent to which the restriction on use discourages potentially valuable improvements on the property.

d.

Fifth, the potential impact of enforcing or voiding the restriction on gifts to charity. e.

Factors that courts might consider when attempting to measure the effect or substance of a restriction on use, to determine whether it should fail as an unreasonable restraint on alienation:

6.

Relationship between restrictions on use and restraints on alienation F.

Not possessory but are capable of becoming possessory at some time in the futurea.A future interest is a presently existing property interest, but it confers only a future right to possession.1.

Reversion1.Possibility of reverter2.Right of entry3.

Those retained by the grantor or transferor, such as: a.

Those that are both certain of becoming possessory and that cannot be divested. 1.

Given only to an ascertained person, and i.Not subject to a condition precedent, other than the natural termination of the preceding estates.

ii.

Remain possessoryiii.

In other words, they are:2.

Indefeasibly vested remaindersa)

Vested remainders subject to openb)

Vested remainders - vested because we know who its going to go to, remainder because its going to end naturally

1.Those created in a grantee or transferee, such as:b.

Two general classes of future interests: 2.

Future interestsG.

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Such as remainders created in a class of persons. 1.

At least one member of the class is ascertained;i.But other potential class members may be created to share in the remainder;ii.And there is no condition precedent (other than the natural termination of the preceding estates).

iii.

These are remainders in which: 2.

Thats vested because we know after As life estate she's going to takei.If B has subsequent children after the conveyance but before the vestii.So like to A for life then to B's children and he has one, then it can be that because who knows if he'll have another one so its subject to open

iii.

To A for life then to the children of B, at the time of death B has another kid or something

3.

Vested remainders subject to openb)

'To B and her heirs unless C comes home then to C and her heirs'1.IF DECIDING BETWEEN THIS AND CONTINGENT REMAINDERS, THE ANSWER IS ALWAYS CONTINGENT REMAINDER

2.

Vested remainders subject to divestmentc)

Person will have a letter or a name - on exam if its ascertained1.

On exam - A remainder is vested if its given to an ascertained person (someone who's alive that we know of)

d)

Because we dont know for sure who the people are were going to take because they're not alive yet

1.

Or they're subject to something2.

That might not become possessory at some future timea)

B's nonexistent children have contingent remainder1.

Example: O conveys Blackacre to A for life, then to B's children (B currently has no children)

i.Contingent because their takers are unascertained, or1.

B has contingent remainder - has to graduate from Princeton to be entitled to possession

1.

Example: O conveys Blackacre to A for life, then to B if she graduates from Princeton (B is 12yo)

i.Contingent because they are subject to a condition precedent. 2.

Remainders that are either:b)

Contingent remainders2.

A future interest held by a transferee that may either divest or cut short some interest in another transferee (a shifting executory interest) or divest the transferor in the future (a springing executory interest).

a)

Shiftingb)

Dont need to know how to distinguish1.Springing c)

Executory interests3.

Executory interests cut short or divest the preceding interest; 1.Whereas remainders wait patiently or politely for the preceding interest to end naturally.2.

Basic differences between remainders and executory interests: c.

Beginning at the natural conclusion of a preceding estate 1.Rather, they cut off a preexisting interest when a specified condition occurs. 2.

Difference between an executory interest and a remainder: executory interests do not simply wait patiently or politely,"

d.

In some situations, its maybe appropriate to reform a conveyance to get it to comply with what we think the granters was

1.

Permits courts to revise the grantor's instrument to get as close as possible to the grantor's intentions when the grantor's actual intentions are impossible to accomplish

2.

Connection with doctrine of changed circumstances w/r/t termination of servitudes3.

Doctrine of Cy Pres, pg 306H.

The tenancy in common;a.Five types of concurrent interests known at common law, and focus in this section on three of those types:1.

Concurrent interestsA.Co-Ownership/Concurrent InterestsVI.

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There are no survivorship rights between tenants in common. a)A conveyance of real property to 2 or more persons who are not married to each other is presumed to convey a tenancy in common.

b)

Potential problems of coordination and exclusion among concurrent owners, and the possibility of an action for partition, either in kind or by sale.

c)

Tenants have separate but undivided interests in the property that are descendible and that may be conveyed by deed or will.

1.The tenancy in common;a.

Not subject to probate - which is an expensive, cumbersome, time consuming judicial procedure to transfer a decedent's property

1.

Creditors of a joint tenant must seize and sell the debtor's joint tenancy interests during the debtor's life because the joint tenant debtor's interest disappears at his death

2.

Advantagesa)Singular characteristic of a joint tenancy is the right of survivorship between joint tenants.1.

Clearly expressed intention in the grant itself1.Intenta)

Must receive interests at same moment in timei.Timea.

Must receive interests under same instrument i.Titleb.

Same share of the undivided whole1.Same durational estate2.

Must have identical interest in the propertyi.Interestc.

Each tenant must have right to possession of the whole property in its entiretyi.Possessiond.

Four Unitiesb)

Modern law has abandoned this obsolete requirement as to creation - there is little virtue in adhering to cumbersome feudal law requirements.

a.

Riddle v. Harmon, pg 324 (below)b.

Common law 4 unities for creation required both tenants acquire interest at same moment which in turn required that one party holding the whole had to convey his interest to a 3rd person ("straw man") who would convey to the joint tenants in order for such party to create a joint tenancy between himself and another.

c)

Next, we started our discussion of modern trends away from a strict insistence on the four unities, beginning with the possibility of unequal shares.

d)

Severance - destruction of any one of the unities would operate to sever the joint tenancy, because the four unities were necessary to create the joint tenancy at common law

e)

Importance of intent (and the correct phrasing) to create a joint tenancy, and 4 traditional unities 2.

Facts: P's wife owned real property in joint tenancy with P but didn't want her interest to pass to P when she died. Terminated joint tenancy by granting herself undivided one half interest, which makes her tenant in common. Will devising her tenancy in common to a third party was executed. P challenged and wife's executrix D appealed.

a)

Issue: May a joint tenancy be terminated by the conveyance by one joint tenant of his interest in the joint tenancy property to himself?

b)

Straw man not necessary (a 3rd party to whom a transfer of property is made in order to effectuate a transaction that may not otherwise be allowed)

a.

Held: One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device.

c)

Rule: A joint tenancy may be terminated by the conveyance by one joint tenant of his interest in the joint tenancy property to himself

d)

A minority of jurisdictions not requiring reconveyance to a straw man for severance permit termination of a joint tenancy by the filing of a declaration of an intention to do so, eliminating even the fiction of having to convey to sever.

e)

We usually dont require recording/notice to sever JTa.

Different methods and limitations that might be used or required to unilaterally sever a joint tenancy

f)

Riddle v. Harmon, pg 3243.

The joint tenancyb.

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We usually dont require recording/notice to sever JTa.Deed to yourself as TiC (Riddle v. Harmon) not best wayb.Straw man deed to a friend and have them deed it backc.Trust deed it to your kid in trust, naming yourself beneficiaryd.

Facts: P & Harms owned joint tenancy, Harms executed a mortgage favoring Simmons who assigned his interest to Sprague (D). Harms died and P contended that the mortgage died with him.

a)

Issue: Does a mortgage on a joint tenants interest survive the mortgagor?b)Held: No, unity of title required for joint tenancy & if mortgage constituted a change it title that would destroy the unity. But Illinois recognizes that mortgage does not constitute a change until foreclosure plus running of redemption period so mortgage does not sever joint tenancy therefore the entire estate of the decedent JT passes to the survivor. This effects a nullification of any liens thereon so Ds interest was extinguished upon Harms' death.

c)

Rule: A mortgage on a joint tenant's interest does not survive the mortgagor.d)

Harms v. Sprague, pg 3304.

The crucial difference between this case and Riddle is that the mortgage didnt technically transfer title and, therefore, didnt sever JT

5.

Not restored by redemption because time & title unities not present.i.

Mortgage by one joint tenancy had the effect of severing JT because unity off interest destroyed.

1.

After mortgage, former JTs would become tenants in common and there would be no right of survivorship

2.

Holds that a mortgage effects a transfer of legal title subject to an equitable right of the mortgagor to reclaim title by paying off the loan secured the mortgage (equity of redemption)

a)Title theory of mortgages6.

Mortgage by one JT makes no alteration to title and thus does not sever the JT1.

Holds that the mortgagee only has a lien against the property (an inchoate right to seize title if the loan is note paid).

a)

more importantly, the different rules that courts may apply in joint tenancy situations to mortgages and other conveyances, such as leases or life tenancies, that fail to convey a full fee interest;

b)

Lien theory of mortgages7.

Facts: P owned undivided 99/144 interest, D owned 45/144. Tenancy in common a)Issue: Are partition sales employed only where partition in kind is unworkable?b)

In this case limited number of competing interests/ease of division = partition in kind very workable

1.

Held: Yes, partition sales should only be employed in extraordinary circumstances because the forced sale of a party's interest should be avoided.

c)

Rule: Partition sales are employed only where partition in kind is unworkable.d)

Paying twice1.

Partitions in time can be trickyi.Vealencis got less in the partition in time then they would have in the partition by sale2.

Bray thinks owelty is a mistake for something that's going to be related to the partitione)

Partition way to remedy isutations when joint tenants not getting alongi.Modern trend to debunk presumptionii.Delfino - The new trend has not yet swallowed up the old trendiii.

The traditional presumption (discussed in Delfino) that many courts apply in favor of partitions in kind

1.

Modern trend toward ordering partitions in sale, despite this presumption.2.

Including both: f)

Arguments that the Delfinos attorneys might have made to try to overcome the traditional presumption as applied in that case.

1.Problems with valuation associated with partitionsg)

Delfino v. Vealencis, pg 3388.

Partition unavailable1.Have to be married couple2.

The tenancy by the entirety.c.

Ouster exists when the cotenant in possession refuses to allow another cotenant to share the possession a.Ouster. 2.

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Majority rule: a cotenant in exclusive possession does not owe rent to her cotenants, absent ouster.1.

Ouster exists when the cotenant in possession refuses to allow another cotenant to share the possession after the latter has made a demand for possession.

a.

Because they each have a right of the property of whole1.One cotenant cannot adversely possess the property against anotherb.

Cotenant usually liable for rent on the property to that tenant1.Or for a share in certain profits to that2.

When one cotenant houses another is when problems arisec.

Doesnt want to lose that right of survivorship - wifea)Cannot cancelb)

Deny access to the land, but could claim ouster and demand rent from W1.Use legal rights to annoy (picketing)2.Possibly Waste argument, but it would be tough3.

Uses various legal rights to annoy other guyc)

Facts: They're cotenants - husband leased some property to another person who wants to put boxing thing there

1.

Different conveyances that sever joint tenanciesa)Did this lease (between husband and Sampson) sever the joint tenancy? NO2.

Issue: Can one joint tenant who has not joined in leases executed by her cotenant and a third party maintain an action to cancel the leases where the 3rd party is in exclusive possession of the leased property?

3.

Leases at issue were neither invalid nor severances of the joint tenancya)

Rule: The act of one JT without express or implied authority from, or consent of, his cotenant cannot bind or prejudicially affect the rights of that cotenant; but, a lease to all of the joint property by one JT is not a nullity but rather is valid to the extent of his interest in the joint property.

4.

Ouster gives her a way to just sue Sampson, goal is to make boxing unpleasant enough for sampson so he leaves

a)Ouster isn't proper until perfect adverse possession5.

Bottom of pg 354a)Mrs. Swartzbaughs concerns about adverse possession, and the courts conclusions on this issue.6.

Swartzbaugh v. Sampson, pg 351d.

Achieve fairness between the parties, a.Respect the intent expressed in the easement, b.Acknowledge the interdependence of some landowners,c.Keep property easily marketable, without unnecessary encumbrances.d.

Fundamental tensions that exist in many servitudes cases with courts attempting to: 1.

When we create them we'll create them so they can run with the landa)This right to use shouldnt be confused with the right to possess (Thats associated with ownership right/not a use right)

b)

Evolution of easements essential to understanding the subsequent evolution of real covenants and equitable servitudes, and more modern efforts to simplify this area of the law. creation of easements and the application of the statute of frauds.

c)

Agreement that allows a non owner to enter upon and use a piece of property possessed by another person

1.

Benefited parcel is dominant estatei.Burdened parcel is servient estateii.

One that benefits the owner of another parcel of land1.Appurtenant easement - very clearly going to run with the land, both pieces of propertya)

Tended not to be transferable in common law, relaxed nowi.Can assign the rightsii.

That means one person holds it personally, if you sell it to neighbor easement will not run with it

1.Easement in Gross - designed to deliver a personal benefit b)

Affirmative easements - permits a person to use the servient estate in a specified mannerc)

Two ways to classify easements, Appurtenant/in gross (every easement is one or the other) or affirmative/negative

2.

Easementsa.Broad terminological categories of servitudes: 2.

Servitudes Generally/Easements in ParticularB.

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Majority are affirmative, only a few types of negative may be created1.Affirmative easements - permits a person to use the servient estate in a specified mannerc)

Confers no right to use the