Property Outline
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Property Outline What is Property? Theories: Acquisition by Discovery and Capture Property doctrine tries to serve four important values: 1. Reward productivity and foster efficiency 2. Create simple, easily enforceable rules 3. Create property rules that are consistent with societal habits and customs, and 4. Produce fairness in terms of prevailing cultural expectations of fairness. Relative Title: A person’s claimed property right is almost always good or not, only in relation to others. Ex. If the hunt occurred on Post’s land and Pierson was a trespasser, his actual possession of the fox would give him a property right in it, but only until or unless that right was trumped by Post, invoking is right to exclude others from his property. First possession and right to exclude others conflicts. Society thinks it’s more important to discourage trespass than to reward the first possession of unowned objects when the two values collide. o Ratione soli : owner of land has constructive possession wild animals on the land, until the animal takes off. A trespasser, even if he is in possession of the animal, doesn’t own it. The owner of the land is in 1 | Page A bundle of sticks A bundle of rights Every stick of property you may own will be different Some you can give, some you can take, some can be taken They all differ in length and the rights that are awarded with them Difference between possession and ownership You can possess something that you may not necessarily own Ownership gives more rights that possession, most of them time Ownership has limits as well Ex: Owning a book but you can't copy it and put it online b/c you would be infringing on someone else's rights Just b/c you own it does not mean you get to do whatever you want with it You may not have complete and absolute dominion over the property Can possess something that you aren't physically holding or that you cannot see Can share possession Carol Rose Not all cultures think of property in the same way Property is cultural Property = a "personhood" Property = happiness Locke's Theory of Labor Each person is entitled to the property produced through his own labor Pros Incentives to use natural resources Very individualistic You have control over what you own (sense of control) Appeals to sense of fair play - if you workhard, you will be rewarded Cons Monopolistic tendencies How much work actually has to be done? What if there are multiple people? Who got their first? Common Law Maxim Evidence in Johnson v. Mc'Intosh First possession is the root of title First in time, first in right
Transcript of Property Outline
Property Outline
What is Property?
Theories:
Acquisition by Discovery and Capture Property doctrine tries to serve four important values: 1. Reward productivity and foster efficiency 2. Create
simple, easily enforceable rules 3. Create property rules that are consistent with societal habits and customs, and 4. Produce fairness in terms of prevailing cultural expectations of fairness.
Relative Title: A person’s claimed property right is almost always good or not, only in relation to others. Ex. If the hunt occurred on Post’s land and Pierson was a trespasser, his actual possession of the fox would give him a property right in it, but only until or unless that right was trumped by Post, invoking is right to exclude others from his property. First possession and right to exclude others conflicts. Society thinks it’s more important to discourage trespass than to reward the first possession of unowned objects when the two values collide.
o Ratione soli : owner of land has constructive possession wild animals on the land, until the animal takes off. A trespasser, even if he is in possession of the animal, doesn’t own it. The owner of the land is in constructive possession, because of policy reasons. Title > possession > theft.
Wild animals, gas and oil. When wild animals/gas/oil escapes, and is returned to its natural wild and free state, the individual proprietorship of any person over them is over, and they resume status as common property. American groundwater rule: Water is allocated by first in time. Person who first appropriates and puts it to beneficial use has right superior to later appropriators (even if it is sucking from under another’s property!)
Natural Resources: Original Rule - capture is required to own these resources. Modern Rule - ownership is limited by reasonable use (no excessive production) - Define what uses are acceptable or not - Highly regulated by state - individual and localized rules
Bright line rules: Advantages: Efficient, Easy to apply, know what to expect, Discourages law suits, Predictive value, Channels behavior - tells people what is expected of them to meet. Disadvantages: Is it the right line, drawn in the right place? Inflexible - No way to balance the facts of individual cases, May promote injustices, May not work very well when there is a lot at stake - Like with death penalty, rights, life, liberty, etc.
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A bundle of sticks
A bundle of rightsEvery stick of property you may own will be different Some you can give, some you can take, some can be takenThey all differ in length and the rights that are awarded with them
Difference between possession and ownership
You can possess something that you may not necessarily own Ownership gives more rights that possession, most of them time Ownership has limits as wellEx: Owning a book but you can't copy it and put it online b/c you would be infringing on someone else's rightsJust b/c you own it does not mean you get to do whatever you want with itYou may not have complete and absolute dominion over the propertyCan possess something that you aren't physically holding or that you cannot seeCan share possession
Carol Rose
Not all cultures think of property in the same wayProperty is culturalProperty = a "personhood"Property = happiness
Locke's Theory of Labor
Each person is entitled to the property produced through his own laborProsIncentives to use natural resourcesVery individualisticYou have control over what you own (sense of control)Appeals to sense of fair play - if you workhard, you will be rewardedConsMonopolistic tendenciesHow much work actually has to be done? What if there are multiple people? Who got their first?
Common Law Maxim
Evidence in Johnson v. Mc'IntoshFirst possession is the root of titleFirst in time, first in right
Cases:Johnson v. M’Intosh – “First in time, First in Right” (SCOTUS, 1853)
Pierson v. Post – “If you do not have sticks, how do you get sticks?” (SC of NY,1805)
Ghen v. Rich – “What about custom?” (DC of Mass., 1881)
Keeble v. Hickeringill – “Malicious Interference” (Queen’s bench - 1707)
Facts: Johnson claims the land under grants by the chiefs of Indian Tribes. M'Intosh was granted the land by the US.Outcome: D won - why does the second possessor win?Reasoning: Marshall goes back to the law of discovery. The Natives only held aboriginal title, a right of occupancy that could be cut off at any moment by the U.S., as the successor to the European discoverers of the land. Natives have the right to occupy (short stick) but not the right to convey title which remained solely with the US Govt.Main Take-Away: Property conveys power, and first possession is a key to this power
Facts: Post was in pursuit of a wild fox when Pierson prevented Post from capturing the fox and killed and carried it off himself. Rule: Mere pursuit is not enough. Pursuit and capture is the labor necessary to own the fox [bright line rule - formalism]. The pursuer 1. Manifests an unequivocal intention of appropriating the animal to his individual use 2. Has deprived him of his natural liberty and 3. Brought him within his controlReasoning: A rule of actual possession would promote certainty and peace, and spur people to kill foxes (a public benefit).Dissent: Livingston believed it was better to adopt the customs of sportsmen to determine ownership of the fox.Main Take-Away: Property is instrumental and is constructed in order to accomplish certain goals
Facts: G shot an killed a whale. It sunk immediately and was found by Ellis. Ellis sold it to the respondent. G heard of the finding of the whale and immediately tried to claim it. Custom: One who kills a whale owns the whale. If such a whale were found, the finder would notify and receive a finder’s fee. The role of custom: Arguments for: Could potentially destroy the industry to not apply the customArguments against: Wasting resources, Binding third parties for something they would have no reason to knowLimitations: Cannot use custom as a sword, Have to look at the industry, Custom is a very narrow and limited application, not a bright line test, Dominant custom in the industry - not just a custom but the custom
Facts: P owned a plot of land on which there was a meadow. P would capture the ducks sell them for profit. The D went to the meadow and shot a gun three times in order to scare away the ducks. Held: Hickeringill maliciously interfered with Keeble’s lawful activity. Not fair competition, because it doesn’t improve society (he could make own duck pond, but not shoot away, because then nobody gets food).Reasoning: Hickeringill’s conduct might be considered lawful if society wanted to preserve biodiversity.Rule: If you interfere with lawful competition, that is good for society, you are outside the lawMain Take-Away: Competition is ok but interference for the sake of interfering (malicious interference) is not.
Demsetz’ Theory of Property Rights Property rights convey the right to benefit or harm to oneself or others Externality: a harm or benefit that is too expensive to bring into a reality for a participating party. Exists whenever
some person makes a decision about how to use resources without taking full account of the costs and benefits of the decision (especially to others). Encourages the misuse of resources.
Primary function of property rights is to use incentives to achieve a greater internalization of externalities, but property rights develop only when the gains of internalization > costs of internalization.
Private ownership – the community recognizes the right of the owner to exclude others from exercising the owner's private rights – reduces, but doesn’t eliminate externalities. It internalizes many of the external costs associated with communal ownership, because an owner, by virtue of his power to exclude others, can count on realizing the rewards associated with caring for the land, and will consider both benefits and costs of his behavior. Negotiating costs lower with fewer parties.
Communal ownership - a right which can be exercised by all members of the community o The community denies to the state or individual citizens the right to interfere with any person's exercise of
communally owned rights - poses danger of misuse. Negotiating costs are high, and people can’t get the full expected benefits. Claims of current generation will outweigh future generations who must speak for themselves (tragedy of the commons).
o Increase in the number of owners increase in the communality of property increase in the cost of internalizing externalities.
State ownership - the state may exclude anyone from the use of a right as long as the state follows accepted political procedures for determining who may not use state-owned property
Bottom Line - if I can act in a way that does not force me to take into account that my behavior may harm others, I am likely to act that way too much
Tragedy of the commons – a finite resource from which no one may be excluded. One view: resources owned in common [including environment resources like clean air and water] will always be abused, absent coercive intervention by the government. Another view: there are circumstances under which the owners of common property resources can cooperate to manage them effectively. How to fix: collectively engage in regulation of the resource's use to prevent its overexploitation or create private property rights
Tragedy of the anti-commons – because everyone has a say, nothing gets done. When is it useful: when the whole idea is to keep people from using a resource, but counterproductive otherwise
Main take-away: property should consider the cost to society in adopting one rule over another
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Acquisition by Creation, Intellectual Property Any expenditure of mental or physical effort, as a result of which there is created an entity, whether tangible or
intangible, vests in the person who brought the entity into being, a proprietary right o If you create something then that something is most certainly yours to exploit o The underlying idea seems to derive from John Locke
We want a balance between incentives and giving inventors too many rights. Do we need an incentive of legal protection so that inventors will continue to create? How many protections should we give? Some works would be created even without incentive of copyright patent (books), but others, like pharmaceuticals, need patent.
Exclusive rights to goods and land is desirable in a market economy, but an exclusive right to information is not.o Locke was talking about tangible property – not ideas. If table was invented by a caveman, Locke would
not argue that nobody else can build a table. o Competition depends on imitation. First creator is worse off, but public as a whole is better off, so long
as the freedom to imitate doesn’t destroy the incentive to create.o Information is freely reproducible and non-rival (my use doesn’t interfere with yours). Information can’t
be overgrazed – not subject to tragedy of commons!
Cases:INS v. Associated Press - "I am first in time because I created it" Cheney Brothers v. Doris Silk Corp. - Limits INS v. AP
Facts: The bill was filed to restrain the pirating of AP's news by INS in three ways: Why would we want to protect thoughts and creation? Promote Innovation, Locke Labor TheoryRule: It is unlawful to misappropriate another’s goods, because they expended money and effort to create the goods, and you shouldn’t reap what you haven’t sown.
Facts: P designs silk patterns [impossible to copyright and impractical to get a design patent]. D copied design and then undercut P's priceHolding: Imitation of seasonal fabric designs is not misappropriation Rule: Illustrates Court’s struggle between inefficiencies produced by a monopoly over creation (higher prices, less accessibility to a desired good) and sense of unfairness of allowing copycats to reap what they haven’t sown, and the fear that without protection, creators will not create.In this case - we want the competition to happen so that society will reap the benefits of lower prices – imitation is good when it is going to benefit society
Smith v. Chanel, Inc. Douglas G. Baird v. Associated Press White v. Samsung Elec. America, Inc.Holding: Imitation perfume maker is allowed to advertise that it is comparable to Chanel No. 5, using its trademarked logo and design, Rule: Strong public interest (better or comparable goods at lower prices) can outweigh injustice of allowing copyist to “take a free ride,” as long as there is no confusion as to the genuine creator.
Holding: Individual has a right to reap what he has sownReasoning: Using this with intangible property conflicts with other rights in a way that granting an exclusive right to tangible property does not. Granting exclusive rights to info does not promote market economy. The public as a whole may be better off as this freedom to imitate does not destroy the incentive for people to come up with new things
Property in One's Persona: A celebrity's right of publicity is widely recognized as a kind of property interest, assignable during life, descendible at death - interest includes name, likeness, and other aspects of one's identityHolding: Samsung’s depiction of a robot clad in blond wig, in front of Wheel of Fortune infringed White’s common law right of publicity. Criticized as case of overprotection because it extended to images that might remind the viewer of a celebrity, even though no use was made of her voice, name, likeness or signature. Overturned balance between protection of creative endeavors and leaving room for new innovation.
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Patents
Can be granted for processes or products that are novel, useful, and nonobviousLast a period of 20 years from the date of application so no one can come in and swoop it away from youNot renewable - when they expire the process or product in question enters the public domain where it can be exploited by anyoneThe words that you actually use when you file is very important when it comes to protecting your patent when there are attempted additions/modifications to the product you are trying to patent
Copyrights
Protect the expression of ideas in books and articles, music, artistic works, and so forthTo qualify - must be original , need not be novelCan last up to 70 years after the death of the creatorExceptions - fair use exceptionBalanced using a four factors test which are very circular and hard to get aroundParody exception
Trademarks
Are words and symbols indicating the source of a product or serviceThey are lost when use is abandoned or when they become generic (aspirin)The litigation usually has to do with confusion of products
The right to include, the right to exclude A relationship among people that entitle so-called owners to include (permit) or exclude (deny) use or possession of
the owned property by other people Law of trespass - protects the right to exclude Property law must include a right to include as well as a right to exclude in order to ensure transferability of property If you are talking about sticks in the bundle- the right to exclude is a big stick! Singer argues that the wide variety of current legal rules limiting the right to exclude can all be justified in terms of a
single underlying moral principle – the reliance interest in property. Reliance Interest in Property
o When owners grant rights of access to their property to others, they are not unconditionally free to revoke such access. Non-owners who have relied on a relationship with the owner that made such access possible in the past may be granted partial or total immunity from having such access revoked when this is necessary to achieve justice.
o When people create relations of mutual dependence involving joint efforts, and the relationship ends, property rights (access to or control of valued resources) must be redistributed (shared or shifted) among the parties to protect the legitimate interests of the more vulnerable persons.
o Property rights are redistributed from owners to non-owners: To protect the interests of the more vulnerable persons in reasonably relying on the continuation
of the relationship; To distribute resources earned by more vulnerable party for contributions to joint efforts; and To fulfill needs of the more vulnerable persons
Main Take – Away : Non-owners have a right of access to property based on need or some other important public policy [Property serves the public good.] Every person has the right to exclusive enjoyment of your own property for any purpose that does not invade the rights of another person.
Jacque v. Steenberg Homes - "A man's home is his castle.” State v. ShackFacts: Steenberg determined that the easiest way to deliver a mobile home was to forge a path that cut across the Jacques' property. They asked the Jacques if they could cut across their property and they adamantly and repeatedly said no. Steenberg crossed anywayHolding: Jury awarded $1 in nominal fees and $100,000 in punitive fees which were upheld by the appellate courtReasoning: Right to exclude others - one of the most essential sticks in the bundle of rights that are commonly characterized as property. But that right means nothing unless protected by the State - punitive award damages is the way to go because there really wasn't any damages. Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual land ownerRule: A landowner has a right to bar an unwanted trespasser from his 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.
Facts: Ds entered upon private property to help migrant farm workers employed and housed there. Ds refused to depart on demand of owner, and were convicted of trespassing.Holding: State law, ownership of real property does not include the right to bar access to governmental services available to migrant workers, thus, there was no trespass under meaning of the penal statute.Rule: A man’s right in his real property is not absolute. One can’t use his property to injure the rights of others. Where there is no real harm to the landowner (other than threat to economic interest), and where human rights are involved on the other side, a court may limit the right to exclude accordingly.Rationale: Holding is based on policy considerations! Property rights serve human values – property rights are recognized to that end and are limited by it. Though, this case may not have come out the same way if it were private migrant worker aids, or if government was less sensitive to migrant workers. Then, D’s complaint is to the legislature, not the court. Clash between the right of exclusion of the owner and the rights of the migrant workers that he allowed to live on their land. This is the migrant workers' castle too
Acquisition of Property by Find Bailment: rightful possession of goods by a person (bailee) who is not the owner. Voluntary bailment occurs when
the owner of goods (bailor) gives possession to bailee (i.e. checking your coat).o A wrongdoer (jeweler) having paid full damages to bailee (chimney sweeper), has answer to any action
by bailor (true owner) because he has already paid his debt, and the bailor must take up with the bailee. o Constructive Bailment : Courts will construe a bailment if the object is gone
Who wins in conflicts between . . . o Finder v. landowner? Always landowner, if he also owns lost object, but . . . o Trespassing finder v. landowner? Landowner.o Employee finder v. landowner? Split.
Older cases say the landowner; typically turns on lost/mislaid vs. abandoned distinction, on place of find, or on law of principal and agent. Newer cases find for employee.
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o Invitee finder v. landowner? Landowner. Finding property is almost never one of the specific purposes for which invitees are invited. South Staffordshire Water Co. v. Sharman : While cleaning a pool, workers found rings in
bottom. Rule: Possessor is entitled as against the finder, to chattels on the land, and it makes no difference that the possessor is not aware of the thing’s existence.
o Finder of treasure/embedded object v. landowner? Landowner if mineral. Lessee if chattel. Elwes v. Brigg Gas Co.: Prehistoric boat embedded in soil leased by finder and long-term lessee
on gas company’s land. Boat belongs to the P at time of granting lease, even though he didn’t know it existed. If it was mineral pr part of the soil, it belonged to the lessor, but since it was chattel, it belongs to the lessee. Right of original owner
o Finder v. private homeowner? Homeowner, unless he is absentee not in constructive possession. Hannah v. Peel : Peel owned a home, but n ever moved in. It was used to quarter soldiers, one of
whom found a brooch and reported the find. The owner didn’t appear, so brooch was turned over to Peel, who sold it. Hannah demanded and won the proceeds, because Peel had never moved in, and thus, never had constructive possession of the house’s contents. All-or-nothing approach – perhaps proceeds should have been split.Rule: property law favors the finder of lost property unless the owner of the premises (where the lost property was found) can make a case for constructive possession
o Finder v. shopkeeper/public place? Finder if lost. Shopkeeper if mislaid. Bridges v. Hawkesworth: Finder keeps lost money, because shopkeeper never had constructive
possession. Court wants to get property back to owner and encourage honesty (a rule that gives everything to the shopkeeper gives an incentive to not turn item in, lessening probability that owner gets it back).
McAvoy v. Medina : P found pocketbook on table. Since it was mislaid and not lost, it should belong to the shopkeeper.
CasesArmory v. de Lamirie McAvoy v. Medina
Facts: Chimney sweep found a jewel, and took it to D’s shop, who offered to buy it from boy for three halfpence. Boy refused, but D’s apprentice took the jewel anyway. Rule: The title of the finder is good as against the whole world, but the true owner.Holding: D loses (responsible via respondeat superior for apprentice’s actions). As remedy, boy can have a jewel from D of the finest character, unless the D produced the actual jewel to show it was of a differing character. Burden of proof is on the person in best position to present evidence. If D sold, he must pay for compounding the problem of valuation.Action in Trover - give me the money; I don’t care about the thing - term of artReplevin - wants the thing back; possession of the propertyMain take- away: Property rights consist of legal relationships between persons with respect to a valuable resource; right to possession of that resource is relative
Facts: P found a pocket book on a table in the D’s store. The pocketbook was left by a transient customer. P had D hold on to the pocketbook to try to locate the owner, who was not found, and P wanted the pocketbook. Holding: The plaintiff did not by this act acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of the same until the owner should call for it. Difference between mislaid and lost property: The true owner will be becoming back for it and we should leave it to the person who has the best bet of returning it to true owner. Intent is inferred by the location of where the object is foundWhen does it go from being misplaced to lost: Time and circumstances. Lost and mislaid are not synonymous in the law - will be a different set of rulesAbandoned Property: In the dumpster -better case of saying it is abandoned. Finders Keepers. Look at condition, time, what it is
Adverse possession Why is it useful?
o Utilitarian - we don't want property sitting out there and being used Could encourage property owners to maintain and use their property Punish people who slip on their rights
o Locke - people who work the land and put labor into it should get the propertyo Right of Attachment - person who has become attached to the land - at some point don’t we want to
reward them and give them certainty that they will not be kicked off the lando Limits errors in record keepingo Allows titles to shift
What policies does it promote? GET THIS FROM LAURA!!! How are its elements like an ocean ? – Pure elements test that is hard to meet and all of them have to be met
o O - open (what did the actual owner know?) Put the true owner on some sort of notice that you are using the property - no sneaking in or
hiding their use of the propertyo C - continuous
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Time - you have to be there for the statutory period and you are allowed to come and go as a common owner
5 - 10 years for most states (with 10 being the most prominent) Must occupy property as continuously as would an average true owner of the property. If AP
abandons, intentionally giving up possession, with no intent of return, continuity is destroyed. A later return triggers a new cause of action in the owner and start of a fresh limitations period. Combines objective and subjective view. Key is to decide what normal use of the property is.
o E - exclusive entry Owner’s cause of action and the clock on limitations period begin at the moment the possessor
takes physical possession. Exclusive possession means that the possessor has excluded the public and the owner, not that only one adverse possessor can occupy. Some states define actual possession by statute. Actually have to go on the land and do something on the land. You have to be claiming the right of the land for yourself
o A - adverse An adverse possessor must occupy the land without the consent of the owner and with intent to
remain. This doesn’t require malice or ill-will. It simply means adverse possessor has no permission to be there and also claims the right to stay there.
Difficult to decide whether possessor claims a right to stay. There are three different tests: two are subjective (what was the possessor’s (AP) state of mind), and one is objective (what did the possessor do)?
Subjective – Good Faith Occupation. AP must have a genuine, good faith belief that she owns the occupied property. APs who know that the property is not their own (trespassers) can’t acquire title by AP in a jurisdiction applying this version of hostility.
Subjective – Aggressive Trespass. AP must know property is not his and intend to claim it nevertheless. Few adhere to this view today as it awards deliberate trespassers.
Objective – State of Mind Irrelevant. Courts focus not on state of mind, but on (1) lack of permission (in sense that occupation is not subordinate to the owner’s title) and (2) whether the occupier’s acts and statements objectively appear to be claims of ownership. Have you acted like a true owner should? Majority view.
o N - notorious (what would the reasonable owner know?) Focuses on using the land to give the true owner notice
Main Take-Away : Adverse possession is a true elements test; an adverse possessor must meet all elements to "win" the property
AZ Law - o Ariz. Rev. stat. Section 12-521, et seq.
10 year statutory period If under color of title, then only 3 years (paper - written instrument which says it belongs to you) If paying taxes, then only 5 years Limited to 160 acres unless color of title
Color of Title o Problem #1 – O owns and has been in possession of a 100-acre farm since 1975. In 1994, A entered the
back 40 acres under color of title from Z (who has no claim to the land) for the entire 100 acres. Since her entry, A has occupied and improved the back 40 in the usual manner for the period required. A brings suit to evict O from the farm. Who wins? (pg. 135, n.1)
O - A is open C - A is continuous E - O is still on the land so A is not entering on unoccupied land A -
Good faith - I thought it was mine? Aggressive - I knew I was taking it from someone?
Can be destroyed by the owner giving permission Objective - doesn’t matter
N - yes O wins. A can only claim the part she actually occupies
Limitation: if someone else is in prior and current possession then adverse possessor may only claim the part she actually occupies.
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o Problem #2 - Suppose O took the farm by invalid deed in 1975 and has been in possession for the statutory period. Does the result in #1 change?
No, the result stays the same If the time limit has run, which in this case it would have for O, he is now the true owner
o Problem #3 – Two contiguous lots (1 and 2) are owned by X and Y, respectively. X and Y are not in possession. The lots are conveyed by invalid deed from Z to A. who enters lot 1 and occupies it in the usual manner for the required period. Subsequently, A sues X and Y to quiet title to lots 1 and 2. Who wins and why?
Would be worried about exclusive entry A wins against X but not against Y. A never entered lot 2. To have adverse possession, there
must be entry against the owner of the land. Limitation: Entry must be against the owner of the land.
Main Take – Away - just because you have a piece of paper that says you get all of the land, you may not necessarily get all of the land - especially if you have not made improvements to the entirety of the land.
Disability - Basically, statute in every state allow the time period to be extended if certain disabilities are presento BUT disabilities must exist at time the cause of action accrueso Disabilities cannot be tackedo Insanity, imprisonment, and youtho If there already was a disability that time was stopped for , they will not allow the time to be stopped for
another disability Ex - insane person wills land to a 6 year old nephew
Statute of Limitation was stopped for insanity so will not be stopped again for youtho Adverse possession of the government - common law says no
Modern view - limited instances by statute that do allow it but not seen very often.Mannillo v. Gorski – Minor
EncroachmentsHoward v. Kunto O’Keefe v. Snyder - Chattel
Facts: 1946 - D buys Lot 1007 , 1946 - D's son makes additions to the house on the lot . 1953 - P buys lot 1008. 1953 - D raised the house and extended the steps encroaching upon P's land by 15 inches. D - contends she has title to the land by adverse possession. P - asserts that D did not obtain title by adverse possession because the hostile nature requirement was not evidence - no knowingly wrongful takingRule: Encroachments by one neighbor onto the land of another are not open and notorious if they encroachment is of a small area and is not clearly and self-evidently an encroachment. The limitations statute does not begin to run until and unless the owner has actual knowledge of the encroachmentDoctrine of Agreed Boundaries - Usually an oral agreement to settle a dispute and if people have been living with it long enough - the court will say the doctrine applies and keep the boundaries in the same position - not used as much
Facts: All deeds were off by 50 yards and were actually the deeds for the next door lots. Howard and Moyer swap deeds. Moyer ends up with the right deed for his lot. Howard ends up with the deed of Kunto’s legal description. Howard brings suit against Kunto for quiet title. Rule: Presence every summer on a summer home was sufficient for “continuous possession” because a reasonable owner would use the property during the summer and not at other times.Tacking: If privity of estate exists between the prior possessor and the present possessor, tacking is permitted. Privity of estate = voluntary transfer from first possessor to the second possessor of either an estate in the land or actual possession of it. A deed is not a transfer of estate, because there was no estate to transfer, but it is excellent evidence f a voluntary transfer of actual possession.
Facts: O’Keeffe’s paintings were stolen, and years later discovered for sale in an art gallery. The gallery owner argued that his predecessor in interest had acquired title by adverse possession. Held: Law of adverse possession ought not to apply. Instead, limitations period for recovery of personal property starts to run at the earlier of (1) when the loss occurs (except where there is fraud or concealment), or (2) when the owner first discovers, or through reasonable effort should have discovered, the cause of action (including the identity of the possessor).Problem: Open and notorious possession hard to establish for a chattel. Efficient registry of original works might better serve interest of art world than the law of adverse possession, with all of its uncertainties. Discovery rule: shifts focus from possessor (whether met test of adverse possession) to owner (whether P acted in due diligence in getting property back). By diligently pursing their goods, owners may prevent statute of limitations from running.Can you get title from a thief? You cannot get good title from a thief (no right to transfer) and property is returned to true owner
Ouster: If AP is ousted from possession by a third party, the third party may not tack the ousted possessor’s period of possession onto his own. Privity is lacking because the transfer was not voluntary. Three different views of what happens if ousted possessor returns:
o Minority: Limitations period starts anew with ousted AP’s re-entry. o Majority: ouster does not interrupt the continual running of the limitations period. But, this permits ousted
AP to tack her possession after re-entry onto the third party’s possession, but there is no privity to support this conclusion. Courts paper over this flaw by calling ousting third party a trespasser, rather than a possessor, and treating the ousted possessor as being in constructive possession during third party’s occupation.
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o Intermediate: Ousted possessor can tack her new possession onto her old possession, but can’t take credit for occupation by third party. For duration of third party’s occupation, limitations period is tolled/suspended. Effect: AP must occupy for limitations period, plus period of third party occupation.
Payment of taxes: Some states, mostly Western, require APs to prove that they have paid the property taxes on the occupied property for the duration of the limitations period.
Acquisition by Gift To make a gift of personal property, the donor must transfer possession to the donee with the manifested intention
to make a gift to the donee Two types:
o Inter vivos - while living - "here you go"; Once someone has proven the elements, that it was a gift, can’t get it back
o Causa mortis - right before death; If the person doesn't die - it can be revoked We like people to write these types of things in wills Elements
o Intent - look at the words that someone wrote or sent (is it in future tense? Should be NOW not LATER) Can't intend to give something in the future - put it in a will!
o Delivery Manual - If an object can be handed over; it must be
Livery Seisin - chattels had to be handed over Constructive - is handing over a key or some object that will open up access to the subject matter
of the gift Symbolic - handing over something symbolic of the property given
o Acceptance Usually no one fights about this
Main Take – Away: A gift is only recognized if the donor has truly lost the ability to control the gift o You have to give it up and you have to do it now!o If the donee already has possession - you don’t need a re-deliveryo Certain conditions may be ok as long as the giver has given up all rights
Special cases Checks - they are not considered delivered until it is cashed
Doesn’t become a gift until it is cashed because payment can be stopped on it until then
Engagement Rings Pennsylvania statutes- donor can always get the ring back Traditional - donor could never get it back if they were at fault for the break-up
Gifts by letters : Restatement of property - this is ok - if you have a letter with symbolic delivery it counts - however if it is in future tense - doesn’t count
Safe deposit boxes : Notes in it - not good enough; Will trumps - we want to promote, as a society, to write wills
Bailments: do not effect gifts - "Ill hold it until you can get it resized"
Newman v. Boost Gruen v. GruenFacts: On deathbed, Jack gives Julia all the keys to the household furniture, saying that he intends for her to have everything in the house. Holding: Delivery of the keys is constructive delivery of whatever the keys can unlock, because it is impractical to make physical delivery under such circumstances. But it is not constructive delivery of a life insurance policy locked in a bureau drawer, because it was not impractical to deliver the tangible evidence of the life insurance right – the policy itself. Main Take – Away: Intent is usually a question of fact for the jury. Delivery is usually a question of law. This means that intent is harder to prove and predict (plus, it has a tougher standard of review)
Facts: Gruen wrote a letter to his son telling him that for his 21st birthday, he was giving his son a valuable painting, but he wanted to keep it for the remainder of his life.Holding: The letter constituted a completed and valid gift to the son of a remainder interest in the painting, a property right that would automatically become possessory upon the dad’s death. He manifested his donative intent at the time of the gift because the remainder interest was a presently existing property right (even though not one that entitled son to immediate possession). The letter was sufficient for delivery because it would be illogical or the law to require the donor to part with possession of the painting when that is exactly what he intends to retain. Acceptance of a gift by a donee is essential to a completed, valid gift. Son retained letter and acknowledged gift to his friends.
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Fee Simple and Life Estates Estates in land
o Estate - an interest that is or may become possessory An interest that is measured in terms of duration Someone always has to be in possession
o What is a freehold estate - Livery of Seisin Simply ownership Nonfreehold - renting Livery of Seisin - symbolic delivery that had to be done on the land, in front of witnesses until
deeds were usedo History - March towards alienability o Main Take-Away - Duration is the essential element that distinguishes estates
Fee simple absoluteo Characteristics
Potentially infinite duration – “Mine forever, until I choose to do something else with it.” Inheritable by collateral and linear heirs
Collateral - blood relatives Linear - kids, parents No heir until you die and they will usually end up being your children who survive you
Statutorily controlled now Dying intestate - the law is that the property goes to your heirs Statute of Will - 1540 - couldn’t make a will til this happened
Freely alienable and devisable Transferrable and I can put them in my will
o Four ways to end a fee simple absolute Sell it Will it away Eminent domain - govt takes it - can happen while you are alive Escheat - if I die without a will and no heirs - govt gets my property
o Magic words for creation : "O to A and his heirs" Words of purchase - "to" Words of limitation - " and his heirs" - means you are getting a fee simple
Has kind of lost its magical power and really no longer needed, used out of habit Fee simple conveyance is made UNLESS you say otherwise
o If property passes to heirs, it passes with the following hierarchy Spouse (modern view) Issue (children - usually to the exclusion of other kin)/Descendant (kids +grandkids and so on)
Per stirpes - by the measure In application - everyone on the same level, gets the same interest
Primogenitor - oldest male inherited the land Ancestors
Parents and Grandparents - inherent if there are no issues or descendants Collaterals
Statutory and complicated Related by blood but not linear
If none of the above, property escheats Usually sold at auction Used to revert to the lord
First person it is given to is the estate - present interest, after the comma = future interest - can have tons of future interests (see it with people who want to property to stay in the family)
Fee tailo Magic words for creation ; "O to A and the heirs of his body" (Linear descendants - can't go outside of
the family) Words of purchase: to A Words of Limitation: heirs of his body
o Expires when all linear descendants dieo Can escheat or revert back to the ownero Modernly - doesn't happen anymore
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Delaware, Maine, Massachusetts, Rhode Island - still recognize fee tail If there is fee tail language - most jurisdictions will default to a fee simple absolute
Life Estateso Magic Words for Creation : O to A for Life
Words of purchase: to A Word of limitations: for life
o Lasts as long as A is alive If you do not say where the possessory interest lies - reverts back to O
o A can sell his life estate to B but the estate would only last as long as A's life - NOT B's life. A is the measuring life
Life estate pur autre vieo Waste
Three types Voluntary - intentionally doing something to the property Permissive - sitting there and letting something happen to the property without doing
anything about it Ameliorative - increases the value of the property - tenant will probably not be liable for
this Remedies - money damages, putting the property way it should be, usually the life estate does not
end early Future interests could bring in a claim
Controlled by statutes Defeasible Estates
o Definition - the estate can be terminated, prior to its actual ending, dependent on some conditiono Purpose - way to control land use
Can be found invalid for public policy reasonso Three Types
Fee simple determinable Magic Words for creation - language of determination
While, so long as, during, until, and for such time FSD - fee simple duration Statements of motive or wishes does not count, this makes a fee simple absolute
I give this to you because I want you to open an organic farm - FEE SIMPLE ABSOLUTE
Example : To A so long as the property is used as a school If not used as a school - goes back to Owner Possibility of Reverter - can go back to Owner if not used as a school but if it is
used as a school then Owner would never get it back This is automatic Cannot be waived but can be transferred A can sell it - if buyer stops using it as a school - goes right back to
Owner No statute of limitations
Fee simple subject to a condition subsequent Magic Words for Creation : Language of Condition Courts favor these over a fee simple determinable because it gives O a choice and
property can keep being transferred Does not happen automatically
There is a statute of limitations - about three years Example: To A on the condition that she uses it as a school
If it ends - owner gets it Right of entry
Can be transferred Fee simple subject to an executory interest
Magic Words for Creation : Language involves a third party Will be an FSD or FSSCS, comma, and then a third party Who gets the property when estate ends?
Third Party
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This is automatic - no matter if it is a FSD or FSSCS
Estates in Land Questions – Part 2 1. O conveys Blackacre “to A and the heirs of her body, then to C.” What are the parties’ interests under the Restatement/modern view?
A - Fee Tail ; Modern View = fee simple absoluteC - Fee tail - future interest once all the linear descendants died; Modern View - C gets nothing [ no remainder under a fee simple absolute]!O - Nothing
2. O conveys Blackacre “to A for life, then to B for life.” A conveys her interest to C, and A is still alive. B sues C for the property. Who wins?
A - life estateB - life estateC - has an interest during the life of A - A is the measuring life - Life estate pur autre vieO - reversionSuit - C would win
3. O conveys Blackacre “to A so she can operate a daycare.” A moves in and opens a tax preparation office. O sues A for the property. Who wins?
Suit - No magic words [so long as, on the condition that] so A was given a fee simple absolute and A wins
4. O conveys Blackacre “to A so long as she uses the property as a daycare, then to B so long as she uses the property as a daycare.” A no longer wants to operate a daycare, so she gives up the property. B moves in, but she does not want to operate a daycare and does nothing. Who owns the property?
A - FSS to an Executory InterestB - Executory interest in an FSDO - Possibility of ReverterIn this case - O gets the property automatically
5. O conveys Blackacre “to A for life, then to B and his heirs.” What interest does B currently have? (A is still alive)
A - Life EstateB - Future interest in a fee simple absoluteO - NothingIf A is still alive - B only has a future interest - remainder in a fee simple absolute [someone who comes after a life estate]
6. O conveys Blackacre “to A on the condition that she uses the property as a daycare, then to B on the condition that she uses the property as a daycare.” A no longer wants to operate a daycare, so she gives up the property. B moves in, but she does not want to operate a daycare and does nothing. Who owns the property?
A - FSSCS to an Executory InterestB - Future Interest in a FSSCSO - Right of Entry
7. O conveys Blackacre “to A forever on the condition that she never uses the property for a commercial business.” The statute for the grantor (O) to file an action is 3 years from the event triggering the right of entry. In 2005 A opens a shop on the property. Now it is 2010, and O sues for the property. Who wins?
A - FSSCSO - Right of entry which expires 3 years from the event triggering the rightWould have to file suit - he has a choice to go to court and kick A out or just sit on your rights
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A would win in a suit because the statute of limitations for O has runA now has a Fee Simple Absolute
8. O conveys Blackacre “to A forever so long as she never uses the property for a commercial business.” The statute for a grantor (O) to file an action is 3 years from the event triggering the right of entry. In 2005 A opens a shop on the property. Now it is 2010, and O sues for the property. Who wins?
A - FSDO - Possibility of Reverter (automatic)O would win the suit because the reversion is automatic upon the even that would trigger the reversion
9. O conveys Blackacre “to A for life, then to B and his heirs.” B conveys his interest to C. What interest does C have, if anything, under the majority view?
A - Life estateB - Vested Remainder in a Fee Simple AbsoluteC - Vested Remainder in a Fee Simple Absolute
10. Name the interests in the following conveyance: “To A for life, then to B if B has passed the bar exam, then to C and her heirs.”
A - Life EstateB - Contingent Remainder in a FSSCPC - Contingent Remainder
Future Interests in Transferees
Estates and Future Interestso Fee simple determinableo Fee Simple Subject to a Condition Subsequent
Reversion o Transferable o Devisable o Descendible (through inheritance)
Future Interests o Grantor
Reversion Possibility of Reverter (FSD) Right of Entry (FSSCS)
o Third Party Vested Remainder Contingent Remainder Executory Interest
Set up o Possessory Interest, Some Future Interest
To A, and then B Remainder
o A future interest that waits politely until the termination of the prior possessory estate [the prior estate ends naturally
o Look for theses after the comma or word 'then to' o Doesn't occur after FSSCS or FSD because they do not end 'naturally' something has to happen for it to break o Two types of Remainders
Vested Remainder Must be given to an ascertained person Must not be subject to a condition precedent If the interest is certain to vest at the end of the prior estate, we say the future interest holder
has a 'vested remained in fee simple absolute' Example - to A for life, then to B and his heirs
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A vested remainder may be uncertain in size o Example -' To A for life, then to A's children and her heirs.' If A has one child, B,
that child has a vested remainder subject to open because A may have more children before her death
o If you are uncertain about the size of the class [the recipients] then it is SUBJECT TO OPEN
Contingent Remainder Interest is not sure to vest at the end of prior estate because there is a condition to be met
o Example - "To A for life, then to B's heir". If B is still alive, he has no heirs yet. So the interest is given to an unascertained person. It is a contingent remainder until B dies. After B dies, if before A dies, the heirs then have a vested remainder.
o Example - "To A for life, then to B and her heirs if B survives A" The interest is dependent on some event other than the natural termination of the prior estate - B has a contingent remainder in a fee simple absolute - If B dies before A then O has a reversion.
Why is there a preference for vested remainders? Natural end is either than contingencies - proof
What is the distinction between contingent remainders and vested remainders subject to divestment?
To A for Life (life estate), then to B and her heirs of B survives A (contingent remainder) To A for life (life estate), then to B and her heirs (vested remainder), but if B does not survive
A, to C and her heirs (subject to divestment) Difference between the two is where the comma is placed
Main Take Away - You must classify each interest in sequential order as they were written. The language used is highly important, as are the commas.
o Difference between a remainder and an executory interest Executory interest - goes to a third party and divest the Owner Remainders - prior interest needs to end nicely and naturally and then goes to a third party Continent Remainder - To A for life, then to B and her heirs if B survives A Executory Interest - To A so long as she uses the property as a school, then to B and her heirs if B
survives A Rules Furthering Marketability
o Rule in Shelley's Case What it does: it converts a remainder in the life estate holder's heirs into a remainder in the life estate
holder herself. 'To a for life, then to the heirs of A' becomes 'To A in fee simple absolute' Only 7 states recognize this rule
AZ does not recognize this rule o Doctrine of Worthier Title
What it does: it converts a remainder in the grantor's heirs into a reversion in the grantor himself 'To A for life, then to the heirs of O' becomes 'To A for life' leaving O with the reversion.
This is the majority view in the US but it is a presumption that can be rebutted by showing a contrary intent.
AZ does not recognize this rule o Rule Against Perpetuities
What it does: it says a future interest is void unless it is certain to vest or fail within 21 years of a life being.
Rule only applies to contingent remainders, executory interests, and class gifts [conditional interest] Most states do not have this rule anymore.
Wait and See Doctrine - if interest vests/fails in 90 years o AZ follows the 'wait and see' doctrine
RAP not violated : 'To A for life, then to B if B has passed the bar exam, then to C and her heirs' RAP violated : 'To A for life, but if liquor is ever sold on the property, then to B and her heirs
No life in being! Key: need to have a 'to _____' in conveyance. NAME THE PERSON. Fix - 'To A for life, but if A ever sells liquor on the property, then to B and her heirs.'
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Future Interests Questions 1. O conveys Blackacre “to A for life, then to B if B gives A a proper funeral.” What interest does B have?
A - Life Estate B - Contingent Remainder in a Fee Simple Absolute O - Reversion
2. O conveys Blackacre “to A for life, and in the event of A’s death to B and her heirs.” Is B’s remainder vested or contingent? If B subsequently conveys her interest back to O, what interest does O have?
A - Life Estate B - Vested Remainder in a Fee Simple Absolute O - Vested Remainder in a Fee Simple Absolute
3. O conveys Blackacre “to A for life, then to B for life, then to C and her heirs.” What interests are created?
A - Life Estate B - Vested Remainder in a Life Estate C - Vested Remainder in a Fee Simple Absolute O - Nothing
4. O conveys Blackacre “to A for life, then to B for life, then to C and her heirs if C survives A and B.” What interests are created?
A - Life Estate B - Vested Remainder in a Life Estate C - Contingent Remainder in a Fee Simple Absolute O - Reversion
5. O conveys Blackacre “to A for life, then to A’s children who shall reach 21.” A’s oldest child, B, is 17. Is the remainder vested or contingent?
A - Life Estate A's Children - Contingent Remainder in a Fee Simple Absolute Subject to Open O - Reversion When they reach 21 - Vested Remainder in a Fee Simple Absolute Subject to Open O - Nothing
6. O conveys Blackacre “to A for life, then to A’s children who shall reach 21.” A’s oldest child, B, is 21. Is the remainder vested or contingent?
A - Life Estate B - Vested Remainder in a Fee Simple Absolute Subject to Open O - Nothing
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Concurrent Ownership
Three types of Co-ownership [Tenants is used but it describes OWNERS!] o Tenants in common
Each tenant has a separate but undivided interest in the property: each tenant's interest is transferable, devisable and descendible [can sell it, will it, etc].
This is the default ownership when courts are in doubt as to creation There are no rights of survivorship [if one tenant dies, the other does not get rights in their
interest] o Joint tenants
Tenants own the property together (like a single owner) with rights of survivorship (per my et per tout)
Cannot pass by will - if one tenant dies, the other tenant(s) absorb the interests-> the rights of survival are automatic [avoids tax ramifications, avoids probate--this is good for family]
To create, need to have the 4 unities at time tenancy is created: [TTIP] Time Title- same document, done at same time Interests [some jurisdictions say this does not have to be equal anymore-> one could
own 3/4, the other with 1/4 interest]. Possession- all parties have undivided interest in the whole
How to destroy a joint tenancy (and make it into a tenancy in common): Agreement One party can unilaterally convey - you are only breaking your piece- if there are 3
people-- and one breaks, the other two are joint tenants, and the 3rd is a tenant in common.
One party seeks partition - "tape down the middle of the property" o Tenants in entirety
This tenancy exists between a husband and wife and operates like a joint tenancy TTIP + marriage Some states allow for same sex couples [stronger than joint tenants]
How to destroy: Divorce This is very iron clad.
AZ does not recognize this [because we have a common law marriage] Can only exist between two parties! [so if there is a married couple who own land with another
person--there is joint ownership] Main Take Away - Creation of a co-tenancy interest is determined by elements, but courts will take intent into
account when severing these interests (as we will see in cases)--but they courts are very strict in creation. A note on Bank Accounts:
o Three general co-owed accounts: Joint ("A and B", or "A or B") Savings account trusts or Trotten trusts ("A, in trust for B") Payable-on-death ("A, payable on death to B")
Concurrent Ownership Problems
1. O Conveys Blackacre "to A, B, and C as joint tenants". Subsequently, A conveys his interest to D. Then, B dies intestate leaving H as his heir. What is the state of the title to Blackacre?
A, B, C: All joint tenants D, B, and C: B&C are joint tenants; D is a tenant in common D, H, C: C takes the property [H gets nothing], D is a tenant in common (C has 2/3, D has 1/3 interest)
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2. O conveys Blackacre to "H, W, and X as joint tenants with rights of survivorship" H and W are married to each other. X is not related to either. Later H dies, then W dies. What is the state of the title to Blackacre?
H, W and X: joint tenants W and X: are joint tenants when H dies. X: owns it in fee simple absolute--no more joint tenancy
3: A and B are planning to marry. Two weeks before the ceremony, they buy a house and take title "in A and B as tenants by the entirety". Several years later, A moves out and conveys his interest in the house to his brother C. C brings an action to partition the property. What is the result?
C and B: are tenants in common. A and B don’t have a tenancy in the entiret y (b/c no marriage at time of taking title). So, court will choose between joint tenancy or tenancy in common. Either way, C can bring an action in partition because B and C are tenants in common (B broke any joint tenancy when he conveyed to C).
Cases
Riddle v. Harmon Harms v. Sprague This case explores how joint tenancies can be destroyed. Do you think it is fair to allow one joint tenant to destroy a joint tenancy without giving notice to the other tenant? Facts: Riddle and wife purchased land as joint tenants. Mrs. Riddle decided to break the joint tenants so she could will it to her son. She did this by conveying the land to herself and back to herself. Procedural History: Trial court held that should could not do this. Rule: It has always been accepted to transfer to someone else to break it.
Appellate court said at common law you have to convey it to a "strawman" [third party] to then get it back BUT they got around this by looking at other cases; where you can convey to yourself [no strawman needed!] People were finding creative ways to get around joint tenancies anyways-- so let us just allow it rather than force them to just try and get around it.
Facts: John and William Harms owned a farm as joint tenants. John mortgaged his interest to Simmons in order to secure a loan made by them to John’s friend, Charles Sprague. Later, John died while the loan was unpaid. Holding: There was no severance, and William owned the farm free entirely from the mortgage to Simmons. The mortgage burdened only John’s interest and because John’s interest died with him, leaving only the previously unencumbered interest of William as the surviving title, the mortgage had died with John. Rule: Mortgage given by one joint tenant of his interest in the property does not sever the joint tenancy. Right of survivorship becomes operative upon death, and survivor gets the whole thing, unencumbered by the mortgage
This case explores whether a mortgage severs a joint tenancy Courts are split on whether a "lesser" interest severs a joint tenancy (see pg. 334) Two brothers - one property; one brother passes away Decedent - took out a mortgage on the property and used it to try to buy a house Two issues are raised on appeal Is a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property Does such a mortgage survive the death of the mortgagor as a lien on the property Court Looked at common law and said mortgages are either title (like a conveyance and joint tenancy would be severed) or a lien (does not destroy a joint tenancy) If it was a deed of trust it would have severed the joint tenancy
Harms v. Sprague : John and William Harms owned a farm as joint tenants. John mortgaged his interest to Simmons in order to secure a loan made by them to John’s friend, Charles Sprague. Later, John died while the loan was unpaid.
Holding: There was no severance, and William owned the farm free entirely from the mortgage to Simmons. The mortgage burdened only John’s interest and because John’s interest died with him, leaving only the previously unencumbered interest of William as the surviving title, the mortgage had died with John.
Rule: Mortgage given by one joint tenant of his interest in the property does not sever the joint tenancy. Right of survivorship becomes operative upon death, and survivor gets the whole thing, unencumbered by the mortgage
Riddle v. Harmon This case explores how joint tenancies can be destroyed.
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Do you think it is fair to allow one joint tenant to destroy a joint tenancy without giving notice to the other tenant?
Riddle and wife purchased land as joint tenants. Mrs. Riddle decided to break the joint tenants so she could will it to her son. She did this by conveying the land to her self and back to herself..
Trial court held that should could not do this. It has always been accepted to transfer to someone else to break it. Appellate court said at common law you have to convey it to a "strawman" [third party] to then get it back BUT
they got around this by looking at other cases; where you can convey to yourself [no strawman needed!] People were finding creative ways to get around joint tenancies anyways-- so let us just allow it rather than
force them to just try and get around it.
Slayer Statute - do not allow a murdered to keep survivorship rights if the murdered kills his joint tenant AZ has a "slayer" statute Uniform Simultaneous Death Act (19 states including AZ) If joint tenants die in a common disaster/accident - no evidence to say who died first - split property half/half,
etc.
Harms v. Sprague - mortgages are nothing more than liens and does not sever a joint tenancy This case explores whether a mortgage severs a joint tenancy Courts are split on whether a "lesser" interest severs a joint tenancy (see pg. 334) Two brothers - one property; one brother passes away Decedent - took out a mortgage on the property and used it to try to buy a house Two issues are raised on appeal Is a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property Does such a mortgage survive the death of the mortgagor as a lien on the property Court Looked at common law and said mortgages are either title (like a conveyance and joint tenancy would be
severed) or a lien (does not destroy a joint tenancy) If it was a deed of trust it would have severed the joint tenancy
Part 2 Delfino v. Vealencis SC of Conn. (1980) Parties Involved:
Plaintiff - Delfino Defendant - Vealencis
Procedural History:
Trial Court - concluded that a partition in kind could not be had without "material injury" to the respective rights of the parties and ordered that the property be sold at auction by a committee and that the proceeds by paid into the court for distribution to the parties. Defendant appealed claiming that a partition by sale was not supported by the finding of subordinate facts and that the court improperly considered certain factors in arriving at the conclusion.
Facts: P and D are tenants in common of a 20.5 acres of land. P = 99/144 and D = 45/144. D occupies the dwelling and a portion of the land. None of the parties is in actual possession of the remainder of the property but P wants to develop the property, upon partition into a forty-five residential building lots.
Issue: Whether the Superior Court properly ordered the sale of property owned by the plaintiffs and the defendant's as tenants in common.
Holding:
Since the property in this case may be practicably physically divided, and since the interest of all owners will be better promoted if a partition in kind is ordered, the court concluded that the trial court erred in ordering a partition by sale, and that, under the facts as found, the defendant is entitled to a partition of the property in kind.
Rule: Partition by shale should be ordered only when (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable and (2) the interests of the owners would better be
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promoted by a partition by sale. The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests.
Reasoning:
1. Practicability of physically partitioning the property in question o Trial Court - situation, location, size and area, physical structure and appurtenances on the property all
led the TC to conclude that a physical partition of the property would not be feasible - they erred in doing so
o App. Ct. - rectangular in shape, one dwelling located in a corner of the land, only two owners all point to the fact that a partition in kind would be practicable under the circumstances of the case
2. Best interest of the parties o Trial Court - partition in kind could not be had without great prejudice to the parties since the
continuation of the defendant's business would hinder or preclude the development of the plaintiff's parcel for residential purposes 1. Approval by the city planning commission for subdivision of the parcel would be difficult to
obtain if D continued her business 2. Lots in a residential subdivision might not sell if D's business continued 3. If D were granted the one-acre parcel, 3 of the lots proposed in the P's plan would have to be
consolidated and lost 4. Proposed extension of one of the roads would have to be rerouted through one of the
proposed building lots if a partition in kind were ordered. o App. Ct. - no evidence to support a claim that it was reasonably probable that the planning
commission would not approve a subdivision plan for the remainder of the property The effect of the D's bus. On the probable fair market value of the proposed residential lots, the
possible building loss and rerouting are not dispositive - it is the interest of all of the tenants in common that the court must consider
A partition by sale would force the defendant to surrender her home and, perhaps, would jeopardize the D's livelihood,
Class Notes:
This case discusses a remedy that joint tenants have when in dispute: partition o Partition - discusses the physical division (partition in kind) of land or (partition by sale) where you sell
and divide the proceeds An Accounting - the process to determine how much interest each party has - Usually controlled
by statute - based on taxes paid, time living on property, improvements made Available to joint tenants and tenants in common [but not tenancy in the entirety - which can
only be split by divorce] o D - wants partition in kind; P - wants partition by sale o TC - orders a partition by sale because it would be the best for both parties o AC - disagrees and says that the best interest of the parties would be met with a partition in kind
Partition in kind is favored unless (1) the physical attributes of the land are such that a partition in kind is impracticable or
inequitable and Rectangular shape
(2) the interests of the owners would better be promoted by a partition by sale. Best interest of all parties involved TC was too one sided
Money isnt always the deciding factor in what is in the best interest of the parties Helen was the only one actually living on the property TC said D would bring down the property value but the Ct. of App. Said they were
wrong App Ct. was not swayed by the future interest they looked at the land in a
snapshot of time It is an and test
Should someone be able to trump the best economic interest of the property based on the love of a house? o One of the tensions in property rights
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Spiller v. Mackereth General Rule - in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not
liable to his cotenant for the value of his use and occupation of the property. Since there was no agreement to pay rent, there must be evidence which establishes an ouster before Spiller is
required to pay rent to Mackereth. o Two fact situations for an ouster
The beginning of the running of the statute of limitations for adverse possession The liability of an occupying cotenant for rent to other cotenants
o The occupying cotenant refuses a demand of the other cotenant to be allowed into use and enjoyments of the land
o To prove ouster - Mackareth's attorney relies upon the letter sent to Spiller Ct says that it only demanded Spiller to either vacate half of the building or to pay rent Several cases have held that the occupying cotenant is not liable for rent notwithstanding a demand to
vacate or pay rent o Before an occupying cotenant can be liable for rent, he must have denied his cotenants the right to enter
Spiller put lock on the building No evidence that M or any other cotenant ever requested keys to the locks or were ever prevented
from entering the building because of the locks o Ct is unable to find any evidence which supports a legal conclusion of ouster.
Swartzbaugh v. Sampson Facts: The defendant, Mr. Swartzbaugh and plaintiff, Mrs. Swartzbaugh, are married and owned as joint tenants,
60 acres of land. In 1933, defendant Sampson negotiated with the Swartzbaughs to lease a portion of the land for a boxing pavilion. Mrs. Swartzbaugh objected to the lease and Sampson knew she would not agree. Mr. Swartzbaugh and Sampson signed a lease and Sampson proceeded to take exclusive possession of the leased property by erecting and operating a boxing pavilion. Mrs. Swartzbaugh initiated this action to cancel the lease. The trial court granted a nonsuit to the defendant and the plaintiff appealed.
Issue - Whether a right to joint property can be transferred, thus excluding a cotenant from a right to rent from a lessee.
Holding - Yes, a right to jointly-owned property can be leased to another but the rights of the lessee are only those that the original party had (i.e. still cannot exclude the joint tenant).
A cotenant has a right to lease his share of the land, but can only transfer to the lessee as much as he has a right to. Thus, the lessee can occupy the whole property without paying rent to one owner unless that owner tries to enter the property and is denied. A lease does not sever a joint tenancy and the lessor does not need permission of the other joint tenant. As long as the lessor is not interfering with his joint tenant’s enjoyment of the property, then he can go ahead and lease to whoever he wants.
Action in Accounting This is an equitable proceeding Four areas to be aware of
o Rents/profits Usually not split 50/50 - whoever is doing the work gets more
o Taxes/mortgage payment o Repairs o Improvements
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Part 2 Delfino v. Vealencis SC of Conn. (1980) Parties Involved:
Plaintiff - Delfino Defendant - Vealencis
Procedural History:
Trial Court - concluded that a partition in kind could not be had without "material injury" to the respective rights of the parties and ordered that the property be sold at auction by a committee and that the proceeds by paid into the court for distribution to the parties. Defendant appealed claiming that a partition by sale was not supported by the finding of subordinate facts and that the court improperly considered certain factors in arriving at the conclusion.
Facts: P and D are tenants in common of a 20.5 acres of land. P = 99/144 and D = 45/144. D occupies the dwelling and a portion of the land. None of the parties is in actual possession of the remainder of the property but P wants to develop the property, upon partition into a forty-five residential building lots.
Issue: Whether the Superior Court properly ordered the sale of property owned by the plaintiffs and the defendant's as tenants in common.
Holding:
Since the property in this case may be practicably physically divided, and since the interest of all owners will be better promoted if a partition in kind is ordered, the court concluded that the trial court erred in ordering a partition by sale, and that, under the facts as found, the defendant is entitled to a partition of the property in kind.
Rule:
Partition by shale should be ordered only when (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable and (2) the interests of the owners would better be promoted by a partition by sale. The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests.
Reasoning:
1. Practicability of physically partitioning the property in question o Trial Court - situation, location, size and area, physical structure and appurtenances on the property all
led the TC to conclude that a physical partition of the property would not be feasible - they erred in doing so
o App. Ct. - rectangular in shape, one dwelling located in a corner of the land, only two owners all point to the fact that a partition in kind would be practicable under the circumstances of the case
2. Best interest of the parties o Trial Court - partition in kind could not be had without great prejudice to the parties since the
continuation of the defendant's business would hinder or preclude the development of the plaintiff's parcel for residential purposes 1. Approval by the city planning commission for subdivision of the parcel would be difficult to
obtain if D continued her business 2. Lots in a residential subdivision might not sell if D's business continued 3. If D were granted the one-acre parcel, 3 of the lots proposed in the P's plan would have to be
consolidated and lost 4. Proposed extension of one of the roads would have to be rerouted through one of the
proposed building lots if a partition in kind were ordered. o App. Ct. - no evidence to support a claim that it was reasonably probable that the planning
commission would not approve a subdivision plan for the remainder of the property The effect of the D's bus. On the probable fair market value of the proposed residential lots, the
possible building loss and rerouting are not dispositive - it is the interest of all of the tenants in common that the court must consider
A partition by sale would force the defendant to surrender her home and, perhaps, would jeopardize the D's livelihood,
Class Notes: This case discusses a remedy that joint tenants have when in dispute: partition o Partition - discusses the physical division (partition in kind) of land or (partition by sale) where you sell
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and divide the proceeds An Accounting - the process to determine how much interest each party has - Usually controlled
by statute - based on taxes paid, time living on property, improvements made Available to joint tenants and tenants in common [but not tenancy in the entirety - which can
only be split by divorce] o D - wants partition in kind; P - wants partition by sale o TC - orders a partition by sale because it would be the best for both parties o AC - disagrees and says that the best interest of the parties would be met with a partition in kind
Partition in kind is favored unless (1) the physical attributes of the land are such that a partition in kind is impracticable or
inequitable and Rectangular shape
(2) the interests of the owners would better be promoted by a partition by sale. Best interest of all parties involved TC was too one sided
Money isnt always the deciding factor in what is in the best interest of the parties Helen was the only one actually living on the property TC said D would bring down the property value but the Ct. of App. Said they were
wrong App Ct. was not swayed by the future interest they looked at the land in a
snapshot of time It is an and test
Should someone be able to trump the best economic interest of the property based on the love of a house? o One of the tensions in property rights
Spiller v. Mackereth General Rule - in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not
liable to his cotenant for the value of his use and occupation of the property. Since there was no agreement to pay rent, there must be evidence which establishes an ouster before Spiller is
required to pay rent to Mackereth. o Two fact situations for an ouster
The beginning of the running of the statute of limitations for adverse possession The liability of an occupying cotenant for rent to other cotenants
o The occupying cotenant refuses a demand of the other cotenant to be allowed into use and enjoyments of the land
o To prove ouster - Mackareth's attorney relies upon the letter sent to Spiller Ct says that it only demanded Spiller to either vacate half of the building or to pay rent Several cases have held that the occupying cotenant is not liable for rent notwithstanding a demand to
vacate or pay rent o Before an occupying cotenant can be liable for rent, he must have denied his cotenants the right to enter
Spiller put lock on the building No evidence that M or any other cotenant ever requested keys to the locks or were ever prevented
from entering the building because of the locks o Ct is unable to find any evidence which supports a legal conclusion of ouster.
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Swartzbaugh v. Sampson Facts: The defendant, Mr. Swartzbaugh and plaintiff, Mrs. Swartzbaugh, are married and owned as joint tenants,
60 acres of land. In 1933, defendant Sampson negotiated with the Swartzbaughs to lease a portion of the land for a boxing pavilion. Mrs. Swartzbaugh objected to the lease and Sampson knew she would not agree. Mr. Swartzbaugh and Sampson signed a lease and Sampson proceeded to take exclusive possession of the leased property by erecting and operating a boxing pavilion. Mrs. Swartzbaugh initiated this action to cancel the lease. The trial court granted a nonsuit to the defendant and the plaintiff appealed.
Issue - Whether a right to joint property can be transferred, thus excluding a cotenant from a right to rent from a lessee.
Holding - Yes, a right to jointly-owned property can be leased to another but the rights of the lessee are only those that the original party had (i.e. still cannot exclude the joint tenant).
A cotenant has a right to lease his share of the land, but can only transfer to the lessee as much as he has a right to. Thus, the lessee can occupy the whole property without paying rent to one owner unless that owner tries to enter the property and is denied. A lease does not sever a joint tenancy and the lessor does not need permission of the other joint tenant. As long as the lessor is not interfering with his joint tenant’s enjoyment of the property, then he can go ahead and lease to whoever he wants.
Action in Accounting This is an equitable proceeding Four areas to be aware of
o Rents/profits Usually not split 50/50 - whoever is doing the work gets more
o Taxes/mortgage payment o Repairs o Improvements
Spiller v. Mackereth o A key part of this case was whether an ouster occurred. What evidence is needed to prove ouster
Majority view Needed a letter saying I am moving in and a letter back saying - No you are not!
Minority view The letter in this case would have been enough
o In order to have an ouster - deny the person a right of entry Could have not allowed him to use the property Sticky point will be what equals the denial of an entry Letter - should have demanded that D made way for P - more than just a get out or pay letter
Step towards I'm trying to use the property and you aren't letting me Cotenancy - each cotenant has a right to lease out the whole
Unless it is partitioned If you want to keep the property you would ask for an ouster and not a partition
Does not sever the cotenancy - just allows you to move back on and pay any damages if any are owed - let me use my property again!
Swartzbaugh v. Sampson
o Swartzbaugh - husband and wife o Sampson - the lessee o Husband decided to lease a portion of the farm to Sampson but the wife does not want to lease it but they did
it anyway while the wife was injured and not feeling well. They leased the land for use as a boxing pavilion for $15 dollar a month [ridiculously cheap]
o Wife sues husband and Sampson because she wants to cancel the lease since she did not sign off on it o Both courts found in favor of the husband and Sampson and they were allowed to keep their lease
Why?
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The lease did not cancel the joint tenancy which can only be cancelled by time, title, interest, and possession.
Each has an equal right and a lease by one cotenant does not infringe on the rights of the other cotenant o What are her remedies [every co-tenant has the right to use the whole property]
Rent Ouster - allowed to use the land Partition [because it is not tenancy in entirety]
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