Property Outline Fall 2009

7/31/2019 Property Outline Fall 2009

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PROPERTY OUTLINE

Chapter 1- First Possession, Acquisition of Property by Discovery, Capture, and Cre-

ation Who has the first possession? Prior possession is greater than subsequent possession (first possessor has

more rights)

Acquisition by Discovery

I. Doctrine of DiscoveryA) By discovering the land, the discoverer/discovering country has a right to all of the land (extent isn't

clear, could be to next mountains, or the west coast in the case of the US). Discoverer has exclusive rightto extinguish all rights that the natives have: by treaty, purchase, or conquest.

B) title is based on discovery - you have to be the first country to discover it

JOHNSON V. MINTOSH (pgs 3-17)

FACTS: P purchased land from Native Americans in 1773 and 1775. With the treaty of Paris in 1783, the

same land was granted to the United States Government from the British, who had "discovered" it . TheUnited States sold the land to D in 1783. P made an ejectment suit against D and wants the land back.

ISSUE: who had rights to the land?

HOLDING: M'Intosh. Court referred to doctrine of discovery (see below). Court decided against P onthe theory that the natives had no right to sell their land, as the European discoverers, and subsequently theUS had that exclusive right.

-Prior possession/ownership prevails in most cases. P argues that he had possession of the

land before. However, since the discovery doctrine applies, the Painkeshaw indians had noright at all to sell the land to P. The property rights go back to the 16th century when Britain dis-

covered the land, which was transferred to the US in 1783 with the treaty of Paris, and then was

transferred to D.-Why werent the Indians the prior possessors?

B/c at that time Indians were viewed as people worthy of discovery land

-Indians still have right to occupy the land, but discovery right gives person right to land

and the prime/only right to extinguish rights of the natives-P has bought the rights w/o them being extinguished b/c U.S. did not extinguish them

until 1783, and he bought land before

II. Discovery v. Conquest (p. 10)

A) Discovery : sighting or finding of unknown or uncharted territory, accompanied by a landing and sym-

bolic taking of possessionB) Conquest : taking of possession of enemy territory through force, followed by a formal annexation of

defeated territory by the conqueror.

-we have westward development b/c we took over by force and eminent domain [govt demon-strated the purpose for the land and gave compensation]

III. Principle of First in Time (p. 11)

A) "the institution of property was an agreement among men legalizing what each had already grabbed,without any right to do so, and granting, for the future, a formal right o ownership to the first grabber."

B) Problem: eventually, everything would be owned, and there would be only private property.

Acquisition by CaptureI. Actual Possession

A) Having an object in hand. Physical occupation, or fencing off land. Exclusion of others


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B) Genuine, manual, physical occupation of possessing a particular thing; can also include fence on yourland

II. Constructive PossessionA) Not "actual" possession in the physical sense, but as good. Usually by reason that an object is on some-

one's land, they are considered as being in possession.

B) Legal fiction designed to achieve a particular policy result

III. Inanimate Objection (Previously Unowned Object)

A) Belong to the owner of the private landB) Includes naturally occurring inanimate objects, rocks, meteorite.

IV. Animals

A) If on land, have constructive possession, have sole right to acquire (get actual possession)B) Wild animals: if wild animals roam on landowners property he/she doesnt own them; however, own-

ership of the land gives them constructive possession of it (not actual possession)

i. but ONLY while on their land; as soon as it goes onto others land, no longer have con-structive possession

ii. if animal wanders onto neighbors property, he/she has constructive possessioniii. if wild animal is on public/open land: rightful possession to these animals is in the first personwho reduces to actual possession (have to kill or mortally wound)

iv. if wild animal is on private land: while animal is on your land, owner has right to it, but it is

not true ownership- you have to acquire it

C) Domesticated Animals: owner doesnt lose constructive possession if they wander off their land; but li-ability for damage by escaped domesticated animals is on the owner of the animal

V. Oil and GasA) Treated more or less like wild animals (rule of capture) Can tap into reservoir if on your land even if it

goes under someone elses land.

B) O has constructive possession of oil under his land; not absolute ownership, it flees to point of lowestpressure and neighbor may capture it under his land

-if you put a well in and start pumping, it is your oil

-if oil flows to neighbors land, it becomes neighbors property

-neighbor may not trespass to get it- no slant drillingC) If reinjected, should gas be subject to doctrine of capture if dome is partially under someone elses

land?

-some early cases (Hammonds) treated it like wild animal; most cases (Manziel) do noti.Hammonds- gas subject to capture by neighbor; but reinjector not liable for damage

ii. *Manziel- gas not subject to capture by neighbor; but reinjector liable for damage

VI. Water RightsA) Groundwater- rule of capture similar to oil and gas

a. Riparian system: east of 100th meridian

-enough water for everyone; riparian owner may take water and use it on riparian land

b. Appropriative system: west of 100th meridian-water scarce; first person to use water has prior right

B) Erosion & Accretion- like wild animals, soil flees; by erosion X loses but but by accretion Y gains it(lose minerals that are eroded off, gain minerals that are accreted on)


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PROPERTY OUTLINE

a. Erosion: gradual, imperceptible loss of soil-if water/stream erodes it, its no longer yours

b. Accretion: gradual, imperceptible deposit of soil

c. Avulsion sudden, rapid shift in rivers court, property lines stay the same (no change in owner-ship)

-X now owns land on both sides of the river

PIERSON V. POST (pgs 17-23)

FACTS:: Post (initial P) was chasing a fox, in hot pursuit (hadnt shot it yet) when Pierson shot it and took

it. Post sues for "trespass on the case" (damages for trespassing on "his" fox).

ISSUE: Who had first possession of the fox?

HOLDING: Pierson. Based on the theory of "animalia ferae naturae" - wild animal.

Only way to get possession of the animal is by actual possession(killing and getting it in hand) or con-

structive possession (mortal wounding, actual possession is near and certain)

As Post had actual possession, and Post had not shot the animal, he had prior possession.

This is counter to tradition, in which pursuit was considered first possession by sportsmen (discussed in

dissent)

Constructive possession-Not "actual" possession, but as good. Usually by reason that an object is on someone's land,

they are considered as being in possession.

Actual possession

-Having an object in hand.

GHEN V. RICH (pgs 23-27)

FACTS: P threw a marked "bomb lance" at a whale, which sunk and died. Some time later, another partytook the afloat whale and sold it to D. P sued for value of the whale.

ISSUE: Who had rights to the whale?

HOLDING: P (Ghen). Court decided by examining custom, in which marked lances are thrown at a

whale, the whale dies, sinks, floats, and is recovered and returned to the owner of the lance. The finderwas entitled to a percentage of the sale. As D violated this custom by not verifying the owner of the lance,

the court found against him. P was in constructive possession from the time his lance killed the whale, thus

was the prior possessor.

KEEBLE V. HECKERINGILL (pgs 27-35)

FACTS: English case. P installed a "decoy pond" on his property. Used to attract ducks for capture andsale. D came to P's pond, and shot 6 times, which scared the ducks away.

ISSUE: Is such interference actionable?

HOLDING: Yes. D unreasonably interfered with P's trade and business. Not every interference is action-

able (if he had created a competing pond, OK). But, in this case, D reduced the number of marketable

ducks, thus depriving people of the opportunity to buy them, damaging commerce overall.

Acquisition by CreationI. Intellectual Property: General (p. 58-59)

A) Common law provided no protection for intellectual property. The inventor owned the chattel that em-

bodied the invention, but not the design of the invention. Today, exceptions have largely swallowed the

common law rule

B) Intellectual property- protecting that which intellectuals generate (what copyrights, etc. protect); giveincentive to create inventions


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PROPERTY OUTLINE

C) Economic development demands some protection; how is that demand accommodated in our legal sys-tem? (through copyrights, trademarks, etc.)

D) Designers can still protect their designs by putting labels on their clothes

II. Copyright

A) new works receive copyright protection for the authors life, plus 70 years after death (some excep-

tions)

III. Patent

A) Person who invents or discovers any new and useful process, machine, or other invention and meetsother statutory requirements can receive a patent

B) Effective for 20 years from the application date

C) Not renewable

IV. Trademark

A) A word, name, symbol, or device used to identify and distinguish the products of a particular manufac-

turer or retailerB) Owners of trademarks are protected against use of similar marks by others when such use would re-

sult in confusionC) Obtained by registering the mark with a federal agency and using the mark in interstate commerce

INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS (pgs 51-55)

FACTS: P and D were competitors in the collection and dissemination of news. When AP publishes news

it is released into the public domain. INS admitted to taking news that had already been disseminated, in-cluding info from APs actual papers and from public bulletin boards. INS uses the info, incorporates into

own publications, and makes profit. AP sued for unfair business practices

HOLDING: Court held in favor of AP

One cannot have property rights in news information, b/c its a public good, but does have property right

in news articles, b/c copying is plagiarism. Issue here concerns news information, not news articles

However, Court approached issue in terms of unfair business practices

Therefore, there is a quasi-property rightin the news

-when 2 competing news organizations are involved, each gaining their livelihood from beating

the other's deadline, the use of such news, for profit, is a misappropriation (unlawful use ofanother's property or funds) of the other's product

-b/c involves cost of organization, skill, labor, etc.

-have a limited proprietary right in it vis a vis the competitor (but not the public)

CHENEY BROTHERS V. DORIS SILK CORP. (pgs 55-69)

FACTS: P manufactures silk designs for each season. Since designs dont remain popular for very long,

and b/c its hard to determine which ones will sell, they dont qualify for patents/copyrights. D copies oneof Ps popular designs in one season and undercut Ps price. P claimed property interest in the designs and

sought a seasons protection of that interest

HOLDING: Court held in favor of D

In the absence of some recognized right at common law or under statutes, a mans property is limited to

the chattels which embody his invention; others may imitate these at their pleasure

P had no recognized right at common law or under copyright statutes

The court cannot create common law patents for reasons of justice; relief is all-or-nothing, no in be-

tween, so there is no relief available


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PROPERTY OUTLINE

Common Law rule: property rights are limited to tangibles that may embody a design, but no property in

design itself

-one cannot own ideas b/c they benefit society as a whole and promote innovation

Chapter 2- Subsequent Possession: Acquisition of Property by Find, Adverse Possession,

and Gift

Acquisition by FindI. Lost Property

Property is lost when owner has accidentally/unintentionally and involuntarily parted with his posses-

sion and doesnt know where to find it

To determine whether property is lost, key factor is place where it is found:

-judging from the place where found, would a reasonable person conclude that the owner hadaccidentally and involuntarily parted w/ possession of it and doesnt know where to find it?

-if found on private property: rightful possession is in the finder, unless person is a trespasser

-if employee finds it, the employer is in constructive possession

Ex: wristwatch found on the floor of a public place

The finder has a better title to lost property than anyone except true owner

II. Mislaid Property

Property is mislaid when, judging from the place where found, it can reasonably be determined that it

was intentionally/voluntarily placed there and thereafter forgotten

Ex: briefcase found on a desk, table, or counter

given to original owner; idea is that owner will remember where he left it

III. Abandoned Property

A previously owned item that meets 2 requirements:

1) prior owner physically disposes of it2) prior owner intends to relinquish all rights to it

Owner intentionally and voluntarily relinquishes all right, title, and interest in the property

Ex: keeping a refrigerator in a building that the refrigerator owner knew was to be destroyed

How does one ascertain intent to abandon?

-how long item has been there (the longer, the more likely it is to be abandoned)

-value of the item (more expensive, the less likely youre going to abandon item)

-difficulty of recovery

Abandoned property becomes unowned property and goes to first possessor, who then becomes the own-

er and has a better right to it than all others

Title to abandoned chattel is acquired by:

1) actual or constructive dominion and control over the thing2) an intent to assert ownership over it

Involuntary v. Voluntary

-if owner of a chattel involuntary parts w/ possession of goods, they should be categorized as lost

or mislaid-to show that a chattel has been abandoned, one must show that former owner voluntarily gave

up and relinquished his ownership in the chattel

IV. Treasure Trove


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PROPERTY OUTLINE

Includes gold or silver coins or bullion, gems, jewels, money, etc. hidden in the earth or similar place

suggesting burying with an intent to return

Common Law rule: treasure went to the king (England) or the state (U.S.)

Majority U.S. rule: often treated as lost property (b/c practically impossible to find owner) so it belongs

to the finder against all others but the true owner; sometimes also treated as mislaid or abandoned (somight be given to landowner)

Antiquities-Antiquities Act: says that when youre on properties such as national parks, forests, etc. you

cannot take antiquities with you, they must remain there; it belongs to the people rather than you-considered mislaid property

V. Shipwrecks

Wherever the ship sinks, they own it

-Ex: Ship sinks in shores owned by U.S., therefore U.S. owns whats on it

Federal law- determined by law of state where found

-Florida splits 50/50 with finder; this way people have more of an incentive to find and return b/cotherwise people get nothing

VI. Estray Statutes

Some states have legislation changing rules on lost, mislaid, and abandoned property

Estray statutes- dont replace common law, supplement it

1) earlier form of response

2) advertise goods (found item)3) in many states dfinder must also leave them w/ police or custodian; if not claimed, CL rules on

lost, mislaid, and abandoned property apply

ARMORY V. DELAMIRIE

FACTS: P found a jeweled ring and took to Ds shop for appraisal. Ds apprentice pretended to weigh it,

but stole stones instead. D offered P money for it, P declined and asked for jewel back. P only received thesocket without the stones. P sued in trover (for personal property) for money damages

-personal property+damages= trover

-known today as conversion; idea is that you converted ones good into something else

HOLDING: Court found in favor of P; P gets maximum possible value of the jewel unless D produces it

RULE: Finder, while not the absolute owner and therefore doesnt have absolute property right, has a bet-

ter right to possession than everyone else except the true owner

-doctrine of prior possession

When damages are at some unascertainable amount below an upper limit and when uncertainty arises

from Ds wrong, the upper limit will be taken as proper amount (which is why P got maximum value)

Why should we favor the first possessor?

-it maintains peace, may enhance use and encourage investment, relative priority system fairlyeasy to administer, avoids difficult proof issue

Terms

1) bailment: the rightful possession of goods by a person (the bailee) who is not the owner; you

have given someone else right of possession)2) bailee: person holding property in trust for another party; Example: Armory

3) bailor: true owner

4) involuntary bailment: The wrongdoer, having once paid full damages to the bailee, has ananswer to any action by the bailor. In the case of found goods, the bailment is involuntary from


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PROPERTY OUTLINE

the standpoint of the owner but not from that of the finder, who has, chosen to take possession;by doing so, the finder assumes the obligation of a bailee. Ex: owner loses ring, Armory found it

5) voluntary bailment: occurs when the owner of the goods (bailor) gives possession to the bailee;

Ex: when you leave your clothes w/ a laundry mat6) bailment/possession for mutual benefit: person delivers possession to you and you give them

money; Ex: renting a car

Personal Property Real Property

damages trover (former name; personal prop-

erty+damages= trover)

conversion (formerly trover; you

converted my goods to somethingelse)

trespass (if someone passes on your

property, you can bring action of

trespass for damages)

recover possession detinue (former name; if you own

property, obtain possession of the

goods)

replevin (formerly detinue; action to

recover possession of personal

property)

ejectment (recover possession of

real property)

HANNAH V. PEEL

FACTS: P was a soldier lawfully staying in Ds manor and found a brooch in a crevice during the courseof military possession. P turned brooch over to police. When owner couldnt be found, police gave it to D

instead of P. Although D owned the manor, he never lived there/possessed it. D sold brooch, then it wasresold. D never had knowledge of broochs existence until incident. P sued claiming finders keepers, Dsdefense is that he owned property where it was found

HOLDING: Court found in favor of P

-P had prior possession

-D was not in constructive possession of broach just by the fact that he owned the land

RULE: A landowner owns everything attached to orunderthe land, but not necessarily things lying on the

surface of the land, even though it isnt possessed by someone else

-brooch a chattel, its not attached or underground, and D doesnt have possession; P wins-finder of lost goods on private property prevails unless they are a trespasser, employee, or in

special areas (public area)

BRIDGES V. HAWKENSWORTH

FACTS: P found a package in Ds shop that was lost by some third person. P asked D to find that person

and return to them, but owner never found. P sued for return of package he found

HOLDING: Court held for P-D was not in constructive possession of package by owning store; the area in front of the counter

where package was found isnt completely private property b/c a customer (an invitee) is not a trespass-

er-P was first possessor and prevails against anyone except true owner


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PROPERTY OUTLINE

RULE: The non-trespassing finder wins over the owner if the item is lost; finders keepers except to trueowner

-Lost: Accidental (dropped)

-Mislaid: Placed intentionally and left behind (goes to the owner of the locus quo)

SOUTH STAFFORDSHIRE WATER CO. V. SHARMAN

FACTS: D was employed by P to clean Ps Minster Pool on his private property. D found gold rings em-bedded in the mud. P sought to keep possession of the rings

HOLDING: Court ordered rings to be returned to landowner (for P)

RULE: Possession of land includes possession of everything attached to or under it. It makes no differencethat possessor isnt aware of items existence

-landowner had prior possession of rings since ownership of land carries constructive possession

of everything on, under, or attached to the land

When a trespasser finds an object on someone elses land, courts are more likely to deem it mislaid and

award it to landowner

When an employee finds an object during course of employment, courts have often but not always

deemed the object as mislaid and award to owner or employer

MCAVOY V. MEDINA

FACTS: P took wallet lying on table in Ds barbershop, gave to D to hold for true owner but owner never

found. P demanded wallet back, D refused saying he owned it.

HOLDING: For D

RULE: Property left accidentally in a shop is mislaid property and the owner of the shop (landowner) has

rights in the property-mislaid property are goods which are placed down voluntarily by owner and forgotten

-mislaid property creates a bailment that the shop owner holds for the true owner and finder

acquires no right in the property

Acquisition by Adverse PossessionI. General

A) definition: Statute of limitations on the ejectment action

B) after 10 year period, you get the land?

C) a person who is in actual possession of land at the end of period of statute of limitations will have ad-

verse possession

D) Common Law rule: one cannot of adverse possession against the government

II. Purpose

A) It will be a time limit, after that person can no long come in and take over

B) statute of limitations- to get the matters resolved in a period of time so people are still alive, facts are

straight, and documents are still intact-when does the statute of limitations period begin to run? when the person moves on it, you have

a right to bring a suit on whoever is adversely possessing it

III. Elements (5 things)

A) Possession (either actual or constructive)B) [possession must be] Open, visible, and notorious- cant be hidden

-cant leave for a year and come back, SOL resets

-notice: owner need to not actually see the possessor, but possessor must be available to be seen


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PROPERTY OUTLINE

C) Continuous and peaceable- without interruption, either voluntary or involuntary

D) Exclusive

-cant share it with others (including the owner)

-exclude others from the land as the true owner wouldE) Hostile- without permission from the true owner

-Minority of states also require:

1) sometimes need color of title (good faith deed that is mistaken; you inherited/bought abad deed for property)

2) sometimes need claim of right (have to know that you dont own, but intend to take it

anyway (legalized larceny).

IV. Disabilities

A) SOL doesnt run if adverse possession begins when owner is disabled.

B) SOL starts at end of disabilityC) Includes:

-minority (less than 18 yrs. old), incompetency, imprisonment

VAN VALKENBURGH V. LUTZ

FACTS:Plaintiff bought land which was previously Def for 15 years in a foreclosure sale. After def

cleared most of his belongings off the land which was foreclosed upon, but argued he still had the right tothe traveled way to his remaining property, which was on property adjacent and behind the foreclosed

land. The essential elements of proof being either that the premises (1) are protected by a substantial en-

closure, or are (2) usually cultivated or improved.

RULE: Under New York law, Lutzes never actually owned the land they claim was adversely possessed,

so there was no adverse possession. The court goes right to the NY law, which sets out the requirements

for adverse possession. One must own the land to claim adverse possession in the first place. There are

two such ways in which one can prove ownership of the land: by either enclosing it, or by substantiallyimproving it. Def did neither. The garden was never enclosed by anything. Additionally, the cultivation of

the garden never utilized any substantial portion of the land, as it was too speculative of a claim to make

the substantial claim. Def also claims he had a shed and other items on the property so as to show "a claimof title," which could provide proof as to the adversity this alleged dispossession has caused. However,

the shed, a portable chicken coop, consistently cleared brush along the path, or even old furniture on the

traveled way is not symptomatic of a claim.

MANNILLO V. GORSKI

FACTS: Def bought a house in 1946, and then raised the house in the summer of 1953. In order to do so,he made some changes to parts of the house, including some stairs (but did not change the width of them).

Steps and front walk encroached on PL's property by 15 inches. DF contends they obtained the landthrough adverse possession through the state's statute of limitations, as no one contested the land before

this suit. PL claims there was no adverse possession b/c there was no hostile intent to take the land to be-gin with.

RULE: This court discards the requirement that the continued possession must be accompanied by a

knowing intentional hostility and holds that any entry and possession for the required time which is exclu-sive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is suffi-

cient to support a claim of title by adverse possession. In such a case, only where the true owner has actual

knowledge thereof may it be said that the possession is open and notorious. Mistake or intentional, when


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an owner of some part of their land is dispossessed, therein lies an ouster, if no complaint and before thestatute of limitations (20 years), then the adverse possessor takes the land. If disputes over land included

those which were based on a few inches with no physical line so as the adverse possessor did not know, all

owners would have to be constantly on alert for the slightest encroachment on their land, which would re-quire a survey, which is expensive

HOWARD V. KUNTO

FACTS: In 1932 McCall resided in the house Kuntos reside in. McCall had a deed that described a 50 ft

wide parcel on the shore of Hood Canal. The 50 feet described is not the 50 ft where the house sits, but

the adjacent 50 ft lot. A survey affirmed the description and a dock was built for the Kuntos. Their neigh-bors the Howards wished to convey one-half of their land to the Yearlys. Their survey revealed the errors

now before the court. Between the Howards and the Kuntos resided the Moyers. Howard conveyed land

to Moyer, Moyer conveyed the land Kuntos house stood to Howard.

RULE:A person receiving tract B while mistaking it for B, can adversely possess lot B.-Privity- A succession of trespass, or adverse possession where successive owners, transfer

directly or establish a personal connection as to possession.

-Tacking-If one continues, directly, in adverse possession of land, the period of time continues totoll. Long periods of occupancy by those who in good faith received an incorrect deed de-

scription to the land in question during the summer months for more than 10 years by defendant andhis predecessors, with the improvements, constituted uninterrupted possession.

OKEEFFE V. SNYDER

FACTS: OKeeffe, the painter of original works of art, alleges her paintings were stolen in 1946. Snyder

asserted he was a good faith purchaser of the paintings, had title by adverse possession, and O'Keeffe's ac-

tion was barred by the expiration of the statute of limitations. OKeefe owned painting she said were

stolen in 1946 she did little to pursue them or report them until 1972 paintings were in dr. franks office

when he died and his son acquired them. In 1975, Snyder bought and displayed them in his gallery in 76

OKeeffe demanded their return, Snyder said they were given to sold to Dr. frank, who claimed adverse

possession on them. Neither party traces their acquisition back to O'Keefe.RULE: The statute of limitations begins to run upon the discovery of the dispossession, not when the per-

son finds the actual owner. It is the original owner's job to take reasonably prudent action as any other

owner would when she feels a painting has been stolen. Tacking is permitted to show privity of current and

previous owners and their good faith to interpose a claim for conversion. Discovery rule- S/L limitations

wont run until OKeeffe knew or reasonable should have known who had paintings.

Acquisition by Gift

Agiftis a voluntary, immediate transfer of property without consideration from one person (the donor)

to another person (the donee). The law recognizes two categories of gifts: thegift inter vivos and thegift

causa mortis.

I. Inter Vivos

A) Giving a gift during ones lifetime; while one is still alive

B) A valid inter vivos gift requires:

1) Donative intent- intent from the donor to make a present gift of the object-Intention to make a gift may be shown by oral evidence

-If the donor intends the gift to take effect in the future, it is ineffective.


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2) Delivery- actual present delivery of object or property right to donee, usually manual deliv-ery (physical transfer)

-alternatives to manual delivery:

a) Constructive delivery: e.g., giving person key to a safety deposit box*donor physically transfers to the donee the means of obtaining

access to and control over the object

b) Symbolic delivery: e.g., cannot physically transfer piece of land, so onedoes so with a deed

* physically transferring to the donee an object that represents or

symbolizes the object3) Acceptance- agreement by donee to receive gift- generally presume; essential to validity of the

gift

-Once a gift is accepted, it is complete and irrevocable by the donor

II. Causa Mortis

A) A gift of personal property in anticipation of the donors imminently approaching death

B) Requires all three gift inter vivos elements, plus a fourth element: the donors anticipation of imminentdeath

C) Control over the subject of the gift takes effect immediately but becomes absolute only upon thedonors death

D) Death must result from the same illness, disease, etc. producing the donors initial expectation, not

some other illness or event

1)gift is valid- ex: A tells B I will give you this gift if I die from this surgery and A dies from

surgery2)gift invalid- ex: A tells B I will give you this gift if I die from this surgery but A dies days

later in car accident

E) Gifts causa mortis are revocable; in some jurisdiction it is automatic when the donor recovers from theillness.

F) A transfer of property by will after a persons death is called a devise or bequest and nota gift.

GRUEN V. GRUEN (pgs 166-172)

FACTS: Father made gift of painting to son. Delivery by means of letter. Possession was delayed until fa-

ther died. Mrs. Gruen (D) contended her husband could not make a valid inter vivos gift to his son (P) and

still retain present exclusive possession of the property for his life.

HOLDING: For P; Court held that P established that a gift was made to him (denotative intent: by the

delivery of the letter; delivery: symbolic delivery of the future interest of the painting [the remainder],

acceptance: presumed b/c painting was valuable)

RULE: A party may give a future interest in chattels as a gift while reserving a life estate and the donee

never has physical possession until the donor's death.

Chapter 3- Possessory Estates

Estates: GeneralI. Estate concept divides right to possession over time (just about any way you want)


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Estate Duration

Fee Simple Forever (Infinity)

Fee Tail Until original grantees lin-

eage dies out

Life Estate, or Term for Life For the life of the grantee

Term of Years Fixed period measured in

years, months, or days

II. Seisin

A) Aspects of possession and ownership; denotes possession of a freehold estateB) Originally very close to our idea of possession

C) As history developed, became more like ownership

-in todays world, seisin is like ownership

D) Term is not around much anymore

III. Estates in Land- are possessoryinterests in landA) Can be presently possessory (present estates), OR may become possessory in the future (future inter-

est

B) Can be freeholds or nonfreeholds

1) Freehold Estates- give possession under some legal title or right to hold-Ex: fees or life estates (fee simple absolute, fee simple conditional, defeasible fees, fee

tail, or life estate)

2) Nonfreehold Estates- give mere possession-Ex: leases (leasehold); for some definite years/period of time

C) May be of infinite or limited duration

1) Infinite duration- Ex: fee simple

2) Limited duration- Ex: estate for years

Present EstatesI. Fee Simple Absolute

A) Largest estate permitted by law

B) Invests holder of the fee w/ full possessory rights, now and in the futureC) Holder can sell, divide, or devise it

D) If holder dies intestate, heirs will inherit itE) Has an indefinite and potentially infinite duration

-general inheritance: upon the intestate death of O, it passes to the heirs that the law designated-

whether lineal or collateral

-potentially infinite duration: by passing from heir to heir (grantee to grantee) it may continueforever; can go on as long as there is a next generation

*if there are no heirs left, the land goes to the state

F) Created by: O to A and his heirs-to A: words of purchase (describe who is going to get something)


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-and his heirs: words of limitations (describes the what)G) And his heirs indicates a fee simple absolute because:

1) youre talking about the next heir, and the next, and the next, etc. (INFINITE DURATION)

2) the heirs dont get anything out of this conveyance, but rather the term heirs conveys they itcan go on forever

H) If and his heirs is not used, then you would have a life estate

I) It is an absolute grant by the grantor to the grantee with no limitations as to its duration. The occur-rence of no event can cut it short (hence, it is absolute). It has the potential of enduring forever (hence,

it is simple). Typical language is to A and his heirs. Anciently the phrase and his heirs was a requi-

site to creating a fee simple estate. The archaic practice is no longer required, but attorneys often use itwhen drafting instruments to be absolutely certain that there is no question that a fee simple estate is in-

tended. Modern statutes often provide that it is presumed that a grantor conveyed the largest estate that

he could. As a practical matter this usually means fee simple.1. Example- G conveys Blackacre to A and his heirs. A receives a fee simple

absolute from G. If A is alive, his heirs receive nothing, the words and his

heirs being merely words that describe the type of estate conveyed to A. If

A is dead, then Blackacre is parceled out to the heirs in As willJ) Several kinds of fee simples:

1) fee simple absolute: thats everything that you can have, theres nothing left over2) fee simple conditional: almost extinct, but not completely gone3) defeasible fee simples: if something happens, youll lose it

II. Fee TailK) Created by: O to A and the heirs of his body

-if the lineal order dies out it goes back to O

-idea is to keep it in the familyL) Fee simple conditional- Estate of:

1) Limited inheritance (will only be passed down in a lineal fashion)

2) Potentially infinite duration (as long as theres still kids, grandkids, etc.)3) Subject to conditional power to convey in fee simple absolute (A had power to create a fee

simple absolute in a 3rd party after birth of a child)

M)Fee tail- Estate of:

1) Limited inheritance (only to lineal heirs)2) Potentially infinite duration

-NO conditional power to convey in fee simple

-When A dies, land passes to the heir of his body-Since it was a lesser estate than a fee simple, a reversion was implied

-Fee tail created by Statute de Donis (which was adopted to accomplish landowners desires)

N) If G conveys Blackacre to A and the heirs of his body, then A has received a fee tail estate. The sig-

nificance of this is that if A does not have lineal descendants, then the estate reverts back to the grantor.Since the grantor is usually dead, the land effectively passes to the grantors successor (typically his el-

dest son, if living, else to his eldest sons eldest son). This operates to keep land in the family. Inessence then, a fee tail is a fee simple subject to the condition that the grantee always has descendants.

This amounts to the grantee having only a life estate since if he did not have issue, the estate goes back

to the grantor. If the grantee has children, then it has to be passed on to them... This type of estate is

recognized in only a few (4) statesO) Originally, could not convey, now have to convert it (through lawsuit); In most states today, fee tail has

been abolish and substitute made:


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1) convert fee tail to fee simple: most common2) covert fee tail to life estate in grantee, remainder in fee simple to lineal heirs in next genera-

tion

3) covert fee tail to fee tail in grantee, with fee simple in lineal heirs in next generation4) Reject Statute de Donis- treat fee tail as fee simple conditional (2-3 states)

III. Life Estate

A) An estate that:1) Lasts for the duration of a stated persons lifetime

-will last for As life, and when A dies it will revert back to O

2) Is not inheritable (at least at common law)

B) Created by:1) Express grant (O to Afor life)

-Common Law: failure to use words of inheritance created a life estate

OR2) Operation of Law (unusual today)

-CL dower and courtesy homestead, in some statesC) Subsequent conveyance: A to B for life

-O has reversion, B has life estate (if A dies first); if B dies first it reverts back to A

-O is entitled to get it back when A dies, not when B dies

D) A life estate is one that lasts for the life of some person. There are two types, pur autre vie and for the

life of the grantee. The corresponding future interest is called a reversion if the future interest is in thegrantor or remainder if it is in someone else.

E) Life of grantee as measuring life- This is the usual life estate. Typically, G will convey to A for her

life. When A dies, the life estate is terminated and, unless otherwise specified the estate reverts to G.Of course, G could specify that the estate is to go to anyone else he chooses when A died.

F) Pur autre vie- This French phrase means for anothers life. In this type of life estate the measuring

life is someone other than the grantee. Typical language is to A for the life of X, then to her son B.Until X dies, the estate belongs to A. If A predeceases X, the estate devolves as A

-specified in her will, etc.- A to B for the life of A

*B has As life estate (pur autre vie)*A conveyed it to B; A still alive, B dies- it goes back to O

* O not entitled to reversion b/c A is still alive

-SEE OTHER NOTES: LECTURE 10/15

WHITE V. BROWN (p. 190-197)

FACTS: In her will, Jessie Lide left her house and land to white. The will stated, I wish Evelyn White to

have my home to live in and not to be sold my house not to be sold. White claimed 1- she had a feesimple in herself and 2- the right to convey the land. The heirs claimed 1- white only had a life estate and

2- reversion passed to them by a partial intestacy

RULE: The will should construct the fee simple unless the words and context of will clearly state Jessesintention to convey only a life estate. Modern statutes often provide that it is presumed that a grantor con-

veyed the largest estate that he could. As a practical matter this usually means fee simple unless clearly

stated otherwise.

IV. Leasehold Estate


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A) Too lowly for a freeholder to hold; the gentlemen of the land would not hold such a lowly estateB) Also is in estate in land, but NOT a freehold estate

V. Restraints on AlienationA) Three kinds of DIRECT restraints on alienation

B) All 3 are void as applied to fee simple unless restraint is limited in its scope and duration

1) Disabling restraint- prohibits alienation of land- O to A and her heirs, but the land may be con-

veyed-Has to prohibit something

-void on legal interests of any type (fee simple, life estate) seen as offensive because

1. unlike other types of restraints, transfers are totally prohibited2. they enable a person to deny the validity of his own conveyance and

3. they exempt the property from the person's creditors even while he is enjoying

the property HOWEVER on fee simples it can be applied if for a limited time andreasonable purpose

2) Forfeiture restraint- Subjects interest to forfeiture of alienation is attempted

-O to A and her heirs, but if A or her heirs ever attempt to sell the land, then the land

shall pass to B and his heirs*A loses his right to the property

3) Promissory restraint- Grantee promises not to convey O to A and her heirs and A promises

not to convey-breaches a covenant- remedy is injunction or damages for breach of contract

C) Rules on Restraint

1) Fee Simple Absolute-Absolute restraint on fee simple invalid, but restraint reasonably limited in scope and/orduration is valid

2) Life Estate/Leasehold Estate

-completely valid

BAKER V. WEEDON (p. 197-206)

FACTS: John Weedon devised farm to his wife Anna for life. Remainder to Annas children. But if shedied without children, remainder to John grandchildren, because he was previously married and had chil-

dren with a previous wife. Anna had no children. When MS highway officials wanted to build a highway

near the property, they went to John's children, of which none were found. John's grandchildren found out

about the sale through notice and one of them. They offered Anna a portion of money they were offered.Anna was in a tough financial situation and she wanted to force a judicial sale of the land, because she

would receive a lot more money

ISSUE: Under property law, does a stake in the land in question give rise to the ability to use that stake toforce a judicial sale of the land without consultation of the other party who has stake in the land?

HOLDING/RULE: In equity, the court looks at what is potentially at stake to both sides in the transac-tion. Here, sale without the consultation of the other party which has an interest in the property is not eq-uitable to the appellant. Sale of whole farm is too drastic, but sale of portion necessary to provide for

Annas needs is OK

WASTE: Either an affirmative act (affirmative waste) or an omission (permissive waste) that lessens thevalue of a future or concurrent interest in property


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PROPERTY OUTLINE

1) It created an incentive for the life tenant to protect the remaindermens interest; it also seeks toprevent the life tenant from taking advantage of an economic interest that belongs to the re-

mainderman

-Ex. of affirmative waste: grantor leaves piece of land, underneath is minerals; grantornever drilled minerals and leaves property to life tenant for life with remainder

-Ex. of permissive waste: occurs when life tenant allows situation to exist... remainder

*act of omission rather than commission2) The longer the life tenants interest, or the more contingent the remaindermans interest, the

less likely the court will find waste to occur

3) Note that doctrine of waste also applies between concurrent owners, tenant and landlord,mortgagor and mortgagee, etc.

Defeasible Estates

3 types of defeasible estates:

1) fee simple determinable

2) fee simple subject to a condition subsequent3) fee simple subject to an executory limitation (will be discussed in future interest)

I. Fee Simple DeterminableA) An estate that automatically terminatedon the happening of a stated event and goes back to the

grantor; natural termination

-possibility of reverter automatically becomes a fee simpleB) Future Interest: creates apossibility of reverter

-b/c grantees estate may end upon happening of stated event, there is a possibility that land may

revert back to grantor

-the interest that is left in a grantor who conveys this estate is called possibility of reverter-it doesnt have be expressly retained, it arises automatically in the grantor

C) This is a fee simple estate that will automatically end if some specified event occurs. This is a fee sim-

ple because it may last forever, and can be passed on to heirs. It is determinable because at the occur-

rence of the specified event, it will automatically end. Typical language is to A so long as, to Awhile, to A until The grantors future interest ispossibility of reverter

D) Grantor is the only holder of possibility of reverter can conveyE) Example- G conveys Blackacre to to school Board so long as Blackacre is used for an elementary

school, or to A until my son Paul returns home from Rome, or to City while Blackacre is used as a

public park. In each of these cases, G has conveyed a fee simple determinable. In each case, if thespecified event occurs (Blackacre is no longer used for elementary school, Paul returns from Rome, or

City ceases to use the land for a park), then the estate automatically reverts back to G. If G is dead,

then it passes to Gs successors

II. Fee Simple Subject to a Condition Subsequent (FAVORED- not automatic forfeiture)

A) This is a fee simple estate (thus it may last forever) that will be cut short at the occurrence of somespecified event. It does not automatically end, however. The grantor may end it, if he wished, after theoccurrence of the specified event. Typical language is to A, but if A is ever adjudicated insane, then G

has the right to reenter. The grantors future interest is a right to reenter

B) Grantor is the only holder of right of reentry, usually conveyable, but not alwaysC) Example- G conveys Blackacre to A and her heirs, but if A does not live to be 18, then G has the right

to reenter. If A does not live to be 18, then G may, if he chooses, retake Blackacre. If G does not re-

take Blackacre, then it goes to As heirs in fee simple (or to whomever A specifies in her will). Once A


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PROPERTY OUTLINE

has reached 18, the condition is satisfied and A has a fee simple absolute estate in Blackacre. G mustaffirmatively act to retake Blackacre in the event A does not live to be 18.

D) Doesnt end automatically on happening of event, external force needed; not natural termination; O

must reenter

III. Difference between Fee Simple Subject to a Condition Subsequent and Fee Simple Determinable

A) The key difference is the word automatically. Any fee simple determinable automatically ends at theoccurrence of the specified event. Any fee simple subject to a condition subsequent may be ended by

the grantor, if he so chooses, after the occurrence of the specified event. Of course, if the grantor is

dead, then his successors are entitled to exercise the right of entry. Note also the difference betweenthe respective future interests. The grantor of a fee simple determinable has the possibility of

reverter since it is possible that the land will revert back to him. In the case of Fee Simple Subject to a

Condition Subsequent, the grantor has the right to reenter, because at the occurrence of the specified

event he has the right to reenter but does not have to do so. In case of ambiguity, the court will alwaysdeclare the estate to be Fee Simple Subject to a Condition Subsequent. The reason for this is that

courts disfavor the automatic divesting of estates

B) Fee simple determinable uses language like so long as, until, while, during; Fee simple subjectto condition subsequent uses upon the condition that, provided that, but if

creation of interest limiting event/condition

FSD I---------------------------------------------------------------I

FSCS I--------------------------------------------------------------I---------------------------->

MAHRENHOLZ V. COUNTY BOARD OF SCHOOL TRUSTEES (pgs 208-215)

FACTS:In 1941 Hutton transferred 1 and acres (of40) to school district, this land is to be used for

school purpose only otherwise to revert to grantors herein Hutton transferred remaining 38.5 acres to thejacqmains, the Huttons died and Harry Hutton is their heir. In 1959 the Jacqmains sold remaining 38.5

acres to the Marenholzs. After 1973 land not used for classes. In 1977 Harry Hutton transferred rever-

sionary interest in 1.5 acres to plaintiff and then to the defendant.

ISSUE: Whether the language of the deed created a fee simple determinable or a fee simple subject to a

condition subsequent. The reason this is significant is if it was considered a fee simple determinable, it

would have a possibility of reverter and it would be allowed for harry to convey it to Marenholz because

when they stopped using it as a classroom in 1973 it automatically would revert back to harry and he couldconvey it in 1977 to Marenholz. But if it was a fee simple subject to condition subsequent, Harry would

have had a right of reentry, and since Harry never took any steps to reenter and take title back over the

land, he cannot convey it to the Marenholz because he never acquired possession

The trial court correctly ruled that the plaintiffs could not have acquired any interest in the propertyfrom the Jacmains by the 1959 deed because the court considered it to be a fee simple subject to a con-

dition subsequent, and since Harry never took and steps to re-enter the land, he could not convey it.

MOUNTAIN BROW LODGE NO.82, INDEPENDENNT ORDER OF ODD FELLOWS V. TOSCANO

FACTS: Mountain (non-profit) filed quiet title to a parcel of property gifted by Toscano, deceased.

Toscano respondents argue language creates a fee simple to a condition subsequent and is valid and en-

forceable. Mountain argues the language amounts to an absolute restraint on its power of alienation and is


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PROPERTY OUTLINE

void. Mountain argues purpose is not defined hence restriction is not on land use but on who uses it. Pro-hibits Mountain from selling or transferring land.

-Deed: said property is restricted for the use and benefit of the second party, only; and in the

event the same fails to be used by the second party or in the event of sale or transfer by the secondparty of all or an part of said lot, the same is to revert to the first parties herein, their successors,

heirs or assigns.

ISSUE: whether trial court determined that the conditions of the gift deed were not void; Whether the usecondition created a defeasible fee as Toscano maintain or whether it is also a restraint against alienation

and nothing more as Mountain alleges.

HOLDING: Habendum clause created a fee simple subject to a condition subsequent with title to revert tothe grantors if land ceases to be used for lodge purposes.

When government takes land through eminent domain, who gets condemnation award?

-Majority view the holder of the fee (life estate)

-Restatement of Property fee owner if defeasible fee would probably not end within a reason-ably short period of time; in practice, usually reaches same result as majority vie

Chapter 4- Future Interests

If that estate is less than a fee simple absolute, there is something left over that must go to someone else The part left over is afuture interestand it goes either to:

1) the grantor

2) a third party

Interests Retained by the Transferor (grantor)

All come back to the grantor; exist now must they are future interests

I. ReversionA) Becomes possessory upon the termination of fee tail, life estate, or leasehold estate

B) Interest left in an owner when he carves out of his estate a lesser estate and doesnt provide who is to

take the property when the lesser estate expires

II. Possibility of Reverter

A) Becomes possessory upon the termination of fee simple determinable (determinable life estate)B) O conveys Blackacre to Town Library Board so long as used for library purposes.

C) Not allowed to be transferred during persons lifetime b/c there is a possibility of future interest?

D) Common Law courts viewed possibility of reverted as a chosen action (aka cause of action)E) Today it is universally alienable and devisable

III. Right of Re-Entry

A) Becomes possessory upon the termination of fee simple on condition subsequent (life estate on condi-

tion subsequent or leasehold estate on condition subsequent)B) Not quite universally alienable (only in some states)

C) O conveys Whiteacre to Town Library Board, but if it ceases to use the land for library purposes, Ohas the right to re-enter and retake the premises.


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PROPERTY OUTLINE

Common Law Modern

Possibility of Reverter -inalienable

-not devisable

-inheritable

-alienable

-devisable

-inheritable

Right of Reentry -inalienable

-not devisable

-inheritable

-alienable (most often)

-divisable

-inheritable

Interests Created in a Transferee (3rd Person)

2 kinds of future interests in a 3rd party:

1) Remainder

2) Executory interest

I. RemainderA) Created in a 3rd person

-only pre-Statute of Uses allowed in 3rd person- all others were reversionary interestsB) Created Simultaneously with the creation of the prior estate(s)

-If created after the creation of the prior estate(s) conveyance of the reversionary interest

* O to A for life, O to B and her heirs when A dies-If created before creation of the prior estate(s) there is a gap in seisin (springing interest)

*not permitted before Statute of Uses because springing interest (executory interest)

* O to B and her heirs when A dies, O to A for life-in order to be a remainder has to be created in some deed/will

C) The estate(s) prior to it is of a lesser duration than the interest in the grantor; and

-otherwise nothing left over for remaindermenD) It becomes a present estate immediately upon the natural termination of the prior estate

-No gap (springing interest) or shift (shifting interest) in seisin

-springing and shifting interest prohibited before Statute of Uses; following were

prohibited:* O to A & his heirs to commence in 1 year

*O to A & his heirs, but if used as a tavern then to B & his heirs

-all of these ^^ are valid today but none of them are remainders, they are executoryinterests

E) 2 kinds of remainders:

1) vested (3 Kinds)

2) contingent

II. Vested Remainders

1) Vested (indefeasibly/absolutely)- A remainder that is NOT:A) Not subject to condition precedent or subsequent, nor

-condition preceding: something has to happen before property will vest to you

-condition subsequent: will vest to you now but if something happen you will lose that rightB) Not given to an unborn or unascertained person

C) Ex: O to A for life, remainder to B & his heirs - vested


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PROPERTY OUTLINE

-there is no condition preceding or subsequent

2) Vested Subject to Open- A remainder that:

A) Is created in favor of a class of people that may increase in size;B) Has at least 1 member of the class born & ascertained; and

C) Is not subject to a condition precedent

D) Ex: O to A for life, remainder to As children & their heirs assume A is alive and has one child -vested subject to open

3) Vested Subject to DivestmentA) A vested remainder that may be defeated by a condition subsequent

B) Condition subsequent cuts if off and shifts it over to a 3rd party (shifting executory interest)

C) Ex: O to A for life, remainder to B & her heirs, but if B dies w/o children, then to C & his heirs

-B has vested remainder that may be divested if she dies w/o children-the divesting interest is in C

-Cs interest is an executory interest (which wasnt allowed before the Statute of Uses)

D) O to A for life, remainder to As children & their heirs, but if none of As children survive A, then to B& his heirs -A is alive and has 1 kid

III. Contingent RemaindersA) A remainder that is:

1) Subject to a condition precedent, or

2) Given to an unborn or unascertained person

B) At all times there must be someone who can take possession if the present estate ends; a contingent re-mainderman cant do that

-Thus, if the ultimate remainder is contingent, there must be an implied reversion, which is vested

C) Ex: O to A for life, and if B marries, remainder to B & his heirs B is not married-B has to marry for remainder to be vested in B (condition precedent)

D) O to A for life, remainder to Bs heirs B is alive

-B has no heirs until B dies (persons unascertained)E) Left Eyeball Test:

-if the condition is placed before words that create the remainder (or incorporated as part of

description of the remainder, then it is a contingent remainder

-if the condition is added as a separate clause after the words creating a vested remainder, then itis a vested remainder subject to divestment

F) Yo-yo test :

-If vesting depends on a prior event contingent remainder*give the YoYo and string to the person

-If occurrence of later event will divest remainder (take it back)- vested remainder subject to

divestment

*give the YoYo but hold the string

IV. Executory Interest

b/c Statute of Uses executed the use, created executory interest

Statute of Uses created- main purpose was to stop the feudal estate taxes (Henry VIII needed the money

for alimony!)

It executed all passive uses; i.e., converted the passive equitable estate into a legal estate of the same

quality and quantity (almost always!)-person who had the legal estate was no longer there


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-just converted the equitable estate into the legal estate-got ride of the formal legal estate

a future interest then becomes possessory by either:

1) divesting transferor- springing executory interest2) divesting another transferee- shifting executory interest

Interest with a Gap or Shift to a 3rd Party

A) Springing Interest

1) reverts to grantor, then springs up in a 3rd party2) Ex: O to A for life, remainder to B and heirs one year after A dies

-O>A for life>O for one year>B and heirs

B) Shifting Interest1) Always shift over from 3rd party

2) Ex: O to A and heirs, but if used as a tavern, to B and his heirs

-O>A if not tavern>B if tavernC) Shellys Case

1) remainder in heirs of life tenant

2) 2 step process; A has a fee simple absolute?

2) Ex: O to A, remainder to As heirs-Doctrine of Merger applied

*remainder to As heirs viewed as limitation, not words of purchase if there is an

intervening life estate-Changes to O to A and heirs

-Apply merger after end of estate

D) Doctrine of Worthier Title1) remainder is in heirs of grantor (not in the heirs of life tenant)

2) Ex: O to A for life, remainder to Os heirs (A is Os oldest son)

-seen as worthier to inherit rather than purchase

-so covert this so that it in effect is inherited from O to his heirs, so still taxesE) Destructible Contingent Remainders

1) O to A for life, remainder to B if he is 21 : possible remainder, possible executory

interest2) Rule: if it can be construed to take place as a remainder, it must

-so, if B is 21 at natural termination of estate, it is a remainder

-if B is 10 at natural termination, remainder is destroyed and it reverts back to O

Property Outline Fall 2009

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