Property Outline

Introduction to Property:Two types of property: 1) Real Property also known as Realty 2) Personal Property also called Personalty and Chattel

Chief distinguished as real property are immovable i.e. Land Personal property is generally moveable and less permanent-movable.

Tangible Personal Property: Tangible is something physical you can hold see and smell

Intangible Personal Property: The good will of a business, i.e. McDonalds franchise, you pay for more than the golden

arches, but paying for the reputation of the business and customer basis. Intangible because you can’t put it in your pocket, its just the reputation at McDonalds.

If you have COA against a person because they ran into your car, the COA you have is a type of property you have against them.

Chose-in-Action is another term for COA. Bundle of sticks: Different property interests give you different rights and liabilities. Even if you

own all sticks in bundle of rights you don’t, government is ultimate owner of all land. If government needs your land, it can take your land by exercising IMMINENT DOMAIN.

Law applies to both real and personal property What is a tree?

Is it real property or personal property? If in the ground real property? If the tree is at the nursery in a pot it’s personal property If tree in ground and is cut down then its personal property What is the item’s status at the time you classify it?

Two fundamental principles of our system: 1) focused on state rights- property law is a matter of state law. Majority of states say this, minority

states say this. Time of 13 colonies thought about forming a national government, power leading to abuses, and national government might take over states. Doctrine in Constitution called EQUAL FOOTING DOCTRINE, each state retains control over the land in its borders and as new states join, those new states also control the land within their borders. Significant litigation over federal government owns land so people bring lawsuits based on equal footing doctrine that its unconstitutional for federal government to own so much land because they are not bound by state law or taxation.

2) We have a very great regard for protection of private property rights, to people of states they should have control over their land. If one person can use their land that doesn’t serve the community, how is that a good thing? Isn’t it supposed to maximize efficiency. It doesn’t. Reason is that historically the US was a dumping ground for poor people. Half of the immigrants were here because they were convicted of a crime or they were poor. There was a need for cheap labor, so difficult because people were digging up corpses to eat them. Death rate here was same as the plague in England so there was a constant need to import people. About 80% of population were poor, founders thought that if we give a vote to all white males above a certain age there are more poor people of them then of us because they could become the majority to pass laws that would harm rich minorities. The founders said you could only participate in government, hold office, vote, etc if you own land. In some places you had to own a significant amount of land. Very concerned about drafting protections into private property, once it opened to free white males they would vote to redistribute land. There’s a focus on private property right, therefore if the government takes land from someone must provide due process and provide just compensation.

Abandoned Property 17-22 Title to abandoned property – Intent to possess and possession.

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Property Outline

Acquiring Abandoned Property: Time personal property was left and if original owner never tries to reclaim.

Possession v. Ownership: Real Property:

Consists of land and objects that are permanently affixed to land, such as trees and buildings. Real property generally is immovable.

Personal Property: Consists of moveable objects.

Property law largely consists of issues relating to real property, rather than personal property. By and large, the rules are the same for both.

Possession of Unowned & Owned Personal Property. A) Unowned Personal Property:

Possessors’ claims depend on whether the property has a legal owner. If the property is unowned, such as wild animals and abandoned goods, the taking of possession may enable the possessor to claim ownership of the asset. At the very least, no other owner can assert rights against the possessor.

Example: P captures whale on high seas. While govts. Or conservation groups can challenge P’s rights to capture the whale, no other person can claim that the whale is his/hers.

1) Possessor’s Rights: Unless a person is legally prohibited from taking unowned assets, the possessor of an unowned

asset is its owner and is entitled to all the rights owners have over goods they purchased or inherited.

Example: P catches fish in ocean, and S buys fish from store. Each have their own rights with regard to their own fish.

2) Rival Possessors: The law gives priority to the person who first takes possession of an object. This rule will not apply if

the circumstances make it unfair. Example: P spots diamond lying on the ground, as he goes to pick it up, S hits him from behind

and takes the diamond. Court will not award S as first possessor. 3) What Constitutes Possession:

Possession requires both PHYSICAL CONTROL over the item and INTENT to control it or to exclude others from it.

Example:o 1) Killing: P pursues fox on horseback, when S takes gun and shoots it. Pursuit of while

animal DOES NOT CONSTITUTE TAKING POSSESSION. If P shoots and killed Fox before S, P is prior possessor. If S’s shot wounded Fox and P got to fox before S, then P may prevail if P got to it first. Result is the same for if animal was captured but escaped back into wild.

o 2) Trapping: P threw net around school of fish, but S caught some. If net was closed so fish couldn’t escape P has possession, but if he did not have possession, it means fish had a means of escape.

o 3) Spotting: P finds Greek Treasure ship and leaves marker on ship, before P can return with necessary equipment to raise it, S finds ship and brings it to surface. Outcome depends on whether leaving marker on sunken ship

o 4) Unconscious Possession: P standing on 100 dollar bill, S asks P to lift foot and takes 100 dollars. P finds box lying in trash can, but S opens it first to find 100 dollar bill. P did not have possession in these cases because he was unaware of the money and, therefore, did not intend to appropriate or to exclude others. P had possession of the money even though unconsciously, in light of his undisputed physical control over it.

o 5) Landowner’s Possession: P finds money in Olga’s house. Courts often hold that a landowner has CONSTRUCTIVE POSSESSION of whatever is on her property, even if she does not know it is there.

Policy for Abandoned Property: Awards individuals who recirculates personal property into the economy

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Property Outline

Cannot abandon real property

Eads v. Brazelton (1861): Facts: In November 1827, the America sank in the Mississippi river and her cargo full of lead sank

and was abandoned by the owners. P having the information began to ascertain its exact location in December 1854 with the intent to raise the sunken lead. IN January 1855 he arrived at the place of the wreck and with his diving boat fastened a buoy to a weight that rested upon where the wreck was with the expectation of putting his boat over it the next day, but he was detained by other business and in September of 1855 the defendants found the wreckage and began to raise the lead.

Rule: The occupation or possession of property lost, abandoned or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession. Abandonment- failure to reclaim or recover property and lapse of time. Former owner does not intend to reassert their ownership rights. Former owner no longer has possession of the object but there is no intention to assert any further ownership right. *** Original owner after abandoning property cannot come back and reclaim property once it has been found and possessed by another.

Holding: But that P’s circumstances should give a legal character to his acts, make that to be possession which the law declares not to be possession, assumes more than a court can sanction. Marking trees that extend across the wreck and affixing temporary buoys to it were not acts of possession; they only indicated P’s desire or intention to appropriate the property.

Haslem v. Lockwood (1871): Facts: P gathered heaps of manure lying on a public highway intending to remove it to his land the

next evening. Before noon of the next day, D removed the manure gathered. COA is for Trover- An action for the recovery of the value of personal property wrongfully converted by another to his/her own use.

Rules: Manure so produced is generally regarded by farmers in this country as part of the realty and has been so treated by landlords and tenants from time immemorial- Daniels v. Pond. Manure regarded as part of realty because it is produced on that land. Court HOLDS N.A. because Borough is not agricultural.

o General Doctrine of Possession- that where the right by occupancy exists, it exists no longer than the party retains the actual possession of the property, or till he appropriates it to his own use by removing it to some other place. If he leaves the property at the place where it was discovered and does nothing whatsoever to enhance its value or change its nature his right by occupancy is unquestionably gone.

o A person must be given a reasonable time to remove the property and during such reasonable time his right to the property would be protected.

o Relativity of title: If P & D fight over possession over property found, and Q the original owner does not stake claim to property, the court will decide between P & D over who has a better claim. Which party enhanced the value of the property and desire to recirculate the property into society.

Holding: We think the manure scattered upon the ground, under the circumstances of this case, was personal property.

o we think the facts of the case show a sufficient right in P to the immediate possession of the property against a mere wrong doer.

o P had the peaceable and quiet possession of the property and we deem this sufficient until the Borough of Stamford shall make a complaint. Borough makes no claim to manure****

o A reasonable time for the removal of this manure had not elapsed when D seized and converted it to his own use.

Analysis: o P & D arguing over ownership rights because D currently has possession. P has to prove that

he had rights to the property b/c Borough did not claim rights to it and that the Borough had abandoned its right. P has to prove intent to possess and possession. If P cannot prove that

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Property Outline

Borough intended to give up title to manure, then P is claiming right to possess manure until Borough claims it.

o P did not have possession of manure and D had possession of manure, if Borough claims title to manure and becomes owner, i.e. doesn’t know where manure went, because borough has title they can all fight about who has possession over manure. If court still thinks P is superior to make the claim because P increased the value of the property and should be given reasonable time to recirculate the property. Between P & D even if you cant show who owns it,you give possession to the person who increases the value.

o P was the first to take possession and become the owner. D had 2 arguments to support his possession; 1) if manure was personal property, P may have become owner, but he lost title to it because P left without taking it with him and he didn’t have necessary possession. Court rejected that because P had enhanced the value of the manure and P had 24 hours to get it. What was D’s alternative other argument. D’s second argument is that the manure was a part of real property but that does nothing for D because you CANNOT ABANDON REAL PROPERTY. D tries to defeat P’s claim by saying borough owns it, but it means D took the manure couldn’t own it either because the borough is the owner. D uses a JUS TERTII argument, asserting the rights/use of the borough and he can’t do that. D CANT ASSERT RIGHTS OF ANOTHER PARTY.

o Manure on farm is industry standard. Agricultures and landlords and tenant treats manure as real estate as time and immemorial. If tenant has their own animals and create their own fertilizer, so if its personal property then tenant has right remove the manure. So on a farm, manure should stay because its real property.

Goddard v. Winchell: Goddard gave Winchell a lease to farm on his land. Meteorite falls on land, and Winchell dug up

meteorite and sold the meteorite. Recovery of goods- Replevin. Winchell enhanced the value Who owned the meteorite before it landed? Winchell is claiming title? No one claimed it before hand.

Winchell was the first to put his hands on it and therefore he wanted to recirculate it. What was Hoaglund’s status? He purchased it from Winchell and therefore he had title. Hoagland took possession and intended to be owner and that was what was sold to Winchell. Court held for plaintiff, it became part of the realty and therefore could not abandon it and the owner is the property owner and so he owned everything that was affixed to the ground. Was the meteorite abandoned? No because you cant abandon real property. What was the status before it landed-it was unowned, so because there wasn’t an owner, you can only have abandoned property if nobody owned it before. It became a part of the soil, what is the third argument that you could make, was trespasser, Elickson gave permission and didn’t have authority because he didn’t own a property. Only rights tenant has is to graze animals not to allow ppl onto the land to obtain property.

When Winchell dug up the meteorite it became personal property, but because it was on the land of Goddard, still belonged to him constructively (constructive possession).

Goddard Distinguished with Manure case: Finding that meteorite was part of real property whereas manure was personal property not real

property. If meteorite was real property does that mean replevin was not the proper cause of action? – Once it

was in the ground it was part of the property, once dug up it became chattel and replevin became appropriate.

Meteorite was an accretion from another planet, accretion- natural object becomes attached to your soil. Soil erodes from the property and attaches to someone who lives downstream. Riparian owner, you own land down river. Corrosion of soil erodes soil and it floats down river and has accreted and once it becomes attached to Riparian land and becomes their land.

Law of Avulsion: If river starts a new bank after storm so river no longer runs past riparian property, unlike accretion you don’t say you own to water, you say property boundaries stay the same, whereas accretion you say your land retracts or expand.

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Property Outline

Finder’s Rights Possessor’s Rights Against Others:

A possessors obligation to return goods to their owner is not a duty owed to anyone else, because the possessor has a better claim to the goods than they do.

RELATIVITY OF TITLE- exists by virtue of the possessor’s ability to demand that a third person return the goods on one hand, but the possessor’s duty to return them to the owner on the other hand. When more than one person claims the right to possess the same object, the conflict is resolved by determining who has the better claim to it.

o One party need not have a perfect claim so long as her claim is better than the rival claimant’s. therefore, a person cannot take or withhold goods from another merely because they are owned by a third person. The person from whom they were taken still may have a better claim than the person who took them.

Examples:o 1) Finder v. Finder: A finds a camera but loses it. B then finds it. Between A and B, A has

the better claim because she possessed the camera first.o 2) Thief v. Thief: A steals a camera, then B steals the camera from A. A has a better claim

to the camera because she possessed it first and despite the fact that she acquired the camera by theft.

o 3) Thief v. Finder: A steals a camera but loses it. B finds it. A will still prevail because A possessed the camera first.

Landowner’s Claims: Goods are often found on land that belongs to or is possessed by someone else and conflicts often

arise between the finder and the person on whose land it was found. Courts employ a number of somewhat conflicting distinctions.

A. Finder’s Status: The finder’s claim to the found goods is weaker if he:o 1) is a trespasser on the propertyo 2) is on the property for a limited purpose, such as to repair the sink or deliver the mailo 3) is on the property as an employee of the landowner as often occurs in agreements

between hotels and their housekeeping crew. B. Premises’ Status: The Finder’s claim is weaker if the goods were found in a private, rather

than public place. C. Status of Land Based Claim: the strength of a land based claim may be affected by whether

the claimant is a landowner who has not yet moved in, a landlord who has never resided on the premises, a long-term tenant, or a weekend guest.

D. Where Goods Are Found: Goods found under the soil, rather than lying on it, generally are rewarded to the landowner, rather than to the finder. If the goods were buried intentionally, they may be characterized as treasure trove. In that case, the finder may be entitled to possession or they may belong to the state.

E. How goods got there: When goods are found in a public place, the finder is entitled to possession if the goods were lost or abandoned. However, the landlord is entitled to possession if they were mislaid—intentionally set down by the owner who forgot to pick them up later. The assumption is that the owner of mislaid goods will return to retrieve them, which will be facilitated if the landowner rather than the finder, has the goods. Statutes regarding findings sometimes abolish these distinctions, but some courts have held that statutes that refer only to “lost” goods do not apply to mislaid goods.

Lost Property: Lost property means there is still an owner out there The people who find lost property try to return it to their original owners. Reuniting object to actual

owner.

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Lost and Mislaid Property 22-36

Property Outline

Rules are set up to protect the first finder. First finder has more superiority than whoever finds the object hereafter.

A has a ring, B finds the ring, C takes Ring, D takes ring from C. Law protects the original owner, but B is protected as first finder. Want to create incentive that B found the object.

Legal rules are supposed to satisfy people’s expectations. Restore property to owner, return objects to circulation and we want the law to seem fair. Gives first possessor the right, because it would stop the endless chain of people taking the book from the person that took the book and makes it easier for the first possessor to return item to original owner or vice versa original owner to find first possessor.

Why do we protect a persons interest even if they aren’t the owner? If you need to make proof of who owned it every time what does that mean you have to do with

your daily lives? If you didn’t want people to take things from you, if you lost those receipts? Expectations* - people expect the law to protect the system otherwise people won’t abide by the

laws Many transactions where you take your car to mechanic or clothes to the laundry, if you couldn’t

get your car back unless you prove ownership. Called Bailment, deliver an object to someone else to perform a service. Useful transaction to have, but wouldn’t have sufficient if you had to prove ownership.

Armory v. Delamirie 1722: Facts: P a chimney sweeper’s boy finds a jewel and asks D a goldsmith what the jewel is. D gave jewel

to apprentice who weighed the stone and D offered P money for the stone in which P refused. D refused to return the stone.

Rule: 1) That a finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner and consequently may maintain trover; 2) P can bring an action against D even though D’s apprentice too the stone because the apprentice acted on behalf of D (Agency Principle).

Class Analysis: Boy had stolen the broach. Boy’s possession is superior because he was first possessor next to the rightful owner so for efficiency purposes, you can bring it back to the owner. Don’t want to create an incentive to claim they can take possession from someone else. Court applies Respondeat Superior between boy and goldsmith, boy was first possessor but boy sues for damages. HYPO: After lawsuit, the owner of the broach is walking by the goldsmith shop someone says thank god you found it and requests the jewel back. Goldsmith has to return broach to owner, so goldsmith may be able to recover some sort of damages. What rights does boy have? The right to possession. Is it appropriate to charge the goldsmith the full value of the broach even though the boy didn’t own it. Boy didn’t have ownership to transfer, so how do you value that? Does the person who purchases broach from goldsmith and true owner comes along says that’s my

broach, what rights does the purchaser have? If owner did not abandon title to that broach then they can claim title to anyone who has that broach.

Boy has committed tort of conversion, held onto a position for a period of time where it becomes his property but he has to pay damages. Owner can bring action of conversion or unjust enrichment and says you cant have that money because you earned it by selling my broach. How does that help the goldsmith? Law of subrogation—common law doctrine to make the loss fall on the wrongdoer, person we think causes harm we think they should pay for it.

Example: You’re driving and someone hits you, you have car fixed and collects from insurance company. Insurance will pay back for any loss suffered, but we want person who caused injury to pay for it. If the insurance company who is not person who caused damage, they can use the person who was injured against the rights of the person who did cause the injury. Risk of confusing you and enlightening you, insurance company is liable based on insurance company contract, but they are called secondarily liable. Person who caused the injury is called primarily liable. Insurance company is a secondary source and the second is called a surety, subrogation if surety has to pay they can use the creditors rights against the person who is primarily liable, a more abstract statement of subrogation, can assert the rights of the person primarily liable.

Owner of broach has suit against boy but owner decides to go against goldsmith, but goldsmith is secondarily liable we don’t want him to pay twice so we allow subrogation to go after boy who committed conversion*** if owner recoups the second payment so goldsmith pays twice, goldsmith

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Property Outline

can reclaim / subrogate from boy. Owner would be smart to go against goldsmith in order to get him to pay.

Clark v. Maloney 1840: Facts: P found logs floating in Delaware Bay after a great flood and so he moored them with ropes at

the mouth of Mispillion creek. D then took possession of the logs. Rule: 1) Possession is certainly prima facie evidence of property. It is called prima facie evidence

because it may be rebutted by evidence of better title, but in the absence of better title it is as effective a support of title as the most conclusive evidence could be. It is for this reason, that the finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner.; 2) it is a well settled rule of law that the loss of a chattel does not change the right of property; and for the same reason that the original loss of these logs by the rightful owner, did not change his absolute property in them, but he might have maintained trover against the plaintiff upon refusal to deliver them, so the subsequent loss did not divest the special property of the plaintiff.

Holding: It follows that P has shown a special property in these logs, which he never abandoned, and which enabled him to keep them against all the world but the rightful owner, he is entitled to a verdict.

Analysis: P acquired possession by gathering and tying them and even though they became lose he did not lose his legal possession. Was it wrong for them to take possession of them? No, but they were when they refused to return the logs when they learned that P had possession of them. If P never came back to reclaim then D has title of possession and E and F cannot come and claim logs. Protecting first possessor’s rights.

Barker v. Bates 1832: (CONSTRUCTIVE POSSESSION/TRESPASS) Facts: A stick of timber was driven ashore under such circumstances as lead to a belief that it was

thrown overboard or washed out of some vessel in distress and never reclaimed by the owner. Rule: Abandoned property on P’s land gives P the right to possess it, unless original owner reclaims it. Holding: That the place upon which this timber was thrown up and had lodged was the soil and

freehold of the plaintiff, that the defendants cannot justify their entry for the purpose of taking away or marking the timber, we are of the opinion that such entry was a trespass and that as between P and D, neither of whom had or claimed any title except by mere possession, P had in virtue of his title to the soil the preferable right of possession and therefore that P has a right to recover the agreed value of the timber in his claim of damages.

Analysis: Similar to meteorite? Owner of land wins, timber counted as real property instead of personal property. Constructive possession, even if owner didn’t have log between his lands, he has constructive possession on anything that is on his land. Defendant had also trespassed by going to take off the property therefore they did not want to reward a wrongful act.

South Staffordshire Water Co v. Sharman: (CONSTRUCTIVE POSSESSION/PRIVATE LAND) Facts: P hires D to do simple land work by cleaning out a pool. In the process of cleaning pool, D finds

two gold rings at the bottom. P asks for the rings back and D refuses. Rule: 1) The possession of land carries with it general, by our law, possession of everything which is

attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence. . . it is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorized interference.; 2) Where a person has possession of house or land with a manifest intention to exercise control over it, and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.

Holding: P doesn’t have to show that they were in actual control of locus in quo and things in it. Analysis: P are the freeholders of the locus in quo (SCENE OF THE EVENT) and as such they have the

right to forbid anybody coming on their land or in any way interfering with it. They had the right to say that their pool should be cleaned out in any way that they thought fit and to direct what should be

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Property Outline

done with anything found in the pool in the course of such cleaning out. Detinue: Recovering possession of personal property taken legally but is wrong for not returning it.

Policy: Constructive Possession because they owned the land. Expectations. Pool cleaners were under the control of Plaintiffs and therefore for them to take the rings is a type of trespassing. Store open to the public, result would not have been the same. Concurring judgment said holding for the worker would encourage dishonesty* Doesn’t want anyone to come onto the land and claim property with justification that they found it because it was lost.

Hannah v. Peel 1945: (FIRST POSSESSOR) Facts: P found a brooch when he was stationed at Gwernhalod House. P turned the brooch into the

police where it was never reclaimed by the original owner. The police handed the brooch over to D who sold the brooch. No evidence that D knew of the brooch before P found it. P wanted the brooch back stating his right to the possession of the brooch as against all persons other than the owner who was unknown, but D refused.

Rule: 1) Bridges v. Hawkesworth – we find therefore, no circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons except the real owner and we think that rule must prevail and that the learned judge was mistaken in holding that the place in which they were found makes any legal difference (Parcel of bank notes found by P outside of D’s store; 2) South Staffordshire Water Co. v. Sharman- It has been said that it establishes that if a man finds a thing as the servant or agent of another, he finds it not for himself but for that other, and indeed that seems to afford a sufficient explanation of the case. The rings found at the bottom of the pool were not in the possession of the company but it seems that though Sharman was the first to obtain possession of them, he obtained them for his employers and could claim no title for himself.; 3) Elwes v. Brigg Gas Co- A prehistoric boat embedded in the soil was discovered by the lessees when they were digging to make a gasholder. It was held that the boat, whether regarded as a mineral or as part of the soil in it which it was embedded when discovered or as a chattel did not pass to the lessees by the demise but was the property of the lessor though he was ignorant of its existence at the time of granting the lease.

Holding: Court finds for P as first possessor because brooch was mislaid property and court found that D though landowner NEVER possessed the home to being with therefore South Staffordshire didn’t really apply. Public v. Private shows that the latter has an intent to exclude others and therefore CONSTRUCTIVE POSSESSION CAN ONLY APPLY TO PRIVATE PROPERTY, not Public property.

Barbershop Abandoned Property, Mislaid Property and Lost Property Mislaid pocketbook – Voluntary more likely to remember and return to barbershop to retrieve,

involuntary then wouldn’t know where to find it. o More difficult to track down another customero Legal reason is that the pocketbook was left in the possession of the barber

What if customer just pockets the pocketbook?o Shopowner has reasonable duty to customero Barber hs to know that its there for him to become liable for it.

Lost v. Mislaid: If you don’t know who the owner is, its difficult to know if an item is lost or mislaid. Different conclusions of whats lost or mislaid. Ring: Mislaid – washing hands took off ring, Lost- washing hands and ring slipped off.

Favorite v. Miller 1978: Facts: A band of patriots toppled the statute of king George the III and began transporting the pieces.

Loyalists retrieved some parts of the statute and scattered fragments around Davis Swamp. In 1972, D wanted to find a fragment that was located on P’s land which was private property. D did not ask for permission, entered P’s land and found a fragment in which D eventually sold to a museum for 5500. P found out and brought suit.

Rule: 1) Lost property- has traditionally been defined as involving an involuntary parting i.e., where there is no intent on the part of the loser to part with the ownership of the property. Abandonment- in

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Property Outline

turn has been defined as the voluntary relinquishment of ownership of property without reference to any particular person or purpose; i.e. a throwing away of the property concerned while Mislaid property- is defined as that which is intentionally placed by the owner where he can obtain custody of it, but afterwards forgotten.; 2) The classification of property as “lost,” “abandoned,” or “mislaid” requires that a court determine the intent or mental state of the unknown party who at some time in the past parted with the ownership or control of the property.; 3) Except where the trespass is trivial or merely technical, the fact that the finder is trespassing is sufficient to deprive him of his normal preference over the owner of the place where the property was found – Barker v. Bates The basis for the rule is that a wrongdoer should not be allowed to profit by his wrongdoing.;4) Property, other than treasure trove, which is found embedded in the earth is the property of the owner of the locus in quo. The presumption in such cases is that possession of the article found is in the owner of the land and that the finder acquires no rights to the article found.

Holding: 1) while we cannot agree that the court’s conclusion was legally impossible, we do agree that any conclusion as to the mental state of persons engaged in events which occurred over two hundred years ago would be conjectural nature and as such does not furnish an adequate basis for determining rights of 20th century claimants.;2) the first concerns the defendants characterization of himself as a selfless seeker after knowledge. The facts in the record do not support such a conclusion. The defendant admitted that he was in the business of selling metal detectors and that he has used his success in finding the statute as advertising to boost his sales of such metal detectors and that the advertising has been financially rewarding. Even if we assume his motive to be that of historical research alone, that fact will not justify his entering upon the property of another without permission. D’s trespass was neither technical nor trivial. We conclude that the fact that the property found was embedded in the earth and the fact that D was a trespasser are sufficient to defeat any claim to the property which D might otherwise have had as a finder.

Analysis: Typically, if the property was found to be “lost” or “abandoned” the finder would prevail, whereas if the property was characterized as “mislaid” the owner or occupier of the land would prevail.

Examples: What if D hadn’t been a trespasser would result be different? Even if they were invited it, the landowners were still exercising control over their property. EMBEDDED & TRESPASSER- Landowner still gets it, EMBEDDED & NOT TRESPASSER – Landowner

still gets it. NOT EMBEDDED and NOT TRESPASSER- contrary is Hannah v. peel, if mislaid, lost or abandoned

property. Never had possession over land and no intention to claim it. NOT EMBEDDED and TRESPASSER- Barker v. Bates suggests landowner gets it. TRESPASSER

TRUMPS property claims Notes:

Embedded property is property 1) other than gold or silver and 2) buried in the ground under circumstances indicating that the owner will not return.

Many courts hold that the passage of time, standing alone, does not work as abandonment. Treasure trove is personal property that is 1) not lost or mislaid, because the owner meant to put

it where it is found for safekeeping, 2) money or coin, gold or silver, plate or bullion, and 3) an antiquity having been hidden long enough ago to indicate that the owner is dead or was prevented from reclaiming it as when the romans were driven out of Britain. IF YOU FIND TREASURE TROVE, YOU’RE A TRESPASSER AND YOU FIND IT, YOU GET IT—WOULD GET IT BECAUSE IF YOU HADNT’ FIND IT, WOULDN’T BE ABLE TO RECIRCULATE IT.

The law of salvage for shipwrecks is similar to the law of finders but unlike finders, salvors have a right to compensation for recovering sunken cargo. Law of Finds: the common law of finds, expresses “the ancient and honorable principle of finders

keepers.” Traditionally, the law of finds was applied only to maritime property which had never been owned by anybody. Yet recent trends suggest applying the law of finds when there has been a finding that the sunken property has been abandoned by its previous owners. The key to ownership is whether the owner has abandoned the property. Abandonment by the owner can be express or implied. Lapse of time and non-use by the owner may give rise to an inference of an intent to abandon. Title to abandoned property is acquired by the finder who demonstrates occupancy which is defined as taking possession of the property and exercising dominion or control over it. Once the finder establishes possession, he holds title to the property which is good against all, including the original owner since abandonment forfeits all the owner’s rights.

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Law of Salvage: Three elements must be established in order to assert a salvage claim. 1) the property rescued must be in marine peril. Courts will usually find that underwater shipwrecks are in marine peril, because sunken vessels and their cargoes are in danger of being lost forever, 2) Salvage service must be voluntary, 3) the salvage must be successful, in whole or in part. The salvor can receive a salvage award only through actual recovery of the property. Requires a salvor to establish possession means something less in salvage law than in finds law. In the Salvage context, only the right to compensation for service, not the right to title, usually results; “possession” is therefore more readily found than under the law of finds. Furthermore, the possession need not be continuous, but only as such the “nature and situation” of the salvage operations permit. Generally, the Court will grant an exclusive right to salvage if the Salvor’s effort is ongoing and there is likelihood of success. A finder cannot exclude others from their attempts to obtain first possession. This leads some courts to apply the law of salvage as a general rule, reserving the law of finds for later use and deferring questions of title.

Bailments: A bailment is the transfer of possession of personal property to a person who is not its owner and for a

limited purpose. It requires the possession of the property by the bailor, its delivery to the bailee pursuant to a contract of other agreement and its acceptance. There is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property in the bailee, because of his contract for restitution. On account of this qualified property of the bailee, he may maintain an action against such as injure or take away these chattels. For, as such bailee is responsible to the bailor if the goods are lost or damaged by his willful default or gross negligence or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right to recover either the specific goods, or else a satisfaction in damages, against all other persons who may have purloined or injured them; that he may always be ready to answer the call of the bailor. Example: your delivery of your clothes to the dry cleaners, of your coat to the restaurant

checkroom, of your vacuum cleaner to the repair shop, or your automobile at the mechanic’s garage for repair—all create bailments. The deposit of reproductive materials with doctor for in vitro fertilization procedures and a scientist’s use of biological substances in laboratories.

Owned Goods: When someone takes possession of property that is owned by another, he has an obligation to

return it to the owner. A borrower, renter, finder, and thief all are obligated to return the property to its owner on demand or according to the terms of their agreement. Each also has some duty of care in handling the property.

Example: O loses camera, A finds it. A loans it to B and C steals the camera from B. C has a duty to return camera to B, B has a duty to return camera to A and A has a duty to return camera to O. Any person’s failure to do so creates liability for recovery of the camera or for damages. Each also may be liable to the one with the prior claim for negligent handling of the camera. O as the owner can recover possession directly from C.

Types of Possessors: A possessor’s duties to an owner frequently depend on the nature of the possession.

o 1) Persons who take possession of goods with the owner’s consent, such as borrowers, coat checkers, and auto mechanics, usually are referred to as bailees under a bailment transaction. The owner is the bailor.

o 2) Persons who take possession of goods without the owner’s consent, such as finders and thieves, sometimes are referred to as involuntary or constructive bailees.

o 3) Person’s who do not take possession of goods that are stored in a space that they control, such as unattended parking lots and wet umbrella stands in store entrances, are not bailees. The s pace owner’s duties are determined by rules other than those for bailments such as by landlord tenant law.

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Bailments 42-43; 46-55

Property Outline

o 4) Courts sometimes distinguish between possessors and custodians who hold goods subject to the owner’s direction and control, such as a friend or customer examining a book shown to him by the owner.

o 5) a person asked to take possession of a container does not necessarily possess its contents if they are unknown to him.

Duty to Return: A bailee has an absolute duty to return goods to their owner. He is liable if he fails to do so, even if

the goods are stolen from him or were destroyed without his fault. An involuntary bailee may be liable for non-return only if it results from his negligence. A space owner has no duty to return goods that were never in his possession unless he agreed to do so or in special cases, such as when a parking lot ticket states that no bailment exists, but car owners believe that their cars are being watched by guards and by attendants who are visibly present.

Duty of Care: A possessor has some duty of care toward the item in his possession. Traditionally, the duty’s

extent depended on the nature of possession:o 1) when the bailment is solely for the bailor’s benefit, such as when the bailee is doing the

owner a favor by holding her goods, the bailee’s duty of care is only slight. He is liable only for gross negligence. Finders generally have no duty of care for goods they see but do not pick up. But if a finder takes possession, he may come under the slight care standard.

o 2) when the bailment is for the bailee’s benefit, such as when the owner is doing the bailee a favor by loaning him an item, the bailee’s duty of care is extreme, but he does not have absolute duty of protection, i.e. damage from an earthquake.

o 3) when the bailment is for the bailor’s and bailee’s mutual benefit, the bailee is liable for ordinary negligence.

o 4) if no bailment is created, the owner of the space may have no duty of care for goods placed there by the owner.

Peet v. The Roth Hotel Co.: Facts: P delivered engagement ring to D so that D could give to Jeweler to repair a missing diamond. D

misplaced the diamond and P didn’t know until a month later when the Jeweler notified P that the Jeweler never received the ring.

Rule: 1) Samples v. Geary- holding that where the presence or identity of the article claimed to have been bailed is concealed from the bailee he has not assented to assume that position with its attendant obligation ad so there is no bailment.; 2) The mutual assent necessary to a contract may be expressed as well by conduct as by words or it may be manifested by both.; 3) the former distinction between bailments for the sole benefit of the bailor; those for the mutual benefit of both bailor and bailee;; and those for the sole benefit of the latter, in respect to the degree of care required of the bailee in order to protect him liability for negligence has long since been pretty much discarded here as elsewhere.; 4) Hoel v. Flour City- puts upon the bailee the burden of proving that the loss did not result from his negligence. Not merely the burden of going forward with proofs, nor a shifting burden, but a burden of establishing before the jury that its negligence did not cause the loss. The practical working rule.

Holding: 1) The jury took the case under a charge that there was a bailment as a matter of law.; 2) the truth remains that P delivered and D accepted the ring with its identity and at least its outward character perfectly obvious.; 3) The ring was accepted in the ordinary course of business by defendant in rendering a usual service for a guest, and so, plainly, it was for defendant’s advantage, enough so, at least, to make the bailment as matter of law one for the benefit of both bailor and bailee.; 4) Defendant as bailee was under duty of exercising, respect to the subject matter, ordinary care, that is, the degree of care which an ordinarily prudent man would have exercised in the same or similar circumstances.; 5) because the care required was that of the ordinary person in the same or similar circumstances, it would not alter the standard of care applicable to P’s property in its hands as bailee.; 6) Defendant’s liability, if any, is for negligence. The legal norm is a care commensurate to the hazard, i.e. the amount and kind of care that would be exercised by an ordinarily prudent person in the same or similar circumstances.; 7)The value of the property, its attractiveness to light-fingered gentry and the ease or difficulty of its theft have much to say with triers of fact in determining whether there has been exercised a degree of care commensurate to the risk, whether the bailment be gratuitous or otherwise.

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Allen v. Hyatt Regency-Nashville Hotel (1984): Facts: Appellee parked his new automobile in Appellant’s garage. To enter the garage, you must pull a

ticket from the machine and to exit you must pass the booth with the operator. There was only one exit to the garage. Appellee left his car and when he returned it was gone. Appellee reported the theft to the operator at the booth who stated that his car did not exit it. Appellant normally has security guards walk the premises and around 9:30 a woman called to report someone tampering with a car. The security guard checked it out and found nothing. Ticket states that charges are made for the use of parking spaces only and that appellant assumes no responsibility for loss through fire, theft, collision or otherwise to the car or its contents. The ticket states that cars are parked at the risk of the owner, and parkers are instructed to lock their vehicles. The record indicates that these tickets are given solely for the purpose of measuring the time during which a vehicle is parked in order that the attendant may collect the proper charge and that they are not given for the purpose of identifying particular vehicles.

Rule: 1) Mcglynn v. Parking Authority of City of Newark- It concluded that it was more “useful and straightforward” to consider the possession and control elements in defining the duty of care of a garage operator to its customers than to consider them in the context of bailment. That court concluded that the “realities” of the relationship between the parties gave rise to a duty of reasonable care on the part of operators of parking garages and parking lots. It further found that a garage owner is usually better situated to protect a parked car and to distribute the cost of protection through parking fees. It also emphasized that owners usually expect to receive their vehicles back in the same condition in which they left them and that the imposition of a duty to protect parked vehicles and their contents was consistent with that expectation. The court went further and stated that since the owner is ordinarily absent when theft or damage occurs, the obligation to come forward with affirmative evidence of negligence could impose a difficult, if not insurmountable burden on him.- Bailment was created.; 2) Dispeker v. New Southern Hotel Co- under these circumstances the court held that a bailment for hire had been created and that upon proof of mis-delivery of the vehicle the bailee was liable to the customer.; 3) Scruggs v. Dennis- the court again held that an implied bailment contract had been created between a customer who parked and locked his vehicle in a garage. He retained his ignition key, but when he returned to retrieve the automobile in the afternoon it had disappeared. It was recovered more than two weeks later and returned to the owner in a damaged condition.; 4) Rhodes v. Pioneer Parking Lot- a bailment was found not to exist when the owner left his vehicle in an open parking lot which was wholly unattended and where he simply inserted coins into a meter, received a ticket and then parked the vehicle himself and locked it [DISTINGUISHABLE]

Holding: The expectations of the parties and their conduct can cause differing legal relationships to arise, with consequent different legal results. We do not find the facts of the present case, however, to be at variance with the legal requirements of the traditional concept of a bailment for hire.

Analysis: Although the court recognized that there were some factual differences between the Scruggs case and that of Dispeker v. New Southern Hotel Co it concluded that a bailment had been created when the owner parked his vehicle for custody and safe keeping in the parking garage, where there was limited access and where the patron had to present a ticket to an attendant upon leaving the premises. What gave rise to the duty of care for the car owner? Because there is limited access in and out of the parking garage. Exculpatory language, attempting to exculpate, weaseling out on the ticket. How come that didn’t control here? Conduct should trump what it says on the ticket. Delivery and acceptance. Security guards actions showed that they would maintain their garage.

Document transferring real property title of property is called deed. Document transferring personal property title of property is called bill of sale.

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Gifts 65-72

Property Outline

Transfer title without any consideration—When we make a gift of property –Person making gift DONOR, Recipient of gift DONEE

Can place conditions on gifts. Conditions precedent and conditions consequent. Gift has to be made with a present intent to transfer of interest. Have to say I WANT TO MAKE THE GIFT

NOW. What is that promise? It’s an unenforceable contract, promising to give tomorrow, no contract to enforce the promise. Can use promissory estoppel to enforce promise if relied upon it Executrix: Person who is appointed by a testator to execute testators will. Residuary Legatee: the person to whom the residue of personal estate is bequeathed. Non-suited: termination of a legal action without an actual determination of the merits Donatio Mortis Causa: gift on the occasion of death Delivery can be constructive*, law can say you have given up dominion and control constructively Classic Example: Gift for law school graduation is a car. No need to give car, but can give key or

title to car. This is SYMBOLIC DELIVERY. One type of constructive delivery.

IV GIFTS: A gift is a voluntary transfer of property by the owner for no consideration. The donor (the person

making the gift) may make an INTER VIVOS gift or a gift CAUSA MORTIS to a done (the gift recipient). INTER VIVOS: A gift is inter vivos if it is between a living donor and done and if the donor intends

the gift to take effect immediately, irrevocably, and unconditionally. CAUSA MORTIS: A gift is CAUSA MORTIS if the donor makes it in anticipation of her imminent

death. TESTAMENTARY GIFT: A TESTAMENTARY GIFT becomes effective only at the donor’s death. It

generally must be made by will, which is subject to statutory requirements.INTER VIVOS GIFTS: The three elements for an inter vivos gift are: 1) Intent, 2) Delivery, and 3) Acceptance.

1) Intent:o The donor must intend to make a present, irrevocable transfer of a property interest. The

gift can be of a presently possessory interest or of a future interest. However, if the donor intends the transfer of title to take effect in the future, rather than immediately, the transfer is a mere promise to make a gift in the future, which is unenforceable for lack of consideration.

o A. Effect of Conditions on the Transfer: When a gift is subject to a condition, you must determine whether the condition is

precedent or subsequent. If it is precedent, the condition must occur before the gift becomes effective. If the condition is subsequent, a present transfer of the property occurs, but the gift will be revoked if the condition subsequently occurs. Because a gift subject to a condition subsequent is a present transfer, it is a valid gift.

o Examples:o 1) D tells his friend if you get an A in property law, I will give you a new car. The gift was

subject to a condition precedent and is unenforceable.o 2) D tells a friend, here are the keys to my car. Its yours. But, if you don’t get an A in

property, you must return the car to me. The gift is subject to a condition subsequent and is enforceable.

o 3) D owns a painting and writes to her son saying in honor of your birthday, I will give you my painting, however, I plan to keep it until my death. Because her son is not entitled to immediate possession of the painting, it is a present transfer of a future interest in the painting.

o B. Circumstances Surrounding Gift:o To determine the donor’s intent, courts may consider the surrounding circumstances,

such as the parties’ relationship, the gift’s size in relation to previous gifts from the donor to the donee, and the donor’s conduct after the transfer.

o C. Effect of Donor’s Retention of Rights:o Although a gift need not be of all rights in the property, the donor’s retention of certain

rights may invalidate the gift. i.e. if the alleged donor retains control of the property,

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reserves a right to revoke the gift, or continues to treat the property as her own, the transfer of property is probably not a gift.

2) Delivery:o To satisfy the delivery requirement, the donor generally must transfer actual possession of

the gift and must surrender all dominion and control over it. The delivery requirement serves three purposes:

1) it impresses upon the donor the significance of her action 2) it makes the donor’s act unequivocal to witnesses 3) it gives the donee prima facie evidence that a gift was made.

o A. Types of Delivery:o 1) Actual Delivery: Actual delivery consists of giving possession of the gift to the donee

or to the donee’s agent. It is a formal, immediate transfer of property, and it is always an accepted means for a legal delivery.

o Example: M told S that he could have 2 horses and that M would lend S money to buy hay for the two horses. M retained possession of the horses until her death one year later. S did not give the horses hay until three days before M’s death. Because there was no actual delivery of the colts, there was no gift.

o 2) Constructive and Symbolic Delivery: if actual delivery has not occurred, a court may uphold the gift on the basis of constructive delivery. CONSTRUCTIVE DELIVERY refers to those situations in which a court determines that delivery has occurred even though it literally has not. SYMBOLIC DELIVERY is a type of constructive delivery in which a written instrument or some item is delivered that generally is accepted as a symbol of the gift or that provides access to it. CONSTRUCTIVE and SYMBOLIC deliveries normally are sufficient only if the gift cannot reasonably be delivered manually or if other circumstances prevent actual delivery.

o Example:o 1) F wanted to make a gift of stock to S. The stock was already in S’s possession

in a vault 3000 miles away from F when he made the gift. F directed his stockbroker to re-register the stock to S’s name. Because S already had possession of the stock certificates, F did not have to manually deliver them again and stock brokers re-registration was enough to satisfy delivery requirement.

o 2) On W’s birthday, H gave her a written instrument that said he was giving her stock for her birthday. At the time, the stock was in a safe deposit box in another state, which prevented H from manually delivering it. The Instrument was a legally sufficient symbolic delivery.

o 3) M manifested a present intent to give securities contained in a safe deposit box to S. She gave him the key to the safe deposit box. This was sufficient delivery.

o B. Delivery to Third Parties: A gift is valid if the donor delivered it to someone other than the donee, but only if the donor intended the gift to be irrevocable upon the transfer to the third party and the third party is the donee’s agent.o Example: F wanted to make a gift of stock to S & D. S already had stock so F told S to

transfer D’s share to her. If S is D’s agent for purposes of delivery, the gift is valid even before he physically delivers the stock to her.

o If third party is the donor’s agent, the delivery requirement probably has not been satisfied because the donor could revoke the gift by directing the agent to return it to him.

o Example: G signed 20 shares of stock to D when he was failing in health. G handed the document to M and told her to give it to D when he died unless he changed his mind before then. Because G reserved the right to revoke, M is not made D’s agent and a gift has not been made.

o To uphold a gift that is otherwise invalid for lack of delivery, a court may hold that the donor held the property in trust for the donee. As beneficiary of the trust, the donee is entitled to the benefit of the property. To create a trust, there must be a settlor, a beneficiary, a trustee, and a res, and the settlor clearly must have intended to create a

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trust. The settlor is the person who creates the trust. The beneficiary is the person who is entitled to the benefits of the property held in trust (the intended donee). The trustee is the person who holds the legal title to the trust property for the beneficiary’s benefit. The trustee may be the settlor or a third party. The res is the property that is placed in trust. In this context, the res is the property that was the object of the gift.

o Example: A purchased bonds for N and told N’s father that she put the bonds aside for N. After A’s death, the bonds were found in an envelope with a note that said Aunt was holding them for N. this created a valid trust with A acting as trustee for N.

3) Acceptance:o If an intended donee refuses to accept a gift, title to the property will not pass to the donee.

When a gift is beneficial to the donee, acceptance is usually presumed. The presumption of acceptance is rebutted if the intended donee’s actions indicate a refusal to accept or if other facts demonstrate that the gift would not be beneficial. Acceptance need not be contemporaneous with delivery of the gift.

Gifts CAUSA MORTIS: A gift Causa Mortis is made in anticipation of the donor’s imminent death. It is intended to give a

person who is near death one last opportunity to dispose of her personal property. Land cannot be the object of a gift causa mortis. The substantial possibility for false claims to the decedent’s property generally has caused courts strictly to apply the requirements for a gift causa mortis.

1) Elements: A. Intent, Delivery, and Acceptance: A gift causa mortis requires the same elements as an inter

vivos gift—intent, delivery, and acceptance. In determining whether these elements have been satisfied, courts tend to be more exacting than for an inter vivos gift because of the greater potential for fraud inherent in a claim made against the estate of a deceased donor.

B. Donor Anticipates Imminent Death: For a gift causa mortis to be valid, it must be made when the donor is suffering from a life-threatening illness or injury.

C. Death as Anticipated: The donor must die from the illness or injury that prompted the gift, rather than from an intervening cause.

o Example: Car accident victim put in ambulance after accident. Train hits car and victim dies. Traditional view holds no valid gift because of intervening cause, causing death. Modern liberal view maintains valid gift.

D. Donor Does Not Recover: If the donor recovers from the illness or injury that prompted the gift, the gift is revoked by operation of law.

E. Absence of Revocation by Donor: Unlike an Inter Vivos Gift, a donor can revoke a gift Causa Mortis.

F. Donee Survives Donor: Because a gift causa mortis is a gift to a particular individual, the gift is revoked by operation of law if the donee predeceases the donor. Otherwise, the donee’s next of kin or legatees, rather than the donee, would receive the benefit of the gift.

G. Condition Precedent or Subsequent: Some courts will invalidate the gift if the donor uses language of condition precedent, indicating that the gift is to take effect only at the donor’s death. These courts reason that the donor did not intend to make an immediately effective gift causa mortis, but only a testamentary transfer. Because the gift did not satisfy the legal requirements for a will, the attempted gift is invalid. However, the better opinions consider the donor’s intent and the surrounding circumstances, because a donor who is about to die is unlikely to think about the legal requirements for a gift causa mortis or to articulate his wishes precisely. By definition, such gifts are emergency measures.

Flower’s Case – 74 Eng. Rep. 1035 (K.B. 1587): Facts: Uncle lends money to nephew and then tells nephew to keep money. Inter Vivos gift. Uncle

intended to give gift, nephew accepted it. ISSUE OF DELIVERY. Delivery already occurred before intent. Rule: Must have actual physical delivery or in agreement writing. IMPORTANCE OF PHYSICAL DELIVERY

IN MEDIEVAL TIMES. Holding: Courts hold yes, and notes that if the nephew had said I will pay you and uncle said don’t

worry about it, but that would only be valid in writing and because money was on the table then it

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could transfer title to nephew. If nephew only offered then there’s a CHOSE-IN-ACTION ---Cause of action for breach of contract because he didn’t pay the amount he owed. If nephew hadn’t paid back the amount then uncle would have a cause of action against nephew. Nephew had delivered money to uncle so uncle had no cause of action and gave nephew money and therefore delivery requirement had been met.

Irons v. SmallPiece, 106 Eng. Rep. 467 (K.B. 1819): Facts: P’s father promised to give him two colts. Six months before the father died, P was in the

market purchasing hay and found that it cost too much and told his father who agreed to furnish the colts with hay at a stipulated price to be paid by P. No hay was furnished to the colts until three or four days before the father died. IS CONSIDERED AN INTER VIVOS GIFT. Intent from father, Acceptance from Son, but NO DELIVERY.

Rule: 1) By the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. Here the gift is merely verbal, and differs from a donation mortis causa only in this respect, that the latter is subject to a condition, that if the donor live the thing shall be restored to him. A donation mortis causa does not transfer the property without an actual delivery. The possession must be transferred, in point of fact; and the late case of Bunn v. Markham where all former authorities were considered, is a very strong authority upon that subject.

Holding: I cannot distinguish that case from the present, and therefore think that this property in the colts did not pass to the son by the verbal gift; and I cannot agree that the son can be charged with the hay which was provided for these colts three or four days before the father’s death; for I cannot think that tardy supply can be referred to the contract which was made so many months before. Because there is no actual delivery, the Court of Common Pleas held that it was not a valid gift. CONCURRENCE: In order to change property as a gift, there must be a change of possession, but there was none here.

Analysis: If donee has possession of gift, as an evidentiary matter it provides circumstantial evidence that there was a gift.

Notes: Donee (recipient of a gift) once in possession, need not afterwards be in continuous possession. A donee might establish a bailment of the gift with the donor as a bailee. A donee’s possession may also be constructive, as when the donor delivers the gift to a third party to hold for the donee.

Causa Mortis: First there must be an intent to make a gift. Second, the gift must be of personal property. Third, the gift must be made while the donor is under the apprehension of imminent death, upon the essential condition that the property shall belong to the done if the donor dies as anticipated leaving the done surviving, and the gift is not revoked in the meantime. Fourth, possession of the property must be delivered at the time of the gift to the done, or to someone for the done, and the done must accept the gift. The recovery of the donor from the anticipated cause in some states is an automatic revocation of

the gift. In other states, revocation is not automatic: the donor may elect to revoke the gift when he recovers. A grave physical illness is the typical precondition to finding that a gift causa mortis has been made, but with some older cases to the contrary, there is authority that a mental illness, resulting in suicidal feelings induced by a terminal illness may also be a basis for such a gift. IMMINENT DEATH, CAN’T BE FEARING SOMETHING WHEN YOU HAVE TIME TO MAKE A WILL. Gives a person a chance to make a gift before they die. Underlying notion, though courts aren’t always faithful, i.e. been in a car accident about to die, one last way to make a gift. Essence is alleged donor is that I want you to have my ring if I don’t survive, so one conditions

that can revoke a gift is if the donee dies before the donor. INTENT, DELIVERY and ACCEPTANCE. ONLY PERSONAL PROPERTY*

o Not real property because easier to commit fraud. o Easier to have proof of personal property.o The Real property has to be with you, real property has to be on you to manual delivero DEMAND ACTUAL PHYSICAL DELIVERY

Must die from the thing that made you think that you were going to die*** then you have to die. If it can only be revoked during the life of the donor, the latter’s death by definition ends the power to

revoke, and the gift is valid just before the will is effective at the donor’s death. This sequence of legal events denies the will its evidentiary value to show the donor’s intent to revoke. There is, however, a

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tension between the doctrine of gifts causa mortis and the statute of wills. Statute requires a written instrument indicating a person’s testamentary intent, signed by the testator and by witnesses. Finally courts generally require that a gift causa mortis be shown by the donee with clear and convincing evidence.

o Donee will lose title if they don’t meet condition subsequent. Title and possession transfer right away but the occurrence or a nonoccurrence of an event may revert the title and possession back.

o What is the problem of saying it wasn’t an immediate transfer? How do we avoid statute of wills? TO avoid that theoretical problem, call it conditions subsequent. NOT a testamentary gift. Gift is no longer conditional gift because they cannot occur anymore.

Principle Agent relationship similar to delivery: If delivery is to agent because the agent belongs to son then still valid gift If delivery is to agent but donor dies then gift is no longer valid if agent belongs to donor because

the authority dies with donor. Can argue that father held colts as Bailee and father did not have them in possession because he

still had title, but son acquired title to the colts.

Gruen v. Gruen, NY 1986: Facts: P’s father wrote a letter to P when P was an undergraduate stating that he was giving him the

Klimt painting for his birthday but that he wished to retain the possession of the painting for his lifetime. Three letters were written, initial letter destroyed, but latter two reaffirmed what first letter stated. P never took possession of the painting and did not seek to do so except for brief periods of time for loan and restoration.

Rule: 1) First to make a valid INTER VIVOS GIFT, there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the done; and acceptance by the done. Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence. An important distinction between the intent with which an inter vivos gift is made and the intent to make a gift by will. AN INTER VIVOS Gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will.; 2) Any gift of chattels which expressly reserves the use of the property to the donor for a certain period or . . . as long as the donor shall live is ineffectual. [D RELIES ON THIS STATEMENT FOR ISSUE 4]; 3) As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.; 4) in order to have a valid inter vivos gift, there must be a delivery of the gift, either by a physical delivery of the subject of the gift or a constructive or symbolic delivery such as by an instrument of gift, sufficient to divest the donor of dominion and control over the property. The rule suggests the requirement of delivery is not rigid or inflexible but is to be applied in light of its purpose to avoid mistakes by donors and fraudulent claims by donees. Accordingly, what is sufficient to constitute delivery “must be tailored to suit the circumstances of the case” The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit.

Holding: 1) the three letters should be considered together a single instrument and when they are unambiguously establish that Victor Gruen intended to make a present gift of title to the painting at that time.; 2) there is no reason to require a donor making a gift of a remainder interest in a chattel to physically deliver the chattel into the donee’s hands only to have the donee redeliver it to the donor. Such a requirement could impose impractical burdens on the parties to the gift while serving the delivery requirement poorly.

Analysis: Son has constructive/symbolic possession through the letters. Son accepted it by value of gift and telling his friends, demonstrating excitement. He kept letters his father sent him as written proof. Father Transferred TITLE, but not Possession of painting. Son would get the right to possess only after father died. CANNOT REVOKE GIFT because gift has already been made. What if the father had made a testamentary gift and left it to him by his will. Can father revoke? Yes because he can change his will and he still has title. TITLE ONLY TRANSFERS after his death. Because it doesn’t become effective until Testators death.

Notes: Absent consideration, a promise to make a gift in the future is unenforceable

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Condition Precedent: Donee will not receive title to personal property until condition has been met.

Condition Subsequent: Donee will receive title right away, however, if Donee breaches the condition, the personal property is reverted back to Donor or Donor’s heirs. If we treat Gift Causas Mortis as conditions precedent we wait til donor dies then we know whether or not donee dies or donor revoked. Condition subsequent, title is given immediately to donee and revoked if donee violates a condition after title given.

Example: John gives Jane engagement ring. Ring was an inter vivos gift. John’s intent was to give a conditional gift to marry. Jane has to return

the gift if they don’t end up marrying. Condition is I get ring back if we don’t get married. Condition precedent and condition subsequent. Condition precedent happens before. Condition subsequent means you get it back if it doesn’t happen. Jane has title and right to possess ring while engaged. So condition title and possession happens now, but reverts back to john if condition not met. If Jane sells it only selling right to possess and title, but whoever buys it if condition is not met, then the right to title and possess has expired. If John ends engagement does not change condition or title/possession. Just switch that says if the guy breaks it off by saying if guy breaks it off girl gets to keep it. Can change whatever condition there is, but common law is/standard condition is must marry or give back ring.

Will v. Gift Causa Mortis: Example: : A creates a will giving ring to B, however, A gets into car accident and conveys to C the ring

causa mortis. C will get the ring because making causa mortis says A wants to revoke what is stated in the will.

WILL IS REVOCABLE BY MAKING GIFT CAUSA MORTIS. CAN’T MAKE A GIFT CAUSA MORTIS WITH REAL PROPERTY. Even SYMBOLIC DELIVERY of something

that pertains to real property does not apply to GIFT CAUSA MORTIS because easy to commit fraud. If A gives a gift CAUSA MORTIS of the ring to B, BUT THEN WRITES A WILL giving the ring to C, the

will is effective because donor wants to revoke gift causa mortis and the will is also most recent.

Dying without a Will (INTESTATE): Intestate succession statute may not do with your property what you want it to do. Intestate statute

will say what will happen to your property. Theory of intestate statute, going to specify thinks you would have wanted to get your stuff.

Illinois statute quite typical of what would happen if you die intestate. Stiripes- when person dies, shares are split to spouse and children’s kids, but child’s share will be

split among kids. Spouse gets ½, then first generation, have 2 kids, daughter gets ¼ and bc son is dead the remaining ¼ is split between son’s two kids so each get 1/8th.

Most states have homestead rule where spouses get to live in their house for their lifetime. Some courts will sometimes apply the other rule of PER CAPITA distribution, meaning EVERYONE

WILL GET AN EQUAL SHARE. IF BOTH, son and daughter dead with five children remaining, the grandmother would presumably want to treat her kids equally, the kids will get 1/5 of the share.

Descendent of brother = nieces and nephews Descendent of grand parents =uncles and aunts. We used rule of civil law to find who is in the closest relationship to decedent. Even if you’re like 73

states removed they’ll inherit your property. Step siblings or family members have no claim if not blood related.

Terminology Will: With real estate, you DEVISE your estate to your DEVISEES. With personal property, you BEQUEATH to your LEGATEES. BEQUEST to the LEGATEE Person who administers your will is the EXECUTOR Intestate Secession-Next of kin take your personal property Person who administers your estate if you die is ADMINISTRATOR[intestate specifies who will

administer your estate] Person that inherits is your HEIR

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To be a fixture it must retain its individual identity, must be able to say what it is, whereas you can go find a particular nail or board but you think of it as coalescing as a whole not an individual thing in itself.

Possible for an item to become so affixed to the land that it becomes real estate. Even if the object retains its individual identity, we call that object a fixture. A fixture is real property, but individually identifiable. Can be difficult to decide whether an object affixed can become realty.

How can you object from a landlord claiming objects that a tenant has added. If a tenant wants to take goods back, place it in the lease. Leases tend to be one-sided, what can you do? Commercial tenant has more leeway to bargain over lease. As a practical matter, if you remove it and can repair it the landlord won’t really know what is or isn’t attached.

First Trust and Savings Bank of Moville v. Gutheridge (1989): Facts: D’s son Larry Guthridge gave a security interest in the bunks to P in 1983 to secure a loan. At

the time the security interest was given the bunks were located on the land. D at that time had a life estate in the land and her son Larry owned the remainder interest. Larry was farming the land as D’s tenant and in 1985 conveyed by quit claim deed his interest in the farm to D in satisfaction of two years of unpaid rents. QUIT CLAIM DEED – legal instrument by which the owner of a piece of real property called the grantor transfers his interest to a recipient called the grantee. Son install feed bunks, son borrows money from bank and uses feed bunks as collateral, son defaults on payments to mom and bank and gives interest to mom. Mother contends that when son attached feed bunks they became a part of the land. Bank contends that son gave bunks as collateral so they are then personal

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Fixtures 88-93

Property Outline

property. Have to say personal property, when they called them collateral, their agreement is locked my financial statement and security agreement. Security interest that they attempted to create ONLY IF BUNKS WERE PERSONAL PROPERTY. MINORITY STATES BUNKS WERE APART OF FENCE, MAJORITY LOOKS TO USE OF ITEM.

Rule: 1) A replevin action is an enforcement of P’s right to immediate possession of property wrongfully taken or detained. Replevin is a law action.; 2) The Iowa UCC provides “goods are fixtures when they become so related to particular real estate that an interest in them arises under real estate law.; 3) Under common law, personal property becomes a fixture when 1) it is actually annexed to the realty, or to something appurtenant thereto; 2) it is put to the same use as the realty with which it is connected; and 3) the party making the annexation intends to make a permanent accession to the freehold.

Holding: Although we agree with the trial court that D’s action in giving a security interest was evidence he intended the bunks to remain his personal property and not become attached to the property in which his mother held a life interest, P had filed a financing statement with the secretary of state covering Larry’s personal property. . . . therefore, D’s interest would be subject to the bank’s even if the bunks were sold or transferred to the mother. (IN FAVOR OF BANK)

Dissent by J. Donielson: I respectfully dissent. I would reverse the trial court’s judgment issuing a writ of replevin in the

Bank’s favor for recovery of the forty fence-line feed bunks. The intention of the party annexing the improvement is the “paramount factor/consideration” in determining whether the improvements is a fixture.

The character of the physical attachment, whether slight or otherwise, and the use, are mainly important in determining the intention of the party making the annexation.

Rahm v. Domayer: the true rule is that articles not otherwise attached to the realty than by their own weight are prima facie personalty and articles affixed to the land in fact, although only slightly are prima facie realty, and that the burden of proof is on the one contending that the former is realty or the latter is personalty.

Ford stated “physical attachment of the structure to the soil or to an appurtenance thereto is not essential to make the structure a part of the realty.”

Iowa law does not require the attachment be so great as to cause damage upon removal of the fixture.

Cornell College v. Crain- although these buildings were not attached to the realty, and, therefore, prima facie personalty, the court found the first factor was not controlling and the determinative factor was intent. The court emphasized the practical necessity for and the use to be made of the buildings on conduct and operation of the farm and were well suited to the purposes for which they were erected. Based on the second factor, the court found the appellee’s obvious intention was to occupy and maintain the buildings upon the premises as permanent structures.

The trial court determined that under the first factor the bunks were movable and therefore not fixtures. First, the bunks, although movable were affixed to the land by a cable and posts. Second under ford, physical attachment is not essential to make the bunks a part of the realty. Therefore, the law doesn’t allow the inference the bunks were personalty based merely on the fact they are movable.

The court’s conclusion fails to take into account the fact that the bunks were specifically made and purchased for the purpose of making them a part of the fence, I find the nature of the use of the bunks evidences an intent that they become part of the real estate.

Unlike Speer, the use of the bunks in this case was confined to one farm. The majority determined the trial court’s finding that the bunks were intended to be personalty

was supported by substantial evidence. First, the landlord-tenant relationship was but one factor in Speer. That court relied more

heavily on the fact that the movable hog houses and feed bunks were not attached to the land save by their own weight, and were in fact moved from farm to farm. Second Larry was not a mere tenant when he gave the bank a security interest in the bunks. Larry had a remainder interest in the land upon which the bunks were placed and was renting form the life tenant, his mother. The majority also relies on the fact the bunks were intended to be used in the

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livestock business, and the bunks were limited by the requirements of the business rather than the boundaries of the farm.

The majority seems to be inferring that since the bunks were movable, larry intended them to be personalty. That inference is not supported by the law.

Adverse Possession of Personalty: Porter v. Wertz shows that a bona fide purchaser of personal property may transfer the property to

another who can then defeat the rights of its true owner. (simply by possessing an object you don’t own you can become the owner. Title transfers from true owner to the person who has possessed the object for a long term.) Bona fide purchasers may transfer more rights than they acquire. Adverse possession, which is, in most states, applied to both personal and real property.

Adverse possessors be they bona fide purchasers or thieves obtain absolute ownership of personalty by adversely possessing for 6 years or allow tacking. One reason for SOL is to provide repose—STATUTE OF REPOSE—Even if someone is a wrongdoer will not suffer from being prosecuted. Allows this for recirculation of personal property and taking responsibility for real property. Want them to monitor their property so if they don’t, then we don’t want them to own it anymore. Prevents heirs from coming back and reclaiming property. Great certainty of knowing who owners are.

Holmes in another opinion in dealing with adverse possession of land, once you get used to living some place we aren’t going to take it away but cutting down your roots. POLICY REASONS.

Every jurisdiction has a statute limiting the amount of time after which a cause of action for the recovery of possession of property is barred.

Think it’s good that property is in use therefore we like adverse possession. Want property owners to act responsibly by monitoring property. People think its legalized theft. Most

adverse possession deals with neighbors.

Chapin v. Freeland: (FIXTURES & ADVERSE POSSESSION) Facts: This is an action of replevin for two counters. The counters belonged to D in 1867 when one

Warner built a shop, put counters in, nailed them to the floor and afterwards on January 1871 mortgaged the premises to one De Witt. In April 1879, De Witts executors foreclosed and sold the premises to P. D took the counters from P’s possession in 1881. In 1867, six years Warner adversely possessed counters and then acquired title in 1873. Then the person who buys from Warner, DeWitt has title. Foreclosure sale transfers title subject to mortgage to plaintiff. “We do not deem it necessary to consider what would have been the law if P had purchased or taken the counters, within six years of the original conversion from the person who first converted them and the d had taken them after the action against the first taker had been barred, but within six years of P’s acquisition” IDEA OF TACKING. If adverse possession voluntarily transfers possession to someone else, that creates privity of possession so if warner the original adverse possessor and part of that shop and left counters there, voluntary transferred counters to possessor, it allows you to add together the two periods of adverse possession, and because it will exceed the 6 year SOL, P now has title to property so that can happen because Warner is transferring rights to shop any voluntary transfer will allow you to talk. Mortgage owner foreclosed meaning sold the property to P and took the proceeds to pay off the outstanding balance. In 1881 Defendant took the counters back. Court must choose whether the counters are real property and personal property and discusses both because there is a dilemma with the statute of limitations which is 20 years for real and 6 personal. Debt collection statute, dissent concedes that SOL has run so its personal property and therefore it doesn’t mean they lose title so if they can regain possession to it they still have ownership over it. Even if legally SOL has barred remedy, you can still regain possession and claim ownership. Still has title, but no legal remedy.*** SELF-HELP going in and physically removing it. What is it about the language of the 2 statute of limitations that the dissenting judges are using to justify their conclusion. LIMITATION ON SELF-HELP TO AVOID VIOLENCE. Must call Police because they are better trained to handle the situation.

Rule: 1) When the statute would be a bar to a direct proceeding by the original owner, it cannot be defeated by indirection within the jurisdiction where it is law. If he cannot replvy, he cannot take with

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Adverse Possession 94-97; 105-15

Property Outline

his own hand [IF YOU DON’T HAVE A LEGAL ACTION, YOU CAN’T SELF HELP]. A title which will not sustain a declaration will not sustain a plea [A title which will not sustain a complaint will not sustain a defense, so if you can’t have a COA, you can’t sue someone or file a complaint, also can’t just take it with your hands and when you’re sued provide a defense saying its yours.]

Holding: 1) The court to have ruled or assumed that although the statute would have run in favor of Warner or De Witt before the transfer to P, that circumstances would not prevent D from taking possession if she could or entitle P to sue her for doing so if she was the original owner. We regard the purchaser from one against whom the remedy is already barred as entitled to stand in as good a position as his vendor. Whether a second wrongful taker would stand differently, because not privy in title, we need not discuss. [DISCUSSING TACKING, BUT IF IT WERE NOT VOLUNTARILY TRANSFERRED, TACKING WOULD NOT BE ALLOWED]

Analysis: TROVER Statute of limitations of REAL ACTIONS: after 20 years from the time when the right ot bring a writ of entry, or to enter upon the land, first accrued, the former owner can neither maintain any action to recover a freehold, nor enter upon the land; and as all remedy, either by action or by taking possession, is gone, his title is held to have been lost. The effect of the statute has been to extinguish the right as well as to bar the remedy. BARS LEGAL ACTION & SELF-HELP, ENTRY TO RECLAIM. MODERN TIMES NO SELF-HELP, MUST CALL POLICE ETC. REPLEVIN Statute of limitations of PERSONAL ACTIONS: the following actions shall be commenced within six years after the cause of action accrues, and not afterwards. . . actions of replevin and all other actions for taking, detaining, or injuring goods or chattels.” DOES NOT BAR SELF-HELP, BUT BARS LEGAL ACTION. There is no statute and no law prohibiting the owner of personal chattels from peaceably taking possession of them wherever he may find them. It is established in this commonwealth that a debt barred by the statute of limitations of the place of the contract is not extinguished. The statute only bars the remedy by action within the jurisdiction where D has resided during the statutory period.

Notes: “Accrues” when the plaintiff discovers the tortious injury caused by the defendant. When the cause

of action involves a stolen chattel, a court might similarly hold that the statute of limitations starts to run not on the date of the theft, which might be years in the past, but when the owner discovers the identity of the person in possession of it.

COURT APPLIES 6 YEAR SOL. Has to do with changing nature of real property to personal. D got her COA in 1867 when Warner took the counters, that’s when D’s COA accrued at that time, counters were personal property. That is what dictates what the SOL, shouldn’t alter defendants rights. Look for when of COA occurs. At the time D got her COA, they were chattel, she had six years to bring that COA. What if D doesn’t know where and who has her counters? Warner converted the counters to real property, then he mortgaged it to DeWitt which includes the counters so title transferred at the Foreclosure sale. If within 6 year SOL, D could have reclaimed.

When you lose your legal COA, you lose your title and ownership. Transfers title of the good when SOL runs out.

Characterized as real property? If considered real property then the 20 year SOL has yet to run and can reclaim property. When title transfers, A BRAND NEW TITLE is established.*

Possession of Land Apart from Ownership: A person who possesses land usually either owns it or has the owner’s consent to possess, such as a

tenant. However, a possessor may be neither the owner nor in possession with the owner’s consent. 1) P received a deed to Lot 1 but mistakenly moved onto Lot 2. P owns Lot 1 but possesses Lot 2

without owning it or having the owner’s consent. 2) P received a valid deed to Lot 1 and took possession of Lot 1, but the deed was defectively

executed so that he does not own Lot 1. 3) P is a squatter on Lot 1. He knows that he does not own Lot 1 but hopes that the real owner will

not do anything about it. He intends to stay until evicted. Paul possesses, but does not own Lot 1.

Consequences of Possession Unconnected to Ownership:

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Possession always has been an important concept in our legal system. A possessor has a legal status in the common law even when she is not the owner. Rights and liabilities are associated with possession.

Possessor’s Liabilities- Ejectment: If a possessor is not the owner and does not have the owner’s permission to possess the property, the

owner may bring an ejectment action to recover both possession and damages against the possessor. Ejectment is an action designed to restore possession to the person entitled to it. P must prove his right to possession. If D has not possessed the property but has trespassed on it occasionally, the proper cause of action is for trespass rather than for ejectment.

Possessor’s Rights: Even though a possessor does not own the property and is subject to ejectment by the owner, the

possessor is entitled to maintain possession as against the rest of the world. If a stranger deposseses him, he may bring an ejectment action against the stranger. It is no defense for the stranger to show that the former possessor is not the owner, unless the stranger owns the property or claims through the owner. P took possession of Lot 1 under a deed he believed to be invalid. R then ousted P from possession

and he brought an ejectment action against her. At trial, P discovers that his deed is defective and did not convey title to Lot 1 to him. P may still prevail against R because he had peaceable possession before R’s entry. P also prevails because he was prior possessor against R, but he is a wrongful possessor as against O the owner.

Possession that is Rightful and Wrongful: Because a possessor who does not own land may defend that possession against everyone except the

owner, such possession is both RIGHTFUL and WRONGFUL.

Duration of Possession: P in ejectment action need not prove any particular duration of possession to claim as a prior

possessor. Time is relevant only in that the P must have possessed first. It does not matter how long he was there, so long as he possessed when D entered. But time is relevant with regard to the SOL. The owner and prior possessor has a cause of action the moment someone wrongfully takes possession of the property. And like all causes of action, it expires after a certain lapse of time, except when the government owns the property. Thus if a person has been in possession long enough, others who previously were entitled to eject him lose their rights to do so. 1) P possessed Lot 1 but was dispossessed by R 11 years ago. The SOL for ejectment is 10 years. P

can’t recovery property from R even if his prior possession had continued for 15 years. 2) P possessed Lot 1 for 2 years before Rachel dispossessed him five years ago. The statute of

limitations for ejectment actions is ten years. P may bring an ejectment action against Rachel, though she possessed the property longer than he did.

3) P wrongfully possessed Lot 1 for 11 years. The SOL in ejectment is 10 years. O, the owner no longer can eject P.

Adverse Possession:Duration and Adverse Possession: A possessor who does not own property may protect that possession against everyone but the owner.

The last illustration shows that if such possession lasts long enough, the possessor is protected even from the owner’s claims. Because no one can eject him legally and because he can eject anyone who intrudes, he now owns the property. The possessor is a successful adverse possessor. Adverse possession does not transfer the former owner’s title to the possessor. Rather it creates a new and complete title in the possessor.

How long Possession Must Continue: Statutes dealing with adverse possession may vary from 20 years in some states to 5 years in

others. More extreme time periods may apply to certain special cases. Different periods may exist within a single state, depending on whether the adverse possessor has “color of title” or has paid the property taxes.

Tacking:

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Even if the possessor has not personally possessed the property for the requisite time period, he may be able to TACK (add) on the time that his predecessors possessed the property.

o P possessed property from 1990 to 1996 and then gave Rachel a deed to it. Rachel possessed it from 1996 to 2001. Under a 10 year SOL, Rachel prevails against Olga, the owner because Rachel can “tack” (add” Paul’s six years to her five years to establish 11 years of possession.

Privity: Tacking is not allowed unless privity of estate exists between the possessor and his or her

predecessor. For privity to exist, the predecessor must have voluntarily conveyed her possessory interest to the next possessor.

o 1) P possessed property for 6 years and then died. R, his heir then possessed the property for 5 years. The two periods may be taxed together because there is privity between ancestor and heir.

o 2) P possessed property for 6 years and then sold it to Rachel who possessed it for 5 years. Because privity of estate exists between a grantor and grantee, the periods may be tacked together. Although P had no title ot convey to R, he had transferable possessory interest, which R acquired from him.

o 3) P possessed property for 6 years and then was ousted by R who possessed for 5 years. Tacking is not permitted because P did not voluntarily transfer his possession to Rachel.

Acts of Possession Required—Standards: Under some state statutes a person can qualify as an adverse possessor only by performing certain

acts during the running of the SOL, such as cultivating or fencing the property. However, in most states, no such requirement exists, and any acts of possession if they have the correct quality, will support a finding of adverse possession. Any acts by the possessor during the statutory period that establish her possession for the requisite period of time will suffice.

No set rules exist concerning the types of activities that constitute possession. A standard sometimes applied is whether the possessor’s activities would support an action for ejectment by the owner. For example, occasional trespasses would justify an action for trespass, but not for ejectment. Therefore, the occurrence of only those acts during the statutory period would not make the trespasser an adverse possessor. However, most courts prefer a less circular requirement and use standards such as “acts that publicly indicate control consistent with the character of the land” or “acts that an average owner of similar property would undertake.”

Payment of Taxes: Under some state statutes, a person cannot become an adverse possessor without paying the taxes

on the property being possessed. In other states, the time required for adverse possession may be shortened by payment of taxes. One justification offered for this requirement is that, by checking the tax records an owner can discover any potential adverse possession. Possibly, the requirement is based on the beliefs that squatters should be unable to acquire land by adverse possession and that possessors who believe they own the land will pay the taxes. In this light, payment of taxes is just another appropriate act of possession.

When Both Parties Pay Taxes:o When payment of taxes is required to acquire title by adverse possession, only the adverse

possessor must satisfy this requirement. An owner who wants to eliminate threats of adverse possession need not pay the taxes to do so. As long as the adverse possessor is paying them, this test usually is satisfied even if the owner also pays them. However, in some states, the issue turns on who paid the taxes first.

Boundary Disputes:o The tax requirement can cause particular trouble in boundary line cases when the disputed

strip has not been separately taxed and both neighbors have been paying all the taxes billed to them. Probably no one involved, including the tax assessor, knows to which party the disputed strip has been assessed. Some courts strictly apply the tax payment requirement, but, in boundary line cases, the most sensible result may be to ignore that requirement.

The Elements of Adverse Possession:

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A five part test has evolved to determine whether title has been acquired by adverse possession. The theory behind the test is that the record owner does not have a true cause of action against the adverse possessor if one or more of these elements is lacking. In order to acquire title, the occupant’s possession must be 1) ACTUAL, 2) CONTINUOUS FOR THE STATUTORY PERIOD, 3) EXCLUSIVE, 4) HOSTILE, AND 5) OPEN AND NOTORIOUS.

A common addition to the five elements listed above is the requirement that the ADVERSE POSSESSOR’S CLAIM BE ACCOMPANIED BY A CLAIM OF RIGHT OR A CLAIM OF TITLE

Possession’s Required Qualities: Every court applies the common law requirements that the possession be OPEN AND NOTORIOUS,

ACTUAL, CONTINUOUS AND UNINTERRUPTED, EXCLUSIVE, HOSTILE, AND UNDER CLAIM OF RIGHT. Some jurisdictions also require color of title. The adverse possessor has the burden of proving that the possession has satisfied these elements. From a strictly technical point of view, any possession that subjected the possessor to an action for ejectment should be sufficient. Open:

o The requirement of open possession is just another way of saying that there has to be visible possession. An open possessor generally treats the property as a true owner would and leaves physical evidence of his possession. Thus, some cases state that the possession must be appropriate or that there must be permanent signs of possession, such as a building or a fence.

Notorious:o Notorious is rarely mentioned separately from open, but it may serve a slightly different

function. The owner need not know about the adverse possession, and her ignorance does not extend the limitations period. The absence of a knowledge requirement can be justified by notoriety as an element of adverse possession. If a possessor is using the property in a manner that all who investigate will know about it, the possessor has done everything that can be expected. Often, the possessor mistakenly believes that he owns the property he is possessing. In that case, he cannot be expected to notify an owner of whom he has never heard. Instead, the owner is obligated to check the property periodically.

1) P lives in a house on lot 1, which he believes he owns. However, O actually owns Lot 1. Everyone in the neighborhood knows that P lives on Lot 1, but O resides elsewhere and does not know. P will own the property after the statutory period has run, because O should have checked on her property. P had no duty to inform her of his possession.

2) P’s house encroaches onto O’s property, but O does not realize it. P can acquire title to the encroachment area even though O does not have the property surveyed until the limitations period has expired.

o Subjacent Possession: A person may adversely possess property underneath another’s land (the

subsurface). For adverse possession to be notorious, it must be visible in some way on the surface of the adversely possessed property. Only in this way will the owner and the community at large have notice that the adverse possession is occurring.

1) P owns a coal mine. The entrance to the mine is on P’s property. He has extended the mine to take coal beneath the land of his neighbor O. P’s mining activities under O’s land are not open and notorious. O does not have a reasonable means of discovering the trespass.

Actual Possession:o Actual possession means no more than real possession. By itself, constructive possession

never ripens into title by adverse possession. An ejectment action lies only against real possessors.

1) For 20 years, P has claimed that he owns O’s lot, but he has never set foot on it. No SOL will run against O because she never had a COA against P for ejectment. She can sue P for ejectment only if he actually possesses her land. Although O might have a quiet title action against P’s claim, that is not a possessory action.

o Constructive Possession and Color of Title:

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An adverse possessor can acquire title to an entire parcel of land even if she possessed only part of it if 1) she actually possessed part of the parcel and 2) she entered onto that part based on a deed or a judgment that appeared to convey title to the entire parcel (i.e. gave her color of title to the entire parcel).

1) P has a deed that appears to convey title to a 5-acre parcel to him. However, the deed is defective and does not actually convey title to him. P lives on one acre but does not use the other four. At the end of the limitations period, P will acquire title by adverse possession to all five acres. The boundaries described in P’s deed effectively serve as a substitute for a fence built by P, which probably would have made P an actual possessor of the five acres. Some states require that P have a good faith belief in his deed’s validity for this doctrine to operate. Other states require that the deed be recorded in the public land records before it constitutes color of title.

o Constructive Possession and Prior Possession: The enlargement of area conferred by color of title protects a prior possessor from

subsequent trespassers. Thus, a person who actually possesses only one acre under color of title to five acres should be able to eject subsequent intruders from any of the five acres.

o Limits on Constructive Possession: Constructive possession does not occur when 1) the property that is only

constructively possessed is owned separately from the property that is actually possessed, 2) the part actually possessed is not being adversely possessed and 3) the color of title does not describe the property in dispute.

1) P has color of title to Lots 1 and 2, which are in fact owned by O and O respectively. P occupies only Lot 1. P will not acquire title to Lot 2 by adverse possession, because O never had a cause of ejectment against P.

2) P has a deed to Lots 1 and 2. However, P’s grantor only owned Lot 1 and P actually possessed only Lot 1. P cannot acquire title to Lot 2 by adverse possession because he ahs not adversely possessed it. His possession of Lot 1 was not adverse, because he really owned it.

3) P has a deed to Lot 1 but mistakenly entered onto Lot 2 and possessed onlhy part of it. P cannot claim constructive possession of any other part of lot 2. Because his deed describes only Lot 1, it does not provide color of title to Lot 2. P can acquire title by adverse possession only to that part of Lot 2 that he actually occupied. The same result occurs when P claims strips of land outside the boundaries of parcel described in his deed.

o Conflicting Constructive Possession: Real title provides constructive possession without the need for actual possession.

Thus, an absentee owner can eject wrongful possessors because his or her title provides constructive possession, which the trespassers have breached. The constructive possession claims of various parties may conflict.

1) O is absent from her 40 acre parcel. P enters under color of title to al 40 acres, but he actually possesses only one acre. P will acquire all forty acres by adverse possession because his constructive possession of 39 acres, coupled with his actual possession of one acre, prevails over O’s constructive possession.

2) O is absent from her 40 acres. P enters under color of title to all 40 acres but actually possesses only one acre. Subsequently, R enters the same 40 acres under color of title to all 40 acres but actually possesses only one different acre. P now can acquire title by adverse possession to only 39 acres. He cannot acquire title to the acre R actually possesses, because her actual possession defeats his claim to constructive possession. If R remains long enough she can acquire title by adverse possession to one acre she actually possesses, but she cannot claim constructive possession of the rest because P’s claim of constructive possession, being prior in time, is superior to hers.

Continuous and Uninterrupted:

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o Continuous does not mean constant. The adverse possessor need not possess the land every minute of the day. Many successful adverse possessors have made only seasonal use of the land, such as for grazing and hunting. In these situations, continuous means only that the activity is carried on regularly in a manner that is consistent with the property’s normal use. For example, the grazer must graze animals every year during the grazing season. If the acts are too irregular, they will not be viewed as a series of unconnected trespasses not amounting to a dispossession of the owner. Also a possessor who abandons the property with no intent to return but then returns does not continuously possess the property, and the SOL starts over from his re-entry. The most common meaning of uninterrupted is that no one has possessed the property during the statutory period without the possessor’s consent.

1) R intruded onto P’s possession after he had been on the land for 9 years, and she remained for a year. P cannot claim adverse possession under a 10 year statute because his possession was interrupted after 9 years. This result also can be explained by saying that P’s possession was not exclusive for 10 years.

2) P possessed for 5 years and then was ousted by R. As the prior possessor, P brought a successful ejectment action against R and was restored to possession one year after his initial dispossession. He has been in possession the second time for three years. Most authorities agree that P should not have to start all over again, which would mean seven more years under a 10 year statute. However, they do agree whether P can include the time R was in possession. If P can include R’s year, he needs to possess for only one more year. If he cannot, he needs 2 more years. The result depends on whether the owner’s cause of action against P is viewed as continuing to run during the year that R had possession.

o Interruption by Owner: A successful ejectment action, followed by an execution of the judgment interrupts

an adverse possession be revesting possession in the owner. A successful judgment relates back to the date the owner filed the complaint, so that the action only has to be filed in time. But a complaint that is not followed up in court will not interrupt an adverse possession.

Any act by the owner that constitutes a resumption of possession is an interruption. But a furtive entry, an accidental entry, or an entry based on the possessor’s consent does not constitute an interruption because it is not a possessory act. To interrupt another’s possession, the owner actually must become a possessor by committing acts that would entitle the possessor to bring ejectment if the acts were committed by someone other than the owner.

1) A deed to Paul conveyed Lot 1, but he mistakenly possessed lot 2. O who owns Lot 2, possessed Lot 3 under a similar mistake. During the statutory time period, O frequently visited P on Lot 2. These visits did not interrupt P’s possession, because they occurred with his permission.

Exclusive:o Exclusive does not mean that no one other than the possessor is ever on the property. This

term generally means that the possessor ousts anyone who is on the property without the possessor’s consent. It derives from the notion that possession usually includes an intent to exclude others. Consequently, an adverse possession that fails for want of exclusivity is probably lacks other requirements as well.

1) During P’s 10 years on the property, others frequently intruded and were not ousted by P. P will not acquire title by adverse possession because his possession was not exclusive. This result also can be explained by saying that P was not in actual possession, because a “real” possessor does not tolerate intruders.

2) During the past 10 years, P has sometimes possessed the property exclusively. However, at other times, he has brought friends with him or has leased the property to third persons. P is an adverse possessor, because the other activities occurred with P’s permission.

Hostile:o A great deal of disagreement exists concerning the meaning and significance of “hostility.”

All courts agree that a person who is possessing property with the owner’s permission is not

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adversely possessing. Under an objective view of adverse possession, lack of permission is all that is required. Under a subjective view, however, more is required.

o Objective Standard: Most states hold that the possessor’s state of mind is irrelevant. In these

jurisdictions, the “hostility” element defeats a possessor’s claim only if he disclaimed any intent to acquire title by adverse possession.

o Subjective Standard: Under the subjective view, an adverse possessor must have a certain state of mind

throughout the time of his possession. However, the courts do not agree as to which state of mind is the “correct” one.

Mentality of Thievery: If the possessor knows that he does not own the property, courts in some

jurisdictions hold that he cannot become an adverse possessor. This rule is designed to keep squatters from acquiring title to land.

Mentality of Mistake: If the possessor believes that she is the owner, courts in some other states

hold she cannot become an adverse possessor. If the possessor testifies that she only intended to claim what she owned and would not have claimed the property if she had known the truth, her possession is not hostile to the true owner’s title. In these states, only a “thief” can become an adverse possessor.

o Permissive Possession: A tenant’s possession is not adverse to the landlord, because the lease transferred

the landlord’s possessory right to the tenant. Nor is a cotenant’s possession adverse to the other cotenants, because each has a right to possess the entire property. The possession is permissive and does not give rise to a cause of action in ejectment. Consequently, such possession never ripens into title by adverse possession, no matter how long continued.

Ouster: A permissive possession can become adverse if the possessor repudiates the

owner’s title, asserts an independent possessory right, and either notifies the owner of this claim or is otherwise appropriately notorious about it. These actions constitute an ouster of the owner and create a cause of action that will expire when the SOL has run.

o 1) P has been in possession for 3 years as a tenant under a lease from O. He now has told O that he no longer will pay rent to her because he has learned that she is not the owner. P is wrong. O is the owner. If P stops paying rent, he will be an adverse possessor. However in computing his period of adverse possession he cannot include his first three years because he permissively possessed during those years however, many states have a special statute dealing with adverse possession by tenants.

o 2) P and O are joint tenants, but P has been in sole possession for the past 3 years. P now has told O that he no longer will allow her to share in the ownership, profits, or possession of the property. P’s possession will ripen into a full title after the limitations period expires. The first 3 years of his possession cannot be counted.

What Constitutes an Ouster: Any act that gives notice to the owner that the possessor no longer recognizes

the title to the property constitutes ouster. In the case of cotenants, a refusal to permit the other cotenant to enter, a refusal to account for profits, or sometimes merely a statement that the possessor regards himself as the sole owner can be sufficient. In the landlord-tenant context, a refusal to pay rent constitutes the clearest kind of ouster.

o Other Cases of Permissive Possession: A mortgagor’s possession is not hostile to the mortgagee and does not become so

until the mortgagor repudiates the mortgage or retains possession after his rights

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have been cut off by a foreclosure. A mortgagee in possession is not hostile to the mortgagor until the mortgagee refuses to account for the profits from the land. A grantor of a valid deed who retains possession usually is not considered to be hostile to the grantee unless the grantor repudiates the deed. But a grantees possession under a void deed can be considered to be hostile to the rest of the family.

Claim of Right: Jurisdictions vary widely concerning the meaning of CLAIM OF RIGHT. It

means nothing more than the aggregate of the other elements of adverse possession or is treated as an aspect of hostility. In others, the adverse possessor must have claimed to be the owner during the limitations period.

Color of Title: Color of title refers to a document that purports to convey actual title but fails

to do so. A typical example is a void deed. Because the adverse possessor is always someone who does not own the property, any deed by which he or she claims by title is by definition void. However, possession of a void deed may have important consequences, as discussed in the following sections.

Color Of Title as Absolute Requirement of Adverse Possession:o In a few states, title cannot be acquired by adverse possession without

color of title. An adverse possessor of property who has no document supporting the possession gets nothing.

Color of Title as Affecting Acts Required:o Color of title enables ordinary use of the property to qualify as adverse

possession, whereas more significant possessory acts, such as fencing or cultivating are necessary if color of title does not exist.

Color of Title as Affecting Time Period:o A possessor with color of title needs fewer years of possession to

adversely possess title than does a possessor without color of title. Color of Title and Hostility:

o In some states a possessor with color of title is presumed to be hostile to the owner, whereas independent proof of hostility is otherwise needed.

Anderson v. Cold Spring Tungsten, Inc (Colorado 1969): Facts: P holds the record title to the property in question. D purchased a cabin located upon this

property from the Boulder Rotary Club in 1930. D made improvements on the cabin, and from 1930 until the time when this action was commented, he and the members of his family including the other Ds in this action have made use of the cabin by spending weekends there during the summer months and occasionally remaining for a month or longer. D has paid the real estate taxes for each year since his entry on the property.

Rule: 1) Moss v. O’Brien – P argue that the evidence failed to establish a “hostile claim” or that D’s ever claimed to own more land than their record title showed. Implicit in their argument is the assumption that a deliberate attempt to steal a neighbor’s property or an actual dispute at some previous time is necessary in order to show an intention to hold adversely. This is not the law in Colorado.; 2) Vade v. Sickler – hostility arises from the intention of the adverse possessor to claim exclusive ownership of the property occupied. No specific intent directed toward the property owner is required. This has been made amply clear in the boundary cases decided by this court. The court in Vade required to establish hostility was that the person claiming adverse possession occupy the property with belief that the property is his and not another’s.; 3) Hostile intent is to be determined not only from the declarations of the parties but from reasonable deductions from the facts as well.; 4) in order for possession to be exclusive, it is not necessary that all use of that property by the public be prevented.; 5) the court held that casual intrusion by fishermen would not defeat a claim of exclusive possession.

Holding: This case is remanded to the district court for a determination of the boundaries of the property to which the defendants have acquired title by actual occupancy and adverse possession. In making such boundaries and quieting defendant title thereto, the trial court is to determine the land necessarily appurtenant to the cabin, taking into consideration the location and nature of the property,

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and the uses to which the property lends itself, the uses made of the property by the defendants, and the evidence of visible occupation of the property by the defendants and the evidence of visible occupation of the property by the defendants which would give notice of their exclusive and adverse claim to the owner and the public.

Analysis: D believed he had acquired ownership to and was the actual owner of some of the property upon which the cabin was situated. There is no evidence of any public use of the cabin or the land which immediately surrounds it. In

light of the nature of the property as a vacation cabin, the record reveals that the defendants acted as the average landowner would act under such circumstances under the exclusive nature of their possession.

Adverse possession without enclosure need not be characterized by a physical constant, visible occupancy or improved by improvements of every square foot of the land . . . Actual occupancy is not limited to structural encroachment which is common but is not the only physical characteristic of possession. Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it. Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of the defendant’s dominion over it is sufficient.

HOSTILE: Just having a dispute with someone else who claims ownership rights, hostile to someone else claiming interest rights. Knowledge that you’re adversely possessing someone’s property or that you don’t own it, adverse possessor must know that they are acting in good faith not knowing they own it.

Other means of evidencing a desire to control. Fence is alerting you that someone is trying to adversely possess your property. “there is no deed which describes the extent of their holding” COLOR OF TITLE- WHEN ADVERSE POSSESSOR HAS A DOCUMENT THAT APPEARS TO GIVE THEM OWNERSHIP OF THE ENTIRE PARCEL. IF ADVERSE POSSESSOR HAD A DEED SAYING YOU GET 100 ACRES, there is a bunch of neighbors, and through mistake over years the person who owns the piece actually owns the wrong piece B instead of A, so the person in the possession of the property B, and if person tries to sell B and sells wrong land instead of A, person would get COLOR OF TITLE-deed that describes entire parcel even if it doesn’t convey title to it, it would satisfy ACTUAL POSSESSION OF PROPERTY ON PARCEL.

MUST BE CONTINUOUS –ONE THING Cabin was there year-round, court also made the distinction that it was the way it was meant to use. Use a summer cabin in the summer.

Possession must be OPEN AND NOTORIOUS—meaning use is generally known, No TRESPASS SIGNS PLACED UP, NO SNEAKING AROUND. Not a requirement that the true owner in fact knows. Not protecting an owner who isn’t going to diligently check on their property. CAN’T ADVERSELY POSSESS GOVERNMENT LAND bc no one person can bring a claim.

If you tell a person to leave, and they don’t leave, how do you stop adverse possession. FILE AN ACTION OF EJECTMENT, FILING ACTION ALONE, BC YOU START LEGAL PROCESS YOU’VE BROUGHT YOUR ACTION WITHIN SOL.

CLAIM OF RIGHT, in addition to five elements, sometimes courts say CLAIM OF RIGHT—ANOTHER WAY OF SAYING ALL OF THOSE FIVE EXIST, but adds nothing. Adverse possessor must claim to have the right to possess.

Grace v. Koch (Ohio 1998): Facts: In 1970, Grace sold parcel 44 to Anthony H. and Elizabeth A. Koch. To facilitate the sale, Grace

obtained an easement from his parents over parcel 43 so that the Kochs could use the existing driveway, which encroached on parcel 43 by five feet, and conveyed this easement to the Kochs. Nevertheless, the Kochs began using the strip as a sideyard and continued to use it as such through the time of the current litigation. Koch testified that he had never discussed his use of the strip as a sideyard with either Grace or Grace’s parents. Neighbors testified that they assumed that the Kochs owned the stirp but that no one had ever told them so. Grace’s parents never used the strip. That changed in 1992. Grace became upset about the noise from a race car belonging to the Kochs’ son. In July 1992, when Koch spread gravel over the strip, Grace objected and ordered Koch to stop trespassing. When Koch refused, Grace parked on the strip to prevent Koch from spreading more gravel. He removed the portions of the fence that separated the strip from the remainder of parcel 43.

Rule: 1) To acquire title by adverse possession, the party claiming title must show exclusive possession and open, notorious, continuous and adverse use for a period of twenty-one years. . .

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Failure of proof as to any of the elements results in failure to acquire title by adverse possession.; 2) It is the visible and adverse possession with an intent to possess that constitutes the occupancy’s adverse character.; 3) the occupancy must be such as to give notice to the real owner of the extent of the adverse claims.; 4) To make possession adverse “there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim.

Holding: 1) We hold that to acquire title by adverse possession a party must prove, by clear and convincing evidence, exclusive possession and open notorious, continuous and adverse use for a period of twenty-one years.; 2) We find it necessary to address each of the elements of adverse possession because the Kochs did not establish by clear and convincing evidence that they held the strip adversely to Grace for the entire statutory period.

Analysis: There is no question that the Kochs used the strip. They mowed the grass, parked cars in the strip, and their children played in the strip. The Kochs also placed firewood, oil drums and a swing set in the strip. While we consider the case a close one, we conclude that the record does not contain clear and convincing evidence that Grace or his parents were on notice that their dominions had been invaded in 1971. The Kochs asked for the Graces’ permission before proceeding to mow the strip. Mr. Koch conceded that he knew that the strip belonged to Grace and that he never would have used it without permission. Absent clear and convincing evidence of the adversity of the Koch’s claim to the strip for the entire statutory period adverse possession must fail.

External Factors that Prolong Statute of Limitations: Disabilities:

Generally, SOL is tolled if a P is under a legal disability, such as infancy, mental impairment, imprisonment, or military service when the cause of action arises. This is also true in adverse possession cases. Either the entire statutory period or some shorter period is allotted to the owner for suit after the disability.

o 1) P wrongfully took possession in 1990, while O was mentally impaired. O recovered her mental health in 1993. P could not acquire title by adverse possession until 2003.

o 2) P wrongfully took possession in 1990, when O was 12 years old and mentally impaired. The age of majority is 18. O recovered her mental health in 1993. P cannot acquire title by adverse possession until 2006, which is ten years after O reaches majority. If O remained mentally impaired until she was 20 years old (1998), P would have to wait until 2008. Whenever two disabilities exist when the adverse possession begins, both must be eliminated before the SOL begins to run.

o 3) P wrongfully took possession in 1990, and O was imprisoned in 1993. P acquired title tin 2000, because subsequently occurring disabilities generally do not toll the SOL.

o 4) P wrongfully took possession in 1990, and O died in 1993, leaving a 15 year old daughter, D as her heir. P acquired title in 2000. D’s infancy was not a disability of the person who had the cause of action when it first accrued. However, some statutes refer to the time when “the adverse possession commences or the title first descends. These statutes can be interpreted as giving D up to 10 years after she reaches majority to reclaim. Some courts often reach a contrary result by disregarding the daughter’s disability.

Future Interests: Generally the holder of a future interest is not entitled to bring an ejectment action against a

wrongful possessor because the future interest gives no presently possessory right. Therefore the SOL does not begin to run against the future interest holder until that interest becomes possessory.

o 1) In 1989, O died leaving land to her husband for life and then to her daughter. In 1990 P wrongfully began possessing the land. In 2000, if O’s husband is still laive, P gained only a life estate measured by the husband’s life. P does not acquire the entire fee by adverse possession until he is there for at least 10 years after the death of O’s husband. O’s daughter did not have the right to possess the property and to bring an ejectment action against P until her father died.

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o 2) O rented her property to T for a 20-year term, ending in 2000. P wrongfully entered in 1985 and ousted Tom. IN 1995, P adversely possessed T’s tenancy. For P to adversely possess O’s title, he must possess ofr 10 years after her reversion becomes possessory at the lease’s termination, including for nonpayment of rent.

o 3) P wrongfully entered O’s property in 1985. In 1990, O leased the property to T for 15 years. In 1995, P gained the fee title by adverse possession. Because the adverse possession began before the lease, O leased adversely possessed land. The same would be true if O had conveyed the property to T after P had entered. The time for P’s adverse possession is not thereby extended.

Effect of Adverse Possession on Nonpossessory Interests: Easements and restrictive convenants held by third parties are not automatically extinguished by

adverse possession of the property. Those claims are not dependent on the owner’s title and, therefore, do not fail merely because that title fails. They also are not necessarily affected by the acts of adverse possession on the property. But, if the adverse possessor has interfered with the rights of the easement and covenant holders, their interests also will be extinguished based on the running of the SOL on their independent claims.

o 1) P adversely possesses O’s property and builds a fence around it. The fence blocks a right of way that O formerly had granted to Sam. If Sam fails to sue P to recover access, he will lose the easement. But if P’s possessory acts do not interfere with Sam’s easement, the title P acquires by adverse possession will be subject to Sam’s easement.

o 2) O owns property subject to a restrictive covenant that limits the height of any building to two stories. P adversely possesses the land but never constructs a building over 2 stories. At the end of the limitation period, P will have title by adverse possession, but it will be subject to the covenant because the covenant beneficiaries never had a cause of action against P for breach.

Consequences of Having Been an Adverse Possessor: When all the requirements for adverse possession have been met, two significant changes occur in the

adverse possessor’s status. First, she no longer is liable for ejectment or trespass for her former adverse possession. Second, she acquires an original title to the property. From then on, she is freed not only from liability for her previous adverse possession, but also from the requirements of adverse possession, such as exclusive and continuous possession. The property is hers, and she may do with it as she pleases. A quiet title decree will be necessary for the former adverse possessor to have marketable title. That title came into existence when the former owner lost the right to bring an ejectment action. 1) P adversely possessed O’s property for the requisite number of years. Thereafter, P failed to pay

property taxes. Even if payment of taxes is a requirement of adverse possession in the jurisdiction, P will prevail against O. P’s failure to pay the taxes does not transfer title back to O.

2) P adversely possessed Olga’s property for the requisite number of years, during his period of adverse possession, P cut down a large number of trees. P is not liable to O for those trees. When he acquired title by adverse possession, his title related back to the day his adverse possession began.

The Law of Neighbors: The rights and duties of the owners of neighboring lands. Neighbors include both landowners whose property lies both next to and near to the land in question.

Fleming v. Griswold (1842): Facts: Tallman acquired a valid title to the premises on the 27th of January, 1795. In 1805, Edward

Girswold held the premises adversely to Tallman under a warranty deed from one Earl; and in 1811, the former, being still in possession conveyed to Abraham Griswold, the defendant, who thereupon entered and continued to hold the premises till the commencement of this suit, in 1840 Tallman died in 1815; Mrs. Fleming his daughter having married the other P, J.B. Fleming in 1807 while she was under the age of 21 years. 1825 is last time they can bring action. Mrs. Fleming argues she was a minor so time can’t accrued, so it should be 10 years after she is no longer disabled. Action for ejectment- an action to regain possession of real estate held by another.

o 1795 Tallman acquired proprety

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o 1805 Griswold begins Adverse possessiono 1811 Griswold becomes defendanto 1815 Plaintiff sueso P’s ability to bring suit ends in 1825. 20 years attached to original owner.

Rule: They considered the rule entirely settled, that where the statute has begun to run against the ancestor or the other person under whom P claims, it continues to run against P notwithstanding any disability when the right accrues to the latter. ALL IT MATTERS IS THAT ADVERSE POSSESSION began when father was still alive with no disability. Key language “be at the time such title shall first begin”

Holding: inasmuch as at the time Mrs. Fleming’s right of entry accrued she was under disability, the statute did not run against her. But the court were clear that the opposite doctrine must prevail.

Analysis: The doctrine of “tacking” allows Y to add the period of X’s possession to Y’s own if privity of

possession between them exists. Privity of possession ordinarily requires some kind of formal connection such as a grant, a devise or passage of title by intestate succession.

“relation back” doctrine- among other things, it means that the holder of the record title has no claim to damages to the land during any part of the period of adverse possession, even though the statute of limitations for injury to property may not have run out on damage of recent occurrence.

Regardless of how long you’re disabled, if the SOL running for 10 years after disability ends is shorter than the 20 years normally given, most courts will allow the SOL for 20 years because they want to help people.

Father cant transfer more than he owns and because what he had was ownership subject to 10 years of adverse possession and that’s why she only had 10 years to bring a COA for ejectment.

Examples: In 1990, O grants Blackacre to A during A’s lifetime, then to B at A’s death. In 1991, X enters and

possesses the property adversely. A dies in 2010. B has until 2030 to bring an action because X has adverse possession against only A and once A dies B gets to start anew with full 20 years. This is because A did not transfer title to B, O granted property to B. TITLE SPLIT BEFORE ADVERSE POSSESSION BEGAN.

In 1990, X enters Blackacre and possesses it adversely to O. In 2000, 0 grants the property to A during A’s lifetime, then to B at A’s death. A dies in 2010. Time may have already run because time ends in 2010. This is because O had granted and divided the land after adverse possession by O began.

In 1990, 0 dies leaving B, who is a minor, as his heir. In 1991, X enters Blackacre and possesses it adversely. In 1995 B is convicted of a felony and imprisoned. In 2000, B reaches the age of majority. In 2005, B is released from prison. Has until 2011, was a minor at the time, he would normally have 10 years. Imprisonment was irrelevant because he wasn’t imprisoned at time adverse possession began. So once B reaches majority in 2000 it would normally be 2010, but the courts will give 2011, 20 years after adverse possession because time is longer.

Adversely possessing timber. Began in year 2000. Was an estate with a 10 year statute, can successfully be completed in 2010. Person formally owned wanted to get something from the property brings action in 2011 for timber that was cut by adverse possessor. ONLY 2 YEAR SOL for timber wrongfully converted, but owner wanted to seek damages for all damages cut from 2009 to 2011. WONT BE SUCCESSFUL, ONCE IT FINISHES IN 2010, TREATS HIM AS OWNER BECAUSE 1) OWNER NO LONGER OWNED PROPERTY AT THE TIME AND THE SOL OCCURS ONLY WHEN HE STARTS CUTTING DOWN TREE. Turns out someone else has been trespassing and cutting down trees, evil person X. not enough to

get interest, sporadically been cutting down trees. Now adverse possessor owns property, wants to bring lawsuit in 2011 to recover damages for trees cut down in 2009 to 2011. Cant bring COA because he doesn’t have PERFECT TITLE until 2010 and he never had title of the trees until 2010 and the trees that were cut down between 2000-2009 were not his property yet.

Common Law Estates/Freehold/NonFreeholdCommon Law Estates:

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Kinds of Estates: They can be created for real and personal property. Fee Simple: This estate provides that the greatest ownership interest. The owner can dispose of the

property as he or she pleases, and it will descend to the owner’s heirs at death or according to the terms of the owner’s will. The estate can be unconditional FEE SIMPLE ABSOLUTE or subject to a condition-DEFEASIBLE.

Fee Tail: This estate passes from generation to generation of the family and line does not end until the family line ends. If passes to each holder’s children at the holder’s death and cannot be inherited by collateral heirs, such as the holder’s siblings. This estate has been statutorily abolished or substantially modified in virtually every state.

Life Estate: This estate’s duration is measured by the length of a specified person’s life. It lasts as long as the measuring life continues.

Estate for Years – ALSO KNOWN AS TENANCY FOR A TERM: This estate lasts for a specified period, from 999 years or more down to a single day. Upon the death of the owner of the estate, it passes by will or by intestate succession.

Periodic Estate—ALSO KNOWN AS TENANCY FORM PERIOD TO PERIOD: This estate lasts for a certain term. Unless terminated before the end of the term, it repeats for another like term. The term may be for any length of time such as a year, a month or a week or less.

Tenancy at Will and Tenancy at Sufferance: The tenancy at will and tenancy at sufferance are also sometimes called estates in land, but their significance is so slight.

Freehold v. Nonfreehold Estates-Seisin(TITLE): The fee simple, fee tail, and life estate are called freehold estates. The tenancy for years and the

periodic tenancy are nonfreehold estates cannot be precisely determined in advance because death with or without heirs is always the terminating event. In contrast NONFREEHOLD ESTATES TERMINATE ON OR BEFORE AN ASCERTAINABLE DATE. Distinction between FREEHOLD and NONFREEHOLD is sesin. FREEHOLD HAS SEISIN [TITLE] whereas holder of a NONFREEHOLD estate had possession but not seisin.

The Fee Simple: At common law, estates in land were divided into two classes: FREEHOLD and LEASEHOLD ESTATES.

FREEHOLD ESTATES included three separate types: THE FEE SIMPLE, THE FEE TAIL and the LIFE ESTATE.

THE FEE SIMPLE sometimes described as FEE SIMPLE ABSOLUTE[LARGEST INTEREST BUT NOT ABSOLUTE BC STILL HAS TO PAY PROPERTY TAXES, GOVT CAN STILL TAKE PROPERTY AWAY, ZONING LAWS] remains the basic unit of ownership of land in American law. A FEE SIMPLE is the greatest interest holders of land can possess, and it is what we think of when we describe someone as owner of a parcel of land. Holding a FEE SIMPLE thus allows owners to convey it and to devise it to whomever they please. If you wanted to transfer FEE SIMPLE ABSOLUTE must say “transfer to A or to A and her heirs,” if you say only to A then its only a life estate, but by indicating and her heirs you are signifying you want it to continue for an indefinite duration. “TO A” is indicating who is getting the property, called THE WORDS OF PURCHASE. Word purchaser is much broader in property, means that acquiring property in any manner. The latter “AND A’S HEIRS” are considered WORDS OF LIMITATIONS, WHAT ESTATE IN LAND A IS GETTING. HEIRS AND ASSIGNS, Assigns means that A can transfer to heirs or transfer in her lifetime. We like FEE SIMPLE ABSOLUTE, rule of construction of draft against the drafter, and rule in favor of person who did not draft the instrument. We assume person transferring property did not draft the deed, we construe against the person, largest possible estate, so we assume fee simple absolute UNLESS LANGUAGE EXPRESSLY LIMITS. If we said to A and to A’s heirs, what’s wrong with saying that all of it is wrong. It would be unclear

of when A’s heirs would take possession. YOU HAVE TO BE DEAD TO HAVE HEIRS. Don’t know who will survive you until you’re dead. CAN NEVER ASSUME WHO THE HEIRS WILL BE. UNTIL A DIES, WE CANNOT IDENTIFY THESE PEOPLE.

Possession of a FEE SIMPLE does not, however, mean that holders enjoy unfettered dominion over the land. Think of zoning laws, for example, and the restrictions they impose on the permissible uses of

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Fee Simple Estates 185-98

Property Outline

land. Interests in the same property may be held by others, easements to walk across the land, for example, or the very real interest held by a bank to which the land is mortgaged.

THE FEE SIMPLE nevertheless gives the holder extensive powers over the land, and it will almost always be in the interest of persons holding land to claim a title in fee simple.

History of Property Law: England was an agrarian country, not a monetary economy until the 16th century. Because of no

monetary economy everything was based on trade, King would give people the right to possess in exchange for religious order to pray for his soul or to produce 3 soldiers for his war. Wide variety of services you could provide for rent. Type of feudal service where king went hunting, you’d pick up his arrows. Would only give right to possess. These people were tenants, they were providing soldiers or food or housecleaning services.

King was concerned that land stay in the hands of those who were loyal to him and wouldn’t come through with the services he needed. Originally that is why you couldn’t transfer land. Page 187-Note 1, people could transfer their lands. Before monetary economy, before transferring property, tenant they would just transfer to the next owner. Long chain of tenants and subtenants. Because eland was a basis for power, this was the time where property was passed by PRIMOGENITURE. All property passed to the oldest son. Younger sons would join military marry rich heiresses. Daughters would marry. Remnants of this system, huge beautiful places is land rich or money poor. Served socially useful function, kept agriculture running. South didn’t follow primogeniture and land would be divided among all kids and therefore plots were too small to be farmed. Queen of England got it abolished. Once land was more transferrable, different interests met different social needs that made sense and some that didn’t. Legal interests are the accident of history. Because property law is so conservative.

Johnson v. Whiton (Mass 1893): Facts: A will gave to a granddaughter and her heirs on her father’s side property. She attempted to

convey the property to another, but the party did not think she could convey a fee simple absolute. Rule: 1) By the old English law, to take land by descent a man must be of the blood of the first

purchaser descent is traced from the purchaser.; 2) The English rule means that inherited property does not pass from one line to the other, and is like the rule of the French customary law.; 3) A man cannot create a new kind of inheritance.

Holding: 1) We see no room for doubt that the legal title passed by the foregoing clause. We think it equally plain that the words “and her heirs on her father’s side” are words of limitation and not words of purpose.; 2) In this state of the law of descent it was no stretch to allow a limitation in the first instance to Sarah of a fee with the same descendible quality that it would have had in the case supposed. The clause in the will conveys legal title. The words limiting the conveyance to heirs on her father’s side are words of limitation; it restricts the intestate descent of property. A person cannot create a new kind of inheritance, such as the testator attempts to do here. The words of limitation will be stricken, and the granddaughter will be deemed to have a fee simple absolute.

Creation of Estates (Creating Words) Fee Simple- “To Bob and His Heirs”: The only language that could create a fee simple was a grant

to the transferee “and his (her) heirs.” “And heirs” was the grantor’s way of indicating that the estate was inheritable by the grantee’s heirs. However, this language itself does not give anything to the heirs. They do not share the estate with the transferee and have no interest of their own from this conveyance. The words “and heirs” are “words of limitations,” which designate the estate as being inheritable, rather than “words of purchase,” which designate the later “to Bob.” Today, the need to use special words of limitation to create fee simple has been abolished in virtually every jurisdiction and has been replaced by a statutory presumption in favor of the fee simple estate.

Quality Of Estates –Absolute or Unqualified: All the estates described so far differ according to their duration and the events that cause their natural termination. A fee title can last indefinitely, a life estate ends when the measuring life expires, and a nonfreehold estate ends when the designated time interval passes. All these estates can terminate sooner if the grant specifies that they are subject to a condition limitation. When and if that condition occurs, the estate terminates even though the condition occurs before the event that would cause the estate to terminate naturally. An estate that is subject to a condition is “defeasible,” “qualified,” or “base,” while an estate that is not subject to a condition is “indefeasible” “absolute” or “unqualified.” A defeasible estate is either “determinable,”

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“subject to a condition subsequent” or “subject to executory limitation.” To distinguish among them, focus on two features: 1) when the qualified estate was created, did the grantor retain the future interest following it or convey it to someone else? And 2) what words are used to connect the condition to words conveying the estate?

Determinable Estate –Also Called Estate Subject to Special Limitation: The determinable estate exists only when in the document that creates the estate, the grantor retains the future interest. The conveyance must use words of time such as “SO LONG AS” “UNTIL” or “DURING” to attach the condition to the words of grant. This estate lasts only as long as the condition described it it does not occur. Once the condition occurs, the estate automatically terminates.

1) “To Bob and his heirs SO LONG AS the land is farmed.” This creates a fee simple determinable. The moment the land is no longer farmed, the estate terminates.

2) “To Barb and the heirs of her body SO LONG AS THE LAND IS FARMED.” This creates a fee tail determinable. The estate terminates when the land is no longer farmed or when there are no lineal heirs, whichever occurs first.

3) “To Bob for life SO LONG AS THE LAND IS FARMED.” Bob has a determinable life estate, which will terminate when he dies or stops farming, whichever occurs first.

4) “To Barb for ten years SO LONG AS THE LAND IS FARMED.” Barb’s determinable term for years will terminate in ten years unless Barb stops farming before then.

Estate Subject to Condition Subsequent: The estate subject to condition subsequent exists only when, in the document that creates the estate, the grantor retains the future interest. The conveyance must use words of condition, such as “UPON CONDITION THAT” “PROVIDED THAT” or “BUT I” to attch the condition to the words of grant. Like determinable estates, these estates can end when the condition occurs. However, unlike the determinable estate, termination is at the election of the owner of the future interest, rather than automatic. Therefore, to decrease the possibility that an estate will be forfeited, ambiguous language is construed as an estate subject to condition subsequent, rather than a determinable estate.

1) “To Bob and his heirs, but if the land is used for a farm, the grantor may re-enter and repossess.” Bob has a fee simple subject to condition subsequent.

2) “To Barb and the heirs of her bdoy, but if the land is used for a farm, the grantor may re-enter and repossess.” Barb has a fee tail subject to a condition subsequent.

3) “To Bob for life, but if the land is used for a farm, the grantor may re-enter and repossess.” Bob has a life estate subject to condition subsequent.

4) “To Barb for ten years, but if the land is used for a farm, the grantor may re-enter and repossess.” Barb has a term for years subject to condition subsequent.

5) “To Bob and his heirs, for SO LONG AS the land is used for a farm, but if he violates this condition, the grantor can re-enter and repossess.” This grant uses both the language for a determinable fee simple “FOR SO LONG AS” and for a fee simple subject to condition subsequent “GRANTOR CAN RE-ENTER AND REPOSSESS.” To reduce the possibility that Bob will lose the land, a court will construe it to be the latter.

Estate Subject to Executory Limitation: If, in the document that conveyed the defeasible estate, the grantor did not retain the future interest, the estate is subject to executory limitation. The words used to attach the condition to the words of grant are irrelevant. When the condition is breached, the estate automatically terminates.

1) “To Ann for so long as the land is used as a farm, then to Barb.” Ann has a fee simple subject to executory limitation.

2) “To Ann provided that the land is used as a farm, then to Barb.” Ann has a fee simple subject to executory limitation.

3) “To Ann for so long as she farms the land, then to Barb.” Ann has a life estate subject to executory limitation, because the estate will end when Ann dies or when the condition occurs, whichever happens first.

Fee Simple Determinable Fee Simple Subject to Condition Subsequent

Fee Simple Subject to Executory Limitation

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Property Outline

Future Interest Holder

Grantor Grantor Another grantee

Language to Create

Durational words (while, until, so long as, during)

Conditional words (upon condition that, provided that, but if)

Any words

Concept Grantee Grantor

Condition occurs

Grantee First Grantee

Future Interest

Possibility of reverterRight of re-entry (a/k/a power of

termination)

Executory limitation (a/k/a executory interest)

Effect of Breach

Automatically expires Grantor must exercise power to

terminate

Automatically divests

Epting v. Mayer (S.C. Ct. App. 1984): (JOINT TENANCY ESTATE) Facts: Mahalie Cummings died in 1939 leaving four children, Chloe, Eula, J. Cornelius, and Quincy A.

Chloe is the only living child. J. Cornelius and Qunicy A were survived by children. Chloe brought this action naming her eight nieces and nephews as D alleging she had received an offer to buy the timber on the land devised in Item V further alleging the timber was infested with insects and would soon lose it value. Chloe asked the court to define the extent and nature of her title under Item V. Quincy A’s children answered denying title in Chloe and seeking either an injunction against removal of the timber or protection of the proceeds.

Rule: 1) But before this doctrine may be invoked, it must appear clearly from a reading of the whole will, that testator’s intention was to vest in the first taker an estate of absolute ownership. The use of words of restriction after language which in itself would be sufficient to create an absolute estate may of course be evidence to be considered with other provisions in the will of an intent to create a less estate.; 2) if the intention of the testator is to be given effect, as it must be, courts must be permitted considering each case separately, to hold ineffective words of restriction and to enforce an absolute estate, where such an estate was intended or conversely, to disregard words of absolute gift and to declare the estate created to be a limited estate where a clear intention to that effect appears.

Holding: we hold the will gave Chloe a fee simple absolute. First of all, the will clearly manifests an intention on the part of the testatrix to vest an absolute estate in the surviving daughter as evidenced by the testatrix’s overall scheme to provide for her two daughters and the survivor of them. Secondly language expressly bestowing at the outset a fee simple estate has been generally treated as controlling.

Analysis: Conflicting terms then go with the language of the deed, Court says intent of court was to give

simple absolute to daughters. By looking at what mother was trying to do, wants to keep estate in the family. If Chloe has fee simple absolute she can sell it, good chance it wont stay in the family. Mother’s intent is that the land stay in the family, if daughters don’t have kids, then sons are to have them. If it is fee simple absolute and Eula passed, and therefore how can she still have a fee simple absolute. It’s a grant without condition, how much language is the court excising? Mom is giving absolute right to two people. Court stops interpreting will after fee simple absolute, all additional conditions are gone.

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Once seeing fee simple absolute, Choloe and Eula own the estate. Even though Eula died before the estate, its inconsistent with saying fee simple absolute. Chloe owns half the estate and therefore the remaining half should go to the sons and kids. EULAS HALF PASSES INTESTATE OR WILL. If court says fee simple absolute CANT HAVE ADDITIONAL CONDITIONS. Court finds they have JOINT LIFE ESTATE.

Hall v. Hall (Tenn. 1980) FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION (WILL BE DIVESTED IF REMARRIES): Facts: TA Hall conveyed three tracts of land by warranty deed to his wife Ms. Betty Hall, P. in granting

clause of this deed, the grantor stated I do this day give and bequeath my entire rite and title to the following described tracks of land to wit. The end of the HABENDUM CLAUSE [PART OF A DEED OR CONVEYANCE THAT STATES THE ESTATE OR QUANTITY OF INTEREST OT BE GRANTED] but if she should ever marry any other man then this deed becomes void to her and the above described property shall fall to my children. TA Hall died in 1957 and on August 16, 1978, P still a widow and numerous family members including children, daughters-in-law and grandchildren, conveyed the land by deed to Ronnie and Randall Dixon also P in the present action. The validity of this conveyance was questioned by D.

Rule: 1) The overriding purpose of any deed interpretation is the determination of the grantor’s intent of the conveyance.; 2) Tennesee courts have long recognized that a limitation upon remarriage in derogation of an estate in land is valid.; 3) Sub judice (under judgment) involves the consideration of two possible estates, one, a fee with an apparent unlimited power of disposition and the other a fee simple subject to an executor interest or conditional limitation. The latter is an estate which upon the happening of a stated condition or event other than its natural termination, will automatically divest the fee holder and vest in the holder of the executory interest who must not be the original grantor.; 4) The fee holder possesses all the powers and rights of a fee simple absolute, i.e., it may be sold, rented mortgaged devised and descend to heirs so long as the event which terminates does not occur.; 5) It has long been the preferred rule in this state, however, that all of the provisions of an instrument be considered together and that the intent of the grantor of a deed be ascertained from the entire document not from the separate parts thereof if at all possible.

Holding: 1) In the present case, the limitation is clearly evident on the face of the deed. The Dixons hold their title derivatively and hold no greater title than Ms. Hall held and hold it subject to the same limitations Ms. Hall.; 2) This interpretation however would not distort the grantor’s intent because even with its omission, the grantee would still possess all the powers and rights of ownership the clause allegedly conveys. We are therefore, of the opinion that Ms. Hall acquired the estate of fee simple subject to a conditional limitation or executory interest in the deed from her husband. When she sold the real property to the Dixons, she could convey no more of an estate than she possessed. The Dixons therefore acquired the property subject to their forfeiture upon the remarriage of Ms. Hall.

Analysis: Reason for making land only hers if she doesn’t marry 1) Want property to go to your own children,

not your children and the children of somebody else. 2) Don’t want new spouse to get interest in new property. POLICY CONCERN OF PROVIDING SUPPORT TO A WIDOW THEREFORE IF MARRIED, IT IS THOUGHT THAT HUSBAND WOULD TAKE CARE OF HER

EVIL DAUGHTER IN LAW challenges mother’s title. Potential marital interest since husband can potentially get it. Daughter calls it defeasible fee, and would be considered FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION/CONDITIONAL LIMITATION.

First clause says fee simple absolute and the second clause states fee simple subject to executory limitation. Courts normally take first granting clause, however Court felt that the deed meant that there was a conditional imitation.

Dixons hold only the same rights as the mother has. Dixons can have fee simple absolute when Mother dies because it extinguishes the conditional imitation. If they want it now Dixons can buy out outstanding interests. DOCTRINE OF MERGERS STATE THAT MS HALL HAS FEE SUBJECT TO CONDITIONAL LIMITATION, THEN THEY CAN BUY OUT EXECUTORY LIMITATIONS FROM CHILDREN AND SPOUSES THEN AS THE OWNER OF BOTH, DOCTRINE OF MERGER ADDS THOSE TWO TOGETHER AND BECOME FEE SIMPLE ABSOLUTE.

If one of TA HALLS SON DIES, THEN WE LOOK TO NEXT FUTURE INTEREST WHICH MIGHT BE MARITAL INTEREST, CHILD, WAS THERE A WILL DID IT PASS TO INTESTATE SUCCESSION.

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If son has executory limitation, son has a child, (does grandchild get any interest ? no they don’t unless their parent dies or leaves interest to grandchildren by will or intestate succession). If son sells then no more future interest.

Son sells executory interest to X, son dies and mom remarries, X gets fee simple absolute. Witnesseth is the granting clause TO HAVE AND TO HOLD –is habendum clause just means “to have”

Peters v. East Penn Township School District (Pa. Super Ct. 1956) FEE SIMPLE DETERMINABLE: Facts: Controversy arises from certain language in a deed of November 9, 1893, by which James F.

Peters of whom Earl C. Peters is an heir, conveyed the property in question to the East Penn Township School District. The Habendum clause of the deed provides “to have and to hold the said piece of ground, and appurtenances to the School District aforesaid and its assigns as long as it is used for public school purposes. The property is no longer used for school purposes and the school district has instituted separate proceedings for the purpose of selling the property to a prospective buyer to whom it desires to give a fee simple title.it could not do so, however, according to the case stated, while the present action of ejectment remains as a cloud on the title.

Rule: 1) In view of the public policy favoring the free alienability of land, a deed which would convey an estate in fee simple except for certain words, or for a phrase or clause must be interpreted strictly against any such limitation unless the grantor’s intention to so limit the fee is clearly expressed or necessarily implied.; 2) Words which merely express the purpose for which the conveyance is made are not considered words of limitation on the title; such words are viewed as superfluous to the grant.; 3) We have cases in which there was not only an expression of a purpose or use, but in which there was a specific reverter clause as well “to be used for the establishment and maintenance of the common schools . . . and for no other purpose .. . said lot to revert to the grantors their heirs and assigns as soon as said parties . . . cease to use it for said purpose.; 4) Our courts have frequently said that the words “so long as” and “as long as” are technical words which limit a fee.; 5) As used in the deed in the instant case, the words “as long as” have a greater significance than the introduction of a statement of purpose; they impose a limitation which is directly connected with the declared purpose of the grant. Of course it is the rule that the mere expression of purpose will not of and by itself DEBASE THE FEE.; 6) There are other cases where, under similar circumstances the words “as long as” or “so long as” have been given the above interpretation and effect. For example, a devise of real estate to a wife “so long as she remains my widow” has been held to be a DEFEASIBLE FEE [WHEN THE RIGHTS OF OWNERSHIP IN REAL ESTATE ARE DEPENDENT ON THE OCCURRENCE OR NON-OCCURRENCE OF A CERTAIN EVENT]

Holding: 1) We think the necessary implication is that the estate was to expire upon the occurrence of the stated event.; 2) Although a reverter clause could have been added, its absence is not material as the words used were appropriate technical words which definitely indicated the extent of the interest which the grantor intended to create and were not limited to a purpose in making the conveyance. The words can have no other reasonable interpretation and effect. In such instances there is an implied reverter to the grantor.

Analysis: GRANTOR WOULD HAVE A FEE SIMPLE ABSOLUTE. HALF A DECADE FOR GRANTOR’S HEIR

TO REPOSSESS PROPERTY. LAW ABHORS A FORFEITURE, STRAINS AGAINST FINDING THAT THERE HAS BEEN A DEFEASIBLE FEE. EXTREME REMEDY TO TAKE A PERSON’S LAND AWAY.

AUTOMATIC DIVESTMENT THE INSTANT THEY STOPPED USING IT FOR SCHOOL PURPOSES. OTHER ARGUMENT ON BEHALF OF THE SCHOOL, CAN ARGUE ADVERSE POSSESSION IF THEY MEET ALL REQUIREMENTS. STILL ON LAND. CAN ARGUE “USING IT FOR PUBLIC SCHOOL PURPOSES.” I.E. BUSINESS MONEY WILL GO TO FUND SCHOOLS*** LITERAL INTERPRETATION, USING FOR SCHOOL PURPOSES.

MUST USE MAGIC WORDS TO CONVEY FEE SIMPLE DETERMINABLE, BE EXPLICIT. B/C OF EXPRESS REVERTER CLAUSE, ONCE THEY STOPPED USING IT FOR PUBLIC SCHOOL WENT BACK TO GRANTOR.

COURTS STRICTLY CONSTRUE WHAT YOU MUST DO TO SATISFY THE CONDITION. Determinable Fee- an interest in property which may last forever, except upon the happening or a

nonhappening of a specified event at which point it will automatically be terminated.

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A grant of land made in consideration that the grantee erect a building and maintain a county high school therein or revert to the owner was held to leave no interest in the grantors where a high school had been built on the land and maintained for 11 years. A 1885 deed containing a clause stating that the land is to revert to the grantor when it shall fail to be used for school purposes was held to allow the grantor’s successor to retake the land after abandonment of the school in 1959.

O conveys land to X so long as X maintained land for church purposes. X drills for oil in the back of church. O brings suit. Court ruled X was still using land for church purposes. If they wanted to limit, then church purposes ONLY. Church purposes could also mean making money for church so drilling oil allowable.

Mountain Brow Lodge NO. 82 Independent Order of Odd Fellows v. Toscano.: Facts: Conflict arises between Appellant—Nonprofit and Respondent—Trustees over the habdendum

clause which states ‘Said property is restricted for the use and benefit of the second party or in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns.

Rule: 1) Conditions restraining alienation when repugnant to the interest created are void.; 2) The term “use” as applied to real property can be construed to mean a “right which a person has to use or enjoy the property of another according to his necessities.”; 3) No formal language is necessary to create a fee simple subject to a condition subsequent as long as the intent of the grantor is clear. It is the rule that the object in construing a deed is to ascertain the intention of the grantor from the words which have been employed and from surrounding circumstances.

Holding: 1) Admittedly, the condition of the habendum clause which prohibits appellant from selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void.; 2) Thus, the invalid restraint against alienation does not necessarily affect or nullify the condition on land use.; 3) Thus we conclude that the portion of the habendum clause relating to the land use, when construed as a whole and in light of the surrounding circumstances, created a fee subject to a condition subsequent with title to revert to the grantors, their successors or assigns if the land ceases to be used for lodge, fraternal and similar purposes for which the appellant is formed.

Analysis: This condition and the condition relating to the use of the land are in the disjunctive and are clearly severable. In other words, under the plain language of the deed the grantors, their successors or assigns may exercise their power of termination “if the land is not used by the second party” or “in the event of sale or transfer by second party.” It is of course arguable, as appellant suggests that the condition in appellant’s deed is not a restriction on land use but on who uses it. If appellant’s suggestion is carried to its logical conclusion it would mean that real property could not be conveyed to a city to be used only for its own city purposes or to a school district to be used only for its own school purposes. Such restrictions would also be restrictions upon who uses the land. The SC held that the condition created a defeasible estate apparently even though it was by necessity a restriction on who could use the land. GRANTOR WHETHER TO ENFORCE BREACH, maybe not used as a park but using it as something

else that Grantor finds that use acceptable, whereas DETERMINABLE REVERTS AUTOMATICALLY AND WILL NOT KNOW.

ANOTHER PROBLEM WITH DETERMINABLE: What happens if grantors don’t know condition has been breached, then the adverse possession would start. No requirement that grantor know si fa breach has occurred, if what we set up as fee simple determinable, as soon as the breach occurs, allows grantee to adversely possess. NOW ADVERSE POSSESSORS have time clock ticking.

Under general laws of forfeiture COURTS like options that will reduce chances of forfeiture. They don’t agree its fee simple subject to condition subsequent. The clauses are contradictory so

the conditions restraining the selling and transfer of land are repugnant to the interest of the land and therefore its void. ANY UNREASONABLE RESTRAINT ON ALIENATION IS VOID.

Page 195, five lines from bottom, deed language or in the event or sale of transfer, the same is to revert. Cannot sell or transfer the property, unreasonable restraint on alienation. ANOTHER WAY TO ARGUE IS THAT ITS PRECATORY LANGUAGE, GIVING A PURPOSE AND THAT MEANS NOTHING, BASICALLY GRANT THEM THE DEED AND PUT VERBIAGE AFTER IT SO IT GETS IGNORED. SAID PROPERTY OF USE AND BENEFIT—STATEMENT OF PURPOSE. Language was in the habendum clause. We ignore any conditions which are contained in habendum clause. For future use that alienage void claim, does that limit to Pennsylvania? No it’s a general rule. We don’t like restraints

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on alienation. The Odd Fellows, we got rid of one condition, just get rid of another. How about SAID PROPERTY FOR USE FOR THE ODD FELLOWS ONLY AND IF THEY DON’T, TITLE REVERTS. How do they argue that it can be stricken—restriction is on who uses the land, not how land is used. This will says only we can use this, we can’t transfer it to anyone else, we cannot alienate the property. Arguing that both conditions are absolute restraints on transferring property. Aren’t these identical? First condition is on use and. FOCUSING ON USE, POLICY REASONS THEN PPL WOULDN’T ALLOW CITY TO USE LAND FOR PUBLIC GOODS.

The Fee Tail: The most common DEFEASIBLE FEE was undoubtedly the FEE TAIL, often called an ENTAIL for short.

It was created by a grant to “B and the heirs of B’s body.” By virtue of the statute, DE DONIS CONDITIONALIBUS, such a grant had the effect of controlling the devolution of the property from one generation to another. As the words imply, the land passed from the Ancestor B to B’s children, grandchildren, great-grandchildren etc. (the heirs of the body). COLLATERAL HEIRS were excluded, this was considered as the INTENT OF THE GRANTOR. TAKERS IN TAIL thus held a kind of FEE SIMPLE, because the estate was of potentially infinite duration, but they did not have the power to alienate it for a period beyond their own lives or to devise it, because it passed by operation of law to the heirs of their body at their death. If there were no heirs of the body, then the land reverted automatically either to the grantor or his heirs or passed to a REMAINDERMAN if the grantor had limited an estate in remainder to follow the fee tail. DE DONIS made available a writ called FORMEDON [This writ lies where a party claims the specific recovery of lands and tenements, as issue in tail; or as remainder-man or reversioner, upon the determination of an estate in tail.]

Estates-takes are either GENERAL or SPECIAL: TAIL-GENERAL: is where lands and tenements are given to one and the heirs of his body begotten

(children, natural heirs); which is called TAIL-GENERAL, because, how often soever [at all/in any way] such donee in tail be married, his issue in general by all and every such marriage is in successive order, capable of inheriting the estate-tail, PER FORMAN DONI [IN ACCORDANCE WITH THE TERMS OF THE GIFT]

TENANT IN SPECIAL TAIL: is where the gift is restrained to certain heirs of the donee’s body, and does not go to all of them in general. This may occur in several ways:

1) Where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten; here no issue can inherit but such special issue as engendered between them two; not such as the husband may have by another wife; and therefore it is called special tail.

2) if we observe the words of inheritance to him and his heirs gives him an estate fee, but they being heirs to be by him begotten, this makes it a fee tail and the person being also limited on whom such heirs shall be begotten making a fee tail special.

ESTATES IN GENERAL and SPECIAL are further diversified by the distinction of sexes in such entails; for both of them may either be in TAIL MALE or TAIL FEMALE.

If land sbe given to a man and his heirs male of his body begotten, this is an estate in TAIL MALE GENERAL; but if to a man and the heirs female of his body on his present wife begotten, this is an ESTATE TAIL FEMALE SPECIAL In case of an entail male, the heirs female shall never inherit, nor any derived from them; nor E CONVERSO [ON THE OTHER SIDE/ ON THE OTHER HAND] the heirs male, in case of a gift in tail female. Therefore if the donee in tail male hatha daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by males. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates tail, the one in tail male, the other in tail female, and he hath issue a daughter, which daughter hath issue a son; this grandson

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Fee Tail 203-07

Property Outline

can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line.

As the word heirs is necessary to create a fee, so in farther limitation of the strictness of the FEODAL DONATION [FOR THOUGH IT MAY BE PERFORMED BY THE WORD], the word body, or some other words of procreation, are necessary to make it a fee-tail, and to ascertain to what heirs in particular the fee is limited.

A gift to a man, and his heirs male or female, is an estate in fee simple, and not in fee-tail for there are not words to ascertain the body out of which they shall issue.

It had become possible to convert a fee tail into a fee simple by means of a collusive action at law called a common recovery.

Modern times have brought FEE TAIL’S DEMISE and in the US, where the dynastic principle upon which the fee tail rested has never been strong, statutes have largely eliminated the possibility of creating a fee tail in its classic form. Texas:

Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture [is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings] or entailments ever be in force in this state.

Such enactments however mandatory in language, cannot prevent the attempt or at least the use of words in wills or conveyances which would have created a fee tail at common law. When this happens, statutory modifications fall into one of four groups:

o 1) converts the fee tail into a fee simple absolute in the first taker. This is the most common solution.

o 2) converts the fee tail into a life estate in the first taker, with a remainder in fee simple in the first taker’s lineal descendants;

o 3) preserves the fee tail in the hands of the first taker, but converts it into a fee simple absolute in the hands of the lineal descendants;

o 4) preserves the fee tail but allows any taker to convert it into a fee simple by making an inter vivos conveyance of the property.

Keeps property in the family, when fee tail runs out it will go back to the grantor or unless the grantor says from A for life and heirs of A’s body, then to B. then it will go back to B. Heirs of one’s body is an estate that continues indefinitely. Closely linked to primogeniture, would go to the eldest son, wanted to keep large family estates in one piece instead of being subdivided by each generation. Well-to-do English families have inherited a state tail and what can you do with that. Basically a life estate, can sell interest in property, but you could drop dead tomorrow. Could borrow money, it’s a shake of the dice for the lender. Once you die, no further interest in property. Used to keep land together. If goes to oldest son and he’s a wastrel, he can dissipate interest in property but as soon as he dies goes to his children.

Rule used when takers aren’t responsible. Not the same interest, concern about keeping large manors together. Largely gone, but still need to know about them because they still exist in a handful of estates, and if an estate abolishes fee tail if you’re looking at an older conveyance so you need to spot a fee tail and the conveyances that occurred before hand. Now, the common law was very strict that YOU HAD TO USE THE WORDS HEIRS OF ___’S BODY. If you didn’t, no fee tail. Today can use any words that indicate that same lineal descendent. Could create a different type of fee tail, may limit to children born to a particular wife. Very common that a man would have more than one wife, and sometimes there were fee tail special to this particular male or to this particular woman. Heirs DO NOT HAVE FUTURE INTEREST IN PROPERTY IF IT SAYS O => A and The Heirs of A’s body, then to B. Because we don’t know A’s heirs until A dies there is no future interest.

Can use any language to designate fee-tail. DEFINITE SUCCESSION AND INDEFINITE SUCCESSION, in looking at language with future generations are the words use to fill in blank. Definite succession and indefinite succession designates fee tail so indefinite succession means it goes from your children and their grandchildren, lineal descendants means your entire family line. If you limit that word in some way or that language by identifying a particular group of people, if you’re saying just the children it cant be fee tial.if you limit that technical language to a particular group of people or if you limit the time at which you can determine there are heirs, that is also being treated as being definite so i.e. cases TO A AND A’S HEIRS SHARE AND SHARE ALIKE. THAT IS DEFINITE SUCESSION BC ITS DOING SOMETHING AT A’s death. So some examples, ifyou look on page 204, to a man and

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his children and his offspring, children of definite succession. RULE OF THUMB, IF A LANGUAGE IS OF A TECHNICAL TERM WITH NO RESTIRCTIONS THAT IS INDEFINITE SUCCESSION—LINEAL DESCENDANTS, HEIRS OF HIS BODY, ETC. whereas restrictions means definite succession.

Fee Tail – “To Bob and the Heirs of His Body:” Like the fee simple, the fee tail is inheritable because of the words of limitation “and the heirs of his (her) body.” It is inheritable only by lineal descendants and not by collateral heirs. To create a fee tail, the conveyance must use words of indefinite succession, such as “heirs of the body” or “issue of the body.” Any limitation on these technical terms of art causes them to become words of definite succession. Therefore a conveyance “to Bob and the heirs of his body who are alive when he dies” cannot create a fee tail because the words “who are alive when he dies” limit the technical term “heirs of his body.”

Special Forms of Fee Tail: The fee tail may be a fee tail general, as described above, or it may be a fee tail special: “To Al and the heirs of his body and the body of his wife Jane.” The fee tail special is limited to the lineal descendants of a specific man and woman. There may also be a fee tail male—“to Al and the male heirs of his body”—or a fee tail female—“to Al and the female heirs of his body.” It is also possible to convey a fee tial special male or female.

Fee Simple Conditional: Before 1285, a conveyance to a person and the heirs of his body created a fee simple conditional. The fee simple conditional would become a fee simple as soon as the transferee had a child who was born alive. Because this result did not conform to the grantor’s intent, the Statute De Donis Conditionalibus provided that a conveyance to a person and the heirs of his body created an estate that was descendible only to his issue and that the birth of a child did not enlarge the estate into a fee simple. This fee simple conditional thus became the feel tail. If the grantee conveyed his fee tail estate to another, either his issue (if there were issue) or the holder of the future interest following the fee tail (if there were no issue) could recover the estate upon the grantee’s death.

Morris v. Ulbright Mo. (1977): Facts: This is an action to quiet title to land. Lina A. Ulbright and Frank O. Ulbright her husband

executed a deed which conveyed the property in question to Logan Mitchell Ulbright “and his bodily heirs.” The natural son, and only child, of Logan Mitchell Ulbright was Logan M. Ulbright JR. On Oct. 4, 1950, Marion V. Morris and Ruby N. Morris adopted Logan M. Ulbright, Jr. and his name changed to Logan Marion Morris. Lina A. Ulbright and Frank O. Ulbright are deceased. On February 9, 1964, the heirs of Lina A. Ulbright conveyed to T.B. Alspaugh and Sara Jane Alspaugh. On February 12, 1972, Logan Mitchell Ulbright died. ON January 24, 1973, the Alspaughs conveyed to Dorothy A. Ulbright and Ralph C. Ulbright. Logan Marion Morris is plaintiff and claims title under the deed executed January 24, 1973.

Rule: 1) Section 453.090, RSMo 1969 provides that when a child is adopted in accordance with the provisions of Chapter 453, “all legal relationships and all rights and duties between such child and his natural parents shall cease and determine.”; 2) ON the death of the tenant in tail, the land passes to the next heir of the body of the original donee; but such heir though he takes because he is the heir of the body, takes not by descent but as a substituted purchaser from the orignal donor; Per formam doni as it is expressed.; 3) Section 442.490 RSMo 1969 provides that when a remainder shall be limited to the heirs of the body of a person to whom a life estate is given, the remaindermen who qualify as heirs of the body “shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.

Holding: Accordingly, we are of the opinion that P derived his title as purchaser under the deed from Lina A. Ulbright and Frank O. Ulbright and not by inheritance from his natural father. We hold that his interest in the land was not extinguished by the adoption and provisions of 453.090, because his interest in the land does not derive from his natural father.

Analysis: Future interest that belonged to parents went to heirs Alspaughs and then they conveyed it to Dorthy Ulbright and Ralph Ulbright via inter vivos gift. Court says it conferred a life estate that passed to his heirs. Lina and frank wanted to give a fee tail and they kept the future interest. Court says it sets up a life estate and then a fee simple. Aspalughs has nothing to convey because the estate was not a fee tail, so nothing to pass to the heirs. TITLE AS PURCHASER- WORDS OF PURCHASE---Acquiring title under any means.

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If someone wants to convey something to somewhere else, but you don’t want them to control it yet, or want to provide for parent and they don’t have legal capacity to deal with it, but want them to have assets to pay for things. Instead of outright conveying, instead convey property to trustee with directions on how to administer the property. Person creating the trust is the SETTLOR- CONVEY TITLE TO PROPERTY THAT IS TRUSTEE (CAN BE SISTER, OR FIRST NATIONAL BANK), PERSON TO RECEIVE THE BENEFITS OF PROPERTY IS CALLED THE BENEFICIARY. CONVEYING TITLE IN TRUST AND GIVE THEM A SET OF TRUST INSTRUCTIONS AND UNDER WHAT CIRCUMSTANCES THEY ARE TO GIVE MONEY. In this way it’s a trustee making decisions over when they should hand over the money. FEE TITLE TO TRUSTEE, first allow my surviving spouse and provide money necessary to pay for taxes and at spouses death give to my children. Why is this better? B/c person with life estate would want to move, they would be left with nothing. Life estate has less rights, what if your spouse wants to move, what if they are in a car accident and spouse needs money. Owning a property when title is split in half is less valuable. IF you give trustee fee simple absolute with directions on what to do, and there may be unforeseen means of what is needed. Trustee has legal title.

If life estate created by deed or will it is CONVENTIONAL LIFE ESTATE. Law by itself creates a life estate—i.e. marital laws that give spouse legal life estate. UNLAWFUL DETAINER allows 3 week process for expedited judicial counter so instead having for 2 year

ejectment action have a statutory process with the goal of ending self-help and violence associated with it.

The Life Estate: An estate in land measured by the duration of the life or lives of one or more persons is called a life

estate. Normally the measuring life is that of the person who holds the estate, but it is also possible to use the life of another rot fix the duration of the estate, in which case it is called an ESTATE PUR AUTRE VIE [THE FORM OF LIFE ESTATE WHERE THE MEASURING OF LIFE IS THAT OF SOME OTHER PERSON]. If the holder of such an estate dies, the estate passes to the person’s heirs in case of INTESTACY [THE STATE OR CONDITION OF DYING WITHOUT HAVING MADE A WILL OR WITHOUT HAVING DISPOSED BY WILL OF A SEGMENT OF THE PROPERTY OF THE DECEDENT,] but what the heirs obtain lasts only as long as the measuring life does. The ESTATE PUR AUTRE VIE may also be devised, but course the same restriction applies; the purchaser’s estate lasts no longer than the measuring life.

An ORDINARY LIFE INTEREST is not an estate of inheritance, as the fee simple is, since it cannot be devised and will not pass upon intestacy to the persons’ heirs. At common law, the life estate was treated as a FREEHOLD ESTATE [EXCLUSIVE RIGHT TO USE AND POSSESS REAL PROPERTY FOR INDEFINITE PERIOD.] This was perhaps a vestige of the early feudal era when the life estate was the basic unit of land holding.

The life estate can be alienated inter vivos, although there is not much of a market in life estates because of the uncertainty of duration that attends them.

The life tenant ordinarily has duty to maintain the property in a reasonable state of repair as necessary to preserve the property’s value for the holders of future interests following it. A failure to repair is treated as permissive waste, and the holders of future interests in the land have a cause of action in waste against the life tenant. The rents and profts from the land must be, however, sufficient to allow the tenant to make repairs.

IN order to make reasonable repairs and to provide fule and fencing, the life tenant traditionally has had the right to cut timber sufficient for usch purposes. This is the RIGHT TO TAKE ESTOVERS [A RIGHT OF TENANTS TO TAKE WOOD OR TIMBER FOR FUEL OR REPAIRS]. That right does not extend, however, to permit opening new mines, leasing drilling rights for oil and gas, or clear cutting timber on the property. the life tenant may not do so without first obtaining the consent of future interest holders. The tenant is entitled to keep existing mines open and conduct existing timber operations without liability for waste.

There is no duty on the life tenant to make extraordinary repairs. Improvements destroyed by earthquake or fire, through no fault of the life tenant, also need not be rebuilt. Neither can future

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Life Estates 207-18

Property Outline

interest holders be held liable for the costs of rebuilding in such situations, if the tenant does choose voluntarily to undertake the rebuilding.

Life Estate—“To Bob for His Life”: A conveyance of a freehold estate that did not include the words “and heirs” or “and heirs of the body” was deemed to convey only a life estate. Intent to convey only a life estate must be clear to overcome the modern presumption in favor of fee simple. Therefore, words such as “to Bob for his life” must be used to create a life estate. A life estate also is created if the estate necessarily will terminate when the measuring life dies. Therefore, “to Bob for so long as he farms the land” creates a life estate (a defeasible life estate), because the longest it can last is while Bob is alive. A voluntarily created life estate is a conventional life estate i.e. A conveys to B for his life. In contrast a “legal” life estate is created by operation of law, such as the legally created marital property interests i.e. dower and curtesy. When the life estate owner is the measuring life, it is an ordinary life estate. When someone other than the life estate owner is the measuring life it is a life estate “pur autre vie.”

Life Estate Pur Autre Vie – “To Bob for the Life of Cathy”: A life estate pur autre vie can be created by expres terms “to Bob for the life of Cathy” or when a life tenant who is the measuring life conveys the life estate to someone else “to Bob for his life;” Bob then conveys the life estate to Cathy. When the holder of a life estate pur autre vie died before the person who is the measuring life, no person was eligible to hold the esate: the holder’s heirs could not inherit the estate, and the future interest holder had to wait until the measuring life died. Therefore, the land was open to the first person who occupied it, known as a general occupant. Today, a life estate pur autre vie can be conveyed at death by will or by intestate succession.

Legal Life Estate: IN CONTRAST TO LIFE ESTATE A LEGAL LIFE ESTATE IS CREATED BY OPERATION OF LAW.

o Fee Tail Special with Possibility of Issue Extinct: The language “to Bob and the heirs of his body and the body of his wife Jane” gives Bob a life estate once Jane dies without issue, because no possibility exists that this estate will continue after Bob’s death. The fee tail becomes a life estate measured by Bob’s life.

o Marital Estates: A landowners spouse may have a life estate in the land when the owner dies. This common law right of dower—for a surviving wife or curtesy—for a surviving husband is created by operation of law.

Thompson v. Baxter (Minn. 1909): Facts: P is the owner of the premises; that P acquired title thereto by purchase from the former owner,

who had entered into a contract by which he leased and demised [END OF EXISTENCE OR ACTIVITY] the premises to D at an agreed monthly rent for 22 dollars; and P’s title is subject to all rights that became vested in D thereby. The lease after reciting the rental of the premises and other usual conditions contained upon the subject of the term of the tenancy, the following stipulation: “TO have and to hold the above-rented premises unto the said party of th second part the tenant his heirs, executors, administrators, and assigns, for and during the full term of while he shall wish to live in Albert Lea, from and after the first day of December, 1904.” D has at all times paid rent as it became due; but if P has the right to terminate the tenancy and eject him, proper notice for that purpose has been given.

Rule: TENANCIES AT WILL: may be created by express words, or they may arise by implication of law. Where created by express contract, the writing necessarily so indicates and reserves the right of termination to either party as where the lease provides that the tenant shall occupy the premises so long as agreeable to both parties. Such tenancies arise by implication of law where no definite time is tated in the contract, or where the tenant enters into possession under an agreement to execute a contract, or where the tenant enters into possession under an agreement to execute a contract for a specific term and he subsequently refuses to do so, or one who enters under a void lease, or where he holds over pending negotiations for a new lease. The chief characteristics of this form of tenancy are 1) uncertainty respecting the term, and 2) the right of either party to terminate it by proper notice; and these features must exist, whether the tenancy be created by the express language of the contract or by implication of law. A tenant at will is one who enters into the possession of the lands or tenements of antoher, lawfully, but for no definite temr or purpose, but whose possession is subject to termination by the landlord at any time he sees fit to put an end to it. He is called a tenant at will because he hath

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no certain or sure estate for the lessor may put him out at what time it pleasth him.TENANCY AT SUFFERANCE: arises where the tenant wrongfully holds over after the expiration of his term, differing from the tenancy at will where the possession is by the permission of the landlord. He has a naked possession without right, and independent of statute is not entitled to notice to quit. This relation exists in all cases where a person who enters lawfully into the possession wrongfully holds possession after his estate or right has ended. TENANCY FROM MONTH TO MONTH OR YEAR TO YEAR: arises where no definite time is agreed upon and the rent is fixed at so much per year or month as the case may be and is terminable at the expiration of any period for which rent ahs been paid. This form of tenancy can never exist where the lease or contract prescribes a fixed time. The mere fact that rent is payable monthly does not alone determine the character of the tenancy. The monthly or yearly payments and an intention to limit the term to a month or year must in all cases concur to create this species of tenancy. Life estate may be created by a deed, lease, or devise, either with or without a stipulation for the payment of rent. AN ESTATE FOR LIFE may be created either by express limitation or by a grant in general terms if made to a man for the term of his own life, or for that of another person, he is called a tenant for life. But the estate may also be created by a general grant, without defining any specific interest, as where a grant is made to a man or to a man and his assigns without any limitation in point of time, it will be considered as an estate for life, and for the life of the grantee only. Where a grant is made subject to be defeated by a particular event, and there is no limitation in point of time, it will be ab initio a grant of an estate for life as much as if no such event had been contemplated. Thus, if a grant be made to a man so long as he shall inhabit a certain place, or to a woman during her widowhood as there is no certainty that the estate will be terminated by the change of habitation or by the marriage, respectfully, of the lessees the estate is as much an estate for life until the prescribed event takes place as if it had been so granted in express terms. Warner v. Tanner—a life estate was held to be created by a lease for a yearly rent extending during the time the lessee should continue to occupy the premises for a particular purpose.

Holding: The lease is the case at bar comes within the rules of these authorities and the trial court properly held that it vested in D a life estate, terminable only at his death or his removal from Albert Lea.

Analysis: The contract before us, though somewhat peculiar and unusual as to the term of the tenancy intended to be created, is nevertheless clear and free from ambiguity. It granted the demised premises to defendant while he shall wish to live in Albert Lea. The legal effect of this language is the only question in the case. Its language does not expressly define it as a tenancy at will, and no such relation arises by implication for the reason that the term is not indefinite, within the meaning of the law on this subject nor is the right to terminate the lease reserved to the lessor. In the lease under consideration the tenancy is limited by the time D shall continue to dwell in Albert Lea and this limitation takes the case out of the class of tenancies at will. It is equally clear that a tenancy at sufferance was not created by the contract. There has been no wrongful or unlawful holding over after the expiration of the term. Nor does the rule of tenancy from month to month apply for the reasons already pointed out. The principle distinction being that the former confers a freehold upon the tenant, and the latter a mere chattel interest. The lease under consideration embodies all the latter a mere tenancy. It contains the usual words of inheritance, necessary at common law, running to defendant, his heirs, executors, administrators and assigns and grants the right of occupancy for the term stated therein.

Waste

Waste: Parties: When title to land has been divided into a presently possessory interest and a future interest,

the law of waste prevents the present possessor from causing undue harm to the property. The law of waste is designed to protect future interest holders, as well as nonpossessing co-owners and sometimes mortgagees.

Policy: The basic theory of waste law is that the future interest holder is entitled to receive the property in the same condition as when the future interest was created, ordinary wear and tear excepted. Thus, waste is often defined as the commission of any act that alters the character of the property. Waste law may even prohibit “ameliorating” waste—changes that increase the land’s value

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but that change the land’s character. More commonly today, however, waste is defined in terms of impairing the value of the future interest.

Ex: Owen leaves his house to his wife for life and then to his children and their heirs. Unless he explicitly indicated to the contrary, Owen’s wife will be limited in her use of the property to ensure that the children receive the full economic benefit of the house. This means that Owen’s wife may be prohibited form activities such as cutting and selling timber and removing minerals.

Types of Waste: Active Waste: this type of waste consists of affirmative acts done by the possessor that harm the

property. It is also known as affirmative, voluntary, or commissive waste. Per se acts of waste at common law included cutting mature trees except for cultivation, repairs or fuel, changing the agriculture use of the land, opening new mines to remove minerals and demolishing structures not erected by the occupant. These are all acts that destroy existing feagtures of the property or that exploit limited resources. Today, these acts usually are characterized as waste only when they cause economic harm. Where the acts are done willfully they may constitute malicious or wanton waste, and the damages for the waste may be trebled.

Passive Waste: This type of waste consists of the failure to make normal repairs to the property to prevent significant deterioration, such as keeping a building windtight and watertight. It is also known as permissive waste. It does not require a possessor to rebuild structures destroyed by an act of nature. The cases are divided concerning the possessor’s liability to rebuild if a third party destroys the improvements. However, even when the possessor is nto liable, a duty may exist to protect the premises from further harm, such as by boarding up a burned building. The failure to make hazard insurance, tax, or mortgage payments may be treated as a form of economic waste, because the consequences can be uncompensated damage to the property if it is uninsured or forfeiture of the title for nonpayment of taxes or the mortgage.

Ameliorating Waste: Ameliorating waste also known as meliorating waste consists of a change in the property’s use that increases its economic value. For example, a life tenant commits ameliorating waste if she demolishes a house and replaces it with an apartment building. The underlying notion is that the future interest holder is entitled to receive the property in the same condition as the present interest holder receivd it. However, a court may refuse to find waste if the property no longer is usable in its existing condition.

Remedies: Damages for waste equal the cost of restoration if the action is brought when the future interest holder takes possession or the reduction in the present market value of the future interest if brought before then. Equity may enjoin the commission of active waste or appoint a receiver to stop passive waste.

Restraints on Alienation: Special rules deal with the validity of a provision that purports to limit the right of the holder of an estate to transfer it to other persons. The legal effectiveness of such a provision generally depends upon what type of restraint it is. Disabling Restraints: The terms of the grant may deny the grantee the power to transfer the estate

to anyone else or may declare that any attempted transfer is void. With the exception of spendthrift trusts not covered in this book, such disabling provisions are void.

Forfeiture Restraints: By its terms, a qualified grant may provide that any attempt to transfer title will terminate ownership. Courts often uphold this type of restraint if it is restricted as to duration or persons. Provisions giving the grantor the right to repurchase the property or to match a third person’s offer before selling it preemptive rights are usually upheld. Where an estate smaller than a fee simple is involved, a forfeiture restraint is more likely to be upheld. For example, a lease provision prohibiting the tenant from assigning or subletting the property without the landlord’s consent is usually valid, as are similar restrictions on life estates, installment land contracts and options.

Promissory Restraints: The grant may include a covenant by the grantee not to alienate the property. Courts generally decide the validity of such promissory restraints according to the same principles as govern forfeiture restraints. Co-owners of property who covenant not to partition it often do so by way of mutual promises and may be entitled to have the covenants specifically enforced. However, restrictive covenants that prohibit conveyances to a person based on race, religion, sex, national origin, color, familiar status, handicap, and other factors violate federal, state and local fair housing laws.

Smith v. Smith:

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Facts: Complaint alleges that under the will of Dollie Smith, the mother of these litigants, the D received a life estate in a certain house and lot in Blythevill. An alternative allegation is that the devise is void for uncertainty but we consider the contention to be without merit. It is further alleged that Dollie died intestate as the remainder which passed to these parties and the only heirs of their mother.

Rule: 1) it is permissive waste for the life tenant to fail to make such ordinary repairs as are necessary to protect the building from the effects of wind an drain, if the structure was in good condition when the life tenancy began.; 2) the remainderman is entitled various remedies for waste.

Holding: 1) We agree that only a life estate was created.; 2) but this is merely a presumption, and it certainly does not operate to convert a life estate into a fee in every case in which the life estate might have been more accurately described.; 3) we may reasonably infer from the appellant’s complaint that failure to repair the roof has caused the floors to rot and hence waste is adequately alleged.; 4) P firsts ask that D’s life estate be forfeited, but he is not entitled to this drastic action. Forfeiture of the life tenancy for the commission of waste is enforced only when specifically authorized by statute and in Arkansas we have no such statute. Since our legislature has not reenacted the English statute, the remedy of forfeiture is not available in this state.; 5) P’s complaint also asks for a receivership and for partition. The former is one of the remainderman’s remedies for waste and may be granted by the chancellor if the proof justifies it. And even without a forfeiture of the life estate P may demand partition if he likes since our statute permits a partition subject to an outstanding life estate.

Analysis: Given to her without condition, she should have a fee simple absolute. PRECATORY LANGUAGE would support saying I give my home to my daughter and if she wants she can sell it. WHAT’S INCONSISTENT is “to be used by her” “as long as she wishes” and “in case she should not use it” What words are used to create a determinable interest? Words of duration. Argument in favor of LORENE--ALLOWED TO SELL THE ESTATE. Doesn’t indicate that selling it is just selling the life estate. Argument 2: IN CASE OF AMBIGUITY WE CONSTRUE IN FAVOR OF FEE SIMPLE ABSOLUTE. Argument 3-Look at language of the language. Argument 4-GENERAL rule of construction for wills, if they have a will they want it to pass according to rules of will. Why have will and not dispose of property. Nothing in will disposes of will in future interest, if will didn’t dispose of it then that part would need to pass through intestate. Will departed with part of her property but not all, so stuff not covered by will would pass through intestate. Brother argues 1) Life estate because language of will why bother to say how she should use it. Court goes with life estate. Is this conventional or legal? By operation of document so CONVENTIONAL. Ordinary life estate or - depends on whether sold or not, if Lorene still owns it she has life estate, if she sold it to someone it would be life estate Authro vie. What type of defeasible life estate-: 1) Who has future interest? The GRANTOR kept future interest testator. Then it leaves it to Determinable and Subject to Condition subsequent. “IN CASE SHE SHOULD” Grantor has option to enforce or not. LESS LIKELY TO RESULT IN FORFEITURE. FLOYD AND LORENE WOULD GET IT BECAUSE SHE DIED INTESTATE would pass to both of them. The word AND shows that she has to not use it as a home and also wish to sell it, therefore she can rent the home. BOTH MUST OCCUR for her to forfeit.

Brokaw v. Fairchild: Facts: 1886 Isaac Brokaw bought a 199k plot of land in manhatten opposite central park. He

constructed a residence in 1887 that cost him 300k. He adorned the house with luxurious things i.e .marble, and antiquish furniture. The house couldn’t rent because most people wanted to purchase private homes. In 1819 Brokaw passed away and he left a life tenant, now the plaintiff. P brought in expert witnesses because he wanted to demolish the building to build an apartment building that would increase profits.

Rule: It has been generally recognized that any act of the life tenant which does permanent injury to the inheritance is waste. The law intends that the life tenant shall enjoy his estate in such a reasonable manner that the land shall pass to the reversioner or remainderman as nearly as practicable unimpaired in its nature, character and improvements. The general rule in this country is that the life tenant may do whatever is required for the general use and enjoymen to fhis estate as he received it. The use of the estate he received is contemplated and not the exercise of an act of dominion or ownership.

Holding: 1) coming therefore to P’s claimed right to demolish the present residence and to erect in its place the proposed apartment, I am of the opinion that such demolition would result in such an injury to the inheritance as under the authorities would constitute waste.; 2) the tenant has no right to exercise an act of ownership. 3); to tear down and demolish the present building which cost 300k to

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erct and would cost at least as much to replace under the facts in this case is clearly and beyond question an act of waste.

Analysis: The life estate given to P under the terms of the will and codicil[modification of earlier will] not merely in the corner plot of the ground with improvements thereon but without question in the residence of the testator. Four times in the devising clause the testator used the words my residence. This emphasis makes misunderstanding impossible. The identical building which was erected and occupied by the testator in his lifetime and the plot of ground upon which it was built constitute that residence. By no stretch of ht imagination could my residence be in existence at the end of the life tenancy were the present building demolished and any other structure even the proposed 13 story apartment erected on the site. He is entitled to use the building and plot reasonably for his own convenience or profit. To demolish

that building and erect upon the land another building even on such as the contemplated 13 story apartment house, would be the exercise of an act of ownership and dominion. It would change the inheritance or thing, the use of which was given to P as tenant for ife so that the inheritances or thing could not be delivered to the remainderman or reverisoners at the end of the life estate.

Cases provided by P are distinguishable from the case at bar. Melms v. Pabst Brewing—the action was tried before the court without a jury and the court found in addition to the facts above stated, that the removal of the building and the grading down the earth was done by D in 1891 and 1892 believe itself to be the owner in fee simple of the property and that by the said acts the estate of P in the property was substantially increased, and that P’s have been in no way injured there by.

The evidence shows that the property became valueless for the purpose of residence property as the result of the growth and development of a great city. Business and manufacturing interests advanced and surrounded the once elegant mansion until it stood isolated alone standing upon just enough ground to support it and surrounded by factories and railroad tracks absolutely undesirable as a residence nad incapable of any use as business property.

The facts in the above case are clearly not analogous to the facts here. The residence islet is surrounded by three other palatial Brokaw dwellings forming a magnificent residential layout of the four plots . it may of course be that the situation will change in the future. The decision here is concerned with only the present.

He can’t commit waste. The fact that he spent so much money. Not increasing property’s value. Home is already in good condition so its wasteful to knock down a perfectly good home.

Demonstrates using life estate- freezing using of land as it is being transferred. If future interest holders were planning on leveling the house, you can say its waste and stop them from enjoying it. LIFE ESTATE can be freezing lands usefulness of the status quo.

Marital Interests: Strong interest to provide for surviving spouse. Upon death of spouse, the surviving spouse gets a share of the property. In case of husband, common law is called CURTESY INITIATE-Lasted as long as husband and wife were

alive. If a child was born a live, they took but one breadth, now husband was entitled to life estate for his entire life. If wife died before husband and there was a child, he received control over everything for life.

Did the baby draw a breath when it was born? Yes then life estate, no then no life estate. Right of husband controlling wife’s property when they got married has been abolished by state laws

saying just because women is married property isn’t automatically to husband. Wife’s estate is called DOWER- wife gets rights to husbands property only if she survives him. She gets

a life estate in his property of only 1/3 of it regardless of children because economically dependent upon children. No child has to be born.

As a community it would be inappropriate for a spouse to predeceases the spouse to leave nothing to the spouse. CURTESY TO HUSBAND AND DOWER WIFE- Gave surviving spouse some sort of life estate.

Page 485 is example of deed, Spouse operation by law has an interest in property—marital interest. When purchasing property must find out if they’re married, if they are must get spouses signature as

well. If selling land and only one signature and spouse predeceases the other, then the surviving spouse can claim property over sold land.

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Marital Estates 221-26; 231-32

Property Outline

When there is a great interest in keeping land together, she gets to occupy a part of the land. If possible to divide land you can but you can just pay off surviving spouse.

Most places have replaced common law rights with statutory interest.

The Common Law: In most American jurisdictions, unless they choose otherwise, husband and wife hold title individually

to property they acquire during their marriage. Each spouse may take title in his or her own name, just as they hold property they brought to the marriage. They may of course choose to take title as JOINT TENANTS or TENANTS IN COMMON; but if they do not, their income and the property purchased with their income belong to them individually.

Historically, exceptions to this regime of separate property did exist at common law. The idea that marriage created a unity between husband and wife was strong. One consequence was that during a wife’s lifetime her husband had the right to control property to which she held legal title. This was known as his right ure uxoris, and it permitted him to alienate the property during the marriage, even without her consent. The wife was entitled to support from the husband during the marriage, and she would retake full ownership of her individual property at his death, but she lost immediate control over it.

At the death of a spouse, the early common law gave the surviving spouse, whether husband or wife, a right in the land of another. Neither was considered the heir to the other spouse but under ordinary circumstances, both husband and wife took a life estate in the real property the other had held during the marriage.

How common law has changed: States have statutory common law in a number of ways. Surviving spouses is defined as being an heir

intestate. Husband and wife now get EQUAL shares. So most common one is statutory forced share where the state statute says the surviving spouse gets 1/3 of the estate or ½ value of the estate. Statute is forcing the decedent’s estate to be shared with the surviving spouse. Statutes specify

Forced share does it prevent you from taking the share in will. Surviving spouse can take what decedent left in the will or take the forced share.

225 probate code does it differently, because we have increasingly get married twice, so they have a sliding scale, after one year of marriage spouse gets 3 percent and after 20 years you get 50%.

Entirely different approach is COMMUNITY PROPERTY . Rather than having dower or curtsey, based on notion that both spouses contributed equally to the marriage. Doesn’t matter who is working, notion is that they contributed equally so all property acquired during marriage is 50/50 because both efforts are deemed to have contributed to both. Western States influenced by Spanish law, different conception is about and property ownership. Enormously complicated topic. Entire case books so we aren’t getting to the detail so fit.

Basic Terminology: any property acquired during the marriage is called COMMUNITY PROPERTY. Community property is property acquired during marriage .SEPARATE PROPERTY- PROPERTY OWNED BEFORE MARRIAGE .if you own a house in your name, its still yours. PROPERTY YOU ACQUIRED VIA GIFT OR DEVISE is still your own separate property.

One of the spouses die, one automatically dies, decedent and leave his or her 50% to anyone that they want to. Minimum that you get is 50%. CAN LEAVE REMAINING HALF TO YOUR SPOUSE.

Idea: everybody should be productive so don’t want to just pass of inheritance

Statutory Changes in Marital Estates: Dower and Curtsey continue to exist to the extent the common law relating to them has nto been

changed. Both been amended or indeed replaced in many American jurisdictions: Making the surviving spouse an heir upon intestacy; Widening coverage to include both personal and real property; Equalizing the rights of husband and wife; Restricting the property subject to them to that held at death; Changing the estate taken from a life estate to a fee simple interest in a percentage of the

decedent’s estate; and Giving the surviving spouse an election either to take under the will of the first to die, or to take a

statutory share as the decedent’s heir.

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Property Outline

Homestead: Property interest that cannot be defeated by the conveyance of one spouse without the other’s

consent. Generally applies to a married couple’s principal residence. Its objective is to protect the eligible property from the claims of creditors and from alienation by

one of the spouses without the other’s consent and thus to insure a home during the marriage and for the life of the surviving spouse and in some jurisdictions for the minority of surviving children.

A right of homestead may not be defeated by the will of the deceased spouse. In some states the survivor must elect against the will however.

Marital Estates: The spouses in a legally recognized marriage may acquire a life estate in the lands of the other if certain conditions are met. These are legal life estates, because they are created by operation of law, rather than by a voluntary conveyance. Wife’s Estate-Dower: Upon the death of her husband, a wife receives a life estate in one-third of

certain lands owned by her husband during their marriage. Conditions for Dower:

o Freehold Estate: The husband must have owned a freehold estates seisin in the land during the marriage.

Ex: Hubert owned the fee simple absolute title Blackacre. He conveyed it to Xerxes before marrying Wilma. Wilma has no dower rights in Blackacre because Hubert did no own it during their marriage.

Ex: Hubert owned the fee simple absolute title to Blackacre when he married Wilma. If Hubert conveys Blackacre to Xerxes, Wilma still has downer rights in it because Hubert owned it during their marriage. Hubert need not own the land throughout the entire marriage or even at his death so long as he owned it sometime during the marriage.

Ex: Hubert had a term for years in Blackacre when he married Wilma. He subsequently conveyed the land to Xerxes. Wilma does not have dower rights in Blackacre because Hubert did not have a freehold estate. A term for years is a nonfreehold estate.

Ex: Hubert had a remainder in fee simple in Blackacre but died before it became possessory. Wilma has no dower rights because Hubert never possessed a freehold estate. Whether the remainder was vested or contingent is irrelevant.

Ex: Hubert is trustee of a fee simple for the benefit of a beneficiary. Wilma has no dower rights, because Hubert has only bare legal title.

o Inheritability: The estate must be inheritable by the wife’s issue for her to claim dower at her husband’s death. The wife need not have issue in fact, so long as any such issue would qualify as heirs of the husband. Thus, an estate held in fee simple by the husband is subject to dower because any issue of the marriage would qualify as heirs of the husband, even if in fact the marriage produces no offspring. A fee tail is subject to dower even though death without issue otherwise would terminate the estate. In that case, the fee tail will not terminate until the widow dies, because her dower is viewed as an extension of the fee tail. If there are issues of the marriage, they do not take the wife’s hsare until she dies thereby terminating her dower interest. If the estate is fee tail special, excluding issue of the present wife, she cannot claim dower even though her husband died with other issue capable of inheriting the estate. There is no dower in a life estate measured by the husband’s life because this estate is not inheritable by her issue.

o Extent of Dower:o Before Husband’s Death: Before her husband’s death, a wife has no estate in his lands. At this

point, her dower interest is called dower inchoate. This interest is protected by the courts against fraudulent transfers by her husband.

o After Husband’s Death: After husband’s death, dower gives the wife a life estate in one-third of the lands subject to her dower interest. Usually, the husband’s heir sets aside an appropriate share for her. If the wife is dissatisfied she may go to the court for judicial allocation.

Husband’s Estate: The nature of the husband’s interest in his wife’s estate depends on their stage of life.

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o Upon Marriage and Before the Birth of Issue—Jure Uxoris: In this situation, the common law gave the husband a right by jure uxoris (right of marriage). In effect, jure uxoris was a life estate measured by the husband’s and wife’s joint lives. It terminated upon the death of either unless it had been replaced by curtesy.

o Upon Birth of Live Issue—Curtesy Initiate: If a child was born alive and if the wife did not die in childbirth, the husband’s shared freehold Jure uxoris was converted into a lfie estate in his own right in all his wife’s freeholds. This life estate was measured only by his life. His previous smaller life estate measured by the husband’s and the wife’s joint lives merged into it. Curtesy initiate existed in all the wife’s freeholds that were inheritable by issue of the marriage. Unlike dower, curtesy initiate included the wife’s equitable estates. Because a husband had a presen life estate in his wife’s lands, all that she could claim was a reversion, which would become possessory if she survived her husband.

o After the Wife’s Death – Curtesy Consummate: Once his wife died, the husband’s curtesy initiate became curtesy consummate. His right was not limited to one-third of her property, as is true of dower. Instead, it applied to all property in which she had a freehold interest. Since he already was entitled to possession there was no change in that regard. The issue born alive need not still be living at the wife’s death.

Modern Statutory Forced Share: Dower and curtesy have been replaced in virtually every jurisdiction by statutes that provide a share of the decedent’s estate to the surviving spouse. The surviving spouse typically is given a specified share of the decedent’s estate even if the decedent intended to leave nothing to the survivor.

Community Property: Some jurisdictions have community property ownership which is a form of marital co-ownership derived from the civil law system. It is based on the principle that both spouses contribute equally to a marriage and therefore should own equal shares in all property may be held as community property only between parites who are legally married, although certain similar property rights may be held ot exist between persons who believe they are married, hold themselves out as married or sometimes merely live together. Community property rights vary widely among the states that recognize them. Generally, hwoever, community peroprty includes everything the spouses acquire during their marriage. Wages earned by either spouse during the marriage are suually the most significant form of community income togheter with income closely related to wages such as pensions saved wages nad personal injury awards wage substitutes. Any asset acquired with such income also becomes a community asset. Separate property, which includes property either spouse owned before the marriage is not converted into community property by marriage. The income earned from separate assets, such as dividends from separately owned stock, is commonly treated as separate property though not always. Generally gifts received by one spouse also are treated as his or her separate property. Property that the spouses acquire during the marriage but to which they take title as tenants in common or joint tenants is also separate property. However, some states have a presumption that family residences are community property even if the title appears otherwise. Separate property may be transmuted into community property and vice versa, by agreement or by gift between the spouses. Where spouses have commingled separate and community funds a court either will trace currently held assets to their separate original sources or if untraceable will treat such assets as being entirely community property. The uniform marital property Act, which has been adopted in Wisconsin employs the same principles as community property though the terminology is different. Marital property is equivalent to community property and individual property is equivelnt to separate property in community property jurisdictions.o Ex: When Bob and Ann married he moved into the house she owned. The house was originally Ann’s

separate property and did not become community property because she married or because Bob nmoved in unless it can be shown that she elected to make it a gift to bob or to the community. After the marriage, community income wages was used to pay for the balance of mortgage on the house. Whose wages were used is irrelevant because Bob’s and Ann’s incomes both are community property. Therefore the house is now either partly community property or entirely community property if tracing cannot allocate the respect interests. Ann would have to show that Bob made a gift of all his interest in the community earnings to her to make the entire house her separate property. Bob would have to show that Ann made a gift of her separate interest in the house to him or to the community to claim a larger share of it.

o Ex: Before marrying bob, ann owned and managed an apartment building. After their marriage she continued managing the building and used the rents from it to buy a car. The apartment building was

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Property Outline

and is Ann’s separate property and much of the rent it produced is therefore also her separate property. However, to the extent athat the rental income is attributable to her management efforts, it is community income because it is earnings for her services. It also makes some part of the car community property rather than her separate property.

o Ex: As a wedding present, Ann’s parents purchased a house for Ann and Bob. If her parents conveyed the title only to Ann, it is probably her separate property because it was a gift. This also would be true if bob piad for the house with money he inherited before the wedding and put title in Ann’s name. However, if her parents put the title in both names, it would be community property unless the deed said “to Ann and Bob as joint tenants.” In that case, both spouses would have separate property interests as joint tenants unless residential joint tenancies are presumed by state law to be community property or unless Ann and Bob agreed it was community property.

Community Ownership’s Characteristics: Management and Control:

In earlier years, the husband had the sole power to manage and control the community property and could convey it without his wife’s signature or consent. Today, spouses generally are given equal rights to management and control, and both may be required to join in the execution of any document affecting.

o Ex: Ann and Bob, spouses, hold title to their house in joint tenancy. If this truly is a joint tenancy, either may convey his or her half interest without the knowledge or consent of other. The grantee would be a tenant in common with the other spouse, because the joint tenancy is severed by the conveyance. But if the house is deemed to be community property, a deed executed by just one spouse cannot transfer any part of the title. The same may be true for mortgages executed by only one spouse.

Severance: Unlike property owned in joint tenancy, community property cannot be severed, because neither

spouse alone can convey fractional interest in the property. Also unlike property owned in joint tenancy or tenancy in common, community property cannot be partitioned by a court in an ordinary judicial proceeding. Instead, it is divided between the spouses in a martial dissolution proceeding.

Death Transfers: Each spouse has testamentary control over one-half the community property. If this power is not

exercised, that half will pass to the surviving spouse. In this respect, community property resembles the right of survivorship in joint tenancy and tenancy by the entirety. But it resembles tenancy in common I fa spouse dies testate, because the property will be distributed according to the terms of the will rather than automatically going to the surviving spouse.

Liabilities: Community property cannot be seized to satisfy the separate debts of either spouse, such as debts

incurred before marriage. For those claims, a creditor must look solely to the debtor spouse’s separate property. Debts incurred by either spouse during the marriage may or may not entitle the creditor to reach community assets for satisfaction. The answer depends on whether the debt was a community debt, was acknowledged by both spouses, was for common necessities was based in contract or tort nad other factors relevant under local law.

Melenky v. Melen (N.Y. 1922): Facts: In December 1913, Melenky conveyed land in the city of Rochester to his son. The deed was

made that the son might manage the property in the absence of the father and was coupled with an oral promise to reconvey upon demand. In August 1914, the father married again; and P is his wife. Before the marriage, he told her that he was the owner of valuable real estate in Rochester. She relied upon his statement in consenting to the marriage. For years later, the son, when asked to reconvey made a deed of an estate for life, but refused to reconvey the fee. The father, under pressure of age infirmity and want accepted the deed as tendered. The purpose of the son in retaining the fee was to deprive P of her dower. Father transfers land to son because fathers moving ot CA so title is in son’s name. Conveyance was made with a promise that land would be reconveyed back to father. Father finds true love and remarries and she testified she relied upon statement to marry him. Father asks to reconvey property to him but son says no only life estate. Step-mom trying to establish that she should have dower rights. Before lawsuit Father had sued son twice before, but son said no it was a gift and

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second suit was more mysterious father sued for fees for an unofficial stenographer. Father lost both suits, and son changes last name to melen. Father has a chose an action against son to get the estate back from the son. IS CHOSE AN ACTION REAL PROPERTY OR PERSONAL PROPERTY? CHOSE AN ACTION IS PERSONAL PROPERTY*** CANNOT HAVE A CHOSE AN ACTION IN PERSONAL PROPERTY. DOWER cannot attach to an ordinary life estate. Conveyed FEE SIMPLE ABSOLUTE TO THE SON. NO INTEREST IN LIFE ESTATE BC DOWER IS ONLY AN INTEREST OF AN ESTATE OF INHERITANCE. Could the father sued his son? YES. But chose not to. IF FATHER DIES CHOSE IN ACTION WOULD GO INTESTATE OR BY DEVISEE. HEIR TAKES YOUR REAL PROPERTY BY INTESTATE, DEVISEE GETS REAL PROPERTY BY WILL, NEXT OF KIN OR LEGATEE GETS PERSONAL PROPERTY.

Rule: 1) A widow shall be endowed with a third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.; 2) There would be no need, in some circumstances of the judgment of a court. The beneficial owner there being none of the four express trusts would have the legal estate by force of the mandate of statute.; 3) This trust, however, was oral. The statute far from executing it automatically pronounced it unenforceable in its creation.; 4) Until the entry of a decree, the defrauded grantor is not the owner of an estate. He is the owner of an obligation a chose in action.; 5) the right which is his during his life may pas upon his death to his heirs or devisees but it is still a remedial expedient. Seizin there is none in her in deed or in law.; 6) Reconveyance does not evidence a seizing continuously retained. It reinstates a seizing that would otherwise be lost.; 7) Dower attaches, not to choses in action, but to estates. The law will not create the estate in order to subject it to the incident.

Holding: 1) P’s husband is not seized of such an estate, nor has he been since the conveyance.; 2) P wants interpretation to mean that the chose in action is not solely his, but is hers also, to the extent of the benefit that would come to her if he had chosen to enforce it. We find no adequate basis for such a conclusion either in principle or in precedent. Decisions hardly to be distinguished announce a different ruling.

Analysis: This grantor has not attempted to enforce his chose in action. He has not asked a court of equity to undo the conveyance and re-establish the divested title. He is willing to let the transaction stand, or unwilling at all events to take active measures to annul it.This is not a case where the grantee has abused a confidence reposed in him by the wife. She was not a party to the conveyance which was made before the marriage. This is not a case where the grantor has attempted by a clandestine transfer of the title to modify the incidents of a marriage about to be contracted.

Concurrent Ownership: Forms of Concurrent Ownership:

Although a life tenant and the future interest holder may be viewed as sharing ownership of the same property, their ownership is divided in time. At no time do they share the same rights in the property. In contrast, concurrent owners own the same interest at the same time. There is no chronological separation in their ownership. Their ownership is undivided because each owner has the right to possess the entire property that is owned concurrently. Both real and personal property can be owned concurrently.

Our legal system recognizes only a limited number of types of concurrent ownership—joint tenancy, tenancy in common, and tenancy by the entirety. Be aware that the word ‘cotenant” can refer generically to all three forms of concurrent ownership or just to tenancy in common, so pay careful attention to the context when you see that term

Basic Characteristics: Concurrent estates permit co-ownership of land by two or more persons. A feature basic to them all is

the right of each tenant to possess the whole. This should be familiar from considering parcels of land owned by a family unit. It may violate a family understanding for one member to enter another’s room, for example, but no legally cognizable wrong arises therefrom. It is a right held by all tenants. Joint tenants may agree among themselves to give exclusive possession to one of their number, however, and they can agree to share the burdens of property ownership in any fashion they wish. If any of them wishes to end this feature, that tenant also has the right to partition the property, causing it to be

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Concurrent Estates 232-43

Property Outline

divided into its several parts or else the sold where such a division in kind is impracticable. Partition may be sought by judicial order or by agreement among the tenants.

Four principled types of concurrent estates from an early date: JOINT TENANCY, TENANCY IN COMMON, COPARCENARY AND TENANCY. Except for Tenancy by the entirety, marriage was and is irrelevant. They also may exist in two or more persons. Coparcenary the third type, existed where lands passed to two or more female descendants by operation of law, normally where no male descendant survived. It became obsolete with the end of the system of primogeniture. The other three, although subject to statutory change in many jurisdictions are more or less intact. They may exist in both real and personal property and are in fact often used among other things, for the ownership of bank accounts and automobiles.

JOINT TENANCY: Joint tenants were regarded as holding per my et per tout at common law by the half and by the whole. This meant that each owned an undivided interest in the whole, and that upon the death of one tenant, the property passed automatically to the survivors. This feature, the element which distinguishes it from tenancy in common, is also called the ius accrescendi signaling the right of the surviving tenant to succeed to the estate without the formalities of inheritance. It is what allows the joint tenancy to be used as an estate planning device by which property passes outside of probate. Four unities were required for the creation of a joint tenancy: interest, time, title and possession. If there were two tenants, the estate became a tenancy in common if any of the unities were severed. A conveyance by one tenant severed the unities of time and title, thus automatically ending the joint tenancy and rendering the grantee a tenant in common with the original tenant. If there were three or more original joint tenants and one tenant acted so as to destroy the unties, the tenancy continued between the others, but a tenancy in common was created between the grantee and the other tenants. Title: All joint tenants must acquire title by the same instrument or by joint adverse possession; Time: the interest of all joint tenants must be acquired at the same time; Interest: The shares of all joint tenants must be equal, undivided, and identical in duration; Possession: All joint tenants have equal rights to possess the whole, in the absence of express

agreement to the contrary. A very common way of creating a joint tenancy is to convey property, “to A and B as joint tenants, and

not as tenants in common.” Sometimes, drafters also add express mention that the right of survivorship between the tenants is

intended. In creating a joint tenancy you will be well advised to consult the precedents in your jurisdiction for the best form to use.

TENANCY IN COMMON: Only the unity of possession is necessary to create or perpetuate a tenancy in common. Tenants in common have an undivided interest in the property, but there is no survivorship right. Thus, upon the death of each tenant in common, the undivided share passes to the takers under that tenant’s will or by intestacy. In earlier days, the presumption was that a grant to named individuals created a joint tenancy. Today by statute or judicial decision the opposite presumption prevails. A conveyance “to A and B” creates a tenancy in common. However, it remains very common for draftsmen to insert specific mention that A and B are to take as tenants in common in order to seek to avoid possibilities for argument.

TENANCY BY THE ENTIRETY: A tenancy by the entirety or by the entireties can exist only between husband and wife. They hold as one person and unlike estates hold the surviving spouse takes the whole upon the death of the other. Although husband and wife, acting together, can sever the tenancy by the entirety neither acting alone can do so. Divorce does terminate a tenancy by the entirety, however, because it also terminates the marriage that is the essential feature. The estates are normally created by conveying “to A and B, husband and wife as tenants by the entirety.”

PRESUMPTION FOR TENANCY IN COMMON IF NO EXPLICIT LANGUAGE.

Relations Among Concurrent Tenants: Because each cotenant is entitled to enjoyment of the whole, no action lies in favor of out of

possession cotenants for such enjoyment. Where one cotenant received rent for the land from a third person, that cotenant must account to the

others for their share. It was held not to apply, however, to lawful use of the property by cotenants who occupied the land themselves.

Although entitled to possession of the whole, cotenants may not exclude other cotenants from enjoy the right to possession of the whole. If they do, the ousted cotenants may sue in ejectment to recover

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Property Outline

possession and they may also recover mesne profits. An action for waste has been available to cotenants out of possession since the Statute of Westminster.

When one of the several cotenants purchases title to the property at a tax sale or foreclosure of a mortgage it is generally held that the title acquired by the purchasing cotenant inures to the benefit of the other cotenants.

Tenancy by the Entirety

Joint Tenancy Tenancy in Common

Concept Per tout et non per my Per my et per tout Per my et non per tout

Right of Survivorship

Yes Yes No

Necessary Unities Time, title, interest, possession, marriage

Time, title, interest, possession

Possession

Right to Transfer and Partition

By divorce or by husband’s and wife’s

voluntary act

Voluntary or Involuntary

Voluntary or Involuntary

Current Status

13 still recognize; presumption for tenancy by the entirety in a few,

but presumption for tenancy in common in most. Creditors were

frustrated in their inability to obtain

unpaid debts, because they couldn’t reclaim

from the spouse. Presumption of tenancy

in common, some for tenancy by its

entireties.

During earlier common law,

presumption for joint tenancy. Some states

have statutorily abolished joint

tenancy, but courts in those states still recognize it if the

intent is clear.

When wanting to keep land together that way

when one died the survivor would get

property, but modern presumption is

tenancy in common. We don’t want to assume right of

survivorship unless they explicitly state

so. Some states have purported to abolish but courts will always

recognize join tenancy.

Modern presumption for tenancy in common.

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Property Outline

Characteristics of the Various Types of Concurrent Ownership: At common law certain preconditions called unities had to be satisfied to create concurrent

ownership. Today, many jurisdictions have substantially limited the necessity for the unities. Unity of Time:

o For two or more owners to be joint tenants or tenants by the entirety, each must have received its interest in the property at the same time. Tenancy in common does not require the unity of time.

Ex: Owen conveyed “to Ann and Bob.” Depending on whether the other unities are satisfied, Ann and Bob may be joint tenants, tenants by the entirety or tenants in common. The unity of time is satisfied because Ann and Bob were grantees at the same time. This is not a requirement of a tenancy in common, but its presence does not prevent that form of ownership.

Ex: Owen conveyed an undivided half interest in Black acre to Ann in 2008. In 2009 , Owen conveyed the other undivided half interest to Bob. Ann and Bob can only be tenants in common. Because they acquired their interests at different times, the unity of time is not satisfied.

Ex: Ann owns blackacre and conveys an undivided half interest in it to Bob. At common law, Ann and Bob cannot be joint tenants or tenants by the entirety because the unity of time is not satisfied. Ann acquired her interest in Blackacre before Bob acquired his interest. To create a joint tenancy or tenancy by the entirety with Bob, Ann could convey her entire title to a third person ( a “dummy” or “straw person”) who then would convey it back to Bob and her as joint tenants or as tenants by the entirety. In this way, the unity of time would be satisfied. Today, many jurisdictions permit an owner of property to convey directly to another person and to herself as joint tenants or as tenants by the entirety without first conveying title to a third person.

Unity of Title:o No joint tenancy or tenancy by the entirety can exist unless both owners receive title from

the same source. Tenancy in common does not have this requirement. Ex: Ann owns Blackacre and conveys an undivided half interest in it to Bob. At

common law, they could only be tenants in common. Neither the unity of time nor the unity of title is satisfied, because Bob’s title came from Ann, and Ann’s title came from her grantor at an earlier time. As described above, Ann could create a joint tenancy or tenancy by the entirety by using a straw person, or the jurisdiction where the land is located may no longer require the unity of title.

Ex: Owen conveyed undivided half interests to Ann and Bob in the same instrument. Bob conveyed his undivided half interest o Cathy. As between Ann and Cathy, only a tenancy in Common is possible. Cathy’s title came from Bob while Ann’s title came from Owen.

Unity of Interest:o Joint tenancy and tenancy by the entirety require that each owner has an equal interest in

the land. If one has a greater interest, only a tenancy in common exists. Ex: Owen conveyed an undivided one-third interest to Ann and an undivided two-

thirds interest to Bob. Ann and Bob can only be tenants in common because the unity of interest is not satisfied.

Unity of Possession:o Joint tenancy, tenancy be the entirety and tenancy in common all require that each tenant

has an equal right to possess the whole of the property. This is the significance of the term “undivided ownership.” If separate divided rights to geographic segments are given, there is separate ownership of different parts, rather than concurrent ownership. The parties are neighbors, not co-owners. If possession is given to one but postponed for the others, there is a division of estates into possessory and future interests rather than concurrent ownership and again the rights are divided.

Ex: Owen conveyed to Xerxes for life and then in equal undivided shares to Ann and Bob. Ann and Bob may be tenants by the entirety, joint tenants or tenants in common. Although neither has a present right to possess, their right to possess in

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the future is equal between them. Xerxes is not a cotenant of any sort with Ann and Bob.

Unity of Person: A tenancy by the entirety can be created only for a couple in a legally recognized marriage. At

common law, unity of person exists between husband and wife. Neither joint tenancy nor tenancy in common has this requirement.

Preference For One Estate Over Another: At common law, a presumption existed in favor of the joint tenancy over the tenancy in common.

Therefore, if a gift to two or more persons could be construed as a joint tenancy, rather than as a tenancy in common, it would be. Today, the constructional preference is for tenancy in common over joint tenancy. To create a joint tenancy, the deed must overcome this preference by including language such as “to Ann and Bob as joint tenants, and not as tenants in common, with right of survivorship.

Similarly, at common law, an ambiguous gift to spouses was construed as a tenancy by the entirety. Today, only 13 states will recognize this form of cotenancy. Where it still exists, some states have a constructional preference for it, whereas other states require a clear expression of intent to overcome the usual preference for a tenancy in common.

Survivorship: A defining characteristic of a joint tenancy and of a tenancy by the entirety is the right of survivorship.

When one cotenant dies, the surviving tenants keep the decedent’s share as a matter of law. It is not a question of inheritance or descent because the surviving cotenants take the decedent’s share even if they are not the decedent’s heirs or devisees. During the lives of the joint tenants or of the tenants by the entirety, each cotenant is viewed as owning the entire estate, subject only to the others’ equal claims. When one cotenant dies, ownership is merely freed from the decedent’s previously existing equal claim. Thus, the survivors do not “inherit” the decedent’s share but merely continue their full ownership.

Tenants in common have separate, though undivided interests in the property. Therefore, the interest of each is inheritable by his or her heirs or passes by will. A surviving tenant in common takes the entire estate only when he or she is the heir or devisee of the deceased. Ex: Ann and Bob, a married couple, were tenants by the entirety of Blackacre. Ann died before Bob.

Her will left all her property to the red cross. The Red Cross will acquire no interest in Blackacre. Bob is now its sole owner based on the right of survivorship.

Ex: Ann and Bob were joint tenants. Bob died. Wilma, his widow, was his only heir. However, Wilma takes no interest in the jointly owned property by descent or by devise. Ann has the entire title by right of survivorship. Any claim to dower by Wilma will be defeated, because Bob did not have an inheritable estate. Ann is now the sole owner.

Ex: Ann and Bob were joint tenants. Bob died. Wilma, his widow, was his only heir. Then Ann died without a will. Her son, Harry was her only heir. Harry now owns the entire estate. Ann acquired the entire title by survivorship. Upon Ann’s death, Harry inherited her entire interest.

Ex: Ann and Bob were tenants in common. Bob died. Wilma, his widow, was his only heir. On Bob’s death, Wilma inherited his tenancy in common interest in the property and became a tenant in common with Ann. Ann’s interest is unaffected by Bob’s death. Because this is not a tenancy by the entirety or joint tenancy, she does not take any part of Bob’s interest by survivorship.

Ex: Ann, Bob, Cathy were joint tenants. Cathy died, leaving a son, Jay, as her only heir. Jay takes nothing, because the right of survivorship prevails over the rules of descent. Ann and Bob acquire Cathy’s interest. Thus, the property becomes the joint tenancy property of Ann and Bob alone. They each hold an undivided one-half interest, rather than an undivided one-third interest in it. If Ann dies before Bob, he will be the sole owner.

Severance: Severance of Joint Tenancy:

A joint tenancy interest is severed when a joint tenant conveys his or her interest to another, thereby destroying the unities of time and title as to that interest. The cotenants become tenants in common with respect to the share that was severed, but the other shares continue in joint tenancy.

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o Ex: Ann and Bob were joint tenants. Bob conveyed his interest in the property to Cathy. Ann and Cathy are now tenants in common. There is no unity of time or title between them, because Cathy acquired her interest at a different time and from a different instrument than Ann. The joint tenancy has been severed and a tenancy in common relationship now exists.

o Ex: Ann, Bob and Cathy were joint tenants. Cathy conveyed her interest to Dora. Dora owns a one-third interest in the property as a tenant in common with Ann and Bob. Ann and Bob continue as joint tenants with regard to the two – thirds interest they still hold. If Ann dies first, Bob will take her one-third interest by survivorship, and Dora’s interest will be unchanged. Bob and Dora will then be tenants in common, with Bob owning an undivided two-thirds interest and Dora owning an undivided one-third interest. If dora dies before Ann and Bob, her heir will inherit her one-third, and Ann and Bob will still own their two-thirds interest as joint tenants. When Ann or Bob dies, the survivor will then hold the undivided two-thirds interest in tenancy in common with the undivided one-third interest owned by Dora’s heir.

o Ex: Ann, Bob and Cathy were joint tenants. Cathy conveyed her interest to Bob. Ann and Bob still owns a two-thirds interest in the property as joint tenants. However, bob now also holds the one-third interest that he received from Cathy as a tenant in common, because he acquired it at a different time and by a differnet instrument than the two-thirds interest held in joint tenancy with Ann. If Ann dies before Bob, he will acquire her interst by right of survivorship and will be the sole owner. If bob dies before Ann, she will acquire his interest in the joint tenancy. If Bob’s will left all his property to the Red Cross, Ann and the Red Cross will be tenants in common, with Ann owning an undivided two-thirds interest and the Red Cross owning an undivided one-third interest.

Any voluntary or involuntary conveyance by one joint tenant severs that tenant’s interest from the joint tenancy. Generally, a contract to convey the property also severs by virtue of the doctrine of equitable conversion. In some states a lease severs a joint tenancy. In states where a mortage is viewed as conveying title to the mortgaged land to the mortgagee, the mortgage causes a severance. A mortgage also can cause a severance in some states that treat a mortgage as transferring only a lien on the property.

Severance of Tenancy by the Entirety: A tenancy by the entirety cannot be severed by one tenant. No conveyance of such an estate is valid

unless both spouses sign. A tenancy by the entirety ends when the cotenants divorce. Normally the estate is converted into a tenancy in common to avoid the right of survivorship.

o Ex: Ann and Bob, a married couple are tenants by the entirety. Ann gives Cathy a deed for Ann’s interest. Cathy acquires no interest. Ann and Bob are still tenants by the entirety.

RIDDLE V. HARMON, (CAL. CT. APP. 1980): Facts: Mr. and Mrs. Riddle purchased a parcel of real estate, taking title as joint tenants. Several

months before her death, Mrs. Riddle retained an attorney to plan her estate. Upon her death, property would pass to husband. Distressed, she requested that the joint tenancy be terminated so that she could dispose of her interest by will. As a result the attorney prepared a grant deed whereby Mrs. Riddle granted to herself an undivided one-half interest in the subject property. The document also provided that “the purpose of this grant deed is to terminate those joint tenancies formerly existing between the Grantor Frances Riddle and her husband. He also prepared a will disposing of Mrs. Riddle’s interest in the property. Both the grant deed and will were executed on December 8, 1975 and Mrs. Riddle died 20 days later.

Rule: 1) If one of the unities was destroyed, a tenancy in common remained. Severance of the joint tenancy extinguishes the principal feature of that estate, the Jus accrescendi or right of survivorship. This “right” is a mere expectancy that arises “only upon success in the ultimate gamble survival and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance. . ., by partition proceedings . . . , by involuntary alienation under an execution or by any other action which operates to sever the joint tenancy.; 2) an indisputable right of each joint tenant is the power to convey his or her separate estate by way of gift or otherwise without the knowledge or consent of the other joint tenant and to thereby terminate the joint tenancy.; 3) If a joint tenant conveys to a stranger and

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that person reconveys to the same tenant, then no revival of the joint tenancy occurs because the unities are destroyed. The former joint tenants become tenants in common.; 4) at common law, one could not create a joint tenancy in himself and another by a direct conveyance. It was necessary for joint tenants to acquire their interests at the same time and by the same conveyancing instrument unity of title. So in order to create a valid joint tenancy where one of the proposed joint tenants already owned an interest in the property, it was first necessary to convey the property to a disinterested third person, a strawman who then conveyed the title to the ultimate grantees as joint tenants. This remains the prevailing practice in some jurisdictions.; 5) Civil Code, CA – a joint tenancy conveyance may be made from a sole owner to himself and others or from joint owners to themselves and others as specified in the code.; 6) Clark v. Carter- considered the same question and found the strawmen to be indispensable 7) Under CA law, a transfer of property presupposes participation by at least two parties, namely a grantor and a grantee. Both are essential to the efficacy of a deed, and they cannot be the same person. A transfer of property requires that title be conveyed by one living person to another. Foreign authority also exists to the effect that a person cannot convey to himself alone, and if he does so, he still holds under the original title. Similarly, it was the common law rule that in every property conveyance there be a grantor, a grantee and a thing granted. Moreover, the grantor could not make himself the grantee by conveying an estate to himself.

Holding: it is apparent from the requirement of livery of seisin that one could not enfeoff onself—that is, one could not be both grantor and grantee in a single transaction. However, we discard the archaic rule that one cannot enfeoff oneself which if applied would defeat the clear intention of the grantor. There is no question but that the decedent here could have accomplished her object termination of the joint tenancy by one of a variety of circuitous processes. We reject the rationale of the clark case because it rests on a common law notion whose reason for existence vanished about the time that grant deeds and titles companies replaced colorful dirt clod ceremonies as the way to transfer title to real property. One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device. The judgment is reversed.

Partition: Any joint tenant or tenant in common can force a partition of the property, but a tenant by the entirety

cannot. Partition can be in kind or by sale. Partition in Kind:

Partition in kind is a physical division of the property. In the case of land, the former cotenants become neighbors. Instead of undivided ownership of the entire property, each cotenant now owns a separate parcel. Thus, it differs from severance in that severance does not alter undivided ownership but merely eliminates the element of survivorship. The parties remain cotenants after a severance, whereas there is no cotenancy after a partition. Partition in kind can occur by court action for partition or by voluntary cross-conveyance among the cotenants.

Partition in Sale: When physical partition will harm the property or cannot be done equally, a court will order that the

property be sold and that the sale proceeds be divided among the former cotenants.

Possession, Profits, and Expenditures: The one unity shared by all forms of cotenancy is the unity of possession. Each tenant has an equal

right to possess the whole property , and none is entitled to exclude the others or to claim sole possession of any part. When one cotenant does oust the tohers, the excluded tenants may bring an action of ejectment to recover possession. I fthey do not assert their possessory rights, they risk losing title by adverse possession.

Rents: Rents from Possessing Cotenant:

Because each cotenant is entitled to possess the entire property, the majority rule is that a tenant in sole possession is not liable to the nonpossessing cotenants for rent. The other cotenant’s failure to possess cannot render the possessor liable for what he or she has a right to do. The nonpossessing cotenant’s right is to share the possession and not to charge the possessing cotenant. However, if the possessor makes expenditures on the property and seeks contribution from the nonpossessors, the value of his possession may be allowed as an offset against the duty to

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contribute. Also, a cotenant who ousts the others is liable for rent in an ejectment action brought by the excluded cotenants to recover possession.

Rents and Profits form Third Parties: In many jurisidctions, a cotenant can lease his or her possessory interest to strangers. In those

jurisdictions, a lease signed by one cotenant conveys to the lessee whatever possessory rights that cotenant has. The other cotenants need not join in the execution of the lease. The lease entitles the lessee to take possession of ht eproperty subject to the restriction that the other cotenants cannot be excluded from possession. For his reason, the common law originally provided that the leasing cotenant was entitled to retain all rent paid by the lessee. However, the Statute of Anne compels the leasing cotenant to share rents and profits received from a third person with the other cotenants. Most states follow this statute.

o Ex: Ann and Bob are tenants in common or joint tenants. Ann was in exclusive possession, but recently she rented the property to Cathy for a rent of 1000 per year. Under the majority rule, Bob may not recover from Ann for the rent value of the property while she was in possession. However, Bob is entitled to 500 per year if the Statute of Ann is in force in the state. If it isn’t, Ann is entitled to keep all the rent.

Expenditures: Payment of Purchase Price:

When the cotenants made unequal contributions toward the purchase price, they may own correspondingly unequal shares of the property.

o Ex: Ann and Bob purchased property as tenants in common. Ann paid 20k of the price, and Bob paid 10K. A court may determine that Ann owns an undivided two-thirds interest and that Bob owns an undivided one-third interest.

o Ex: The same facts as a bove except that Ann and Bob took title as joint tenants. A court may not conclude that the taking of title in joint tenancy, with its attendant unity of interest, rquires that the parties be treated as equal one-half owners. The excess contribution made by Ann would then be treated as a gift or loan to Bob.

Necessary Payments: A cotenant who pays expenses that are necessary to preserve the title, such as for property taxes

and mortgage payments, generally can recover the other cotenant’s share of the expenses in an action for an accounting or in a partition suit. However, an action for contribution is available only if the nonpaying cotenant was personally liable for these expenses.

o Ex: Ann and Bob are cotenants and both are in possession of the property. Ann makes the entire payment of 500 for the annual property taxes, Ann can recover 250 from Bob by bringing an action for contribution. However, if the jurisdiction provides that the taxes are only a charge against the land and not against its owners, Ann does not have an action for contribution against Bob. But, in an action for an accounting for rents collected from the property or in a partition action, the court can offset the 250 from the amount that otherwise would be due to Bob. A court also may give Ann a lien on Bob’s interest in the property if the action for contribution is unavailable to her.

o Ex: Ann and Bob are cotenants but Ann is in sole possession. Ann makes the same property tax payment. In an action against Bob to recover half the payment, Bob may be permitted to offset the value of Ann’s sole possession.

Improvements: A cotenant who improves the property has an action for contribution against the other cotenants

only if they either agreed to be liable before the improvement was made or ratified the expense afterwards. The improver cannot force the cost of improvements onto an unwilling cotenant. The improver can claim the costs of improvement caused an increase in the rents. Unless the other cotenants pay their hare of the cost: 1) in a partition in kind, the improved part of the property may be awarded to the improver; and 2) in a partition by sale an increased share of the proceeds will be awarded to the improver to reflect the increase in the property’s value that resulted from the improvement.

o Ex: Ann and Bob own a two-acre parcel as cotenants. Ann built a house on the property at her sole expense. In a partition by kind, Ann should be awarded the acre containing the house, and Bob should get the unimproved acre.

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o Ex: Ann built a house at he rsole expense, which added 20k to the value of the property. If the value of the land alone is 10k and there is a partition sale for 30k, Ann should receive 25k of the proceeds and bob should receive 5k.

Repairs: Generally, no right of contribution for repairs exists unless the nonrepairing cotenant agreed to be

personally liable. However, adjustments may be made in partition or in an accounting action. Moreover, some jurisdictions provide an action for contribution if the repairs were necessary and the repairing cotenant gave reasonable advance notice to the others.

CAMP V. CAMP: Facts: In 1955 Robert Camp Jr, and appellee Tincy Camp his mother agreed to purchase a house and

lot located in the City of Richmond. The deed contained the consideration, the recital of payment of purchase money, and the granting clause as follows: “That for and in consideration of the sum of 10 dollars, receipt whereof is hereby acknowledge and other good and valuable consideration, the said parties of the first part do grant and convey with general warranty of title unto the said parties of the second part, as tenants in common with the right of survivorship as at common law. Robert Camp Jr., married appellant Hilda Camp in 1956. He died in 1966. Thereafter a dispute arose between the mother and the widow as to the ownership of the property in question. Mother told counsel, he said that her son was to buy the property for her and that the son wanted her to live there for the remainder of her life. The attorney stated the mother said the longer liver of the mother and son was to get all the property. Counsel testified he had never drawn a deed between tenants of entireties except when husband or wife were involved and because of this he consulted other attorneys about the problem and told him to use the phrase tenants in common.

Rule: ) The prime consideration as with any writing is to determine the intention of the parties executing the instrument. The intention, including a finding as to the estate conveyed should be ascertained from the language used in the deed, if possible.; 2) If the language is explicit and the intention is thereby free form doubt, such intention is controlling if not contrary to law or to public policy and auxiliary rules of construction should not be used.; 3) if on the other hand, the instrument I suncertain and ambiguous oral evidence may be received to show all the attendant circumstances existing at the time the deed executed, including the situation of the parties and their relationship. But parol contemporaneous evidence is in general inadmissible to contradict or vary the terms of a valid written instrument because the writing is the only outward and visible expression of the meaning of the parties, and to allow it to be varied or contradicted by verbal testimony of what passed at or before its making, would be to postpone the more certain and reliable mode of proof, to more precarious and less trustworthy; to prefer the less good to the best evidence.; 4) Where two clauses are irreconcilably repugnant in a deed, the first prevails. The foregoing rule is to be applied however only in the case of rigorous necessity and when the two clauses are absolutely incapable of reconciliation.

Holding: 1) Yet, as we have noted the terms of a valid deed may not be varied or contradicted by testimonial evidence of that which passed at or before its making. Consequently, the trial court should not have relied on the attorney’s statements dealing with the intention of the parties. Thus, we shall cast aside the evidence and examine the deed uncertain in meaning, in the light of the circumstances under which it was written.; 2) Language as to tenants in common is totally repugnant to the words with the right of survivorship as at common law. The two portions are absolutely incapable of being reconciled. Accordingly, we are left with no alternative but to hold, applying the foregoing rule of repugnant clauses to this situation, that the portion first appearing in the deed controls and that the mother and son were conveyed the property as tenants in common, not as joint tenants. The effect of this holding is, of course, to treat the latter portion of the disputed provision as surplusage. This is a case of “rigorous necessity.” In which the common-law rule must be applied if the deed is to have some effect rather than being a nullity.

Dissent: The language the majority considers surplusage is the very language that manifests the intent that

the part of the one dying should then belong to the survivor. Two parts of the phrase in dispute are reconcilable the rule of Mills v. Embrey designed for cases

involving two irreconcibly repugnant clauses does not apply. Analysis:

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NUMBER ONE rule of interpretation is what did the parties intend? They tried to prove intent by the attorney testifying about the intention of the parties and how he wrote the contract, tried to get it to work but screwed it up.

22 years later lawyer testimony is fuzzy, mom is the only one who can sue malpractice, use testimony against lawyer.

ARGUMENT FOR MOM: Looking at intent, at time of signing, son had no wife and because he didn’t have anyone else to pass it too, then joint tenancy should be given to my mom in case he dies.

Ignorance of the law is not proof of anything. ARGUMENT FOR WIFE AND CHILD, ambiguity does not overcome presumption of TENANCY IN

COMMON.

Four causes of action among cotenants: IN ORDER TO BRING THESE ACTIONS COTENANT MUST BE PERSONALLY LIABLE FIRST.

Action for accounting: where one cotenant has received more than her share of benefits. Action to get them to share.

o Ex: lets say you and your siblings inherit the family cabin, if you’re the only one using the cabin can your siblings make you pay rent. Are you liable to cotenants for rent? No because you have the right to possess. Others choose not to exercise their right to possess

o Ex: What you’ve inherited is apartment building, you’ve been living there and collecting rents for more parties, than you must split up the shares of the rent. Do you get an income because its above and beyond your share?—so action for contribution or restitution. CANNOT RECOVER BASED ON COMMON LAW. If you’re mowing the lawn than you’re an owner and making money than you’re protecting your own ownership rights. COMMON LAW RULE IS YOU’RE NOT ENTITLED TO COMPENSATION BC YOU’RE PROTECTING YOUR OWN INTEREST, MUST GET COTENANTS TO AGREE TO THE COMPENSATION FOR EXTRA WORK.

o Ex: what if you’ve been pumping oil or cutting trees, do you need to share? Yes because if youre doing something on property that decreases value of property then cotenants can bring action of waste or you’re required to share the profits. If you derive any profit from the property then you have to share the money.

Action for contribution: One cotenant has paid for more than her share of expenses, forcing others to chip in their expenses

o Ex: A person is liable for a contribution if they are personally liable. Person cant be sue unless they are personally liable. Can be successfully sued to collect it if personally liable.

o Ex: Must pay taxes for benefit of owning land. Its money the county uses for schools and roads. In some jurisdictions where you don’t pay, you can be sued by city. Personally liable for taxes. In other jurisdictions all the county can do is take your land. County cannot sue property owner, all they can do is sell the land so the property owner is not personally liable. If you live in a jurisdiction where county can go after property owners personally but you are the only one of your cotenants can you sue them for their property taxes? YES YOU DO, because they are EACH PERSONALLY LIABLE FOR PAYING THEIR PART OF THE TAXES. Where one pays the tax, give cotenants a reasonable time to ratify the action, term comes from law of principle and agency if the agent takes an action not delegated from principal, the principal can then to elect the action/ agree the action is binding on them as well. Give cotenants time to ratify the action by paying their portion of the tax and if they don’t they forfeit the property to you.

o Ex: Lets say A decides to build a swimming pool, it cost 10k, can A say to B your share is 5000k. Does B have to pay? Could be considered Waste because changing nature of property. B WOULDN’T HAVE TO PAY BECAUSE B IS NOT PERSONALLY LIABLE FOR THE SWIMMING POOL. But lets say now the land without pool is 100k, and land with pool is 115K. then if land sold, A would get 50% of original 100k and the additional 115, OR if B pitches in, split evenly among the two.

Action for Waste: one cotenant changes things to the property via damage or changes its use. Action for Partition: 2 types – 1) PARTITION IN KIND- where you physically divide up the property

and 2) PARTITION BY SALE- selling of the land and divide proceeds.

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Examples:Problems: Suppose O conveys land “to A, B, and C as tenancy in common.” What is the state of the title to the land in the following cases: A dies, devising her interest to the land to X. – X gets 1/3 as tenancy in common, x didn’t get

interest in property at the same time as B & C and cannot satisfy unities. If A’s will, instead left interest to 100, each still has a right to possess regardless of how small the whole is.

B conveys his interest to Y.- Still tenancy in common between X, Y and C. Problems: Suppose O conveys land “to A, B, and C as tenancy in common not in tenancy in common.” What is the state of the title to the land in the following cases: A dies, devising her interest to the land to X. – X gets no right because survivorship gives A’s

interest to B and C. B conveys his interest to Y.- Destruction of joint tenancy, Y becomes tenancy in common with A and

C, but A and C are still in joint tenancy together. Y is a tenancy in common because of lack of unities and not getting title and property together. Four unities still satisfied with A and C. If A dies, then survivorship goes to C.

B conveys his interest to A. –if B conveys to Y Removed from joint tenancy, so tenancy in common because time unity is off. So if B conveys to A, severed interest with respect to proportional interest so A is both tenancy in common and joint tenancy of each 1/3rd. When A dies, with tenancy of common will be passed devisees where s the joint tenancy will go to C. What is the relation between C and A’s heir? Tenancy in common, because they severed time and document. C owns 2/3rds A’s heir owns 1/3.

C leases her interest to Z for five years. SEVERANCE CAN OCCUR NOT ONLY BY TRANSFER OR CONVEYANCE, BUT ALSO BY LEASING. IF WE ARE IN A STATE THAT CONSIDERS LEASING AS SEVERING THEN THERE WOULD BE A JOINT TENANCY BETWEEN A & B but C’s interest would be a tenancy in common. If B dies before A dies, then A will acquire B’s 1/3.

A dies survived by H in a jurisdiction where the right to curtesy exists.—B & C still get survivorship rights, A’s spouse cannot claim marital interests.

B marries C. – If they marry it doesn’t change anything. Still joint tenants. A, B, and C agree to hold as tenants in common. – this would sever and all three agree to sever

the relationship and are now not joint tenants. O conveys to A and B, SPOUSES. – presumption is still tenancy in common unless stated explicitly

tenancy by its entirety. Some jurisdictions still recognizes this and any conveyance to spouses is by its entirety. For the purpose of doing our problem, lets assume tenancy by entirety, A transfers interest to X, who owns what interest in the property, nether can sever the tenancy by the entirety acting alone. NO individual ownership interest When A dies, then B gets the entire property.

REVERSIONS, REVERTERS AND POWERS OF TERMINATION: When owners of land convey or devise less than their entire ownership interest, they necessarily retain an

interest in the property conveyed or devised. In the ordinary case of creation of a life estate or a lease, this interest is a reversion. Where a determinable fee, it is a right of reverter. Where a fee simple upon condition subsequent, it is a right of entry for condition broken, also called a power of termination.

The rights retained by the grantor arise by implication of law, although it is common to state them expressly in a deed or will. This means that a grant from O “to A for life” creates a reversion in O, even if it is not mentioned in the grant. Similarly a grant from O “to A for life, remainder to B if B survives A” leaves a reversion in O, since B may not survive A. If O dies during the lifetime of A in the above examples, O’s heirs or devisees take the reversion in O’s place.

All three of these future interests are exempt from Rule against Perpetuities.

VILLAGE OF PEORIA HEIGHTS V. KEITHLEY, ILL. 1921:

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Facts: Gilbert was the owner of the major part of Seiberling’s addition. ON that date he conveyed by WARRANTY DEED to the village, lots 28 and 29 in block 6 of said addition, the expressed consideration being the sum of $600. The deed contained the following conditions: The consideration for this deed is that the village shall use the said lots for the purpose of a town hall and the location of the village water works and other village buildings of a public nature PROVIDED HOWEVER that the said village shall by ordinance provide that no saloon license for the sale of any intoxicating, malt, vinous, mixed or fermented liquors and no license for the keeping of dram-shops or saloons, shall ever be granted to operate within said Sieberlings…” No cash was paid by the village. Village has erected no buildings on the lots questions and has occasionally piled drain tile on the lots. Since the conveyance the village the lots have been listed as public property. December 20, 1910 Gilbert and wife by an unconditional form of Warranty Deed conveyed said property to appellant, Arthur Keithley. On March 1, 1920 Gilbert by quit-claim deed conveyed to the village all his present and future interests in said lots including all interest that he then had or could or might acquire through forfeiture or otherwise. IF BREACHED* PRESUMPTION IS SUBSEQUENT SO IT DOESN’T AUTOMATICALLY REVERT TO AVOID FORFEITURE. CONFLICTING LANGUAGE.

Rule: This conveyance clearly created in appellee an estate on condition subsequent. This being true, a breach of the condition can be taken advantage of only by the grantor or his heirs. His grantee, whether before or after the breach acquires no right to enforce a forfeiture. CANNOT CONVEY INTER VIVOS RIGHT OF RE-ENTRY/RIGHT OF TERMINATION.

Holding: Appellant acquired no title to or right or interest in that lots by the conveyance of December 20, 1910 and the court properly canceled the deed and removed it as a cloud upon appellee’s title.

Future Interests: Every estate in land is either present [entitling its owner to immediate possession of the land ] or future [Potentially entitling its owner to possession in the future]. There are FIVE FUTURE INTERESTS: 1) REVERSION, 2) POSSIBILITY OF REVERTER, 3) POWER OF TERMINATION- ALSO KNOWN AS RIGHT OF RE-ENTRY, 4) REMAINDER, AND 5) EXECUTORY INTEREST. To begin the process of distinguishing among them, look to the document that created the future interest. If the grantor retained the future interest, it must be a possibility of reverter, power of termination, or reversion. If the document that created the future interest conveys it to a grantee, it must be a remainder or executory interest.

Future Interests Retained By Grantor: Possibility of Reverter: If the grantor conveys a determinable estate, he retains a possibility of

reverter. A possibility of reverter always a determinable estate, and a determinable estate is always followed by a possibility of reverter. The possibility of reverter automatically terminates the determinable estate when the condition is breached.

o 1) Ann owned land in fee simple absolute. She conveyed it “to Bob and his heirs SO LONG AS the land is used as a farm.” Bob has a fee simple determinable, and Ann has a possibility of reverter. Ann will get the land back automatically when it is no longer used as a farm. If Ann transfers her interest to Cathy, the interest is still a possibility of reverter though someone other than the grantor now owns it.

o 2) Ann owned land in fee simple absolute. She conveyed it “to Bob for life so long as the land is used as a farm.” Bob has a determinable life estate, and Ann has a possibility of reverter that will become possessory when the condition is breached. Ann also has a reversion that will become possessory at Bob’s death if the condition was not breached.

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o 3) Ann owned land in fee simple absolute. She conveyed it “to Bob for ten years so long as the land is used as a farm.” Bob has a determinable term for years, and Ann has a possibility o freverter and a reversion.

Power of Termination (ALSO CALLED RIGHT OF RE-ENTRY): If a grantor conveys an estate subject to condition subsequent, he retains a power of termination. The estate subject to condition subsequent and the power of termination always go together. The owner of a power of termination can recover the land if the condition subsequent is breached. However, the owner may elect not to exercise it and thereby waive it. Until the power of termination is exercised the grantee retains his estate. 1) Ann owned land in fee simple absolute. She conveyed it “to Bob for life, but if liquor is ever sold

on the land, the grantor may re-enter and repossess.” Bob has a life estate subject to condition subsequent. Ann has both a reversion (when Bob dies) and a power of termination (if liquor is sold on the land).

2) Ann owned land in fee simple absolute. She conveyed it “to Bob for ten years, but if liquor is ever sold on the land, the grantor may re-enter and repossess.” Bob has a term for years subject to a condition subsequent and Ann has a reversion and a power of termination.

Reversion: If a grantor’s future interest is neither a possibility of reverter nor a power of termination, it is a reversion. It exists when the grantor has not conveyed all her interest in the land. When determining whether a reversion exists, it is important to remember that a contingent remainder is not a property interest. Assume that Ann, the grantor had fee simple absolute title before the conveyance: 1) Ann conveys “to Bob for life.” Ann has a reversion following Bob’s life estate. If Ann conveys the

reversion to Cathy, it is called a reversion. 2) Ann conveyed “to Bob for life, remainder to Cathy.” Ann does not have a reversion because she

has conveyed her entitle title. After Bob’s life estate terminates, Cathy will have fee simple absolute title.

3) Ann conveyed “to Bob for life, then to Cathy if she survives Bob, otherwise to Dan.” Ann has a reversion because Cathy and Dan have only contingent remainders, which are not property interests. When Bob dies, either Cathy or Dan will get fee simple absolute title, but Ann still has a reversion while the life estate continues.

Future Interests Created In a Grantee: If the document that creates a future interest conveys it to a grantee, rather than retaining it for the grantor, the future interest is either a remainder or an executory limitation. Remainder v. Executory Interest: For a future interest to be a reaminder, it must satisfy both

elements of a two-part test: 1) the interest must be capable of becoming possessory as soon as the prior possessory estate terminates; and 2) it cannot divest a prior interest. If either element of the test si violated the future interest is an executory interest. Capable of Becoming Immediately Possessory: To satisfy this element, the future interest

does not have to become actually possessory. The only requirement is that, if the future interest does become possessory, it will do so as soon as the prior possessory terminates.

o 1) “To Ann for life, remainder to Bob.” Bob’s interest will become possessory as soon as Ann’s life estate terminates. If Bob predeceases Ann, his remainder will pass to his heirs or devisees, and they can take possession as soon as the life estate terminates.

o 2) “To Ann for life, then to bob if he survives Ann, otherwise to Cathy.” Bob and Cathy both have remainders though only one of them will get possession. Wwhen Ann’s life estate ends, either Bob’s or Cathy’s interest will become possessory immediately.

o 3) “To Ann for life, then to Bob six months after her death.” Bob’s interest cannot become possessory as soon as Ann’s life estate ends. Therefore, he has an executory interest.

Cannot Divest Prior Interest: A property interest is divested if it is terminated by the occurrence of a condition.

o 1) “To Ann, but when the land is no longer used as a park, to Bob.” Ann’s interest in the land can continue potentially forever. However, when the land is no longer used as a park, Bob will get possession. Even if bob played no part in terminating the land’s use as a park, his interest is treated as diverting Ann’s interest. Therefore, bob has an executory interest.

o 2) “To Ann for life, then to Bob, but if Bob marries, then to Cathy.” While Ann is alive and Bob is unmarried, Bob has a future interest. Bob’s interest is a vested remainder subject to condition subsequent. If Bob marries, the vested remainder is terminated. Because Cathy,

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rather than Bob, will get possession of the land at Ann’s death, Cathy has divested Bob and therefore has an executory interest.

o 3) “To Ann when she turns 21.” If Ann is 19, the grantor’s estate is a fee simple estate because it can last forever if Ann dies before turning 21. However, the fee simple estate will be terminated if and when Ann turns 21, and Ann will get possession. In that case, Ann will divest , the grantor and therefore has an executory interest.

Types of remainders: After a future interest has been classified as a remainder, the next step is to determine the type of remainder that it is. Four types of remainders exist: 1) INDEFEASIBLY VESTED REMAINDER, 2) VESTED REMAINDER SUBJECT TO OPEN, 3) VESTED REMAINDER SUBJECT TO CONDITION SUBSEQUENT ALSO KNOWN AS VESTED REMAINDER SUBJECT TO TOTAL DIVESTITURE AND 4) CONTINGENT REMAINDER ALSO KNOWN AS REMAINDER SUBJECT TO CONDITION PRECEDNET. Indefeasibly Vested Remainder: To be indefeasibly vested, a remainder cannot be subject to a

condition, and all its holders must be ascertainable.o 1) “To Ann for life, then to Bob.” While Ann is alive, Bob’s interest is an indefeasibly vested

remainder. It is a remainder because it will become possessory as soon as Ann’s life estate terminates and because it will not divest her. It is indefeasibly vested because it is not subject to a condition and because Bob is an ascertained person.

o 2) “To Ann for life, then to Bob for life.” Bob as an indefeasibly vested remainder. Although Bob’s interest will become possessory only if he survives Ann, his reaminder is not classified as being subject to a condition. Living long enough to get possession is an inherent feature of a life estate rather than a condition.

Vested Reminader Subject to Open – Also known as Vested Remainder Subject to Partial Divestiture: When a remainder is conveyed to a class of people such as “Bob’s children,” it is vested subject to open if at least one class member is ascertainable and if more members may be added ot the class.

o 1) “To Ann for life, then to Bob’s children.” If Bob has a child, Cathy the remainder can vest in her because she is an ascertained person. Because Bob can have more children, Cathy’s vested reaminder is subject to open. When bob has another child, Dan, Cathy andDan each has a vested remainder subject to open. When Bob dies no more class members can be born, so cathy and dan then will have indefeasibly vested remainders. On the other hand, if Bob does not have a child, the remainder cannot vest in anyone and therefore is a contingent remainder which is the mere possibility of a vested property interest.

Vested Remainder Subject to Condition Subsequent –Also known as vested remainder subject to Total Divestiture: If a remainder is subject to a condition, the condition must be classified as either a condition subsequent or a condition precedent. The distinction is important because the grant of a vested remainder subject to condition subsequent gives the grantee title to a future interest, though that title will be divested if the condition subsequently occurs. In contrast, the grantee of a remainder that is subject to a condition precedent also known as a contingent remainder does not have any title until the condition occurs. A condition is subsequent if it is in a separate clause that follows the words of conveyance to the grantee.

o 1) “To Ann for life, then to Bob, but if Bob marries, to Cathy.” Bob has a vested remainder subject to condition subsequent because the condition “but if Bob marries” follows the words of conveyance “to bob” and is in a separate clause from the words of conveyance i.e. is separated from the words of conveyance by a comma. Cathy has an executory interest because Bob’s vested remainder will be divested if he marries.

Contingent Remainder – Also known as Remainder Subject to Condition Precedent: A contingent remainder occurs when 1) a remainder is subject to a condition precedent or 2) it is conveyed to an unborn or otherwise unascertainable person. A condition on a remainder is precedent if it is in the same clause as the words of conveyance or if it is in a separate clause that precedes the words of conveyance. If two contingent remainders are based on the same condition, they are “alternative contingent remainders.”

o 1) “To Ann for life, then to Bob if he survives Ann.” Bob has a contingent remainder because the condition “if he survives Ann” is in the same clause of the words of conveyance “To Bob.”

o 2) “To Ann for life; if Bob survives Ann, then to Bob.” Bob has a contingent remainder because the condition is in a caluse that precedes the clause with the words of conveyance.

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o 3) “To Ann for life, then to Bob if he survives Ann, otherwise to Cathy.” Bob and Cathy have alternative contingent remainders because they are based on the same condition, either Bob or Cathy will get possession when Ann dies. Unlike the Illustration for a vested remainder subject to condition subsequent, Cathy does not have an executory interest because Bob will not be divested if he dies before Ann. As the holder of a contingent remainder, Bob does not have a property interest. He has only the possibility of a property interest.

o 4) “To Ann for life, then to her heirs.” While Ann is alive, her heirs have a contingent remainder because they cannot be ascertained-The living have no heirs.

o 5) “To Ann for life, then to Bob’s children.” If Bob does not have a child, the future interest following the life estate is a contingent remainder. A property interest can vest only in a living and identifiable person. When Bob has a child, the future interest will become a vested reaminder subject to open.

Types of Executory Interests: Two types of executory interest exists—springing and shifting. If the grantor had possession of the property immediately before the executory interest became possessory, it is springing. If someone other than the grantor had possession immediately before the executory interest became possessory, it is shifting. 1) “To Ann when she is 21.” If Ann is 19, the grantor has a fee simple subject to executory limitation.

Ann has a springing executory interest. 2) “To Ann for son long as the land is used as a park, then to Bob.” Ann has a fee simple subject to

executory limitation, and Bob has a shifting executory interest.

Transferability of Interests: Vested interests generally were transferable at common law. The holder of a possessory estate, a vested remainder or a reversion could convey it inter vivos and could devise it. When a future interest was conveyed at early common law, the consent of the holder of the present possessory estate often was required. Today, attornment generally is not required. Partly because of their similarity to choses in action, non-vested future interests were initially not transferable or otherwise alienable at common law except to the owner of the possessory estate or to a vested remainder holder. Thus, a contingent remainder of power of termination could not be conveyed or devised. In the case of the power of termination an attempted conveyance not only was ineffective, but also destroyed the power in many jurisdictions. Some states also prohibit an inter vivos conveyance of a possibility of a reverter. Inheritability of Interests- Intestate Succession: Any estate greater than a life estate was

inheritable unless the terms of the contingency made inheritability impossible, such as a contingency requiring a timely marriage by the remainder holder. 1) Ann conveyed “to Bob for life.” Ann died intestate while Bob was still alive. Her reversion

descended to her heirs. On Bob’s death, Ann’s heirs will have possession of the property. 2) Ann conveyed “to Bob for life, remainder to Cathy and her heirs.” Cathy died intestate while Bob

was still alive. Cathy’s vested remainder descended to her heirs at her death. When Bob dies, her heirs will have the fee simple absolute.

3) Ann conveyed “to Bob and the heirs of his body, then to Cathy and her heirs.” Cathy died before Bob’s family line ended. Cathy’s heirs will have the fee simple absolute whenever Bob’s family line ends.

Rules Regulating Early Common Law Estates: Historical: As you will see, many of them use the word “seisin.” The meaning of “seisin” evolved

during the earliest centuries of the common law. Very generally speaking, however, it is equivalent to our modern conception of ownership.

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Remainders and Executory Interests 253-54; 257-62

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Legal Interests in Land: Seisin can never be in Abeyance:

Someone always must be seised of the land. Seisin Passes out of the Grantor Only by Livery:

Livery was necessary for a grantor to transfer seisin. To perform a livery of seisin, the grantor and grantee would go to the land to be transferred, and the grantor FEOFFOR would hand a clod of dirt or other part of the land to the grantee FEOFFEE. This ceremony was called a feoffment. It immediately transferred seisin to the feofee without the necessity for a writing.

Seisin sometimes could go from one grantee to another rwithotu livery. When sesin was not involved, as in the case of an estate for years or other nonfreehold estate, feoffment was not required. Similarly, the transfer of a nonpossessory future interest did not require a feooffment.

No Springing Interests (No Freehold to Commence in Future) Because seisin can pass from a grantor to a grantee only by livery a grantor cannot give a grantee

a freehold estate to begin in the future unless it is supported by some present estate in a third person. Either the grantee gets the sesin by livery now in which event he has a present estate, or he must get seisin from the grantor at a later time, in which case the livery of seisin will have to be made then.

o Ex: Ann conveys “to Bob and his heirs one year from now.” Bob has nothing. Ann must have the seisin for this year, or it would be in abeyance. Bob can get seisin only if Ann makes a livery next year. If bob did have an interest no, it would require that an estate spring out of Ann’s estate next year. The rule against springing interests prevented this from happening.

Remainder Cannot Spring:o Ex: Ann conveys “to myself for life, and then to Bob and his heirs.” The gift to Bob is invalid.

As a remainder, it would have to spring, which is not allowed. For bob to take, ann must make livery of seisin to bob, which cannot be done now because Ann wants a presently possessory life estate. Ann cannot make livery when her life estate terminates because she will be dead.

o Ex: Ann conveyed “to Bob for life, and one year later to Cathy and her heirs.” The gift to Cathy fails. Bob received Seisin, but it will revert to Ann upon his death because Cathy is not to be seised until a year later and siesin cannot be in abeyance. Seisin in Ann the grantor can be transferred to Cathy only by livery, which clearly cannot be done now. If Cathy’s remainder became possessory, it would have to spring out of Ann’s reversion without a livery. But a remainder cannot spring, and so Cathy gets nothing.

Remainder must be Created in same Document as Estate Supporting it:o The holder of a possessory estate is deemed to accept seisin for both herself and for any

remainder holder. Therefore, when the first estate terminates, seisin goes directly to the remainder holder without reverting back to the grantor. However, for this theory to work, the remainder must be given in the same instrument as the prior possessory estate.

Ex: Ann conveyed “to Bob for life and then to Cathy and her heirs.” Cathy’s vested remainder in fee simple is valid. Seisin passed immediately from Ann to Bob, who holds it both for himself and for Cathy. When Bob dies, seisin will pass to Cathy from him. Because the grantor is no longer involved, seisin may pass at a later time without livery. The rule barring transfers of seisin without livery refers only to transfers from the grantor. Bob is not a grantor in relation to Cathy.

Ex: Ann conveyed “to Bob for life” in one document and “to cathy and her heirs when Bob dies” in another document. Cathy’s interest is invalid, because it would be a springing remainder. Bob cannot be said to hold seisin for Cathy, because she was not a grantee in conveyance to Bob. So Cathy must get seisin from Ann, if from anyone. But that would involve a transfer of seisin from the grantor in the future without livery which is impossible. To avoid this problem, Ann could have transferred her reversion to Cathy by deed of grant, which would make Cathy a reversioner, rather than a remainder holder.

o Application to Nonfreeholds: The Rule that remainders must be created in the same document applies whether

the supporting estate is a freehold or a nonfreehold.

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Ex: Ann conveys “to Bob for ten years, and then to Cathy and her heirs.” Cathy has a valid estate. Livery of seisin can be made presently either directly to Cathy, because Bob’s nonfreehold estate does not give him seisin or to Bob as Cathy’s agent. In this case, characterizing Cathy’s estate as a remainder in fee simple after Bob’s term is permissible, but it was more descriptive and accurate at common law to say that Cathy had fee simple subject to Bob’s term, thereby indicating that Cathy has seisin.

No contingent Remainder after Term of Years:o Ex: Ann conveys “to Bob for ten years, and then to Cathy’s heirs.” If Cathy is alive when the

conveyance is made, the gift to he rheirs fails because it is a gift of a contingent remainder unascertained takers. An unascertained taker cannot be seised, and , therefore, Bob cannot hold seisin for himself because he has a nonfreehold estate. Therefore, seisin remains in Ann. For Cathy’s heirs to take, they would have to receive seisin from Ann even if they can be ascertained before Bob’s death. The heirs would take by a springing remainder if they took. Therefore, no contingent remainder can be supported by a term of years is another way of saying “no springing remainders.”

No Shifting Interests—No Condition in a Stranger: Ex: Ann conveyed “to Bob and his heirs, but if Bob ever sells liquor on the land, then to Cathy and her

heirs.” At early common law, Cathy’s estate would fail, because she cannot get seisin. Bob cannot hold seisin for Cathy, because Cathy does not have a remainder. The holder of a present estate can accept seisin for himself and for his remainder holders because a remainder does not become possessory until the prior estate naturally terminates. But in this case, Cathy’s interest will divest Bob’s interest. Therefore, seisin cannot pass from Bob to Cathy. When Bob’s estate ends, seisin must revert to Ann. If it then automatically transferred to Cathy, it would be an impermissible springing interest. Thus, there can be “no condition in a stranger.”

Equitable Interests in Land—Uses: Because seisin passed only by livery at common law, the grantee would have no legally recognized

interest in the land unless livery was made directly to him or to his agent. However, the court of equity recognized certain situations in which a person acquired the land though seisin had not been transferred to him by livery.

Equitable Conveyances: Certain conveyancing methods enabled the court of equity to treat a person as having a use (an

equity) of the land, even though seisin was in someone else.o Conveyance for Use:

Ex: Ann conveyed by livery “To Bob and his heirs for the use of Cathy and her heirs.” Although Bob is seised, equity would regard Cathy as having the use of the land in fee simple, even though she does not have legal title. Equity would compel Bob to put the land to Cathy’s use. Today, this document would be construed as a conveyance to Bob in trust for Cathy.

o Covenant to Stand Seised: Ex: Ann covenanted “to stand seised to the use of my brother, Bob, and his heirs.”

Without livery, Bob does not have seisin. However, equity would give Bob the use in fee simple because a covenant was made and because Bob, the cetui que use (i.e. the beneficiary is a relative.

o Bargain and Sale Deed: Ex: Ann gave a bargain and sale deed to Bob and his heirs. The deed recited a

valuable consideration, which creates a conclusive presumption. Without livery, Bob does not have seisin. But because consideration was given, Bob is the equitable owner and has a use in fee simple.

o Resulting Use: Ex: Ann conveyed by livery to Bob, but Bob gave no consideration. Although Bob has

seisin, equity creates a resulting use for Ann because of the absence of consideration.

Uses Compared to Common Law Estates:

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Uses can be possessory or nonpossessory (future interests). They can be a life estate, fee tail, fee simple, reversion, or vested or contingent remainder. All the legal rules relating to remainders apply to equitable remainders. Ex: Ann conveyed “to Bob and his heirs for the use of Cathy for life, and then for the use of Don

and his heirs if Don survives Cathy, or if Don does not survive Cathy, then to the use of Eve and her heirs.” Bob has the legal fee simple. Cathy has an equitable life estate. Don and Eve have alternative equitable contingent remainders in fee simple absolute. Because no vested remainder in fee simple absolute has been given, Ann has an equitable reversion in fee simple absolute and may take possession if both contingent remainders are destroyed. This is the way the estate would look at common law without the uses.

New Equitable Estates (Executory Interests): Considerations of seisin prevented remainders from springing or shifting as a matter of law. But

because seisin is in someone else when a use is involved, no reason exists in equity to bar springing and shifting uses. Therefore, equity recognized these interest which were called executory limitations. Springing Use:

o A springing use springs out of the grantor’s estate in the future. Ex: Ann bargains and sells “to Bob for life and, one year after Bob’s death, to Cathy

and her heirs.” Cathy’s interest cannot be a remainder, because it will not become possessory immediately upon termination of Bob’s life estate. The interest springs out of the grantor’s interest one year after Bob’s life estate ends. Therefore, Bob has a life estate, Ann has a reversion in fee simple subject to executory limitation. All these estates are equitable because Ann has legal title.

Ex: Ann bargains and sells “to Bob for ten years and then to Cathy’s heir.” Cathy is alive. The gift to her heirs is an executory limitation. It cannot be a remainder, because it would be a contingent remainder, which cannot be supported by a term of years. Therefore, Bob has a term for years, and Ann has fee simple subject to Bob’s term and subject to a springing executory limitation in fee simple absolute in Cathy’s heirs. All these estates are equitable. Ann has legal title.

Shifting Use: o A shifting use shifts possession from one grantee to another grantee. The second grantee

has an executory interest, because it divests the first grantee’s interest when the shift occurs.

Ex: Ann bargains and sells “to Bob and his heirs, but if liquor is ever sold on the land, then to Cathy and her heirs.” Cathy has a shifting executory limitation because, if liquor is sold on the land, possession shifts from Bob to Cathy. Cathy’s interest is characterized as “divesting” Bob’s interest even though she had nothing to do with liquor being sold on the land. Therefore, Bob has fee simple subject to executory interest, and Cathy has a shifting executory limitation in fee simple. Both estates are equitable. Ann has legal title.

Ex: Ann bargains and sells “to Bob for life and then to Cathy and her heirs.” Cathy has a remainder and not an executory interest. A remainder can become possessory immediately upon the natural termination of the prior estate and not sooner or later. In contrast, an executory interest always takes either before the prior estate naturally would terminate shifting interest or remotely after it terminates springing interest. In this illustration, Cathy’s interest becomes possessory immediately upon the natural termination of Bob’s life estate, so it is a remainder, just as it would be if there had been a common law livery to Bob. However, because there was no livery, it is an equitable remainder.

Indestructability of Executory Interests: The doctrine of destructibility of contingent remainders was a corollary of the rule against springing

remainders. But because uses can spring, executory interests are indestructible. Ex: Ann bargains and sells “to Bob for ten years and then to Cathy’s heirs.” The executory interest

in Cathy’s heirs is indestructible. Therefore, it will continue in existence even if Bob predeceases Cathy. Therefore, Bob has a term for years, Ann has a reversion in fee simple subject to executory

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interest, and Cathy’s heirs have a springing executory interest in fee simple absolute. All these interests are equitable fee simple. If Cathy predeceases Bob, her heirs will have fee simple subject to Bob’s term. If Bob predeceases Cathy, Ann’s reversion becomes possessory until Cathy dies.

Ex: Ann bargains and sells “to Bob for life, and then to Cathy and her heirs if Cathy is 21.” Bob dies before Cathy is 21. Cathy has nothing because her interest was an equitable contingent remainder and nto an executory interest. Contingent remainders are destructible even in equity. This remainder was destroyed by its failure to vest when the life estate terminated. Note: The great majority of jurisdictions have abolished the doctrine of destructibility of contingent remainders.

Statute of Uses (1536): The statute of uses provided in part: “Where any person be siesed of lands to the use or trust of any

other person, such person that shall have the use or trust in fee simple, fee-tail for term of life or for years, shall from henceforth be deemed in lawful seisin and possession in such like estates as he had in use or trust.” In other words, the statute “executed” uses by transferring seisin from the trustee to the cestui (beneficiary). Ex: Ann made livery “to Bob and his heirs for the use of Cathy and her heirs.” By its terms, this

conveyance gave seisin to Bob for the use of Cathy. Despite this language, the statute executes the sue and gives seisin to Bob for the use and gives seisin to Cathy. Instead of Bob having legal fee simple and Cathy having equitable fee simple, Cathy has legal fee simple.

Ex: Ann bargains and sells “to Bob and his heirs.” Before the statute, Ann retained the legal fee simple, and Bob had the equitable fee simple. Now, Bob has legal fee simple.

Ex: Ann made livery “to Bob and his heirs for the use of Cathy for ten years.” Cathy’s equitable use for a term becomes a legal term for years. The statute does not require that the cestui have a freehold. Ann has a resulting use for the reversion following the term unless Bob gave consideration. If Ann had a resulting use, the statute would execute it and give her the legal fee simple subject to Cathy’s term.

Ex: Ann conveys “to Bob for 10 years for the use of Cathy for ten years.” The statute does not apply because Bob is not seised to the use of Cathy. The trustee must have a freehold estate, even though the cestui need not.

Statutes effect on Future Interests: Executory Interests:

o After the statute of uses, springing and shifting uses became valid legal interests. However, the springing and shifting executory interest became legally valid only when the would have been a valid equitable use before the statute.

Ex: Ann bargains and sells “to Bob for life and, one ear after his death, to Cathy and her heirs.” As a result of the statute, bob has a legal life estate, Ann has a legal reversion subject to a springing executory interest, and Cathy has a springing executory interest in fee simple absolute.

Ex: Ann bargains and sells “to Bob and his heirs but if liquor is ever sold on the land, then to Cathy and her heirs.” After the statute, bob has legal fee simple subject to shifting executory interest, and Cathy has a shifting executory interest in fee simple absolute. Ann has nothing.

Ex: Ann made livery “to Bob for life and one year after his death, to Cathy and her heirs.” Cathy’s interest fails even after the Statute of Uses because it would have been a springing remainder at common law. This arrangement would work if done by a bargain and sale deed because the deed would create a valid equitable use, which the Statute then could execute into a valid legal executory interest. But here the livery created no equitable use, so there is nothing to execute, and the Statute has no effect. If an equitable conveyance created a valid use before the Staute, the same conveyance will create a valid use before the statute, the same conveyance will create a valid legal interest after the statute. But if a legal conveyance could not create a valid future interest before the statute, the same legal conveyance is still ineffective after the statute.

Contingent Remainders:o Contingent remainders are unaffected by the Statute. Therefore, they are still destructible in

jurisdictions that apply the doctrine of destructibility.

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Ex: Ann bargains and sells “to Bob for life, and then to Cathy is 21. Cathy has nothing. Her equitable contingent remainder is executed by the Statute into a legal contingent remainder. But the Statute does not make it indestructible, because it is still a remainder and is governed by the rules for remainders.

Remainder or Executory Interest?o AN executory interest exists only where a remainder is impossible. Therefore, whenever an

interest is limited so that it can take effect as a remainder, even though it also could take effect as an executory interest . This is the rule of Purefoy v. Rogers.

Ex: Ann bargains and sells “to Bob for life, and then to Cathy and her heirs if Cathy reaches 21.” If Cathy becomes 21 after bob dies, Cathy would take by way of springing executory interest from Ann. But if Cathy becomes 21 before Bob dies, she would take by way of remainder when his estate terminates. Because the interest can operate as a remainder and not as an executory interest. Thus it is destructible. If Cathy is not 21 before Bob dies, her interest fails under the doctrine of destructibility.

Ex: Ann bargains and sells “to Bob for life, and then to his first daughter who becomes 21.” This future interest can take effect either as a remainder for the first daughter who is over 21 when Bob dies or as an executory interest where no daughter becomes 21 until after Bob dies. Therefore the interest will be treated as a remainder. Unless bob has a daughter over 21 when he dies the remainder will fail.

Ex: Ann bargains and sells “to Bob for life, remainder to his first son over 21 at Bob’s death, or if there is no son over 21 at Bob’s death, then to the first son who becomes 21 after Bob’s death.” Rather than making a gift of one interest that can take effect either as a remainder or as an executory interest, the grantor has separated it into two different interests. There is a gift of a remainder to any adult son and a gift of an executory interest to any minor son. Because the executory interest in this case cannot possibly take by way of remainder ( a gift to a minor that will become possessory only when he reaches majority must be a springing interest) it is indestructible.

Unexecuted Uses: The statute of Uses does not transform every use into a legal estate. Some uses remain uses.

Active Trust:o Whenever the person seised to the use of some beneficiary (cestui que use) has any active

duties regarding the land, the use is not executed. The grantee retains the legal title, just as the modern trustee does.

Use on a Use:o Before the Statute of Uses, a use on a use (e.g., a conveyance “to Bob for the use of Cathy

for the use of Don”) was void. The use to Don was void because it was repugnant to Cathy’s use. However, shortly after the Statute, the use on a use was declared to be valid and was treated as an unexecuted use. The first use was executed, so that the first cestui got the legal title. But the second cestui kept the equitable title because a second execution did not occur.

Ex: Ann made livery “to Bob for the use of Cathy for the use of Don.” The statute executes the use to Cathy and gives her legal title. But it does not execute the use to Don. Therefore, Don has equitable title, and Cathy has legal title.

Ex: Ann bargains and sells “to Bob for the use of Cathy.” The bargain and sale gives Bob only a use. But the statute executes it and gives Bob legal title. No second execution occurs. Therefore, bob has legal title for the use of Cathy.

Ex: Ann made livery “to Bob to his own use to the use of Cathy.” The first use to Bob is executed but not the second use to Cathy. This is the use in Doe v. Passingham.

Ex: Ann made livery “to Bob and his heirs, for the use of Cathy for life, and then for the use of Don and his heirs.” Both Cathy’s and Don’s uses are executed and both have legal estates. Don has a use after a use but not a use on a use, because Cathy’s use is not for the use of Don.

Uses and Seisin:

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o Whether a use is executed is important when ascertaining whether a holder has seisin, as in the case of dower. A widow has dower only in estates of which her husband was seised.

Ex: Ann made livery “to Bob for the use of Carl and his heirs.” Because the statute gives Carl a legal estate and therefore, seisin, Carl’s widow will have dower.

Ex: Ann made livery “to Bob for the use of Carl for the use of Don.” Because Don’s use is not executed, Don does not have seisin and Don’s widow will not have dower.

Landlord and Tenant: Types and Creation of Tenancies: The parties to a lease are the landlord and the tenant, also known as the lessor and lessee. The tenant

usually pays for his right to possess the property in the form of rent. In this section “Lil” will be the landlord in the illustrations and will be referred to by feminne pronouns in the text. “Tom” will be the tenant and will be referred to with masculine pronouns in the text.

o Ex: Lil who owns a building in fee simple absolute, leases it to Tom for a period of five years. During the lease term, Tom has the exclusive right to possess the building and many o fthe other normal incidents of ownership. Unless the lease provides otherwise, he may decide what to do on the premises, such as whether to permit others to enter and whether to repair or improve it. At the end of the lease, possession and control of the building revert back to Lil. During the five-year period, Lil has a reversion or she may be regarded as having the fee title subject to a five-year leasehold. In this case, Tom and Lil are not neighbors, as would result from a physical division of the building, nor cotenants as would result form a division of the present interest nor dominant and servient tenants relating to an easement as would result form a division of permitted uses on the property. The land-lord tenant relationship divides ownership differently than those other relationships.

Our legal system recognizes four different types of tenancies: 1) tenancy for a term, 2) periodic tenancy; 3) tenancy at will, and 4) tenancy at sufferance. The distinctions among them relate primarily to the methods of their creation and termination.

Tenancy for a Term: A tenancy for a term also known as a tenancy for years is created when the landlord and tenant agree

that the tenant will hold the property for a fixed period of time and for no longer .Despite its name, a tenancy for years can have a term of less than one year, such as one month. Whatever time period is specified at the expiration of the lease term, the tenancy automatically terminates unless a new lease is executed. Depending on the jurisdiction the SOF may require any tenancy fo r aterm to be in writing or only any tenancy for a term that is longer than a specified period, such as one year or three years.

Periodic Tenancy: The tenancy from period to period or periodic tenancy is created when the landlord and tenant agree

the tenant will pay a periodic rent, such as weekly, monthly, or annually but do not specify a termination date for the tenancy. The tenancy automatically renews for an additional period unless either party gives timely notice of intent to terminate it. State law specifies how far in advance notice must be given. A periodic tenancy can be created expressly or impliedly by the regular payment of rent.

Implied Periodic Tenancies:

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Landlord-Tenant Law 301-04; 315-29; 335-76; 381-83; 401-07; 412-20; 437-38 n. 3

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Since a periodic tenancy requires only the payment of a regular rent without an agreement as to termination date, this tenancy can be created by the parties’ actions without an express agreement.

o Ex: Lil and tom drafted a five-year lease that required annual rent payments. However, they did not sign the lease. Because the SOF requires that a lease for this term be signed, it is invalid and Tom does not have a fixed five-year term. But if Tom takes possession and pays Lil the annual rent, Tom has a periodic tenancy from year-to-year.

o Ex: Lil and Tom executed a one-year lease that specified an annual rent. Tom took possession and paid the rent. He held over after the year ended and made another annual rent payment to Lil, which she accepted. Tom now may be a periodic tenant from year to year because there is a regular rent and no agreement as to a termination date.

Length of the Period: In most jurisdictions, the period is measured according to the specified rent interval. A weekly rent

creates a tenancy from week to week, a montly rent creates a tenancy from month to mont and an annual rent creates a tenancy form year to year. The period can be based on how the rent is calculated rather than on how it is paid. Thus, a stated rent o f1200 per year, payble 100 per month, generally is held to create a tenancy from year to year rather than month to month.

Tenancy at Will: This tenancy is created whenever a landowner permits another person to possess the property without

any agreement between them as to a termination date or as to the payment of rent. In most states, as soon as the tenant begins to pay rent on a regular basis, the tenancy at will becomes a periodic tenancy. However, a tenancy at will can be created expressly.

Implied Tenancies at will: Because the essence of this estate is simply that the landlord has not objected to the tenant’s

possession, this estate may arise in a number of ways.o Ex: Lil and tom prepared a five-year lease but did nto sign it, as required by the SOF. If Tom

takes possession, he is a tenant at will. As soon as he begins paying rent on a regular basis, the tenancy at will becomes a periodic tenancy.

o Ex: Owen conveyed property to Ann by a void deed, and Ann took possession. Because the deed failed to transfer title, Owen still owns the property. Ann’s possession under the void deed makes her a tenant at will.

o Ex: Lil and Tom entered into a valid tenancy for a term. At the end of the term, Tom asks Lil’s permission to hold over for two additional days. If Lil consents, Tom is a tenant at will for those two days.

Tenancy at Sufferance: A person becomes a tenant at sufferance by holding over after the expiration of his tenancy without

the landlord’s consent. The tenancy at sufferance can arise after the termination of any of the other types of tenancy. Because the tenant does not have the legal right to remain in possession, he could be characterized as a trespasser. However, if he is a trespasser, the SOL begins to run on the owner’s action to recover possession. Her failure et orbing suit within the limitations period could cause her to lose title to the property by the former tenant’s adverse possession. To avoid this result, the former tenant is characterized as a tenant at sufferance, rather than as a trespasser. Ex: Tom’s lease expired on January 1. On January 2, Tom is still in possession without Lil’s consent.

He is a tenant at sufferance. Ex: Tom was a month to month tenant. Lil gave proper notice to terminate his tenancy at the end

of the month. If Tom is still in possession when the next month begins he is a tenant at sufferance. Ex: Tom was a tenant at will, but Lil terminated the tenancy. If Tom does not leave, he is a tenant

at sufferance.Tenant’s Possessory Interest: The essence of a lease is the landlord’s transfer of a temporary right of exclusive possession. The

tenant has a nonfreehold possessory estate. The right to exclusive possession distinguishes a tenancy from an easement, because an easement merely gives its holder the right to use property for some limited purpose.

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As the person with the exclusive right to possess, the tenant is entitled to exclude all others from the property. Even the landlord may be excluded unless the lease permits entry without the tenants consent. The common law also recognized a limited right in the landlord to enter to “view waste.”

A Tenant’s Remedies For Disturbance of Possession: Remedies Against Strangers:

A tenant is entitled to protect his right to possession against all others. If trespassers intrude, the tenant, rather than the landlord, has standing to sue. The tenant may recover damages for trespass and may recover possession from the intruders in an ejectment action. Because the tenant, rather than the landlord, has the action for ejectment, the tenant is not excused from paying rent when he is dispossessed by strangers.

Remedies for Landlord’s Interferences: Every lease includes a covenant of quiet enjoyment which is the landlord’s covenant that she will

not interfere with the tenant’s possession. Based on the covenant, the tenant may exclude the landlord from the premises, just as he may exclude everyone else. If the landlord wrongfully dispossesses the tenant, the tenant may be allowed to terminate the tenancy.

o Ex: Lil entered and dispossessed Tom when he had one year remaining on his lease. Tom may sue to recover possession or may treat Lil’s eviction as a breach of the covenant of quiet enjoyment and declare the leasehold to be terminated.

o Ex: Lil brought a summary dispossession proceeding against Tom for his failure to pay rent, and she recovered possession. Tom I sprobably excused from further rent liability. Although Lil was entitled to enter and is not liable in ejectment or tort or for breach of covenant, Lil eliminated the condition on which Tom owed rent—possession. Therefore, Tom’s rent liability should cease.

Eviction by Paramount Title: If the owner of a paramount title dispossesses a tenant, the tenant cannot recover possession. Instead,

he can recover damages for the landlord’s breach of the covenant of quiet enjoyment. Ex: Lil failed to pay the debt secured by a mortgage on property rented by Tom, and the

mortgagee foreclosed. If the mortgage is superior to the lease, Tom’s lease is terminated and he is excused from further rent liability to Lil.

Remedies When New Tenant is Prevented From Taking Possession: When Landlord is at Fault:

If the landlord is in possession of the leased premises and fails to leave when the tenancy begins, the tenant has the same remedies as if the landlord subsequently interfered with his possession. The tenant can sue to recover possession or can terminate the lease and can recover damages. Similarly, when a third person is in possession with the landlord’s consent, the tenant can terminate the lease and can recover damages from the landlord for breach of covenant. Whether the tenant can sue to recover possession from the third person dependson which of htem has the superior right. If the tenant’s lease is superior, his right of possession is superior. But if the third person is in possession under a lease executed before the tenant’s lease, the tenant probably cannot eject him.

o Ex: Tom signed a lease on January 1 that granted possession on February 1. On January 15, Lil signed another lease for the same property that gave Ann the immediate right to possess. ON February 1, when Tom is unable to enter he may terminate his lease and sue Lil for damages, or he may bring an ejectment action against Ann.

o Ex: Tom signed a lease on January 15 that granted possession on February 15. On January 1, Lil had executed a lease for the same roperty with Ann, and Ann took possession on February 1. On February 15, when Tom is unable to enter, he may terminate his lease and sue Lil for damages, but he probably cannot eject Ann.

o Ex: Tom’s tenancy is to begin in February 1. The lease of the former tenant, Ann, terminated on Jnauary 15, but she held over. On January 20, Lil elected to make Ann stay as a periodic tenant. Thus, Tom cannot enter on February 1. Tom may terminate the lease or may be able to recover possession from Ann.

When Third Party is at Fault:

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The states are divided concerning a tenant’s right to terminate his tenancy if he cannot take possession at the beginning of his lease term because a third party is possessing the property without the landlord’s consent.

o English Rule: In several states, the tenant may terminate the tenancy. This rule imposes an obligation on the landlord to provide the tenant with actual possession at the beginning of the tenancy.

o American Rule: Under this rule, the landlord is obligated to deliver only the right o fpossession and not actual possession. This rule does not permit the tenant to terminate the lease. It limits him to a cause of action against the wrongful possessor.

Ex: Tom cannot take possession when his lease begins because Ann, the former tenant, failed to leave despite Lil’s request for her to do so. Under the American Rule, Tom still owes rent and has an ejectment action against Ann. Under the English rule, Tom may terminate his lease.

Rights Incidental to Possession: In a mult-unit building, the tenant has the right to possess only that part of the building actually leased

to him. However, the tenant also shares with the other tenants certain additional rights, such as the right to pass through the hallways, ride the elevators, and use the laundry room. In these common areas, the tenant’s right is for shared use, rather than for exclusive possession. These rights may be regarded as easements in the common areas that are incidental to the possessory right to the space actually leased.

Liabilities As a Possessor: As the person in possession of the leased premises, the tenant, rather than the landlord, usually is

usbejct to the normal tort duties owed by occupiers of land to invitees, licensees, trespassers, and others. For example, the tenant may be liable to a guest who is injured as a result of the premisess’ physical condition

Rent: Rent refers to the periodic change the tenant must pay for his use of the landlord’s property. Usually

the lease specifies the amount of rent reserved. However, if the lease does not specify an amount, a rent equal to the fair rental value of the property is implied unless a gift was intended.

Payment: For common law agricultural tenancies, rent was a share of crops harvested by the tenant. This

practice was the origin of ht eterm “rent,” because it was something torn or “reserved” from the land. Today, the rent may include a share o fthe tenant’s profits from the business he conducts on the premises. For other types of cash rent, payments usually are due at the beginning of each rental period.

The rent amount frequently states at the same over the lease tem, but it may be increased periodically either by a fixed amount provided in the lease or by a cost of living clause in the lease. For periodic tenancies, a unitalteral demand by the landlord for an increase often must be give at least on period in adnvance because in essence, the landlord is terminating the tenancy at the former rent and is offering to enter into a new tenancy at the increased rent. The tenant need not agree to accept the new tenancy.

Rent Control: By ordinance, some cities limit the amount by which residential landlords can incrase their tenant’s

rents. Courts generally uphold rent control against attacks that it is preempted by state law, constitutes a “taking” of the landlord’s property, denies landlord due process or equal protection, and violates the antitrust laws. Common features of such ordinances are described below.

o Premises and Persons Covered: Rent control rarely includes commercial premsies. The rent control ordinance also

may exclude certain forms of housing or tenants, such as boarders in single family homes, single family or two family dwellings and luxury housing. The tenant may be required to show that the premises are his “primary residence” or that he is related to the originally protected tenant. The tannt also may be limited in the amount he can charge if he subelts the premises.

When the premises become vacant, some ordinances permi thte landlord to increase rents without restriction whil others continue the rent control. Ordinances that permit

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vacanacy decontrol generally prohibit landlords from evicting tenants merely to increase rents. Such “good cause eviction” restrictions limit tenancy termination to cases of tenant default or misbehavior or the landlord’s personal need to occupy the premsies.

o Rates: To eliminate the incentive for landlords to raise rents when a rent control ordinance

is about to b eenacte dmorst ordiannces “roll back” the allowable rent to the rent charged at some arlier date, such ason e year before the ordinace was enacted or was first considered. Increases then may be made only pursuant to a formula appplciable to all unit ssuch an annual increase equal to 50% of all the consumer price index increase for that period. The rent control board may be given authority to permit an increase in an individual case afte rhte landlord has demonstrated a special hardship such as an increase in the cost of necessary serice sor an inability to make a fair return on investment.

o Ancillary Restrictions: Landlords subject to rent controls may seek to convert their buildings to more

profitable, unrestricted uses. To prevent depletions in the rental housing stock, rent control ordinaces often are accompanied by restrictions on condominium conversions, conversions to nonresidential use, and demolition. Such restrictions may completely prohibit conversions and demolition or ma provide a rationing system that permits for example 1000 conversions a year. Landlords also may be required to pay compensation to existing tenants in the form of mandatory relocation service reduced insider prices or lifetime tenancies in newly cornered condominiums.

Problems Arising from Disrepair of the Premises: Parties’ Basic Duties:

At early common law, the landlord had no legal responsibility for the condition of the premises. The doctrine of CAVEAT EMPTOR applied for defects that existed when the lease began, and leases were viewed as including no implied warranties. The landlord also ha da duty to repair or correct defects that arose after the tenancy began. The landlord’s only obligation was the same as for everyone else in the world—not to harm the premises after the tenant had taken possession.

The tenant’s only duty to the landlord for the condition of the premises was not to commit waste. The tenant was prohibited from committing both active waste harm caused by his acts and passive waste (harm caused by failure to make repairs.)

o Ex: L broke a fence on the premises before she rented from T. L has no duty to repair the fence if she made no warranties to T concerning the condition of the premises. T also does not have a duty to repair the fence because he did not damage it, and its continued disrepair will not cause material harm to the reversion.

o Ex: L broke a fence on the premises during T’s term. T may sue L for the damage, just as he could sue anyone else who broke the fence during his tenancy.

o Ex: T broke a fencon the premises during his term, which constitutes active waste. T owes L a duty to repair the fence.

o Ex: AN unknown person broke into T’s apartment and damaged it. L Is not liable to repair the damage. T is liable only if he did not exercise reasonable diligence to prevent the damage. I.E. T would be liable if he left the apt door unlocked when he went on vacation. In either event, the third party is liable for the damage and any damage award should be used either to repair the damage or to compensate L and T for their respective losses. The damage diminished the values of T’s tenancy and L’s reversion.

o Ex: An unknown person broke a window during T’s term. If the window is not repaired, rain may get inside and cause the floors to warp. In this case, T has a duty to repair the window to avoid waste.

Duties Owed to Third Parties:o Even though neither party may have a duty to the other to make a certain repair, either or

both of them may owe duties to the public generally and may be held liable in tort for injuries to others due to the disrepair.

Modern Changes in Basic Duties:

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o Modern building and housing codes frequently change the common law rule by imposing a duty to repair that affect the duties owed to the other party to the lease . Other codes impose the duty of repair with a direct right of enforcement vested in the landlord or the tenant.

Duties regarding Common Areas:o The tenant’s duties with respect to waste apply only to those premises over which he

receives exclusive possession. The landlord is regarded as the possessor of the common areas. Consequently, instead of a landlord tenant relationship in the hallways and other common areas, there I sa possessor invitee relationship. Although the tenant has no duty regarding waste, both the landlord and tenant may have duties arising out of their possessor-invitee relationship.

Ex: T damaged a step in the common stairway. T is as liable for the damage as any third party would be.

Ex: L cared for the common steps so negligently that T was injured. T may recover for his injuries from L in the same manner that na outsider could recover from her for nelgient care of the land.

Altering the Basic Duties By Covenant: Unless prohibited by statute, either the landlord or the tenant can agree to undertake duties of

repair that do not otherwise exist. Either can agree to make general or special repairs. Enlarging Scope of Tenant’s Duties by Covenant Repair:

o Absent a covenant, the tenant’s duty to avoid waste does not obligate him to perform extensive strucutural work or to rebuild unless he caused the injury. However, in many states, a tenant’s general covenant to repair includes the obligation to rebuild regardless of the cause of the destruction.

Diminishing Scope of Tenant’s Duties by Landlord’s Covenant to Repair:o When the landlord gives a covenant to repair, the tenant must be relieved of the repair

obligations that the doctrine of waste imposes. However, the landlord’s covenant to repair generally does not require her to reapir damage caused by the tenant or to rebuild the premises if they are substantially destroyed.

Right to Recover Cost of Repairs: The availability of a parituclar rememdy is not always determined by demonstrating that the other

party defaulted on a duty to repair. This section describes when a party to a lease can sue for repair costs after the other party has refused to make a repair.

No Right to Recover when no duty to repair:o If the nonrepairing party was not obligated to make the repair, the other party cannot

recover the repair cost. Ex: L refuses to repair a fence that was broken by an unknown third party. Because a

landlord has no general duty to make repairs, T cannot sue L for the cost if he makes the repair.

Ex: T refuses to repair a fence that was broken when he took possession. Fialure to repair a preexisting defect that will not cause greater loss later does not constitute waste. Therefore, L cannot sue T for costs if she repairs the fence.

Tenant’s Right to Recover when Lnadlord has duty to repair:o Duty Arising from Building Code: Building codes generally impose duties on owners,

including landlords. But unless the code expressly provides that a tenant can enforce it, he cannot recover repairs costs from the landlord.

Ex: The local building code requires property owners to keep fences in good repair. If the fence is in disrepair and T fixes it, he cannot recover the cost from L. L’s obligation under the code is to the local government and not to T. The local government can compel her to fix the fence, but T cannot.

o Duty Arising From Habitability Law: More than 40 states require landlords of residential premises to keep them in

habitable condition throughout the therm. In some jurisdictions, a tenant can make necessary repairs and deduct the cost from the rent. A statute or ordinance may provide how often this right can be exercised, a maximum amount and whether the

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tenant can make the repair personally or must hire outside contractors. It is unsettled whether several tenants can combine their rights to make a single large repair.

o Duty Arising from Covenant: If the landlord violates her covenant to repair, the tenant generally is entitled to

make the repair and to recover the cost from the landlord. In fact, to mitigate damages, the tenant may be required to make the repair promptly to prevent futher deterioration. The resolution of most questions concerning arising rights and duties under a covenant to repair depends on the covenant’s precise wording.

o Duty arising in Common Areas: If the landlord fails to keep the common areas in good repair, the tenant probably

cannot make the repairs and recover the cost. Although the landlord may be liable in tort to the tenant for injuries suffered a sa result of the disrepair, the tenant normally cannot recover repair costs in this situation.

Landlord’s right to recover When Tenant has Duty to Repair:o If the tenant has a duty to repair under the doctrine of waste or under a covenant to repair,

the landlord generally can recover repair costs from him. The cost of repairs is the usual measure of damages when the landlord does not sue until the end of the term. If the landlord sues before then, the measure of damages may be the dimunition in the reversion’s value.

Ex: T broke the fence with one year remaining on the lease term, and L sued immediately it will cost $500 to repair the fence, but the value of L’s reversion (i.e. the price for which she could sell her interest) is reduced by only 400. If L sues now her recovery will be limited to 400. To recover 500, she must wait to sue until the lease term expires.

o Recovery when building Code Applies to Tenant: Building and housing codes normally impose duties only on the landlord as owner,

rather than on the tenant. However, when a teannt’s use of the peropty subjects it to special code rquirements, the tenant may hae this increased burden. But, just as a tenant generally cannot enforce the code against the landlord, the landlord probably cannot enforce it against the tenant.

o Recovery Under Modern Statutes: Some recent residential statutes impose certain repair duties on the tenant. These

statutes also provide, that if the tenant fails to perform his duties, the landlord can make the repair and add the cost to the rent.

o Effect of Insurance: Both the landlord and tenant have insurable property interests. Each party who

purcahses insurance against disrepair or destruction is entitled to any proceeds that are paid. This right to recover under the policy may be independent of nay right sgiven under the lease.

Ex: A fire destroyed the premises. Although T was covenanted to repair, L had purchased her own casualty insurance policy. T’s duty to repair is not eliminated because L receives an insurance award and L’s insurance company may be subrogated to her rights against T.

Ex: A fire destroyed the premises. T has his own insurance policy and did not covenant to rebuild. The majority rule is that L is not entitled to share in T’s insurance proceeds, and T may keep the proceeds even though he is not obligated to rebuild. Under the minority rule, L can compel T to use the proceeds to restore the premises.

Right to Terminate Tenancy: This section discusses whether party can terminate the tenancy if the other fails to repair. Landlord’s Right to Terminate:

Because the early common law treated lease covenants as independent, a landlord could not terminate the lease even if the tenant was liable for waste or for breach of a covenant to repair. The landlord could only obtain damages or an injunction. Today, this doctrine generally has been modified by statute or by lease provision so that the landlord can terminate the tenancy.

No right to terminate if Tenant has no duty:

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o If the tenant did not cause the disrepair and does not have a duty to repair, the landlord cannot terminate the tenancy for the tenant’s failure to repair.

Right to terminate After Destruction:o Many modern statutes and lease covenants permit either party to terminat ei f asubstantial

part of the premsies is destroyed. Tenant’s Right to Terminate:

A statute or lease provision often permits a tenant to terminate the tenancy if the premises are substantially destroyed. Absent such a statute or provision, the common law rule applies, and destruction of the premises does not terminate the tenancy.

o Ex: The leased premises were destroyed by a fire of unknown origin, and neither a statute nor a lease provision addresses this situation. Neither party can terminate the tenancy. However, neither party can compel the other to rebuild. T is obligated to pay the rent but is not obligated to pay the cost o fa new building. Li salso not obligated to rebuild.

o Ex: The premises were destroyed by fire, and a statute or a lease provision permits termination in this situation. T or L now may terminate and neither party is obligate to rebuild.

o Ex: The premises were destroyed by fire. No statute or leaseprovision permits termination, but T gave a covenant to repair. In this situation, T cannot terminate and L can compel him to rebuild. If T fails to rebuild, L probably can terminate the lease for breach of covenant and can recover the cost of rebuilding.

o Ex: T caused the premises to be destroyed by fire. Although a statute permits termination after destruction, it probably is inapplicable to destruction caused by the party desiring to terminate. Thus, T cannot terminate. Based on the statute, L can terminate and she can sue T for the cost of repairs because the destruction constitutes active waste.

o Ex: L caused the premises to be destroyed by fire. T had covenanted to rebuild and a statute permits termination after destruction. L cannot terminate, because she caused the fire. T can terminate, even without the statute, because L breached the covenant of quiet enjoyment. Alternatively T may be bale to stay and to compel L to rebuild or T may receive monetary compensation for the loss of the building. However, T cannot compel L to rebuild if T elects to terminate the tenancy.

If the building falls into disrepair, rather than being destroyed, the tenant may terminate only if the landlord has a dtuy to repair and fails to do so.

When building Code Applies to Landlord: If a building code expressly prohibits landlords from renting premises that violate the code, courts

often hold that a lease is unenforceable if substantial code violations exist when the landlord and tenant enter into the lease. However, if the violations are insubstantial or arise after the tenant has taken possession, the landlord’s failure to comply with the building code usually does not entitle the tenant to terminate the lease. Similarly, if the code does not expressly prohibit landlords from leasing defective premises, the tenant normally cannot terminate the lease for violations. In that case, courts hold that the landlord owes the duty of code compliance to the government rather than the tenant.

When Special Statutory Duty Applies to Landlord: In most jurisdictions, a statute requires landlords to maintain residential presmises in habitable

condition. The same statute often authorizes a tenant to terminate the tenancy if the landlord fials to do so. This termination remedy often is provided as an alternative to the tenant’s remedy of making the repair and deducting its cost from the rent.

Failure to Repair Common Areas: The landlord’s failure to maintain the common areas in good repair does not entitle the tenant to

terminate the tenancy unless the condition seriously impairs the tenant’s enjoyment of the demised premises.

Failure to Honor Covenant to Repair-Constructive Eviction: If the landlord covenanted to make repairs but fails to do so, the tenant may be entitled to

terminate the tenancy. Although the jursidction generally may treat lease covenants as being independent the tenant’s covenant to pay rent is dependent on the landlord’s covenant of quiet enjoyment. The covenant of quiet enjoyment clearly is breached when a landlord evicts the tenant.

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It also is breached when the landlord evicts the tenant. It also is breached when the landlord’s failure to perform lease obligations substantially impairs the tenant’s enjoyment of the premises.

o Ex: L covenanted to make repairs. A fence on the demised property is broken, but L refuses to repair it. T cannot terminate the tenancy merely because L has breached her covenant to repair. But if nonrepair of the fence substantially impairs T’s enjoyment of the premises he may be entitled to terminate the tenancy.

For a plea of constructive eviction to succeed, the tenant must show that 1) the landlord had an obligation imposed in the lease or by law, 2) the landlord failed to perform the obligation, 3) the failure substantially impaired the tenant’s enjoyment of the premises and 4) the tenant promptly quit the premises as a result.

o Ex: T’s lease does not expressly provide that the landlord must provide heat to the leased premises. During the winter, L fails to rpovie heat. At common law, T may not claim a constructive eviction because L had no duty to funish heat. She has breached no lease covenant and has not impaired T’s quiet enjoyment on of the premsies. However, if these are reisdnetial premises, the landlord may be statutorily or judicially required to furnish heat in winter. In that event L’s failure breaches an implied obligation to T and entitles him to terminate the tenancy if the failure is sufficiently serious.

o Ex: T wants to convert the warehouse he leased from L into a movie theatre. Under the building code, he must install an additional washroom on the premises if he wants to open the theatre to the public. Because T’s proposed special use of the premises creates this requirement, L is not required to satisfy it. Therefore T cannot compel L to add a washroom and cannot terminate the lease if she fails to do so.

When a landlord evicts a tenant, the tenant’s obligaition to pay rent is entirely suspended een if he has not been completely removed from the premises. Based on this doctrine of partil actual eviction, some tenants have argued for a doctrine of partial constructive eviction. They claim tha thte entire rent obligation should be suspended evne though they have not entirely quit the premises. Hwoever, this argument ha snot persuaded any court. Therefore, a tenant must leave the premises completely to succeed on a claim of constructive eviction.

o Ex: L shuts of the air conditioning at 5pm each day, which makes the premises unusuable until the next morning. T does not move out, but he refuses to pay rent on the basis that he suffers a partial constructive eviction after 5Pm each day. Under traditional rules, the claim will fail. T’s rent obligation is excused only if he moves out and terminates his lease. He cannot staty and refuse to pay rent.

o Ex: L fails to repair a leak and a sa result, the basement is continuously flooded and unusable. T continues using the rest of the house but refuses to pay rent on the bassi that he has suffered a partial constructive eviction, T’s only right is to leave the premsies entirely if he wishes to terminate his rent liability. However, T can aruge that he has been partially actually evicted

Construtive eviction not only ends the tenant’s rent liability, but also may provide a cause of action against the landlord for breach of covenant. The action is based on the covenant to repair, if the lease contains one, or on the covenant of quiet enjoyment.

A tenant who claims constructive eviction an dleaves the property is still liable under the lease if a court subsequently holds that the claim was unfounded. In that case, the tenant has merely abandoned the premises and is subject to all the liability that an abandoning tenant incurs.

Right to Rent Reduction (Abatement): In some jurisdictions, a tenant can reduce or withhold rent if the premises fall into disrepair. Landlord’s Covenant to Repair:

If the landlord has given a covenant to repair and breaches it, the tenant generally is not entitled to withhold or reduce rent. If the tenant seeks a monetary remedy for the landlord’s breach, it may be limited to the cost of repairs or for the reduction of rental value.

Repair-and-Deduct Statute: Some statutes that require landlords of residential premises to keep them in habitable condition

authorize the tenant to repair the premises and to deduct the cost from his rent. These statutes do not permit the tenant to pay a reduced rent based on the premise’s reduced rental value.

Implied Warranty of Habitability:

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Since 1970 over forty states have created an implied warranty of habitability in residential leases. In some states, the implied warranty was statutorily created. Under the warranty, the landlord has the duty to maintain the premises, often in compliance with the local housing codes or astauttory standard. When a landlord violates the warranty, the tenant has a cause of action to recover the decreased rental value resulting from the violation.

Litigation between a landlord and tenant under the implied warranty of habitability usually beings when the tenant withholds rent. When the landlord brings an action to dispossess the tenant for nonpayment, the tenant defends by arguing that the rent is not due because of the code violations. Because affirmative defenses may be unavailable in a summary dispossession action, the tenant may be required to pay all or part of the rent into court each mouth while the case is pending as a condition to asserting this defense. At the conclusion of the hearing, the court allocates the escrowed rent between the landlord and the tenant. However, many jurisdictions do not permit rent withholding for breaches of the warranty of habitability.

Retaliatory Eviction: By statute or by judicial decision, many states prohibit landlords from evicting a tenant for asserting

his rights under the warranty of habitability.o Ex: T, a month to month tenant, withheld one month’s rent to make a repair under a repair-

and deduct statute. L then gave the requisite notice ot terminate the tenancy. If the termination is in retaliation for T’s assertion of his statutory right, most states will not permit the termination. In some jurisdictions, termination by the landlord within a specified period, such as six months or a year following the tenant’s assertion of rights, is presumed ot be retaliatory.

o Ex: T a periodic tenant, made the same repair and deduction as in the last illustration. Lil then served notice that ht erent would be tirpled the following period. When tom refused to pay the increase constitutes a retaliatory eviction.

o Ex: T notified the municipal health inspectors about code violations on the leased premises. As a result, L either terminated the tenancy or raised the rent. Either way, L has performed a retaliatory eviction, which is not permitted under most states laws.

Tort Liability for Disrepairs:Early Common Law Landlord’s Liability:

Under the earlier common law, a landlord’s tort liability for injuries caused by a physical defect in the leased premises was extremely circumscribed in three ways: 1) the scope of the landlord’s duty, 2) the requirement for privity of contract, and 3) the recovery amount.

o Scope of Landlord’s Duty: traditionally, a landlord was liable for injuries caused by a defect in the premises that existed when the lease began in only the following six situations.

Latent Defect: A landlord has a duty to disclose defects in the premises that are not readily discoverable based on a reasonable inspection a latent defect. The failure to disclose constitutes fraud by omission. Often, the landlord is liable only if she knew of the defect, but in some jurisdictions, the landlord is liable if she had reason to know about it. In these jurisdictions, the landlord has a duty to inspect the premsies before leasing them. Hwoever, the landlord’s only duty is to disclose the defect: she need not repair it.

Ex: When L leased an apartment to T, she knew tha thte water in the shower unexpectedly could become extremely hot. She did not tell T. she will be liable t T if he is injured as a result.

Unreasonable Risk of Harm to Persons Outside the Premises: if a condtion on the leased premises creates an unreasonable risk of harm to people who are not on the premises the landlord is liable for any injuries.

Ex: When L leased the premises to T, an awning hook on the building extended over the adjoining sidewalk. If a passer-by is injured by the book, L is liable.

Premises Leased for Public Admission: when a landlord leasesproperty that she knows will be open for public admission, she is liable for injuries caused by a condition that existed when the lease began.

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Ex: L leased an arena for a conert. A person attending the concert was injured when a step in a stairwell in the arena broke. If the defect in the step existed before the property was leased, Li is liable.

Common Areas: common areas include those parts of the premises that are available for use by other tenants and their invitees such as a building lobby or elevator. Because the landlord retains possession of the common areas, rather than giving exclusive possession to a particular tenant, she is liable for their condition unless the parties contracted otherwise.

Landlord Covenanted to Make Repairs: if a landlord violates her covenant to make repairs in the leased premises, she is liable for any resulting injuires. This duty includes repairs necessary to satisfythe implied warranty of habitability. Absent a duty to inspect the premises, the landlord is liable only if she had notice of the defect and a reasonable opportunity to repair. Moreover, the tenant has a duty to inform invitees of the defect and otherwise to exercise due care.

Ex: L gave a covenant to repair in her lease with T. T notified L that alight switch in the lease premises was defective, but L did not repair it. T’s visitor was injured when she received a shock form the light switch. She has a COA against T for failing to warn her of the defect and may have a COA against L for breach of covenant to repair.

Landlord’s Negligent Repairs: The landlord I sliable for injuries resulting from her negligence in making repairs if the tenant did not know and di dnot have reason to know of the danger. The landlord is liable though she was no obligated to make the repairs but voluntarily undertook to make them.

Ex: the treads in the stairwell in T’s apartment were rotting, so L replaced them. However, L did not properly attach the new treads, and T was injured when he stepped on one and it tipped. L is liable to T.

o Privity of Contract Requirement: the earlier common law prohibited recovery from the landlord unless the injured party was in privity o fcontract with her. Therefore, the tenant’s invitees and even his family generally would not have a COA against the landlord for injuries they suffered as a result of a defect in the premises for which the landlord was responsible.

o Recovery Amount: Even when the landlord was liable for a defect in the leased premises, the traditional rule limited the injured party’s recovery to the cost of repairing the defect or to the amount by which the defect decreased the proeprty’s rental value.

Tenant’s Liability: A large body of tort law deals with a tenant’s liability to persons who are injured due to a defect in the premise’s condition. Under the earlier common law, the tenant’s liability depended in large part on the injured person’s legal status. The tenant owed different duties of care to licensees, invitees, and trespassers.

Modern Law: Scope of Duty and Privity:

Courts increasingly are rejecting the earlier common law restirctions on landlord’s and tenants’ liability for defects in the leased premises and are applying the ususal tort requirements. Therefore, landlords and tenants must act as “reasonable persons” without regard to the injured party’s privity or his common law status as a licensee, invitee, or trespasser.

o Landlord’s Liability for Third Party’s Criminal Activities: Generally, landlords are not liable for criminal attacks by other people. However, some courts now hold landlords liable in one or more of the following circumstances.

Known Physical Defect: If the landlord knows of a physical defect in the premises that foreseeably increases the risk of a criminal attack, such as broken door or window locks, the landlord can be liable for the attack, even though she did not commit it.

Providing Security: When a landlord provides security, she will be liable for a criminal attack if she removes the security or I fit is provided in a negligent manner. It is irrelevant whether the landlord covenanted to provide security or provides it gratuitously.

Ex: L hired a security guard to sit at the front door of her apartment building to prevent entry by unauthorized people. If she discontinues that service or if

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the security guard does not exercise reasonable care and a tenant is criminally attacked as a proximate result, L is liable.

High Crime Area: a landlord is liable for foreseeable criminal attacks even if they are not caused by a physical defect in the premises.

Ex: L owns an apartment building in area with a high crime rate. She may be liable if she fails to take precautions to prevent criminal attacks in the building even if such precautions are not required by the housing code or other legal duty. For example, she may be liable if she does not adequate secure the doors to the building even if she is not otherwise required to do so.

Recovery Amount: Landlords are liable for all damages caused by a defect in the premises for which she is responsible. Courts have awarded damages for personal injury, decrease in rental value caused by the defect, property damage, relocation expenses, and emotional distress. A landlord also can be liable for punitive damages when her breach was willful and wanton or fraudulent.

Exculpatory Clauses: A landlord may attempt to insulate herself from liability by including an exculpatory clause in the lease. The clause may state that the landlord will not be liable for willful and wanton, reckless or negligent conduct. Although such clauses generally are enforceable in commercial leases, at least with respect to negligent conduct, today they normally are unenforceable in residential elases. Courts held that an exculpatory clause that bound a tenant also bound his invitees, but courts in more modern cases hold that an invitee cannot be bound because he was not a prty to the lease.

Ex: T’s lease states that L is not liable for any negligent maintenance of the building. The clauseis not a valid defense for L in a tort action brought by T’s guest for injuries caused by L’s negligent maintenance of the common hallway. The clause also may not protect L in a suit brought by T if he is injured a sa result o fL’s negligent maintenance.

Ex: T’s lease covenants that he will hold L harmless against any liability imposed on her as a result of the premise’s condition. The clause is not a valid defense for L against a third party suing in her tort. But, if the third party recovers a judgment against l, she may proceed against T based on the indemnity clause to recover the amount she had to pay the third party.

Transfer of Tenancy:A Distinction Between Assigning and Subleasing: A lease assignment is the tenant’s outright transfer of his entire remaining leasehold interest to an

assignee. In contrast, a sublease is a leasing (subletting) of the tenat’s estate by the tenant (sublessor) to another (subtenant or sublessee). Whether a transfer constitutes an assignment or a sublease is not determined by how the parties label the document. A court may declare that an assignment has occurred even though the parties have called it a sublease or vice versa. Under the original common law rule, the tenant must retian some part of the leasehold estate for the transfer to be a sublease. The more modern view makes the assignment/sublease distinction depend on the parties’ intent, rather than on whether the tenant has transferred his entire estate or only some part of it. Ex: T has a lease with five eyars remaining in the term. He transfers the right to possess for the

next four years to sue. Traditionally a court would hold that this is a sublease, because T has a reversion of one year after Sue’s term expires.

Ex: T has a lease with five years remaining in the term. Sue and he execute a document entitled sublease that gives Sue athe exclusive right to possess one room on the premises for the remaining five years. Under the traditional common law rule, this is not a sublease, but rather a partial assignment, because T has no reversion in that room. The length of the estate, rather than the size of the property, controls.

Ex: T has a lease with five years remaining in the term. He transfers the entire balance of the term to A who agrees to pay T 50 more per month than T owes to L. this is an assignment, despite the additional consideration, because T has no reversion. The court would characterize the additional 50 per month as deferred payment for the assignment, rather than as additional rent payble to T.

Ex: T has a lease with five years remaining in term. He transfers the entire balance of the term to A. The assignment document provides that T may re-enter and terminate A’s estate if she fails to

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perform any lease obligation. In some states, this is treated as a sublease, because T retained a right of re-entry. Courts in other states more strictly follow the common law system of estates and hold that this is an assignment because the right of re-entry is not a common law estate. Thus, the entire estate has been transferred to A.

Assignment’s Effect: Effect on Tenant:

After an assignment, the original tenant remains in privity of contract with the landlord, because they signed the lease. Therefore, the tenant remains bound on all promises made to the landlord in the lease, unless the landlord releases him from liability. If the original tenant is held liable to the landlord for the assignee’s default, the original tenant can exercise the landlord’s rights against the assignee based on the doctrine of subrogation.

o Ex: T assigned his lease to A. Even if L accepted A as an assignee, T is still liable for the rent if A fails to pay it is based on his promise to pay in the original lease. However, if T ha sto pay L, he can subrogate to L’s right against A and sue her for the amount he had to pay.

Effect on Assignee: A lease assignment transfers the tenant’s rights under the lease to the assignee, which creates

privity of estate between the landlord and assignee. Based on privity of estate, the landlord and assignee can enforce the real covenants in the lease against each other. Real covenants are covenants that directly affect the land or ht etenancy. For that reason, they “run with the land.” If the lease includes any personal ocovenants (covenants that do not directly affect the land or the tenancy), the assignee is liable for them only if she assumed personal liability for the tenant’s lease obligations. If the assignee assumes the tenant’s lease obligations, the landlord is a third party beneficiary of the assumption agreement and can enforce it against the assignee. If the landlord was a party to the assumption agreement, shewas in privity o fcontract with the assignee.

o Ex: T’s lease contained a convenant that he would insure the premises. Under the applicable state law, this covenant does not run with the land. Tom assigned to A who did not assume. If A does not insure the premises, L has no recourse against he. But because T remains liable on his original probmise to insure, L may obtain relief against him.

o Ex: T’s lease contained a covenant that he would insure the premises. Under the applicable state law, this covenant does not run with the land. T assigned to A who assumed. If A fails to insure L, may enforce the assumption agreement against her either as a third party beneficiary or based on privity of contract. L also may sue T on the covenant in the original lease. If L sues T, T an sue A for breach of the assumption agreement.

o Ex: In T’s lease, he gave a covenant to repair, which run swith the land. T assigned the lease to A who did not assume. If A does not repair, L may sue T and A. L may sue T because the original lease between them created privity of contract. L may sue A because the assignment created privity of estate between them and because the covenant runs with the land. If L sues T, he can recover form A. Although no privity exists between T and A, T can enforce the landlord’s rights against A by subrogation.

Effect on Landlord: When the tenant assigns the lease, the assignee can enforce the landlord’s real covenants against

her, and the landlord can enforce the real covenants against the assignee.o Ex: T’s lease contained a covenant by L to make repairs, which is a real covenant. T

assigned to A. L failed to make necessary repairs. A may enforce the covenant against L. Effect of Second Assignment:

An assuming assignee has the same duies to the landlord as the original tenant and thus remains liable on the lease covenants even after assigning her interest to a new assignee. In contrast, a nonassuming assignee I sliable only while he has the right to possess. Once the nonassuming assignee assigns, no risk of future liability exists because he no longer ha sprivity of estate with the landlord.

o Ex: T’s lease contained a covenant that he would insure the premises. Under the applicable state law, this covenant does not run with the land. T assigned to A who assumed. If B does not insure the premises, L may sue T, A or B. A’s liability under the assumption does not end when A assigns, just as T’s liability continued after he assigned.

o Ex: The same facts as in the previous illustration, except that B did not assume. If B does not insure, L may sue T or A but not B.

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o Ex: The same facts as in the first illustration except that neither A nor B assumed. If B does not insure, L’s only remedy is against T.

o Ex: The same facts as in the first illustration, except that A did not assume, but B did assume. If the assumption agreement is valid, L can sue T or B. however, courts in some states hold that B assumed no obligation because A was not personally responsible. In these jurisdictions, L could sue only T.

o Ex: T’s lease contained his covenant to repair, which runs with the land. T assigned to A who did not assume. A then assigned to B who also did not assume. If B does not repair, L may sue T or B but not A. T is liable on the lease (privity of contract). B is liable because the covenant runs with the land, and he now owns the leasehold (privity of estate). A is not liable because she never assumed (no privity of contract) and because she no longer has an interest in the land (no privity of estate).

Sublease’s Effect: A sublease does not transfer the tenant/sublessor’s rights or duties to the subtenant. Instead, the

sublessor remains the landlord’s tenant and has privity of estate and privity of contract with her. As the sublessor’s tenant, the sublessee and sublessor have privity of estate and privity of contract. The subtenant does not become the landlord’s tenant, and no privity exists between them. Therefore, neither can directly enforce lease obligations against the other based on privity. However, some states have enacted a statute that enables a landlord to sue a sublessee. Ex: T sublet to S. the original lease contained T’s covenant to insure, which runs with the land

under the applicable state law. If S does not insure, L can proceed against T but not against S unless a state statute authorizes an action against her. Even without such a statute, L can terminate the tenancy for the failure to insure, which will also terminate S’s subleasehold.

Ex: T sublet to S. in the sublease, S covenanted to insure the premises. If S does not insure, T can enforce the covenant against her, but L cannot unless a state statute enables her to do so.

Ex: T sublet to S. the original lease contained T’s covenant to insure, and S assumed that obligation. If S fails to insure, L may sue her, because L is a third party beneficiary of S’s assumption agreement or is in privity of contract with her if L was a party to the assumption agreement.

Restrictions on Tenant’s Right to Transfer: Because a tenancy for a term or a periodic tenancy is freely alienable, the tenant may assign or

sublease without the landlord’s consent. Therefore, landlords often restrict a tenant’s right to assign or sublet by a lease provision. The landlord has a sufficient interest in the property to justify this restraint on alienation, although courts generally construe such lease provisions as narrowly as possible. If a tenant assigns or subleases without the landlord’s consent, the conveyance is valid as a matte rof common law. However, most consent clauses are written as forfeiture restriants, which enable the landlord to terminate the lease if the tenant transfers his interest without the landlord’s consent. The tenant also is liable to the landlord for any damages that she suffers as a result of the transfer.

Landlord’s Right to be Unreasonable: Most lease provisions that restrict assignments and subleases state that the tenant shall not assign

or sublet without the landlord’s consent. If the provision does not expressly state that the landlord cannot withhold consent unreasonably, most courts will not add such a requirement. However, some courts impose an obligation on the landlord to act in good faith even if it is not expressed in the lease. Courts disagree whether the landlord may condition her consent on receiving a rent increase. A court may regard such a demand as unreasonable unless the lease specifically permits it. In jurisdictions that require a landlord to mitigate damages after a tenant abandons, a court effectively may impose a duty to consent to a reasonable transfer if the landlord would have to accept that transferee in mitigation of the tenant’s damages.

o Ex: T proposes to assign to A, but L unreasonably refuses to consent. L’s arbitrary refusal may be valid unless the no-assignment clause requires her to act reasonably. However, if T now abandons and offers A as a tenant again, if L’s second refusal to accept A may constitute a failure to mitigate damages. In a state where L has a duty to mitigate her second refusal may terminate T’s continuing liability for rent.

Effect of Consenting to First Assignment: Pursuant to the Rule in Dumpor’s Case (1603), if a landlord consents to one assignment, she waives

any right to prohibit subsequent assignments. Thus, the assignee subsequently can assign without

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consent. Many courts today have rejected the Rule. In jurisdictions that still follow it, a lease provision can negate it. For example, the original lease may provide that consent to one assignment does not constitute consent to further assignments thought the assignee may not be bound by that provision because he was not a party to the lease. Alternatively, the landlord can condition her consent to the first assignment on the assignee’s agreement to seek consent before assigning to a new assignee. Some courts that apply the Rule to assignments do not apply it to subleases.

Termination of Tenancies:Termination According to Type of Tenancy: Tenancy for a Term:

Because the tease specifies a termination date, the tenancy for a term automatically ends on that date. No notice is required, unless the lease provides otherwise. The tenancy ends when the term ends.

Periodic Tenancy: This tenancy automatically renews until timely notice of termination is given by the landlord or by

the tenant. Usually, such notice must be given at lease one period in advance. Thus a tenancy from week to week usually requires one week’s notice of termination, and a tenancy from month to month usually requires one month’s notice. The tenancy from year to year required only six months’ notice of termination at common law. Some state statutes alter these common law notice periods.

The notice usually must coincide with the rental period, i.e. a tenancy from month ot month commencing on the first day of each month can only be terminated by a notice effective on the first day of a month. Some states permit the parties to agree to a shorter notice period, such as seven days’ notice for a month to month tenancy. On the other hand, some states require longer notice periods than the common law, such as one month’s notice ot terminate a weekly tenancy or sixty days’ notice to terminate a monthly tenancy.

Tenancy at Will: This estate terminates when either party gives notice to that effect to the other. At common law,

the notice could take effect immediately. Today, many states impose a waiting period, thereby making the tenancy at will very much like a periodic tenancy in this regard. When the agreement gives one party the option to terminate early, the estate may be treated as a defeasible term, rather than as a tenancy at will, such as a term for years subject to defeasance by the landlord or tenant at an earlier time. In other jurisdictions, courts will give both the landlord and the tenant the right to terminate despite a more restrictive lease provision.

A tenancy at will also terminates when the landlord or tenant dies or when either party attempts to assign its interest. The tenancy also can terminate if the tenant commits waste.

Tenancy at Sufferance: The common law does not require any notice to end this tenancy, because the original termination

date ahs passed. However, some states statutorily require notice. If the holdover becomes a periodic tenant by virtue of the landlord’s election, this estate must be terminated in the same manner as all other periodic tenancies.

Other Ways of Terminating a Tenancy: Destruction of Premises:

At common law, destruction of the premises did not terminate the tenancy. The tenant still had a nonfreehold estate in the land even if it hardly could be used. Today, many states provide by statute that destruction of all or a material part of the premises automatically terminates the tenancy or gives each party an option to terminate. Most leases also provide for this contingency.

Tenant’s Breach—Doctrine of Independent Covenants: At common law, the tenant’s failure to perform covenants under the lease did not entitle the

landlord to terminate the estate. Covenants in leases did not excuse performance by the other. Thus, even though the tenant was not paying rent, the common law landlord had to let the tenant retain possession. The landlord’s remedy was to enforce the particular covenant involved. For example, if the tenant did not pay rent, the landlord could sue to recover the rent or could seek the old remedy of distress to levy on the tenant’s chattels.

Today either rby statute or by lease provisions, a landlord can terminate the tenancy if the tenant defuals in the performance of any major covenant, including the obligation to pay rent. Most leases

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make the tenant’s performance of all his lease covenants a condition for continuance of the estate. This provision enables the landlord to terminate the lease incident to her reversion. After default by the tenant, the landlord usually is required to give notice that the tenant must correct the breach or quit the premises. If the tenant fails to do either, the landlord may commence summary proceedings to terminate the tenancy and to recover possession. Unlawful detainer action.

Landlord’s Breach—Covenant of Quiet Enjoyment: As for the tenant, the landlord’s lease covenants were independent. Therefore, the tenant was

obligated to continue paying rent even if the landlord failed to perform her lease covenants.one exception was the covenant of quiet enjoyment, which is the landlord’s promise that she will not disturb the tenant’s possession. This covenant is implied into every lease. If the landlord breaches this covenant, the tenant is entitled to terminate the tenancy.

o Ex1 Eviction by the Landlord: T has a tenancy for a term with six months remaining. However, L changed the lock on the door, thereby locking T out. T may now treat the tenancy as being terminated and may stop paying rent. T also may treat the lockout as a tort—either a trespass or a forcible entry—and may sue for damages. Finally, T can sue to recover possession.

o Ex2 Eviction by Third Parties: T has a tenancy for a term with six months remaining. An intrusion by third parties makes it impossible for T to possess the premises. T may not terminate his lease obligations, because L has not breached. The landlord’s covenant of quiet enjoyment applies only to acts of L or her agents. She does not insure T’s possession against third parties. This reasoning also justified the common law rule that destruction of the premises did not terminate the tenant’s lease obligation, unless the landlord caused the loss.

o Ex3 Eviction by Other Tenants: Other tenants in the building disturb T’s possession. In some jurisdictions, T may terminate under these circumstances. In many jurisdictions, however, the landlord is not responsible for the other tenants’ actions, unless those actions violated their leases. If so, L’s power to prevent T’s neighbors from violating their leases may entitle T to treat her as responsible for the disturbances.

o Ex4 Eviction by Paramount Title: L failed to pay her mortgage and the mortgagee foreclosed and evicted T. This is an eviction by paramount title. L’s covenant of quiet enjoyment protects against that contingency. Therefore, T may treat the lease as terminated.

Mortgages and Leases:o If the landlord mortgages the property and then leases it, the tenant’s interest is inferior to

the mortgage. The mere existence or assertion of a mortgage or any other adverse claim does not constitute a breach of the covenant of quiet enjoyment. There first must be an eviction. If the mortgage forecloses the tenancy is destroyed because the leasehold, as well as the reversion, was subject to the mortgage. An eviction has now occurred and the tenant may stop paying rent and quit the premises even if the mortgagee desires to preserve the tenancy.

o On the other hand, if the landlord first leases the property and then the mortgages it, the lease is paramount to the mortgage. In this case, a foreclosure sale transfers only the reversion and makes the purchaser the tenant’s new landlord. Because the tenancy is not destroyed, no eviction has occurred and the covenant of quiet enjoyment is not breached.

o Most Mortgagees will not accept a mortgage that is subject to outstanding leases. Therefore, leases commonly provide that they will be subject to mortgages executed either before or after the lease.

Constructive Eviction:o At early common law, lease covenants were independent. Therefore, when the landlord

defaulted, the tenant could sue for breach but could not terminate the lease. However, if the landlord’s failure to perform a covenant of quiet enjoyment. When that covenant is breached by an actual eviction, the tenant always can terminate. By analogy, when the landlord has breached indirectly by failing to perform a covenant, a constructive eviction has occurred and the tenant may terminate.

By Agreement—Surrender:

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The parties always can agree to terminate a tenancy before it would end normally. Unlike a contract, surrender Is not accomplished simply by agreeing to terminate. Because the lease conveyed an estate in property to the tenant, he should reconvey that estate to the landlord by a surrender deed if the estate is long enough to come within the SOF. However, surrender by operation of law sometimes occurs when the tenant abandons the property and the landlord re-enters. Surrender by operation of law eliminates the need for a writing. A conveyance of the landlord’s reversion to the tenant is by release deed.

Eminent Domain: The government has power to acquire private property for public use. When leased property is

taken, the government acquires the tenant’s as well as the landlord’s interest which has the effect of terminating the lease. The government is required to pay just compensation and both the landlord and the tenant may share in the condemnation award. If the value of the tenant’s leasehold was equal to his rent burden he has no claim to nay part of the award because his loss is offset by an equivalent gain. But if his leasehold had a value in excess of his rent, some of the award belongs to him.

o Ex: T leased property for five eyars at 1000k per month. Because neighborhood conditions have improved the fair rental value of the property is now 1200 per month. If the government takes the property, T should receive the lost bonus value of his lease, which is 200 for each month remaining in the lease term, reduced to the present value. L will receive the land’s fair market value, less the amount of T’s award, L’s interest is worth less than it would be otherwise because of the depressing effect of T’s lease. If her property would be worth 100k if it was not leased T, the fact that T pays 200 per month below the current market rent means that any buyer of the property would require that the purchase price be reduced to cover that shortfall in rent.

When the government takes property only temporarily and for a shorter duration than the remainder of the tenancy, the lease is not terminated and the award goes entirely to the tenant. However, the tenant must continue to pay rent to the landlord. when a physical part of the property is taken, most courts hold that the tenant’s rent liability is unaffected. Therefore, the tenant is entitled to receive both the future rent owed for the part taken and its bonus value. The balance goes to the landlord.

Landlord’s remedies for Continued Possession After Lease Terminates—Holdover Tenants: The tenant’s possession should end when the leasehold ends. If a tenant holds over after the term

expires, the landlord has a choice of rememdies. Double or Treble Damages:

Statutes in many states permit the landlord to recover two or three times the regular rent for the time that the tenant actually holds over. This remedy sometimes is limited to willful or malicious holdovers.

Increased Rent: The lease may specify a higher rent for any period of holding over, or the landlord may notify the

tenant before the end of the term of this consequence. Courts generally uphold this type of lease provision or notice if the rent increase is reasonable. However, if the tenant already has begun holding over, an attempt to increase the rent thereafter may be invalid.

Eviction and Damages: In every state, a landlord may evict a holdover tenant and recover damages for the fair rental value

of the premises during the holdover period. Self-Help:

Although a landlord may be entitled to evict a holdover tenant, the landlord may not enter the premises without a court order or use self-help to oust the tenant, such as changing the locks. In many states, such acts make the landlord guilty of forcible entry because the tenant is a peaceable, albeit wrongful, possessor. A landlord’s right to evict is primarily the right to bring judicial summary dispossession proceedings against the tenant.

Renewal of Tenancy for Additional Term: The landlord may elect to renew a holdover’s tenancy for another term usually equal to the length

of the original term, regardless of how long the tenant actually held over. However, the new term usually may not exceed one year because of the SOF. In most states, the tenant becomes a periodic tenant. In others, the tenant becomes a tenant for a term.

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o Ex: T had a one year lease and held over for five days after its expiration. L may elect to make T stay another rpeirod either as a periodic tenant, some states treat him a sa tenant from year to year because the original term was a year. Other states will treat him as a tenant from month to month if the rent was paid on a monthly basis.

o Ex: T was a tenant from month to month. Either L or T gave thirty days’ notice of intent to terminate the tenancy effective the following month. However, T held over for three days after the termination date. As a result, L can hold T liable for the entire month, either as a tenant from month to month or as a tenant for a term a month.

Consequence of Tenant for a Term Becoming a Periodic Tenant:o A tenant for a term who holds over may, at the landlord’s election, be converted into a

period tenant. Because periodic tenancies are terminated only by giving the necessary notice, the tenancy may be continued for a third period, even though the tenant did not hold over after the second period, I fhe does not give timely notice of intent to terminate during the second period.

Ex: T had one year lease that began on Jan 1, 2008 and ended on Dec 31, 2008. T held over until Jan 5, 2009 and L elected to renew T’s tenancy. Under the applicable state law, T became a tenant from year to year. On Dec. 31 2009, T vacated. If T did not give timely notice to terminate the tenancy at the end of 2009, L can hold him liable for the next year 2010 because the tenancy from year to year that was created in 2009 automatically renewed in 2010.

Increased Rent:o Most states require that the landlord give a rent increase notice as far in advance as a

termination notice. Therefore, a landlord give a rent increase notice as far in advance as a termination notice. Therefore, a landlord may be unable to increase the rent owed by a holdover tenant unless notice of the increase was given in a timely manner.

Ex: T held over after the end of his tenancy. L then notified him that, if he stayed, he would owe a higher rent. Unless she gave this notice sufficiently in advance of the date of the increase, the increase is invalid.

Estate for Years – “To Bob for Ten Years:” There is no need to add “heirs” to the grant of an estate for years because it is a nonfreehold estate. It merely must specify the estate’s beginning and ending dates. The estate for years is transferrable inter vivos and passes at its owner’s death by will or by intestate succession.

Estate from Period to Period—“To Bob from Month to Month” or “To Bob for $10 per Month”: To create an estate from period to period also known as a periodic estate, the conveyance either can state that the term is periodic or can state a periodic rent without specifying a termination date. The length of the period is usually the period for which rent is stated. Therefore, the language “to Bob for $10 per month” will create a month-to-month tenancy. Other forms of periodic estates are covere din the landlord and tenant.

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Real Covenants and Equitable Servitudes 642-52; 655-56; 670-74