Property Outline Final-3

8/3/2019 Property Outline Final-3

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PROPERTYOUTLINEproperty: anything of value that one may lawfully

acquire

Lockes Labor Theory of Property : must cultivate and develop the land to haveownership possession; the person exercises dominion and control and changes thepropertys value by his labor

FIRST POSSESSION: ACQUISITION BY DISCOVERY,CAPTURE & CREATION

I. ACQUISITION BY DISCOVERY

first in time: he who gets there first has property rights

terra nullius: land inherited by no one

discovery: the sighting or finding of unknown or uncharted territory, it is

frequently accompanied by a landing and the symbolic taking of possessionconquest: if you occupy the land by force then you own everything andeveryone

Johnson v. McIntosh (title of property from Native Americans)

Issue: Whether title to land conveyed from Native Americans can berecognized in the Courts of the United States?

Rule:

o

First in Time : the first possessor has the best right to the property ownership

o Property : anything of value that could be bought and sold

Analysis: Native Americans could possess, but not own the land. They didnot do enough to cultivate the land.

Conclusion: Native Americans could not give title

law of accretion: when natural forces gradually sift a river and cause the adjacent landto receded or advance by the build-up of new soil; the owner of the adjacent land gainsor loses land as the water boundary gradually shifts

law of accession: when one person adds to the proper of another by labor alone

abandoned property: the person who has the best right to abandoned property is thefinder besides the original owner; the person who exercises dominion and control especially of the property changes value by the finders labor (Lockes Labor Theory ofProperty)

law of avulsion: if there is a sudden change in the course of a river (as after a flood),the boundaries do not change

II. ACQUISITION BY CAPTURE1


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capture wild animal: (1) mere pursuit alone does not give legal right ofwild animal, must have intercepted it and killed it to have ownershiprights; (2) one who mortally wounds an animal and so captures it isalmost certain to be deemed to have possession.

Pierson v. Post (wild fox case)

Issue: since a wild animal does not belong to anyone, how does one become the ownerof a wild animal?

Rule: to capture a wild animal one must capture it and either take possession orintercept it with a net.

Analysis: only pursuit and wounding, but did not capture the fox, and that is notenough to establish possession.

Conclusion: did not have title to wounded animal

Keeble v. Hickeringill (duck decoy)

Issue: Whether conduct to deprive a man of income by engaging in activity that

interferes with his livelihood is actionable in court?

Rule: Anything on ones property, then you have constructive possession

where a violent or malicious act is done to a mans occupation, profession, or way ofgetting a livelihood, there an action lies in all cases

Analysis: D did not intend to disrupt the duck decoy except to interfere with Psattempt to earn income. P invested heavily in his enterprise and D was wrong.

Conclusion: Judgment affirmed for P.

someone who kills an animal on property, then you own it; would have to trespass on

the land to get it and the owner has constructive possession of the animalGhen v. Rick (whale case)

Issue: whether a local custom regarding ownership of killed wild animals is sufficient tosustain a cause of action in court?

Rule: may use custom, usage and public policy toward determining property rights incertain circumstances

Analysis: custom was sufficient here and to go against the local rule would causedamage to the local whaling industry. D knew the local custom of special harpoonsmarking the kill.

Conclusion: judgment for plaintiff

Oil and Gas: when oil or gas escapes and goes to someone elses land or control,title of former owner is gone if the other person captures it

Water Rights: follows similar rule to oil and gas

externalities: whether a person in using his or her property shouldconsider its effect on other people?

involves property use restrictions

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cant do what you want because it causes a nuisance

Three Types of Land Use Controls/Restrictions:

(1) nuisance: unreasonable interference with anothers use and enjoyment of their land

(2) private land use controls

easements the right to go across someones land

covenants real or equitable(3) legislative law of zoning

(4) defeasible fees

a fee simple determinable

a fee simple subject to a condition subsequent

a fee simple subject to an executory limitation

III. ACQUISITION BY CREATION

acquisition by creation: any expenditure of mental or physical effort, as aresult of which there is created an entity, whether tangible or intangible,vests in the person who brought the entity into being, a proprietary right tocommercial exploitation of that entity, which right is separate andindependent from the ownership of that entity.

International News Service v. A.P (stealing news copy)

Issue: Whether there is any property interest in news?

Rule: A.P. has a quasi property interest in news it gathers until itscommercial value has passed away.

Analysis: lockes labor theory of law; news is not copyrighted material, theinformation respecting current events is not a creation of the writer, but is areport of matters that are ordinarily public. Took actions to sneak the infoaway from INS.

Conclusion: Affirmed for P.

Cheney Brothers v. Doris Silk Corp. (manufacturer of silk patterns)

Issue: Whether silk patterns, proprietary value of which decline rapidly, is

subject to copyright protection for a fashion season?Rule: a mans property is limited to the chattels which embody hisinvention . . . . Others may imitate these at their leisure.

Analysis: to prevent the imitation would go far beyond the sweep of Cong.or the S. Ct.s interpretation of copyright law. In the absence of somerecognized right at common law or statute . . . a mans property is limited tothe chattels which embodies his invention; others may imitate at theirleisure.

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o not patentable : laws of nature, physical phenomena; and abstract ideas

White v. Samsung (Vanna Whites robot comparison)

Issue: Whether P had an exclusive right to control the use of her name andlikeness for commercial exploitation?

Rule: elements of a common law right of privacy: (1) defendants use ofplaintiffs identity; (2) defendants appropriation of plaintiffs name and

likeness to defendants advantage; (3) lack of plaintiffs consent; and (4)injury.

Analysis: D didnt use Ps likeness, rather a robot. Overprotectingintellectual property is as dangerous as underprotecting it. Intellectualproperty law assures authors the right to their original expression, butencourages others to build freely on the ideas that underlie it.

Conclusion: judgment for D affirmed.

FYI Test: Whether your persona is a recognizable commodity which willresult in commercial advantage?

Moore v. UCLA (used body parts)

Issue: whether P has a cause of action in conversion against D for using hiscells in potentially lucrative medical research without his permission?

Rule: no cause of action for conversion because does not have a propertyinterest in internal body parts

Analysis: did not a cause of action for conversion policy reason: dontwant folks selling internal body parts; also Lockes Labor Theory of Property didnt do the work to convert the cells from the spleen into something ofvalue. Had no expectation of dominion, the right to control, use or transfer,the excised cells/

Conclusion: no action for conversion; action for lack of informed consent

Diamond v. Chakrabarty (oil eating bacteria)

Issue: whether Ps micro-organism constitutes manufacture or compositionof matter within the meaning of the statute?

Rule: a patent claim may be an invention as a product and as a process,but it must do so in separate claims

some things cannot be patented laws of nature, physical phenomenaand abstract ideas

Analysis: P could patent the bacteria because he created something newthat was outside the natural state of nature Lockes Labor Theory ofProperty

Conclusion:

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copyrights: protects rights in the expression of ideas in books, articles, music andother tangible medium; other may make fair use one can create a painting and sellthe painting and still retain the copyright

o copyright term lasts for the life of the author plus 70 years (or a fixed term of

95 years for works made for hire and some other categories of work

o an author owns the copyright in any original work of authorship as soon as he

fixes it in some tangible form

o provide that an author has an inalienable right to terminate any exclusive grant

of a transfer or license of any or all the rights under a copyright during a 5 yearperiod after 35 years from the date of the grant by the author

MGM v. Groskter (infringing on the net)

Issue: Under what circumstances the distributor of a product capable ofboth lawful and unlawful use is liable for acts of copyright infringement bythird parties?

Rule: must have actual knowledge of specific infringement

where an article is good for nothing else but infringement, there is nolegitimate pubic interest in its unlicensed availability, and there is noinjunction in presuming or imputing an intent to infringe.

Analysis: it was not enough that mere knowledge of infringing potential oractual infringing uses is not enough to subject a distributor to liability.

Conclusion: vacated and remanded.

trademarks: protects words and symbols indicating the source of a product orservice

o last until abandoned

o acquires a trademark of making a bona fide use of the mark in commerce; canbe a word, phrase or clause, a design, an image, a sound, a color, or fragrance

o inherently distinctive marks : those whose intrinsic nature serves to identify a

particular source

o arbitrary and fanciful marks : those which do not describe or suggest any

characteristic of the product

o suggestive marks : those which suggest but do not describe the nature or

characteristics of the product

THE RIGHT TO EXCLUDE OTHERS FROM PROPERTY

public trust: allows people to cross your property to get the public spaces withlimitations

eminent domain: right to just compensation for taking of property

Jacque v. Steenberg Homes, Inc. (mobile home delivery acrossprivate property)

Issue: Whether P had the right to not allow D to deliver a mobile homeacross his property?

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Rule: a private person has the right to exclude others from his or her landfor any purposes which does not invade the property rights of another

Analysis: if P could not prevent the delivery over his land then he wouldhave no real right to exclusive enjoyment of his land. Additionally, if P couldnot resort to the law for help then it would encourage the use of self-help,potentially violent and unnecessary.

Conclusion: Judgment for P.

State v. Shack (immigrants working on private farm seeking help)

Issue: Whether the defendants infringed on the farmers property rights bytrespassing on the land?

Rule:

under State law the ownership of real property does not include the rightto bar access to governmental services available to migrant workers and hencethere was no trespass within the meaning of the penal statute

a mans right to his real property is not absolute. . . . one should so usehis property so as not to injure the rights of others

Analysis: policy considerations make it important to protect migrantsworkers who are in many ways outside of society. There was no legitimateneed for a right in the farmer to deny the worker the opportunities for aidavailable from federal, State or local services, or from recognized charitablegroups seeking to aid them.

Conclusion: Ds acquitted.

SUBSEQUENT POSSESSION: ACQUISITION OF PROPERTY BYFIND, ADVERSE POSSESSION, AND GIFT

I. FIND

Armory v. Delamirie (jewel in the chimney)

Issue: Whether the finder of property has the best claim to property over allothers except the true owner?

Rule: The finder of lost property has a claim against all except the trueowner.

Trover is a common law action for money damages resulting fromthe defendants conversion to his own use of chattel owned orpossessed by the plaintiff.

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Analysis: brought an action in trover for the jewel (modern dayconversion). Here P found the property. Best claim.

Conclusion: got value of the jewel

abandoned property: treated as lost property

possession of property: (1) physical possession; (2) intent to have dominion andcontrol

bailment: the rightful possession of goods by a person (the bailee) who is not theowner (there must be delivery and acceptance)

voluntary bailment: when the owner of the goods (bailor) gives permission to thebailee (dry cleaners, coat check) duty of reasonable care for anothers property

involuntary bailment (found goods): involuntary from the view of the owner, but thefinder assumes the obligation of a bailee; lost goods, involuntary bailee unintentionallyparted with your property ordinary reasonable care

law of finds: finder of lost goods has the best property right against everyone exceptthe true owner

lost property inadvertently left behind

employer/employee: some/some

law of mislaid goods: finder has no rights to mislaid goods, when aperson voluntarily and intentionally places property in that placebut who forgets to retrieve it just the true owner better claim onthe property by the owner of real property, where the item is found

real estate: cause of action for specific performance; modern is trespass value for damages and ejectment: get off my property

personal property: at early common law, no replevin; could only sue for trover

recover for value of land

Hannah v. Peel (corporal found broach in house)

Issue: Who had the better right to claim ownership of property, the finderof the jewel or the owner of the land where the property was found?

Rule: A person possesses everything which is attached to or underhis land. However, a person does not necessarily possess a thingwhich is lying unattached on the surface of his land even though thething is not possessed by someone else.

Analysis: Corporal had best claim. Followed the right steps, and D was

never in actual possession of the property. The broach was never his; thebroach was lost and P found it.

Bridges v. Hawkensworth: found a package on the floor of a shop and showsthe owner and say Ill hold it until the true owner shows up the finder getsit because it is lost, not mislaid.

Conclusion: Plaintiff.

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McAvoy v. Medina (pocketbook found in barbershop)

Issue: Who has the best claim to mislaid property, the finder or the ownerof the property where the item is found?

Rule: The finder has no rights to mislaid goods (when a personvoluntarily and intentionally misplaces property in that place butwho forgets to retrieve it) just the true owner.

Analysis: P had no rights to the pocketbook. It was placed voluntarily onthe table and the true owner neglected to remove it. From a public policystandpoint it would be best for the owner of the shop to hold onto theproperty in case the true owner wants to retrieve it.

Conclusion: judgment for D affirmed.

II. ADVERSE POSSESSION

Adverse possession: An actual entry giving exclusive possessionthat is open and notorious, adverse and under a hostile claim ofright and continuous for the statutory period.

Morengo Cave Co. v. Ross : open possession of an underground cave is notnotorious to whomever the soil belongs, goes up to the sky and down to thedepths

Lutz v. Van Valkenburgh (Yonkers lot dispute)

Facts:

L v. V.V.: easement over the land, but is actually a prescriptive rightbecause not written won

Issue: Whether there is evidence that Lutz cultivated or improved the lotsufficiently to satisfy ownership by adverse possession?

Rule: To acquire title to real property by adverse possession not found upona written instrument, it must be shown by clear and convincing proof that forat least fifteen years there was an actual possession under claim of title.The essential elements of proof being that the premises: (1) are protected bya substantial enclosure, or are (2) usually cultivated or improved.

Analysis: second suit, screwed up when made a statement against his ownpecuniary interest in the first case, easement for the crossway. Also, Lutzdidnt improve the property enough.

Conclusion: judgment for VV

adverse possession: a method of transferring interest in land without the consent ofthe prior owner, even despite the dissent of the owner

Elements: (1) an actual entry giving exclusive possession that is(2) open and notorious (3) adverse & under (hostile)) claim of right;(4) continuous for statutory

entry must be exclusive, continuous, uninterrupted, visible & notorious

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must show by enclosure, cultivation, & improvements; neighbors and othersmust regard occupant as exercising dominion

protects the true owner before the SOL and the adverse possessor after the SOL

some states require payment of taxes to recover for adverse possession

when the life estate owner dies, the timing for adverse possession starts allover again,

the remainder men are protectedquiet title: a declaratory judgment to find out who owns the property

public rights doctrine: implied easement to gain access to some public area whilecrossing private property

color of title: not a prerequisite of Adverse Possession, refers to claim on writteninstrument that is defective grantor does not own the thing conveyed (even with deed,u dont actually own land)

claim of title: one way of expressing the requirement of hostility or claim of right onthe part of an adverse possessor

good faith standard : I thought I owned it aggressive standard : I knew/I thought I didnt own it, but intended to keep it.

objective standard : state of mind is irrelevant

TOLLING OF STATUTE OF LIMITATIONS

disability : tolling for the SOL; a disability is immaterial unless it existed at the timewhen the cause of action accrued.

Statute of Repose : SOL begins at the date you were injured even if unaware of thedisease

bring an action for recovery within twenty-one years or ten years after adversepossession period is over

ADVERSE POSSESSION AGAINST THE GOVERNMENT

eminent domain : government cant take private property for public use withoutjust compensation

Under U.S. Law the states are split on adverse possession against the government

o can run in some states against the government

o some states cant run against the government

o some, longer tolling period against the government than against private landowners

o some, only if own property in a proprietorship

BOUNDARY DISPUTES

Mannillo v. Gorski (fifteen inch encroachment on neighbors land)

Issue: Whether the defendants encroachment met the standard of openand notorious?

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Rule: where there is a minor encroachment, the true owner must haveactual knowledge of the encroachment to satisfy the open and notoriousstandard.

Analysis: the encroachment does not have to be hostile if any entry andpossession for the required time which is exclusive, continuous,uninterrupted, visible and notorious subsidiary rule that overturns ifencroachment done under MISTAKEN BELIEF then no hostile possession. The

true owner MUST HAVE actual knowledge of the encroachment where thereis only a dispute.

Conclusion: Remanded for trial.

doctrine of agreed boundaries: oral agreement enforceable if used for a long periodof time

doctrine of acquiescence: long acquiescence though for a period of time shorterthan the SOL evidence of an agreement between parties fixing the boundary lines

doctrine of estoppel: when one neighbor makes representations about the location ofa common boundary, and the other neighbor then changes her position in reliance onthe representation or conduct

MECHANICS OF ADVERSE POSSESSION

Howard v. Kunto (beach land with wrong title)

Issue: What happens when the descriptions in deeds do not fit the land thedeed holders are occupying?

Rule: tacking, the joining of consecutive periods of possession by differentperson to the different periods of time as one continuous period, is allowed inadverse possession if the occupants are in privity

Analysis: the family in possession were not squatters, but folks whoobtained record title, albeit incorrect title. They win on adverse possessionby being in privity with previous owners who had incorrect title that theybelieved was correct.

Conclusion: reversed, dismiss Ps action and quiet title to D (in privityfamily)

* continuity is normal use of a property: summer home is usedevery yr so = continuous

Can tack interest if in privity (a voluntary relationship)

- privity given by deed or can be established bypossession.

Tacking Problems:

A enters onto Blackarce in 2000, owned by O. 2007 B kicks A out. Who ownsland in 2010 if SOL is 10 yrs?

o O owns the land because no privity between A and B because privity is

a voluntary relationship between both parties.

o A would argue 1st in time because he didnt pass SOL yet.

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A leaves in 2003 because threat of force but in 6 months returns and recoversland. Who owns the land in 10yrs? 10 yrs 6months?

If in 2000 A abandons Blackacre and B takes possession. If O does nada will Bown Blackarce in 2010?

o A didnt pass land voluntarily, there was no transfer. B can only Tack if

privity, no privity. He has to start over, so he did make his 10yr SOL.

1994 A enters blackarce, 1995 O dies and leaves will leaving Blackarce to B forlife then to C get remainder (fee simple means u own it forever once u get it).2010 B dies. Who owns land?

o Once entry is established, adverse continues even if ownership

changes or transfers. A has been on land for 16 years undisturbed so Aowns land.

o C can contact B if she knows about A before B dies.

1995 O dies and gives B blackarce for life remainder to C. 1996 A enters. In2010 B dies. Who owns land?

o A enters against B. by 2006 A has adverse possession against B. If

enter a life estate can only enter adverse against life estate.

o A wins against B, but then A SOL starts all over again when the life

estate ends and C owns it. SO C wins against A.

Disability Problems:

Disability is immaterial unless its there at point of entry.

What type of disability?

Death ends disability.

If more than one then pick the one that lasts the longest.

age 21 gets rid of disability and 10 yr extension. O is the owner in 1984 and Aenters 1984.

O is insane in 1987 dies 2007 intestate (without a will.)

o 2017 A gets possession

O heir has no disability in 2007.

o 2017 A gets possession

O heir, H, is 6 in 2007 A gets possession in 2032

A enters in 84, O is 5 years old in 84. In 94 O becomes mentally ill and O diesintestate in 09. Os heir, H, is under no disability. Does the adverse possessorhere acquire title in 05, 07 or at some later date? If the answer is 05 or 07how are Os interest to be protected?

o O stops being a minor in 1997. Ten yrs after that is 2010.

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ADVERSE POSSESSION OF CHATTELS

OKeefe v. Synder (painting not reported)

Issue: When did OKeefes cause of action for replevin of her painting beginto accrue?

Rule:

under the discovery rule the SOL on an action for replevin beings to runwhen the owner knows or should reasonably should know of his cause of actionand the identity of the possessor of the chattel

discovery rule: in an appropriate case, a cause of action will not accrueuntil the injured party discovers, or by exercise of reasonable diligence andintelligence should have discovered, facts which form the basis of the cause ofaction

Analysis: Have to investigate to determine whether P: (1) used duediligence to recover the painting at the time of the alleged theft and

thereafter, (2) at the time of the alleged theft there was an effective method,other than talking to her colleagues to inform the art world, and (3)registering paintings with ADAA or any other organization would have put areasonably prudent purchaser of art on constructive notice that someoneother than the possessor was the true owner.

Conclusion: reversed and remanded for a plenary hearing

III. GIFT

Gift the voluntary transfer of property by one person to anotherwithout any consideration or compensation. Is a present transfer

property (if future transfer, then its a promise to make a gift, andis unenforcement).

ELEMENTS: (1) intention to make the gift oral evidence; (2)delivery of the thing given objective acts, passing of control ofitem; (3) acceptance of the gift by the donee (assumed)

constructive delivery : handing over a key or some object thatwill open up access to the subject matter of the gift

symbolic delivery : handing over something symbolic of theproperty given usually a written instrument declaring a gift of thesubject matter

acceptance : the law presumes acceptance whenever the gift isbeneficial to the donee.

GIFT CAUSA MORTIS

gift causa mortis: a gift made in contemplation of and in expressionof immediate approaching death and is a substitute for a will

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if the donor lives the gift is revoked , although some courts may hold thatrevocation occurs only if the donor elects to revoke upon recovering

gift inter vivos: ordinary gift in which the donor is not responding toany threat of death

intend to give an ownership property interest today, although apossessory interest may occur in the future

Newman v. Post (woman took care of dying man piano)

Issue: Whether the deceased made a valid gift causa mortis to the plaintiff?

Rule: to constitute a donation causa mortis, two things are indispensablynecessary: an intention to make a gift, and a delivery of the thing given . . . .Requires but one witness

the intention to make the gift need not be stated explicitly and may beinferred from the facts attending to delivery, but it must always clearly appear thathe knew what he was doing and he intended the gift

constructive delivery where it plainly appears that it was the intention ofthe donor to make the gift, and where the things intended to be given are notpresent, or, where present are incapable of physical delivery from weight and size

Analysis: the manservant was there to witness the gift and P becameowner of anything that the keys unlocked in the bureau the rest of the stuffnot in her bedroom was the property of Ds estate. On remand P must provethat D intended to give her the piano. Unlikely to prove the entire property,just the keys to what was unlocked.

Conclusion: new trial.

Gruen v. Gruen (father gifted painting to son)

Issue: whether a valid inter vivos (between the living/ while living) gift ofchattel may be made where the donor has reserved a life estate in thechattel and the donee never had physical possession of it before the donorsdeath?

Rule: to make a valid inter vivos gift there must exist the intent on the partof the donor to make a present transfer; delivery of the gift, either actual orconstructive to the donee, and acceptance by the donee.

delivery necessary to consummate a gift must be as perfect as the natureof the property and the circumstances and surroundings of the parties wouldreasonably permit

it is unreasonable to expect the donor of the remainder of the propertyinterest in chattel to physically deliver the chattel into the donors hand only tohave the donee redeliver it

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Analysis: Ps father intended to give the painting to him and intended totransfer the ownership of the painting to his son and the remainder of theproperty interest would pass upon death. P kept two letters, showed thepaintings to friends and remarked that he owned it over the course of 17years. Delivery occurred at the receipt of the letter vested father kept alife estate. Created a remainder interest in the son at the day the letter(second) was received and gave a present ownership interest withpossession in the future.

Conclusion: judgment for son affirmed

so long as there is a present conveyance of an interest in property now (TODAY) itdoes not matter that possession occurs in the future

Rule: if the grantor intends to make a transfer now, there has been aneffective delivery even though possession may be postponed until thegrantors death

SYSTEM OF ESTATES (LEASEHOLD ASIDE)

POSSESSORY ESTATES

FREEHOLD ESTATES

o fee simple absolute: largest estate can do anything with it, infinite

duration

o fee simple defeasible: can last 4eva unless cut short upon an event

occurring

o fee simple determinable: so limited it will automatically end when

specific event occurs

estate: a bundle of rights a word denoting legal relationship to a thing

fee simple: endures forever, unless cut short

fee simple absolute: largest estate, gives owner freedom to sell, giveaway, etc. may endure forever and there are no limits on inheritability; a feesimple absolute is absolute ownership, with potentially infinite duration.There are no limitations on inheritability. It cannot be divested, nor will itend on the happening of any event.

to A and his/her heirs: A fee will be passed to his heirs, their heirs, soon but only if prior person owned land at death. WORDS OF LIMITATION B/C HEIRS

ONLY GET IF A HAS LAND AT TIME OF DEATH.

fee potentially infinite; simple no limit in inheritability;absolute cannot be cut short

fee tail: an estate in land created by a conveyance to A and the heirs ofhis body look for those words; has the ability to endure forever but willnecessarily cease if and when the first fee tail tenant has no linealdescendants to succeed him in possession when A blood line of kids die, sodoes fee tail.

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only in four states (Delaware, Maine, Mass., Rhode Island)

fee simple defeasible: a fee simple that may last forever or be cut shortor defeased upon the happening an event in the future

fee simple determinable/fee simple subject to a condition subsequent/feesimple subject to an executory limitation (shifting/springing)

fee simple determinable/possibility of reverter: a fee simple solimited it will automatically end when some specified event happens

so long as, used for, while used for, until, during

You only get this if you stay blue, when u become not blue then the landnot urs.

Sometimes doesnt give everything away or give to future 3rd party

O to A and his heirs so long as land is used for.., then to B.

fee simple subject to a condition subsequent/right of reentry:a fee simple that does not automatically terminate but may be cut short(divested) a the grantors election when a stated event happens

but if, provided, however, on the condition that if the premises

right of re-entry

the land is urs but if u cut down trees its not your anymore.

O to A and his heirs, but if the land is ever used for non residentialpurposes.

fee simple subject to a to an executory limitation: the eventthat cuts short the estate (ends estate) but goes to 3rd party not previousowner.

3rd party has executor interest

life estate: an estate that will end necessarily at death of a person to A forlife

Problem:

O to A (purchase) and Hiers (limitations) p. 213

In 1600 O conveys Blackarce to A for Life, then B forever. What estates do Aand B have? If A dies and then B dies, who owns Blackarce? Supposeconveyance take places in 2010?

o A has life estate, B has at common law a life estate, then goes to

escheat??

o In 2010, A has life estate, B has Fee simple

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In 1600 O conveys Whiteacre, to A for life, remainder to the heirs of B. B isalive in 1600 but dies intestate soon after. B heir is C. Subsequently, A dies.What estate does C have?

o C has fee simple because never given to B. Common law only males

can be heirs.

O conveys Green arce to A and her Heirs. As only child B, is a spendthriftand runs up large unpaid bills. B creditors can attach B property to satisfy

their claims. Does B have an interest in Greenacre reachable by B creditors?Suppose A wishes to sell Greenarce and use the proceeds to take a trip aroundthe world. Can B prevent A from doing this?

o B doesnt have interest until A dies. A has words of limitations not

words of purchase. Heirs determined at point of death (heir must beliving)

o B has an expectancy but not a property interest

I living person has no heirs, must be dead to have heirs

O to A for life= when A does no 1 gets land/estate

Legal life estate

Equitable life estate

INHERITANCE OF A FEE SIMPLE

heirs : Common Law: if a person dies intestate, heirs (children) get property. personwho survive the decedent and are designed as interstate successor under the statesstatute of descent; a person who, under the laws of intestacy, is entitled to receive an

intestate decedents propertyo under modern statutes: first issue parents collaterals

o Wife wasnt heir in common law. Modern law wife is heir along w/kids if husband

dies. Ie: if husband dies and lives a wife and child, wife gets half and child get half.If husband leaves wife and 2 kids, each get 1/3.

intestacy : if a person dies without a will, that person dies intestate, laws of heirshipwill control, common law adopted kids werent allowed but now they are like reg birthkids

issue : descendant, not just children but grandchildren, great grandchildren, etc.

ancestors : parents

tenancy : Land lord tenant

collaterals : all persons related by blood to the decedent who are neither descendentsnor ancestors are collateral kin (brothers, sisters, cousins, etc.)

Purchasers : those who get land from an instrument as opposed to inheriting it.

escheat : a person dies interstate without any heirs, the property reverts back to thestate

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in a will you devise land and bequeath personal property

- Only if there were no sons would the person daughter inherit.

- if no kids then all to spouse or split between parents and spouse.

- Common law: Children born out of wedlock couldnt inhereit nada. MODERN law:inherit from mom and dad if known.

- Common Law: adoption not recognized. MODERN, inherit from adoptive parents

and natural parents

O+W half to A and B, then B half gets divided

A B

A1 B1 B2 B3

Problems:

O, has 2 children, A (daughter) and B(son). B dies testate, devising all hisproperty to W, his wife. B is survived by 3 children, B1 (daughter), B2 (son), B3(Daughter). A1 (son) born to A. O dies intestate (w/o will). Who owns in 1600?

o B2 because it takes place of B because he died b4 O died and only male.

How about modern law?

o B1-3 would get, A1 cant get until A dies. half to A and B, then B half

gets divided to his kids if he dies.

LIFE ESTATE a life tenant cannot: (1) sell a fee simple; (2) enter into a long-term lease; (3)

cannot get a bank to hold his/her interest in the land as collateral for a loan becausethe collateral lasts only during the life of the life tenant; (4) cannot safely takeminerals/cut timber/take down still useable building without committing waste

White v. Brown (will of property to niece and home to sis-in-law)

Issue: Whether the decedents will, when taken as a whole, clearlyevidences her intention to convey only a life estate or fee simple in her hometo her niece?

Rule: state law creates a presumption that property is passed in fee simpleunless express or clearly implied language indicates a life estate or a feeinterest subject to a condition subsequent

cant inherit a life estate because it reverts back to the grantor in fee simple

Analysis: The language of the will was ambiguous and her restraint againstalienation of the property shall not be sold is void as a matter of publicpolicy. Fee simple b/c will unclear or if go thru the trouble to write a willand divide prop then she wanted some1 to get her prop. if life estate then nopoint of having will.

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Conclusion: reversed.

life estate per autraphie: a life estate based upon the lifetime of thegrantor of a life estate O to A for life-A sells to B per autre vie-when A dies theownership ends (is sold for her lifetime only)

Baker v. Weedon (skipped kids in will, but gave interest tograndchildren)

Issue: Whether the Chancery Court had jurisdiction to sell the land and setup a trust at Annas request?

Rule: a court of equity has the power to order the judicial sale of landaffected with future interest and an investment in the proceeds where this isnecessary for the preservation of all interests in land, but considerationshould be given to the question ofwhether a sale is necessary for the

best interest of all partiesAnalysis: the sale would be best for Anna, but not the grandchildren. Atthe trial level, it should be determined whether a partial sale would beenough to set Anna up with a trust to take care of her for life. Ct had jdx toprevent waste

Conclusion: reversed and remanded.

Legal Life Estates in Personalty: life estates in personal property

person has the use of the tangible item for life, the law of waste does not adequetly protect the interest, otherlaws enacted to protect the interest.

Protecting the life tenant by creating a trust: A trustee holds the legal fee simple and as the manager andadministers the trust for the benefit of the life tenant and remaindermen. The trustee has the power to sell,lease, mortgage, remove minerals, or do whatever a prudent person would do with respect to the property. Alife tenant can be made a trustee.

WASTE

law of waste: whenever two or more people have rights to possess property at thesame time A should not be able to use the property in a manner that wouldunreasonably interfere with the expectation of B

permissive waste : arising from a failure to act; essentially a question of negligence failure to take reasonable care of the property

affirmative waste : liability results from injurious acts that have more than trivialeffects; injurious, acts that substantially reduce the value of the property in questionIM GOIN TO CHOP DOWN ALL THE TREES

life tenants can make substantial alterations or even demolish a structure whenconditions change, provided the value of the remainder is not diminished by theseactions

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amielative waste: good waste, increases value but still considered waste. Where it isclear that the grantor intended for particular use and use still possible.

Woodrick v Wood (George died and left life estate to wife and thenremainder to both kids. Wife and son want to tear down prop anddaughter didnt want to b/c waste. Even though bar was worth a certainamount but needs lots a repair and tearing it down makes it morevaluable)

Issue: Is the holder of a remainder interest in some land entitled to stop thelife tenant from destroying buildings there?

Rule: While at common law anything that altered leased premises in any way

constituted waste, under Ohio case law there must be substantial damage to thereversion in order for waste to be actionable.

Analysis: The court finds that even though tearing down the rotting barnresults in gross waste, it does not result in netwaste because removing the barnactually increases the value of the property overall. If there is no reduction in thenet value of the property, then there is no waste and no cause of action. The courtaccepts the lower courts decision to award the value of the barn to Patricia as fairto both parties.

Conclusion: The trial courts decision is upheld.

FEE SIMPLE DETERMINABLE/A POSSIBILITY OF REVERTER

Rule: if the condition listed is a fee simple determinable at the verymoment at the breach of the condition the land automaticallyreverts back to the grantor

so long as; while used for; until; used for, during

- Fee simple, fee tail and life estate were freehold estates, possessor.

Examples:

O conveys Blackacre to town library so long as used for librarypurposes. Note: If use stops, the property automatically reverts to O.

Review Problems pg. 1197

1. Fee Simple Subject to Condition Subsequent

2. A has title unless B exercises title because of the breach of the condition

3. Fee simple Determinable

4. Fee simple determinable

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5. Fee Simple subject to executory limitation, B has fee simple absolute (if the limitation is breached)

LEASEHOLD ESTATES

- Non-freehold estates, so no seisin.

- When lease involved (chattel b/c real property), then Landlord still has seisin evenif actual possession given to lease holder.

- Common law term of years most important factor (lease ends on a fixed calendar

date)

DEFEASIBLE ESTATES

- Estate last forever unless a future event happens. See Above For FeeSimple Absolute/Defeasable (p.13)

Fee simple determinable, SOL starts when party doesnt use land as

told Fee simple subsequent must assert ur interests of re-entry

Mahrenholz v. Cty Bd. of Trustees (school grounds conveyed; landfor school purposes only, if not back to grantor)

Issue: Whether the trial court correctly concluded that the plaintiffs couldnot have acquired any interest in the school property from the Huttons?

Rule: A right of reentry cannot be transferred by will or inter vivosconveyance; the rights of reentry for a condition subsequent and possibilities

of reverter are neither alienable nor devisable, they are inheritable.

Analysis: The use of the word only in the conveyance indicates that thelands when to the school district for as long as it was needed and no longer.The deed created a fee simpledeterminable followed by the possibilityof reverter.

Conclusion: reversed and remanded.

Problems p. 215

O conveys Blackacre to A and his heirs so long as the premises are not usedfor sle of beer, wine, or liquor and if beer, etc are sold on the premises.

Subsequently A opens a restaurant on blackarce that serves dishes with winein the food with complementary wine. 11 years later B wants to buy blackarceand add a bar. Advise Bar.

o Is it a determinable or subsequent? Which Jux are you in? Is sub. Whats the SOL

and does I have full title if O not there for x amount of years.

o If determinable then A doesnt own property anymore if condition been broken.

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Mountain Brow Lodge v Toscano ( lodge can use for fraternity useonly)

Facts: P was given a land as a gift from decedents.D is trustees and adminestate. D says deed creates a fee simple subject to condition subsequent. Pargues the restrictive language is an absolute restraint on the alienation ofland and is void, and if the language is not void then the reversionary clauseonly goes into effect if the P sells or transfers the land. DEED IN P. 216. Ct

ruled for D.Issue: Whether the condition in a deed of conveyance created a fee simplesubject to a condition subsequent or was a restraint on alienation ofproperty?

Rule: No formal language is needed to create a fee simple subject tocondition subsequent as long as the intent of the grantor is clear. The objectin construing a deed is to ascertain the intent of the grantor from words thatwere used in the deed and surrounding circumstances.

Analysis: P may sell their land to whomever they like, but only they can useit; distinction by the way, is restriction on land use and alienation. A clause

which prohibits appellant from selling or transferring the land under penaltyof forfeiture is an absolute restraint against alienation and is void

Conclusion: Affirmed. The language of the deed created a fee simpledeterminable.

City of Palm Springs v Living desert (land used for gold course notreseve)

Facts: McCallum Foundation gave 30 acres to P to be used as reserve. Deedhad fee simple condition subsequent if land not used for reserve it goes toD and P forfeits all its rights P wanted to use land for golf course.

Issue: Under CA property law, may City of Palm Springs move to condemnthe reverting party from holding its rightful claim to the land when the Citywants to build a golf course on land which was earmarked for an equestriancenter in the decedent's will?

Rule: Restatement 53 only applies when a paramount authority condemnsproperty and ousts the possessor

Analysis: If the court allowed Palm Springs to do what they wanted they

could simply make their land a fee simple unrestricted and have paid nothingfor it. There is something about notions of degrees of fairness, justice andvirtue that should characterize public entities. Living Desert was entitled tobe compensated 100% of the value of the unrestricted fee in the land.

Conclusion: When the condemnor owns the present possessory interest inthe land, the action of condemnation itself makes violation of the conditionimminent.

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Ink v. City of Canton (public park conveyance)

Issue: Under OH property law, may a city who was granted a tract of land,be permitted to keep all proceeds from the land when the city sold most ofthe land granted to it in order to appropriate a highway?

Rule:

a fee simple determinable does not automatically revert when the useends because the government takes property in an eminent domain proceeding

the value of the possibility of reverter is the full market value of the landdiscounted by the probability that the reverter will never become possessory

Analysis: the parcel was condemned by the state, not the city, but thegovernment must pay the market value of the property not used as a publicpark. The court held that: (a) any monies received by the city which was notreinvested in those parts of the property not taken should be paid to thegrantors heirs; (b) the value by which the use of property for highwaypurposes exceeds the value of the property as a park should revert to thegrantors heir; and, (c) any payments to

Conclusion:

FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT/RIGHT OF REENTRY

RULE: no automatic right of reentry, must takeaffirmative steps to retake the land

o but if; provided that; on condition

Examples

O conveys Whiteacre to the Hartfold School Board, its successorsand assigns but if the premises are not used for school purposes, then toO and his heirs.

executor : handles the property of a person who dies with a will

COOWNERSHIP AND MARITAL INTERESTS

Tenancy in Common: Separate but undivided interest

No survivorship

T devises Blackacre to A and B

Joint Tenancy: each tenants equal interest

Right of survivorship

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4 entities: time, title, interest, possession (if one missingbecomes a tenant in common)

time : the interest of each joint tenant must be acquired or vest at the same time

title : all joint tenants must acquire title by the same instrument or by a joint adverse possession;a joint tenancy can never arise by intestate successor or other act of law

interest : all must have equal undivided shares and identical interests measured by duration

possession : each must have a right to possess the whole

Tenancy by entirety

only between husband and wife

same 4 entities

same four unities plus marriage time, title, interest and possession

surviving tenant has the right of survivorship

neither husband or wife can defeat the right of survivorship of the other by a conveyance to a

third party; cannot be unilaterally severed by the action of one spouseConcurrent interest

tenancy in common: have separate, but undivided interests in property

T devises Blackacre to A and B A and B become tenants in common

interest of each is descendible and may be conveyed by deed or will;unity of possession is essential NO SURVIVORSHIP rights

dont have to have equal interest in the land i.e. A 33% interest and B 67% interest

joint tenancy: have the right of survivorship; each tenant equal to theother in all respects. four unities are essential time, title, interest,possession (can be any two people)

cant be passed by deed or will.

4 requirements: if any are not there, then auto to tenancy in common

time : the interest of each joint tenant must be acquired or vest at thesame time

title : all joint tenants must acquire title by the same instrument or by ajoint adverse possession; a joint tenancy can never arise by intestate successor orother act of law

interest : all must have equal undivided shares and identical interestsmeasured by duration

possession : each must have a right to possess the whole. One tenant cangive that right to the other joint tenant.

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- IF ALL 4 UNITIES ARE NOT THERE, IF A TENANT TRANSFERES HISINTEREST TO A 3RD PARTY, OR IF THE UNITIES ARE THERE BUT LATERSEVERED, THEN NO JOINT TENANCY BUT A TENANCY IN COMMONCREATED.

tenancy by the entirety: only between husband and wife

same four unities as joint tenancy, plus marriage time, title, interest,possession AND Marriage

surviving tenant has the right of survivorship

neither husband or wife can defeat the right of survivorship of the otherby a conveyance to a third party; cannot be unilaterally severed by the action ofone spouse.

Husband and wife considered 1 person so both need to convey.

Divorce destroys this tenancy

Presumptions:

- common law favored joint tendency b/c better to divide equal thensmall portions.

- NOW: must expressively say A and B as joint tenants. A and Bjointly wont work.

Avoidance of probate (avoidance in proving a will valid):

- Joint tendency is equivalent to a will but at a tenants death, probate of property

can be avoided.

- Probate courts assign administrators to collect decedents assets to pay debts andtaxes and distributes the rest to beneficiaries.

- w/ joint tendency, when tenant dies the property goes to surviving interest anddecedents interest vanish so cant be collected as an asset.

1. T devises Blackacrce to A and B as joint tenants for their joint lives,remainder to the survivor, what interests are created. How does a jointtenancy in fee simple differ?

In a fee simple A and B have control to do what they want with the interest. In a joint

tenancy for life, T is determining what to do with the property2. O conveys blackacre to A,B, and C as joint tenants. A conveys his interest toD. Then B dies intestate, leaving H as his heir. What is the state of the title?

1. D is a cotenant w/ B&C (joint tenants). D 1/3 interest, C 2/3 cuz B died.

2. Joint life estate with a contingent remainder b/c we don't know who will survive Aor B

3. Dont have tenancy in entirety b/c not married

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3. A and B are planning to be married. 2 wks b4 the ceremony, they buy a casaand take title as tenants in entirety. Yrs after the marriage, A moves out thecasa and conveys his interest to C, his brother. C brings an action to partitionthe property. What result?

A & B marrying

A & B buy house before marriage as tenants in entirety

A C after divorce

C sues to partition

Joint tentants

C gets and B gets

SEVERANCE OF JOINT TENANCIES

Riddle v. Harmon (wife wanted to sever joint tenancy of propertywith husband)

Issue: Whether a wife/husband can unilaterally terminate a joint tenancy byconveying her interest from herself as a joint tenant to herself as a tenant incommon?

Rule:

joint tenancy has the four unities: interest, title, time and possession; ifone is destroyed, then a tenancy at common is created

an indisputable right of each joint tenant is the power to convey his or herseparate estate by way of gift or otherwise without the knowledge or consent ofthe other joint tenant and to thereby terminate the joint tenancy

Analysis: a fictional strawman is no longer necessary. When wifedestroyed the four unities she created a tenancy at common. Husband nolonger has right of survivorship.

Conclusion: judgment for husband reversed.

Harms v. Sprague (mortgage interest in joint tenancy)

Issue: Is a joint tenancy severed when less than all of the joint tenantsmortgage their interest in the property and does such a mortgagee survivethe death of the mortgagor as a lien on the property?

Rule: the execution of a mortgage by a joint tenant on his interest in theproperty would not destroy unity of title or sever the joint tenancy

Analysis: when the joint tenant dies, the mortgage ceased to exist againstthe property and the joint tenant took the property by survivorship free ofthe encumberance


title theory: the mortgagee takes legal title to the land; the mortgagor has only theequity of redemption

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lien theory: the mortgagor keeps legal title and the mortgagee only has a lien on theproperty

When tentants in common give a tenant exclusive possession does that destroy joint tenancy? NO, does notwork as severence.

(5) JOINT TENANCY BANK ACCOUNT

are used by depositors with different intents and for a variety of reasons

true joint tenancy accounts : when a person may intend to present a gift or pat of thesum and the rights of survivorship; majority of jurisdictions hold that the survivingjoint tenant takes the sum remaining on deposit in a joint bank account unless thereis clear and convincing evidence that a convenience account was created

payable on death account : only a gift of survivorship rights; not permitted in somejurisdictions because it is viewed as testamentary in nature and violates the Statuteof Wills

convenience account : only the power to draw on the account to pay bills and nosurvivorship rights

(6) RELATIONS AMONG CONCURRENT OWNERSPARTITION

partition: equitable action available to any joint tenant or tenant in common;unavailable to tenants in the entirety when the court sells the land and divides theproceeds

Delfino v. Vealencis (garbage business)

Issue: whether the trial court properly ordered the sale of property ownedby the plaintiff and defendant in common?

Rule: a partition sale should be ordered only when two conditions are

satisfied: (1) the physical attributes of the land are such that a partition inkind is impracticable or inequitable; and (2) the interests of the ownerswould be better promoted by a partition sale.

courts prefer a partition in kind over a partition in sale

Analysis: the partition in kind would be practicable because the land isrectangular in shape. The defendant could still operate her garbagebusiness with a partition in kind and plaintiffs could sell the lots around andany inference that D would probably not be able to continue her business isunfounded.


Partition by Sale: sell land and then give everyone their portion in market value

Partition in Kind: severs land into parts so that each party can have their interest inthe land to control and do as please.

Rockin chair prob in p. 300: (comes right b4 section b)

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Spillar v. Mackereth (warehouse vacated and cotenant stored stuffthere)

Issue: Whether the plaintiff could establish ouster to force her cotenant tomove out of the property or pay rent?

Rule: before an occupying tenant can be liable for rent, he must havedenied his cotenants the right to enter

in the absence of an agreement to pay rent or an ouster of a cotentant, acotenant in possession is not liable to his cotenants for the value or his use andoccupation of the property

Analysis: no adverse possession in this case; P did not demand equal useor enjoyment of the building in her letter. D did not deny P use or access tothe building and only put locks up to protect his property.

Conclusion: judgment for rent is reversed

where a cotenant is in exclusive possession of concurrently owned property, themajority of jurisdictions hold that unless there has been an ouster, the cotenant in

possession does not have to pay a proportionate share of the rental value to thecotenants out of possession

Swartzbaugh v. Sampson (boxing arena)

Issue: can one joint tenant who has not joined in leases executed by hercotenant and a third party maintain an action to cancel the leases where theleasee is in exclusive possession of the leased property?

Rule: a joint tenant not joining in the lease is not bound by its terms and hecan recover from the tenant of his cotenant the reasonable value of the useand enjoyment of his share of the estate, if the tenant under the leaserefuses him the right to enjoy his moiety of estate

Analysis: the plaintiff did not lose the right to possession and she did notattempt to reenter the leased portion of the land and was denied by thedefendant. She cannot attempt to cancel the two leases.

Conclusion: affirmed.

Pg. 347 Prob. 7

Can sell and split the money

Have joint tenancy in common

Can have an agreement, or share the item at different times, shared custody

ACCOUNTING FOR BENEFITS AND RECOVERING COSTS pg. 356

-if puts more than their share they can ask for the money back paid, taxes, mortgagesand other charges, but not for improvements.

accounting : an equitable proceeding

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o rents and profits : a cotenant who collects from third parties rents and other

payments arising from the co-owned land must account to cotenants for theamounts received. So lessor must give co tenants the excess after he takes hisshare.

o absent ouster, accounting is usually based on actual receipts, not fair market

value

taxes, mortgage payments, and other carrying charges

o a cotenant paying more than his share of taxes, mortgage payments, and other

necessary carrying charges, generally has a right to contribution from the othercotenants, at least up to the amount of the value of their share in the property

o principle : protection of the interest of each cotenant from extinction by a tax or

foreclosure sale imposes on each a duty to the extent of his proportionate share ofthe money required to make such payments

repairs and improvements :

o necessary repairs : in most jurisdictions a cotenant making or paying for them

has no affirmative right to contribution from the other cotenants in the absence of

an agreement no way for courts to really determine if the repairs & associatedcosts were reasonable ( person paying for them cant get others to help out w/oagreement b/c cant tell if repairs rznble)

o improvements : a cotenant has no right to contributions from other cotenants

for expenditures for improvements

no credit given for the costs of the improvements is given as such in anaccounting or partition action; BUT IT MAY BE GIVEN TO PREVENT UNJUSTENRICHMENT

the interests of the improver are to be protected if this can be

accomplished without detriment to the interest of the other cotenants

(7) MARITAL INTERESTS

Common law marital property : the husband and wife have separate property;ownership is given to the spouse who acquires the property

community property : rests on the notion that husband and wife are a martialpartnership and should have their assets equally (whats urs is mine whats mine isurs) will get divided equally

Problem; p. 313

Husband gets a stroke and told wife that she will get everything if she doesntsend him to a home. H dies and gives all his property to daughter fromseparate marriage.

o Had H and W provided services so she should get it, but H can argue that no

consideration for a valid consideration.

Sawada v. Endo (injury without insurance and transfer of land tosons)

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Facts: P was in accident w/ D. P tried to become creditors and get moneyfrom D property, but D conveyed estate to their sons.

Issue: whether the interest of one spouse in real property, held in tenancyby the entirety, is subject to levy and execution by his or her individualcreditors?

Rule: under the Married Womens Property Act (women are in control oftheir own prop, no longer one w/ husband) the interest of a husband/wife in

an estate by the entireties is not subject to the claim of his or her individualcreditors during the joint lives of tenants.

an attempted conveyance by either spouse is wholly void, and the estateis not subject to the separate debts of one spouse only

creditors cant get shared property

Analysis: tendency by the entirety is not subject to the claims of thecreditors of one spouse during their joint lives. The conveyance to the sonwas not a fraud, in essence the parents kept a life estate. The estate held ina tenancy in the entirety cannot be reached by creditors.

Conclusion: Affirmed.

IRS can attach liens of one spouse when seeking debt form the other spouse,tendency in its entirety doesnt matter.

Ie: H and W own a pharmacy. H is selling illegal drugs and W is an innocentparty. Govt will forfeiture interests in H survivorship interest.

Ie: when H arrested for fraud, govt cant forfeiture casa b/c it wasnt used forcriminal activity as the pharmacy was, so W deserves more protection.

TERMINATION OF MARRIAGE BY DIVORCE equitable distribution : property is divided by the court, in its discretion, on

equitable principles regardless of how the prop was acquired or by who.

o Uniform Dissolution of Marriage Act (court divide property, regardless of

misconduct)

o Alimony not forever anymore, limited time. Until spouse enters job market, etc.

at common law, upon divorce, property of the spouses remained the property of thespouse holding title

o husband keeps his wages, what he bought and wife gets continued support

(alimony)

tendency by the entirety (MUST BE MARRIED) once divorced then become tenancy incommon or joint tenants

In re Marriage of Graham (MBA and then dipped)

Issue: Whether in a marriage dissolution proceeding a MBA constitutesmarital property which is subject to division by the court?

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Rule: An educational degree, such as an MBA, is not encompassed underthe broad views ofproperty.

Under the Uniform Dissolution of Marriage Act marital property is all propertyEXCEPT: (1) property acquired by gift, bequest, devise or descent, (2)property acquired in exchange for property acquired prior to the marriage orin exchange for property acquired by G, B, D, D, (3) property acquired by aspouse after a decree of legal separation; and (4) property excluded by valid

agreement of parties.Analysis: no property acquired during marriage. An educational degree isnot transferable nor does not a value on the open market. No way to dividethe attainment of the degree. If one spouse supports the other while inschool, that is considered as a factor when awarding relief but notconsidered prop.

Conclusion: Affirmed, no martial property in MBA.

reimbursement alimony : (some/some) circumstances where a supporting spouseshould be reimbursed for the financial contributions he or she made to the spousessuccessful professional training: should include all costs household, tuition, travel

expenses, etc.

o All jdx follow reimbursement alimony or Graham (case above) EXCEPT NY

Degree should be property b/c it was an investment in thepartnership of marriage and represent direct and indirectcontributions.

Elkus v. Elkus (opera singer who made mad money while married,dipps)

Issue: Whether a career as a performing artist, and its accompanyingcelebrity status, constitute marital property subject to equitable distribution?CAREER IS MARITAL PROP AND SUBJECT TO EQUITABLE DISTRIBUTION.

Rule: an interest in a professional career (potential) is marital propertywhich may be represented by direct or indirect contribution of the non-titleholding spouse, including financial contributions and nonfinancialcontributions made by caring for the home and family.

Analysis: husband gave up his career to enhance wifes career andcontributed to her career trajectory photos, voice training, etc. as well astook care family. His work greatly increased her career potential. Diff from

degree b/c husband contributed greatly to career success by being coach,etc.

Conclusion: reversed and remanded for proceedings to determineequitable share.

good will: essentially the reputation that will probably generate future benefits.

professional goodwill: a divisible marital asset in most jurisdictions if they helpedcontribute

Celebrity goodwill:

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Worried about earning potential not degree, more earning potential as acelebrity.

TERMINATION OF MARRIAGE BY DEATH OF ONE SPOUSE

common law

o dower : COMMON LAW a gift made by the groom to the bride at the wedding so

she can be supported if husband dies. any land owned by husband was subject to

Dower. Usually 1/3 of estate. Life estate for wife, possessory freehold estate.Divorce releases Dower

o curtsey : at wifes prior death, a widower was, at common law, entitled to a life

estate in each piece of the wifes real property if certain conditions were fulfilled.What a man can claim at wifes death. Doesnt attach unless kids who can inheritestate were born alive.

modern elective share

o forced share legislation : giving the surviving spouse an elective share in all

property real and personal that the decedent spouse owned at death; ordinarilyapplied to property that the decedent spouse owned at death

o elective share statutes: the surviving spouse can renounce the will and elect to

take the statutory amount, usually or 1/3 of the estate/ property. Doesnt applyto joint tendency.

community property (AZ, Cal., Idaho, Nev., N.M., Tex., Wash., Ala)

o the earnings of each spouse during the marriage should be owned equally in undivided shares by

both spouses; property acquired during the marriage by joint efforts

o separate property : property acquired before marriage and property acquired during marriage by gift,

devise, or descent

RULES: (1) community property can only exist between a husband and a wife; (2) neither spouseacting alone can convey his/her undivided share of community property to a third person; (3) atdeath, each spouse has the power to dispose by will of the community property; (4) in moststates, if a spouse dies intestate, his or her share of the community property passes to the survivingspouse

PROBLEMS p. 386

1. O marries W and during the marriage, O conveys blackacre to A and B asjoint tenants

(a) O dies, is W entitled to W?o W is entitled to dower.

(b) Suppose A dies and is survived by his wife X. Does X have right inDower?

o no b/c joint tenancy and not inhereitable

(c) y has dower b/c ???

2. H wants to buy brown acre. He wants to deal with land w/o interferenceof his wife. In what way can he take title of land in a dower jdx?

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o He can place it in a trust

PROBLEMS p. 387

During his life H took out a life ins policy for $60,000 payable to W. H and Walso bought a casa as joint tenants (casa worth $60,000 by H death). H diesand blackarce worth $90,000, stocks worth 20,000 and 10,000 in savings. H bywill gives all his esate to daughter of 1st marriage. How is H estate distributed?

o 90,20,10 are probate. 60 and 60 not probate. 120 (not probate) is given

to W. and she gets half of everything else. W will get 180k in an electiveshare.

community property (AZ, Cal., Idaho, Nev., N.M., Tex., Wash., Ala)

o the earnings of each spouse during the marriage should be owned equally in

undivided shares by both spouses; property acquired during the marriage by jointefforts

o separate property : property acquired before marriage and property acquired

during marriage by gift, devise, or descentwife can agree for it to not be community property, then it becomes 100% wifes.

RULES: (1) community property can only exist between a husband and awife; (2) neither spouse acting alone can convey his/her undivided share ofcommunity property to a third person; (3) at death, each spouse has thepower to dispose by will of the community property; (4) in most states, if aspouse dies intestate, his or her share of the community property passes tothe surviving spouse

PROBLEMS p. 390H married to W and puts $5k of his own $ into a lot, they move in as jointtentants, he dies and leaves community property and his own to his son,nothing to wife.

o belongs in community property. After death, W gets the estate because married

and he didnt give to any 1

Both spouses can manage property and then creditors can get at communityproperty

req both spouse to sign to have valid transfers

managers have good faith obligations.

Pg. 386

Problem 1.

a. O to A&B as joint tenants W entitled to dower? Yes, dower attaches to any freeholdacquired during marriage

b. X-Dower? (A dies) no, As interest dies with him, it is a joint tenancy and not inheritable

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A to C (C + B tenancy in common) A dies wife X dower?

c. Cs wife Y, if C dies, Y dower? Yes, have tenancy in common, is a freehold estate and aright to dower.

Pg. 387

60,000 Life Insurance-W-Non Probate

60,000 House J +T- W-Non Probate

90,000 Blackacre-D-Probate

20,000 Stocks-Bds-Probate

10, 000 Saving Ace-Probate

Wife has the right to an elective share of what is in probate

Pg. 392 under inception of right title belongs to wife who bout the property when single..the common propertyis the return of the investment. Only what the community put in

Pg. 393 Marriage pd. $10,000 out of community funds H is named for the 50,000 LI police

S=beneficiary: This is considered community property and the son gets half and the wife gets half so 25k each

(perada)Before Marriage paid $3,000 premium

During Marriage paid $7,000 premium out of community funds

$10, 000 total

H=the beneficiary of the Life Insurance policy minus the policy premiums paid out of the community funds.Under the inception of right, The community is entitled to a return of its investment plus interest, so that wouldbe $7000 plus interest (inception of right gets back premium)

o Son doesnt get whole 50 b/c community property so H can have half of it. H can

dispose his half to his son so son gets 25k.

o If 7 and 3 add, then W entitled to 50 b/c.Pro rated??/

Goodridge v. Dept of Public Health (Mass. Same Sex Marriage)

Issue: whether consistent with the Mass. Const., the Commonwealth maydeny the protections, benefits, and obligations conferred by civil marriage totwo individuals of the same sex who wish to marry?

Rule: barring an individual from the protections, benefits, and obligations ofcivil marriages solely because the person would marry a person of the samesex violates the Mass. Const.

Analysis: marriage is a secular institution that conveys secular propertyrights.

Conclusion:

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Problem 344

Everything in wifes name, H can do elective share and get half of everything. If theymove to TX, it doesnt become community property and the husband loses theprotection of common law.

Common law marriage: DC allows it, co-habitates.

Property Outline Final-3

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Transcript of Property Outline Final-3