-
Frequently accompanied by a landing and the symbolic taking of
possessiona.Acts that give rise to an inchoate title that must (on
one view) subsequently be perfected, within a reasonable time, by
settling in and making an effective occupation
b.
The sighting or finding of hitherto unknown or uncharted
territory1.
This is an anti-canonical casea.
Right to possess and right to transfer (can be split)a)Issue is
whether the title by the Indians can be recognized in U.S.
court?1.
Facts: Action of Ejectment (get off my land) for lands in
Illinois claimed by Ps under a purchase and conveyance from the
Piankeshaw Indians, and by the D under a later grant from the
US
b.
"Hitherto unknown territory"1.Res nullius/terra nullius -- a
thing or territory belonging to no onea)
Conquest is the taking of possession of enemy territory through
force, followed by formal annexation of the defeated territory by
the conqueror
1.
Right to Mere Possession - cant transfer, can only transfer to
U.S. gov't and no one elsea)Right to exclude from propertyb)
Monopsony - U.S. is the only one who could buy land from the
Indians2.
Chain of Title - Record of transfer of property from one to
another3.
England had possession by discovery, but gave all land taken
that way to U.S. by treatyc.
More value in the way Marshall says U.S. is going to use the
land than Indians are using ita)Giving them right that has little
value 1.
Indians have right to inhabitant the landd.
Issue: Do the Native American tribes have the power of conveying
absolute title of their lands to others?
e.
No. The discovery of the Native American occupied lands of this
nation vested absolute title in the discoverers, and while the
Native American inhabitants retained title of occupancy, they were
nevertheless incapable of transferring absolute title to others.
Therefore title cannot be recognized by U.S. courts.
f.
Johnson v. M'Intosh, pg 32.
Absolute title - exclusive title to land3.
Take something and make it new (??)1.By labor and addition of
new material alonea.
Things get tricky when someone's done some dramatic work1.Ex.
Haslem v. Lockwood manure case2.
Owner of original material is typically the winnerb.
This area of the law is often muddy why, in other words, cases
often are decided in inconsistent ways, with results that appear
arbitrary.
c.
Law of accession, pg 154.
Done something to it/used it for some purposea.Labor theory of
Property (Locke's) - Person who labored land has more right to
it5.
Best way to do it1.Keeps the peace, minimizes conflicta.
First in time theory - notion that someone who was there first
should 6.
Possession is a legal conclusion, not a given
fact.a.Possession/labor theory - legal conclusions, kind of end
product7.
Simple/Cheap/Easy to administer1.Will/deter
conflict/litigation2.Pierson v. post majority3.
Promote/Establish certainty while minimizing controversy and/or
deter future conflicta.
Recognize the pre-legal expectations or customs of a particular
community, or that may fit with various natural forces
b.
Arguments about property can often be categorized as arguments
that seek to:8.
Acquisition by DiscoveryA.POSSESSION, COMPETITION, CREATION, AND
PERSONHOODI.
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Law shouldnt get in the way of what people are doing
anyway1.Livingston's dissent in Piersona)
Takes advantage/maps on to custom/nature1.natural forces
Court decides who should posess thema)Dont wanna drive up the
costs for everyoneb)This is an example of that kind of
reasoningc)
Keeble's majority view1.
Livingston's dissent a little but not really 2.
Create greater overall utility/promote efficiencyc.
Appeal to notions of fairness, justice, or equity.d.
Actual possession - the usual method of acquiring a property
right in a wild animal is actually to possess it - dead or
alive
a.
Carruth if a pregnant cow wanders off of your land and births
cows on your neighbors land and your neighbor cares for your cow
and the calves, theyre still your calves.
b.
Rule of Capture - wild animals may be one of the few things that
are unowned and susceptible to capture1.
Post (Plaintiff) - Fox hunter1.Pierson (D) - Fox killer2.
Facts: Post found a fox upon certain wild, uninhabited,
unpossessed waste land. He and his dogs began hunting and pursuing
the fox. Knowing that the fox was being hunted by Post and within
Post's view, Pierson killed the fox and carried it off.
a.
Issue: Has a person in pursuit of a wild animal acquired such a
right to or property in the wild animal as to sustain an action
against a person who kills and carries away the animal, knowing of
the former's pursuit?
b.
Mere pursuit vests no right in the pursuer.1.
Clear-cut rule - whoever has the dead foxa)What acts amount to
occupancy?2.
Held: No. Property in such animals is acquired by occupancy
onlyc.
Go by custom, this has happened before, custom says give to the
person who's been looking for it all day.
1.
Law ought to mirror peoples pre-legal expectations2.
Livingston's dissent - A new rule should be adopted - that
property in wild animals may be acquired without bodily touch
provided the pursuer be in reach or have a reasonable prospect of
taking the animals.
d.
Pierson v. Post, pg 182.
Facts: Rich purchased a whale at auction from a man who found it
washed up on the beach. The whale had been killed at sea by the
crew of Ghen's whaling ship which left Ghen's identifying
bomb-lance in the animal. Ghen claimed to be the owner of the whale
under the trade usage and sued Rich for the value of the whale.
a.
Issue: By the trade usage, was the whale placed under sufficient
control by the capturing whaler so that it became his property?
b.
This particular trade usage was necessary to the survival of the
whaling industry, for no one would engage in whaling if he could
not be guaranteed the fruits of his labor.
1.
Yes. By using the identifying bomb-lance, Ghen did all that was
practicable in order to secure the whale. Custom can be enforced
when it is embraced by an entire industry and has been utilized for
a long time by everyone engaged in the trade.
c.
Ghen v. Rich, pg 263.
Court says he had possession of the ducks even if he hasn't
reduced them to capturea.Not as good as real possessionb.Legal
conclusion that the landowner should prevail?c.
Constructive possession - ducks wandered onto Keeble's property,
4.
Duck decoy case1.Guy invests in pond to attract ducks, other guy
shooting to scare them away2.
Facts: Keeble owned land containing a duck pond. He loaded the
pond with decoys to seduce game to come to the pond so that he
could hunt them. Hickeringill discharged a shotgun near the pond
which induced the game to stay away. Keeble sued and was granted
recovery. Hickeringill appealed contending Keeble had no title to
the game and thus no cause of action existed.
a.Keeble v. Hickeringill, pg 305.
Acquisition by CaptureB.
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Guy invests in pond to attract ducks, other guy shooting to
scare them away2.Issue: May recovery of damages be had for the
frightening of wild game off one's property? b.Held: Yes, although
no title to the game existed, K was using his land in a lawful
manner and thus H interfered with this lawful use & is liable
for damages.
c.
Better off if we figure out the best result for society, what's
going to promote the economic efficiency, get law out of peoples
business
d.
All factors point in the same direction, unlike accessiona.
Contributes to economic utility and overall efficiency; 1.It is
simple, certain, cheap, and easy to administer.2.It fits in with or
takes advantage of existing natural forces or tendencies and human
habits, customs, or intuitions.
3.
It appeals to widespread notions of fairness.4.
Tends to be widely followed, even across different legal
cultures, and that cases involving this rule tend to be relatively
consistent, because all four categories of fundamental arguments
about property rights tend to line up behind it. In other words,
people tend to agree that the rule of increase does all of the
following:
b.
Note: These are not magic words, simply concepts you should be
familiar with going forward, so that you can recognize and use
arguments that relate to them.
c.
Rules which are not supported by all of these considerations may
be more controversial, or more inconsistently applied, than the
rule of increase.
d.
Rule of Increase - Offspring follows the mother6.
"Protection of expectations"a.Utilitarian Theory of Property -
efficiency7.
Elliff owns and is drilling on land adjacent to land that Texon
is using to drill (common well)a.Texon well blew out, burning up
all of the oil in the common well and causing destruction to
Elliffs land
b.
Issue: Does Elliff have claim to the oil that came from under
her land or did Texon own all of it via law of conquest?
c.
Texon didnt have a right to waste the oil1.Oil is no longer
analogous to a wandering wild animal2.
Elliff and Texon have right to drill for oil. Elliff has no
claim to the oil that was captured by Texon via drilling.
d.
Eliff v. Texon8.
Another explanation of the genesis of property rights based on
evolutionary game theory - individual self interest led early human
ancestors to respect the possessions of each other, such that a
convention of deference to possession developed naturally even
though no individual or group ever intended such a uniform practice
in the first place.
9.
You dont bear the cost of it1.
Those costs or benefits that arise out of your action, and which
you fail to fully consider, because some of these costs or benefits
fall on other people.
a)
An externality is not simply an effect of one persons activity
on another person; rather, it is an effect that the first person is
not forced to take into account X's activity benefits x $100 and
costs A $50. A offers X $50 to change his activity
b)
Externalities - Cost that you dont have to take into account, on
other people1.Transaction costs - The costs of arranging an offer
or deal between parties.a.
Inefficiencya)
External effects of using resources are unlikely to be fully
considered through bargaining when transaction costs are high,
which increases the likelihood that those resources will be
misused.
1.Relationship between transaction costs and externalitiesb.
Assume away transaction costs1.Land under smoke is worth less
than if it wasnt, smoke from T. 2.
Pay more to have pollution free property than to get rid of
something already polluteda)Pay more to live with it than you would
to get rid of itb)
Property could be worth more to spend more3.
Idea is people will bargain away the existence of externalities
(costs that someone creates but 3rd party has to pay)
4.
Coase Theorem - in absence of transaction costs it is irrelevant
from the standpoint of efficiency whether X is liable to A for
costly effects or not. Resources will be put to efficient use in
either event.
c.
Intro to law and economics10.
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party has to pay)How important transactions costs were/rules
& laws5.
Wealth effects - Disparity between parties1.
Both show how important the legal rules area)People over-value
status quob)
Endowment effects - people will pay more to keep something they
already have2.
Inefficient way of business, over consumption too many people
too many rights to exclude
i.
Doesnt care about Heller that muchii.
Moscow1.
The problem with the anti-commons is not that the right to
exclude is too weak, but the right to exclude is too high (too many
people have a right to exclude)
a)
Tragedy of the Anti-Commons If you have a strip center with
everyone owning a shop in the strip-center, any one owner can act
inefficiently for the entire center.
3.
"Tragedy of the commons" - tendency to over-exploit a common
resource because the full costs of the exploitation are not borne
by each user, while the former is an uncritical application of the
first possession doctrine to circumstances where sound public
policy might warrant a different approach
4.
Different people have property rights inefficient results,
overconsumption equals too many rights to exclude
5.
Wealth/endowment effectsd.
Not Locke, just in general - Issue with creation is degree of
exclusivity1.
John Locke - you own the fruits of your labor in consequence of
having "a property in your own person."
a.
The assertion is that if you create something (if in that sense
you are first in time) then that something is most certainly yours
to exploit because Libling argues "the foundation of propriety
rights is the expenditure of labour and money (which merely
represents past effort)."
1.
Tendency to over-consume with commonly held propertya.First
person to get their hands on it to possessb.Exhaust the resource
because incentives are to push to get as much as you can get
otherwise it'll be gonec.Limits over consuming of
resources...d.
Common property and the rule of capture2.
Facts: AP sued to enjoin International News Service from
publishing as its own news stories obtained from early editions of
AP publications
a.
Issue: Is the publication for profit of news obtained from other
news-gathering enterprises a misappropriation of a property
right?
b.
Yes. News itself is a collection of observable facts which
obviously cannot be owned vis a vis the public at large. The
nonprofit communication of news, regardless of source, is endemic
in a free society and involves no property right. However, when 2
competing news organizations are involved each gaining livelihood
from beating the others deadline, the use of news for profit is
misappropriation.
c.
Only congress can give that kind of commercial right1.Bray
Notes: Everyone who has an idea - we'd be giving them a
monopolyd.
This is the only really precedent for business of gathering news
copyrighte.I think Bray said something about maybe the court didnt
come to the most efficient solution, like copy away everyone else
because it will leave us better off -- encourages competition,
cheaper, etc
f.
International News Service v. Associated Press, pg 563.
Facts: P designed and marked silk garments. D copied a design
and successfully marketed it. P which could neither patent nor
copyright the design sued for damages and equitable relief under
general property law
a.
Issue: If a person obtain a patent or copyright on its product,
can it recover for the copying of it by others?
b.
(Hand) No. In the absence of statutory protection given a man's
creations by parent or copyright law, a mans property is limited to
the tangible objects which embody his invention. When another
creates a chattel through imitation, the imitated person has no
remedy.
c.
Only congress can give that kind of commercial right1.Everyone
who has an idea - we'd be giving them a monopolyd.
More copying drives price downe.
Cheney Brothers v. Doris Silk Corp., pg 614.
Smith v. Chanel, pg 625.
Acquisition by Creation - "part of common law"C.
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Lower court rules in favor of Chanel, Smith appeals1.Facts:
Smith is producing a knockoff fragrance and advertising that its as
good as the Chanel originala.
Issue: We must weigh incentive for Chanel to create perfume vs.
consumer benefits of cheaper competition
b.
Extends Cheney to not only copying products but also claims that
the copy is = the original1.Even today, Chanel is still in business
and people are willing to pay a premium for a brand name, so
allowing copiers doesnt necessarily eliminate profitability of
producing.
2.
First-movers still have advantages, even if widespread copying
is allowed3.Society may be better off if we allow copying culture
disseminates faster & cheaper4.Not misappropriation/compare to
Cheney Brothers5.
Held: Smith may continue to advertise their knockoff as being as
good as the originalc.
Smith v. Chanel, pg 625.
Conversion - the wrongful exercise of ownership rights over the
personal property of another6.
Conversion is chief legal claim made my Moore1.
Facts: Researchers at UCLA unbeknownst to Moore, used specimens
of his tissue to produce a potentially lucrative cell line.
a.
No ownership because he never expected to retain possession of
the spleen.a)Would chill medical researchb)Moral issues involved
out to be left to the politically accountable legislaturec)Still
had available claims based on asserted breach of fiduciary duty by
his medical care providers.
d)
Four points made by the majority to support this holding (4
arguments for property).1.
To maintain such an action a P must prove interference with
ownership or right of possession. Moore clearly had no right of
possession, so a conversion action would necessitate interference
with a proprietary interest. Cannot be said that a persons tissue
is "property."
2.
Held: Majority of the California Supreme Court reject Moores
conversion claim, on the basis that he lacked property rights in
the cell lines derived by the defendants, f
b.
Bundle of rights, supra1.Bray: If you give him the right to
possess it, would also have to give him the right to sell it c.
Concern about legislative deference and creating a market in
human organs.1.
Justice Arabians concurrence - human tissue should never be
viewed as property, even by the person whose tissue is at
issue.
d.
Possessa)Useb)Excludec)
(by sale or gift)1.Dispose d)
Introduced a bundle of property rights metaphor, including the
rights to:1.
Justice Mosks dissent - a person should have at the least the
right to do with his own tissue what any other person can do with
it. To allow a person to economically benefit from the
non-consensual use of another's tissue can be considered a modern
version of slavery or indentured servitude.
e.
Fait accompli - irreversiblef.
Moore v. Regents of the University of California, pg 707.
Unrelated but in my notes: maybe property right is especially
important when uniquea.
Initial, basic, first-in-time rule in the law of finders: the
notion that a finder prevails against all but the true owner or
rightful prior possessors. Armory
1.
Facts: Armory found a jewel which he took to D, a goldsmith, for
appraisal, but D's apprentice removed the stones which D refused to
return.
a.
Issue: Could Armory, who lacked legal title to the chattel,
maintain an action to recover its value? b.Held: Yes. Finder of
lost property, although he does not acquire absolute ownership,
does acquire title superior to everyone else except the rightful
owner. Such title is a sufficient property interest in the finder
upon which he maintain an action against anyone (except the
rightful owner) who violates that interest.
c.
This rule might be justified for many of the same reasons we
protect first-in-time possession in other contexts.
1.
Introduced basic, first-in-time rule in the law of finders: the
notion that a finder prevails against all but the true owner or
rightful prior possessors.
d.
Armory v. Delamirie, pg 982.
Acquistion by FindD.
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other contexts.
Might not allow some property to be abandoned, cannot walk away
from, things youve done make impossible for others
a.Abandonment - Intentionally or voluntarily left behind, no
intent to get it back3.
Bailment: the rightful possession of goods by a person (the
bailee) who is not the owner. 4.
Finds it and takes it to the policea)Police give him receipt, no
one comes to claim it so he gets it back & eventually sells
itb)
P is soldier who found brooch1.Facts: D is owner of house
quartered by soldiersa.
How fairness by a judge is influentiala)Because P did all the
right things morally, court says it seems fair to reward that1.
Can also say in some situations where someone is behaving
morally right or fair, might make things easier for all of us,
a)
Could call good faith case, maybe if its a close call Hannah
suggests tie breaker b)
Hannah is commendable by bringing it back2.
Held: Court says we might be better to reward the good guyb.
Similar situation doesnt have to do with finders, but if
someone's doing the same type of thing as him then could say it may
be reasonable to give it to good guy (Hannah) and cite Hannah
1.
Maybe different if Peel ever lived there2.
THIS CASE IS ABOUT GOOD FAITH, THE GOOD GUY BECAUSE HE DID THE
RIGHT THINGc.
Hannah v. Peel, pg 1015.
Felix Cohen - property as a relationship among people that
entitles so called owners to include or exclude use or possession
of the owned property by other people
A.
Right to include (to sell for example) does not of itself result
in a fully effective power to transfer1.
Some believe this is the most important right/stick in the
bundle a.Need right to exclude as well2.
These 2 rights are necessary and sufficient conditions of
transferability3.
Importance of free transferability of property rightsB.
Trespass1.Conversion2.
Protects right to excludeC.
P has strong interest in protecting their landa.Society has
interest in punishing and deterring trespassers so they dont pursue
self help remediesb.Outcome probably doesn't promote
certainty?c.
Court upheld a landowners right to bar an unwanted trespasser
from moving a mobile home across Jacque's land, declaring that a
person has the right to "exclusive enjoyment" of his own land "for
any purpose which does not invade the rights of another person"
1.Jacque v. Steinberg Homes, pg 89D.
Held that a landowner had no right to bar a poverty agency
worker and a legal services lawyer from his farm where they sought
to visit a migrant worker who was an employee and tenant of his
farm.
1.
Rights are relative.a.
Held: Landowners right to exclude ended where the tenant
worker's need for reasonable access by visitors began.
2.
State v. Shack, pg 90E.
Jacque owned the property and was protecting his land alone,
Shack was keeping them away from protecting people residing on
Shack's land
a.Maybe the reasons why they wanted them off their land1.
Why did the court allow Jacque to exclude but not Shack?F.
Civil rights legislation forbidding various forms of
discrimination1.Rent controls and other limitations on a landlords
right to evict tenants2.Law of adverse possession3.Bodies of
doctrine granting public rights of access to private
beaches4.Legislation protecting homeowners who have defaulted on
mortgage payments5.
Limitations on rights you can exclude now but not in
Blackstone's time:G.
Singer - Reliance interest in property - "non owners have a
right of access to property based on need or some other important
public policy" pg 93
H.
Epstein firm right to exclude - absolute rights simply establish
the conditions for subsequent market transactionsI.Howard v. Kunto,
pg 142J.
THE RIGHT TO EXCLUDE AND ITS LIMITATIONSII.
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Everyone lives one house over1.
Common or successive relation to the same right in
property1.
Privity of estate means the voluntary transfer from the first
possessor to the second possessor of either an estate in the land
or actual possession of it
a.
Tacking - a common problem with continuity is whether one
possessor can add (tack) the possession of a prior possessor to his
own. If privity of estate exists between the prior possessor and
the present possessor, tacking is permitted.
2.
Owner - Tacking follows automatically on the owners side. Once
the statute of limitations has started to run, the cause of action
for ejectment (together with its expiring limitations period) goes
along with ownership.
3.
Minority1.Unsound mind2.Imprisonment3.
Disabilities include:a.
Only disabilities that matter are those that exist at the time
the cause of action accruesb.
DISABILITIES: Statute of limitation typically provide for
suspension of the limitations time clock if the owner is disabled
from bringing an action to recover possession at the time the cause
of action accrues.
4.
Howard v. Kunto, pg 142J.
Law of adverse possession is a synthesis of statutory and
decisional law1.Adverse possession functions as a method of
transferring interests in land without the consent of the prior
owner and even in spite of the dissent of such owners
2.
Passage of reasonable time period should assure security to
ownera.Rests upon social judgments that there should be a
restricted duration for assertion of "aging claims"3.
Theory this (AP) rests on - Adverse possessor may acquire title
at such time as an action in ejectment (or other action for
possession of property) by the record owner would be barred by the
statute of limitations
4.
Intro to Adverse Possession: Powell on real property, pg
116K.
Law of adverse possession is a synthesis of statutory and
decisional law with judicial rules supplementing the statutes of
limitation that make up the core of adverse possession
L.
The traditional doctrine of adverse possession, very widespread
not just in common law jurisdictions but, in some form or another,
in many other legal cultures, is a specific limitation on the right
to exclude that we examine in some detail.
A.
O wants to get A off his propertya.Either an action for
ejectment by the original owner O, against the would-be adverse
possessor A;1.
A seeks title from O to land theyve been APinga.
Or an action to quiet title in the property at issue by A, where
A thinks she has met the requirements and moves to snatch the title
(often in advance of sale).
2.
Procedurally, most adverse possession cases arise in one of two
ways:B.
An actual entrya.
Entry also helps stake out what it is the adverse possessor
might end up claiming1.
One reason entry is required - adverse possession depends on a
statute of limitations running against a cause of action and the
entry (without permission adverse to the rights of the property
owner) creates that cause of action for trespass that triggers the
statute
b.
An entry that is1.
Sufficiently so they would put reasonably attentive property
owners on notice that someone is on their property
a.Open and notorious2.
Reflects both earning and sleeping principlesa.Continuous for
the statutory period and3.
State of mind is irrelevanta)The Objective rule1.
Required state of mind is "I thought I owned it" a)Tend to win
more oftenb)
The Good-Faith rule2.
The required state of mind is "I thought I didnt own it, but I
intended to make it mine."a)The Aggressive Trespass rule3.
Three approaches to a would-be adverse possessors state of mind
that jurisdictions may impose:a.Adverse/Hostile and under a claim
of right/title4.
ADJECTIVAL ELEMENTS: The essence of these supplemental rules is
adverse possession requires that there be
C.
Adverse PossessionIII.
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Occupants must intend to take the property even if they know it
doesnt belong to them1.The required state of mind is "I thought I
didnt own it, but I intended to make it mine."a)
Obligation to compensate would be imposed to punish and deter
the consciously wrong activity
1.
One way of dealing with this type is to award title but only if
adverse possessor agrees to pay fair market value to the former
owner
b)
Dont want to reward consciously dishonest people1.He doesnt like
the aggressive trespass2.
Doesnt matter whether or not the mistake was intentional or not,
going to go for the objective standard because we dont care about
what's in peoples head.
c)
Color of title/objective rule of hostile part1.Intent of the Ps
is irrelevant.2.Ps get property because they were using it as an
average owner of similar property would.3.
Nome v. Fagerstromb.
Might shorten1.The possible effects of color of title on the
statute of limitations element;a.
The potential for color of title to provide a would-be adverse
possessor on part of a piece of property to make a claim of
constructive possession to the entire lot at issue.
b.
Color of title is NOT REQUIRED for adverse possession in most
jurisdictions, and therefore is not typically understood as an
element of adverse possession, but it may confer various advantages
to a would-be adverse possessor:
1.
Color of title is not claim of right2.
Color of title - a claim of adverse possession founded on a
written instrument, judgment, decree, or similar writing, which
purports to provide title to the property but which is defective or
invalid for some reason. Look at Nome
D.
Objective test of hostility?a.
In such situations, the limitations statute does not begin to
run until and unless the owner has actual knowledge of the
encroachment.
1.
Came into possession by agreement to purchase, husband died, P
is suing because thinks its his land? a.More typical context of
adverse possession - where its is used to resolve a conflict over
the boundaries of particular lots
b.
Rule: to claim title by adverse possession, the possessor need
not have been aware that the land in question was in fact owned by
another
c.
Trial Court concludes D has possession because exclusive
continuous uninterrupted visible notorious and against the right
and interest of the true owner.
1.
Abandoned "Maine Rule" which put a knowing wrongdoer in a better
position than an innocent party - a result the law ought not to
condone.
2.
State supreme court rejected what weve called the aggressive
trespass standard in favor of the objective rule for the
state-of-mind issue related to the adverse/hostile component of the
adjectival element.
d.
Aggressive trespass standard - doesnt matter whether or not the
mistake was intentional or not, going to go for the objective
standard because we dont care about what's in peoples head.
e.
Mannillo v. Gorski, pg 1362.
Boundary disputes - encroachments by one neighbor onto the land
of another are not open and notorious if the encroachment is of a
small area and is not "clearly and self-evidently" an
encroachment.
E.
Everyone lives one house overa.
Took possession of a summer home under a deed which, unbeknownst
to them, described the adjoining property.
1.
Common or successive relation to the same right in
property1.
Privity of estate means the voluntary transfer from the first
possessor to the second possessor of either an estate in the land
or actual possession of it
a.
Owner - Tacking follows automatically on the owners side. Once
the statute of limitations has started to run, the cause of action
for ejectment (together with its expiring limitations period) goes
along with ownership.
b.
Tacking - a common problem with continuity is whether one
possessor can add (tack) the possession of a prior possessor to his
own. If privity of estate exists between the prior possessor and
the present possessor, tacking is permitted.
2.
DISABILITIES: Statute of limitation typically provide for
suspension of the limitations time clock if the owner is disabled
from bringing an action to recover possession at the time the cause
of action accrues.
3.
Howard v. Kunto, pg 142F.
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Minority1.Unsound mind2.Imprisonment3.
Disabilities include:a.
Only disabilities that matter are those that exist at the time
the cause of action accruesb.
owner is disabled from bringing an action to recover possession
at the time the cause of action accrues.
Replevin - an action to recover personal property wrongfully
takena.
Facts: P (GoK) brought an action against D (Snyder) for replevin
for her 3 small paintings that had allegedly been stolen.
1.
Question is did she act reasonable due diligence/reasonable
person who owned these paintings would've acted
2.
Rule: The discovery rule controls in actions involving the
adverse possession of chattels3.
Statute of limitations doesnt begin until actual owner actually
knows & demands return of the items
1.
Focuses on due diligence2.Some people think discovery rule is
not protective enough3.
Discovery rule in this context is going to be more protective
for original owners than adverse possession in real property
context
a.
Due diligence - the standard of care as would be taken by a
reasonable person in accordance with the attendant facts and
circumstances
b.
Discovery rule - a cause of action will not accrue until the
injured party discovers, or by exercise of reasonable diligence and
intelligence should have discovered, facts which form the basis of
a cause of action.
4.
Guggenheim alternative to discovery rule - not require diligence
from true owner reasoning that such an approach would encourage
illicit trafficking in stolen art by putting the burden on the true
owner to demonstrate that it had undertaken a reasonable
search.
5.
Georgia O'Keefe v. Snyder, pg 151, adverse possession of
personal propertyG.
Oral agreement is not a conveyance but has all the effect of one
(would violate the SOF)a.Agreed boundaries - neighbors can agree on
a new boundary and record a conveyance to carry it out.1.
Acquiescence - if one owner acquiesces in a known encroachment
for an indefinite but long time, the acquiescence is evidence of an
agreed boundary
2.
Other neighbor changes their position as a result of their
indicationa.Estoppel is an equitable doctrineb.
Equitable estoppel - if one neighbor does or says things that
cause the other neighbor to substantially rely to his detriment on
the first neighbor's actions, the first neighbor is estopped from
denying his statements or actions
3.
Boundaries are hard to police4.
Alternatives to adverse possession in boundary disputesH.
By requiring people to do stuff before the sale, were building
failsafes in place to keep transactions on track
a.
Other function: Executory Nature the contract is designed to
allow the parties to fulfill various contingencies to take various
steps at different points before closing.
1.
One of the chief functions of a real estate contract is smoking
out problems with property before deed changes hands
A.
Steps before it have to happen before parts of the deal can go
forwarda.Contract that is not the end of the transaction1.
Executory contract B.
Purchase Price & how its to be paid1.Legal description2.Good
Title furnished, title ins.3.Warranties of title incl.
restrictions4.Date of transfer of possession5.Proration of
taxes/utilities6.What if fire? Whos responsible?7.Itemization of
personal property included in sale8.Escrow details9.Provision for
return of deposit10.Signatures11.
Some things a RE K should include:C.
REAL ESTATE TRANSACTIONS AND THE RECORDING SYSTEMIV.
Outline Page 9
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Signatures11.
Buyer has equitable title - still has to pay for burned down
house1.B has equitable ownership of the propertya.
S has legal title as trustee for Bb.Often K around or buy
insurancec.
Traditional majority rule here is that the buyer bears the risk
of loss if the house burns down between contract/closing
1.
If youve closed than the buyer is maybe on the hook a.Minority
rule - If the loss is substantial and maybe if the sellers still in
possession than its the seller2.
Equitable conversionD.
Fiduciary - person holding a legal obligation to act for the
benefit of another1.
Fiduciary duty - a legal obligation to act for the benefit of
another, including subordinating one's personal interests to that
of the other person
a.
Must exercise fidelity and good faith; 1.Cannot put themselves
in a position antagonistic to their principals interest, 2.and
therefore must make a full, fair, and prompt disclosure of all
facts which are or may be material, or which may affect their
principals rights and interests.
3.
Fiduciaries:b.
Making material misrepresentations;a)Making false promises
likely to influence, persuade, or induce;b)Acting for multiple
parties in a transaction without the knowledge of all;c)Any
dishonest, fraudulent, or improper dealings.d)
Fiduciaries can breach their duties by:1.
Breach of fiduciary duty: The failure of a fiduciary to observe
the standard of care exercised by professionals of similar
education and experience.
c.
Fiduciary duties and the possible breaches of these
duties:1.
Facts: Six siblings enlisted a real estate broker to help them
sell a home they had inherited and the broker in turn enlisted
another broker for further assistance. The second broker himself
bought the home for less than market value and sold it six days
later for $45,000 more than his purchase price.
a.
Issue: Must real estate brokers fully, fairly and promptly
inform their clients of all known facts that might be material the
transaction for which the brokers where employed?
b.
Held: Yes. Real estate brokers are fiduciaries and accordingly
they must act with the highest fidelity and good faith in promoting
their clients, and not their own, interests. Those duties flow to a
broker who acts as a subagent of another broker if the subagent has
the primary broker's express permission to act on the clients
behalf.
c.
Defendant subagents of the broker, who was directly in privity
(common relation to the same right in property) with the
plaintiffs, also had the relevant fiduciary duties to the
plaintiffs
d.
Licari v. Blackwelder, pg 5302.
Fiduciary Duties and brokers in real estate transactionsE.
In writing1.Signed by party to be bound2.Describe real property
at issue3.If price has been agreed to has to state it4.
Requirements:a.
Requires proof of an oral contract and reasonable reliance on
the contracta)Equitable doctrine wherein we award relief to
somebody who party performs, to their detriment, a contract that
fails SoF (Hickey v. Green, Walker v. Ireton)
b)
Part performance1.
May be used to enforce an oral sale contract if the seller has
caused the buyer reasonably to rely significantly to his detriment
upon the sellers oral agreement to sell.
a)
Different from partial performance because B is doing things to
improve property or in reliance on contract that arent specifically
part of the agreement
b)
Estoppel2.
Two exceptions to the statute of fraudsb.
Requires that unless there is some exception available, a
contract for the sale of land must be in writing and must be signed
by the party against whom it is sought to be enforced . Because
both parties wish to enforce the agreement, if necessary, against
the other, this means in practice that both parties must sign the
contract for sale.
1.Statute of FraudsF.
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reliance on contract that arent specifically part of the
agreementBoth ^^equitable doctrines and thus are generally
available only when a buyer seeks specific performance of an
otherwise unenforceable contract of sale
c.
A lot of people put a high percentage of their resources into
their home so we insist you get it in writing
1.
Will carve out an exception to SOF if its really unfair 2.
SOF is to help people frauded out of their homed.
Facts: Green (D) orally agreed to sell a parcel to Hickey (P)
and accepted his check as a deposit. In reliance Hickey sold his
home because he was build on the parcel he bought from D. Green
found out and refused to sell. P sued for specific performance
a.
Issue: Can an oral contract for the sale of real estate be
specifically enforced if the party seeking enforcement changed his
position in reasonable reliance upon the contract?
b.
Yes, specific performance. P reasonably relied & D was fully
aware of this when she refused to honor the contract. Would be
manifestly unjust to refuse specific performance.
c.
Hickey v. Green, pg 5422.
Held - Walkers sale of his own farm was not reasonable reliance
on the oral contract because the parties had neither discussed that
action nor was it foreseeable by Ireton.
1.
Because selling his own farm was not within the contemplation
and understanding of the parties and not foreseeable by the
seller.
2.
Facts: Walker entered into oral contract to purchase farm from
Ireton for $30,000. A written contract was discussed but Ireton
said he was honest and they didnt need one. Walker gave Ireton $50
check as part payment. Walker sold his own farm without informing
Ireton of his intentions. Ireton then refused to convey.
a.Walker v. Ireton, pg 5463.
Difference between Walker and Hickey is Hickey told Green he was
selling his house in order to buy hers/build on her lot.
4.
Pp through specific performancea.Es recognized as defense b.
Part performance/Estoppel originated in equity5.
Burden on the title, such as mortgages, judgment liens,
easements, or covenants. a.General rule that zoning laws are not
encumbrances and do not impair marketability of titleb.Easements
that are open, visible, available, or enhance property aren t
encumbrancesc.
"Encumbrances 1.Free from encumbrances and any reasonable doubt
as to its validitya.
And such as a reasonably intelligent person, who is well
informed as to the relevant facts and their legal bearings,
b.
And who is ready and willing to perform the contractc.Would be
willing to accept in the exercise of ordinary business prudence.
d.
Marketable title is title: 1.
The title to land is unmarketable where it is of such a
character as to expose a purchaser to the hazard of litigation by
reason of palpable defects in the title, outstanding claims, or
some disputed question of fact or of law of such importance as to
lead to a reasonable belief that by reason thereof the purchaser
may be called upon to defend possession or title, or be involved in
litigation with reference thereto.
a.
Defect in title must be substantial and likely to injure the
buyer b.
Hazards of litigation"2.
While undisclosed problems with the land may provide many
grounds for legal claims by a purchasing party, they may not
provide grounds for rescission based on marketability of title
grounds.
a.Distinction between marketability of title and marketability
of the land: 3.
Marketable TitleG.
Fraudulent misrepresentationa)Affirmative
misrepresentationb)Active concealmentc)Confidential/fiduciary
dutyd)Partial disclosuree)
Traditional exceptions to this rule:1.
Limited in Stambovsky2.
Caveat emptor (buyer beware)a.Three different approaches to the
duty to disclose:1.
Duty to DiscloseH.
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Limited in Stambovsky2.
Compare to the caveat emptor standard and its traditional
exceptions.1.Johnson, pg 5572.
The duty to disclose latent and material defects known to the
seller, and unknown and not reasonably discoverable by the
buyer;
b.
Objective (value of house on market/if defect has decreased
value)a)Subjectiveb)
2 approaches to materiality (how we determine something's
material)1.The duty to disclose all known and material defects,
latent or patent. c.
P contended that he should be entitled to rescind the contract
of sale and recover his down payment because D (owner of the house)
did not disclose that the house was haunted
a.
Rule: Where a condition that has been created by the seller
(deliberately fostered) materially impairs the value of the
contract and is peculiarly within the knowledge of the seller or
unlikely to be discovered by a prudent purchaser exercising due
care with respect to the subject transaction, nondisclosure
constitutes a basis for rescission as a matter of equity
b.
Not familiar with that village's folklore, could not readily
learn home was haunteda)
"Nondisclosure constitutes a basis for recession as a matter of
equity. The unusual facts of this case clearly warrant a grant of
equitable relief."
1.
Equity - fairness/justice/the determination of a matter
consistent with principles of fairness and not in strict compliance
with rules of the law
2.
Limited Caveat Empor rule while being moved by the spirit of
equity.c.
Stambovsky v. Ackley, pg 553, Ghost case2.
D failed to disclose to P certain roof defects prior to
conveyancea.
Since fraud occurred after contract execution it was
irrelevant1.
Rule: Where the seller of a home knows of facts affecting the
value of a home that are not readily observable, the seller is
under a duty to disclose - latent defects rule
b.
Latent defects - a defect that cannot be discovered upon
ordinary examinationc.
Johnson v. Davis, pg 5573.
Basically, the sales contract doesnt matter after closing1.
Contract merges into deed B cannot sue S for promises in K but
not in deed, but must sue on warranties in the deed
a)
When B accepts deed, B is deemed to be satisfied that all of the
contractual obligations have been met.
2.
All the obligations in the contract have emerged into the
deeda.
Argue that duty was collaterala)Collateral to the contract
1.
Independent of contract2.
How to get around the doctrine of merger? b.
Namely fraud and contractual promises deemed collateral to the
deed1.Merger is getting riddled with exceptions, easier to make
argumentsc.
Principally applies to questions of title or quantity of
landd.
Doctrine of Merger4.
Everything in the title is good, anything problematic1.Warrants
title against all defects2.
Grantor promises that he owns what he is
conveying1.Ownership/right to quiet possession/entitlement 2.
Covenant of seisin a)
Covenant of right to conveyb)Covenant against
encumbrancesc)Covenant of general warrantyd)Covenant of quiet
enjoymente)Covenant of further assurancesf)
Six covenants of title3.
Seisin, right to convey, encumbrancesa)Present covenants -
broken at the time of transfer4.
Future covenants - only find out whether they're going to be
honored in the future5.
General Warranty deedsa.Three types of deeds: 1.
Types of DeedsI.
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General warranty, quiet enjoyment, further assurancesa)Future
covenants - only find out whether they're going to be honored in
the future5.
Warranty only against the grantors own acts 1.Special Warranty
deedsb.
No warranties1.Quitclaim deedsc.
Name of grantor & granteea.Words of grant (make clear that
its transferring)b.Description of the landc.Signature of
grantord.Notary seale.
Elements of a deed2.
Keeps the actual purchase price out of the public recordsa.Not
necessary to convey land, just the fact of consideration is stated
in deedb.
Consideration - stated in deed in order to raise a presumption
that the grantee is a bona fide purchaser entitled to the
protection of the recording acts against prior unrecorded
instruments.
3.
Forged deed - void, just throw out4.Deed procured by fraud -is
voidable by the buyer5.
An installment land sale contract or a contract for deed is an
arrangement whereby the purchaser takes possession and the seller
contracts to convey title to the purchaser when the purchaser has
paid the purchase price in regular installments over a fixed period
of time
1.
During mortgage crisis1.D was predatory lending, contends they
were following fairness standards at that timea.
Loans were adjustable with a preliminary rate for 4 years1.The
initial rate was typically 3 points lower than the usual mortgage
rate on 30 year loans2.The debt to income ratio would exceed 50%
after the introductory period expired3.The loan-to-value ratio was
100%4.
Rule: Mortgage loans with the following 4 characteristics would
likely be unfair under the MA consumer protection statute
b.
Held: D knew or should've known these would be difficult to
repayc.
Commonwealth v. Fremont Investment & Loan, pg 6302.
Financing real estate transactionsJ.
What kind of notice/priority recording counts to make you a bona
fide purchaser1.
Evidence beyond record necessary to prove actual noticei.Real,
actual knowledge of the prior unrecorded transaction. 1.
Actual a)
Unless not within chain of title (& other things so this
prob isn't important?)i.
Record - If an instrument is validly recorded, everyone in the
world has constructive notice of it and cannot be a BFP
1.
Ordinary person of average prudence would inquire as to its
truthi.
Inquiry - maybe some aspect of deal or As use of land that let B
know they should investigate further. (Harper v. Paradise &
Waldorff Ins. v. Eglin)
2.
Constructive b)
Types of notice2.
BFP under race recording act is first to reporta)Who counts as a
BFP is going to change under certain recording acts3.
Under all recording acts - A subsequent bona fide purchaser is
protected against prior unrecorded interests
a.
The American recording system is an attempt to keep track of the
various interests that may exist in a single piece of property, and
a way to give potential purchasers relatively easy and trustworthy
information about the nature of title.
1.
BFP = whoever records first1.
Race statutes - under which, as between successive purchasers,
the person who wins the race to record prevails, and which protect
subsequent purchasers only if they record first;
a.
BFP = subsequent BFP (for value/without notice) prevails1.Notice
statutes - protect only subsequent purchasers without notice;
b.
Race-notice statutes - under which a subsequent purchaser is
protected against prior unrecorded c.
Three types of recording acts: 2.
Recording SystemK.
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Is without notice of the prior instrument, 1.
Has been suggested that a race notice statute is preferable
because by punishing nonrecording, it provides motivation to
record, making the public records complete
a)And records before the prior instrument is recorded. 2.
BFP = Subsequent BFP (for value/without notice) who records
first3.
Race-notice statutes - under which a subsequent purchaser is
protected against prior unrecorded instruments only if the
subsequent purchaser:
c.
A notice statute protects a subsequent purchaser against prior
unrecorded instruments even though the subsequent purchaser fails
to record
a.
Important to closely read a recording statute to see who comes
within the statutes protectionb.
In addition to protecting only subsequent purchasers without
notice, a notice statute differs from a race statute because Race
statute protects subsequent purchaser only if the subsequent
purchaser records first
3.
Has not given value/considerationa.
General rule that recording statutes often do not protect donees
or devisees as subsequent purchasers, even in race
jurisdictions
4.
Shelter rule - protection given to a BFP under a recording act
ends to all takers from the BFP, even if the taker knows of the
prior unrecorded conveyance
5.
Let P have land & pay Z for it -> Court chose this
one1.Award Z equity in land proportionate to what Z has already
paid2.Allow Z to complete purchase, but pay remaining balance to
P3.
Pro tanto rule protects buyers to the extent of payments made
prior to notice but no further. So we can:a.
Rule: One cannot claim BFP status if he receives actual notice
of an unrecorded interest in real estate prior to taking title
b.
Didnt raise his argument at trial so the S. Court waived
itc.
Daniels v. Anderson, pg 6866.
Lis pendens - a pending actiona.Rule: A person who records an
interest in real estate after a BFP takes title thereto is inferior
to the BFP, even if that BFP has not paid for the property
b.
We dont have to use Davis. If we apply Davis, we penalize an
innocent purchaser & Davis is antiquated vs. current industry
practice
1.
Held: Any purchaser without notice who makes a down payment and
obligates himself to pay the balance, has every reason to believe
that his rights are secure in the property.
c.
Here, Court abandons 99-y/o Davis precedentd.
Lewis v. Superior Court, pg 6897.
Cant give more than you get/Cant give interest past deatha.
Adverse possession argument - people haven't possessed the land
long enough1.On notice that Document only for replaced - so there's
a document out there, 2.
2 argumentsb.
Be careful about occupancy in this case1.Mere occupancy vs.
possessionc.
D had constructive notice of the prior claim when they acquired
title 1.Recorded reference to an unrecorded instrument - purchaser
is under obligation in many states to inquire about substance to
which record refers
2.
Rule: A deed which specifically refers to an earlier unrecorded
deed puts a subsequent purchaser on notice of the existence of the
earlier deed; thus the purchaser claiming under the later deed is
not entitled to property, though the later deed was recorded
first
d.
Shows how far some courts may stretch, based on the recorded
documents, to find a duty to inquire by subsequent purchasers.
e.
Harper v. Paradise, pg 6938.
Rule: Subsequent successors to legal title, after a contract to
convey title has been executed, take title subject to all equitable
interests of which they have notice
a.
Possession or occupancy of a single condominium unit, even in a
large complex, could give rise to inquiry notice by a subsequent
purchaser.
b.
Waldorff Insurance and Bonding, Inc. v. Eglin National Bank , pg
6979.
The donors intention to make a gift to the donee a.And the
actual transfer of possession from donor to donee.b.
Two important components of a gift: 1.Acquisition by GiftA.
THE RIGHT TO DISPOSE (GIFTS, POSSESSORY ESTATES, AND FUTURE
INTERESTS)V.
Outline Page 14
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And the actual transfer of possession from donor to
donee.b.These can be understood as necessary elements -->c.
Intenta.
Grantor must relinquish dominion and control of gift1.Affirms
intent/proves gifting happeneda)
Revocable i.Gift causa mortis - gift made contingent on the
donor's anticipated death 1.
Rule: A constructive delivery of a gift causa mortis will be
effective where it plainly appears that it was the intention of the
donor to make the gift, and where the things intended to be give
are not present, or where present, are incapable of manual delivery
from their size or weight.
2.
Newman v. Bost, pg 167b)
Constructive delivery - when actual physical delivery is
possible but impractical, delivery of some object that is the means
of obtaining possession of the property constitutes constructive
delivery
1.
Symbolic delivery - when actual physical delivery is impossible
or impractical, delivery can be accomplished by delivering some
object that is symbolic of possession
2.
Deliveryb.
Assumed when gift is valuable to the donee1.Acceptancec.
Necessary elements of a gift: intent, delivery, acceptance.
2.
Facts: Dad sent son a letter saying wanted to give him painting
as a gift, but Dad would keep until he died. Stepmom wouldn't give
it to him when Dad died arguing that donor retained a life estate
and no delivery was made.
a.
Gift inter vivos - a gift that is made and is to take effect
while the parties are living1.
Issue: May a valid inter vivos gift of chattel be made where the
donor reserves a life estate and the donee does not take physical
possession?
b.
Bray: Future interest is something that's hard to deliver1.
Held: Yes, a valid gift was made. Donative intent was
established constructively through the document of transfer (the
letter). Acceptance is implied because the painting had value.
c.
Introduced Life estate and a remainder. Next headingd.
Gruen v. Gruen, pg 1743.
Issue - children and descendants1.First people we look to?a)
Ancestors1.If no issue?b)
Collaterals - related by blood pg 1961.If no issue, and no
ancestors?c)
Government takes iti.Escheat1.
If none of the above?d)
Heirs1.
Dont know who someone's heirs are until they die2.
People who take dead persons property when they die
intestate?a.Intestate - die without will4.
Fee Simplea.Life Estateb.Leaseholdc.
Hierarchy of Estates1.
Largest, and conceptually the most expansive, estate one can
own. 1.An estate of indefinite or potentially infinite duration
a.
WHEN YOU SEE & HER HEIRS = FEE SIMPLE - on estates
problemsb.
Vested - remainder is vested if it is created in a known person
= will have letter/name on exam1.
Remainder - future interest created in a grantee that will
become possessory (if it ever becomes possessory) upon the natural
expiration of the preceding possessory estate
c.
Fee simple2.
Estates Problems stuff3.
Estate system - Designed to make clear who is transferring what
to whom not just what physical parcel of land or item of personal
property but also what sort of ownership measured in terms of the
duration of the transferees interest
B.
Outline Page 15
-
Not in old times1."O conveys to A" = Fee simplea.
A has life estate1.O has a reversion (when A dies)2.
"O conveys to A for life"b.
A has life estate1.
Would call this a remainder (& fee simple)a)When it becomes
possessory B gets his hands on it - B will have it and it will be
Fee simpleb)
B has future interest2.
O conveys Greenacre "to A for life then to B"c.
Will be A's for 50 years1.Term of years2.
O has reversiona)Then what?3.
O conveys Greenacre "to A for 50 years"d.
Rolls on forever thats ita)A has a fee simple1.
I think because you never know who heirs are until they die so
right now B has nothinga)B has nothing (may say 'mere expectancy' -
fancy way for nothing)2.
O conveys Greenacre "to A and her heirs" at the time of
conveyance, A has one son, B. e.
If it starts with 'to A for life' then you always know its LIFE
ESTATE1.A - life estate2.
When C gets hands on it, she's going to have fee simple so its
^^^a)
Might say 'vested subject to open' because B could have some
more kids - between the time of conveyance and the time that it
vests (becomes possessory) C might be joined by some siblings who
also might join in this remainder
i.
When the conveyance is made C is alive, so O knows when he makes
the conveyance that A is going to get a life estate and then one
child in whom that remainder is vested(know who its going to)
1.C has vested remainder in fee simple at the time of
conveyanceb)
C- remainder fee simple3.
B has absolutely nothing4.
O conveys Greenacre "to A for life, then to the children of B."
At the time of conveyance (and at the time of A's death), B has one
daughter, C.
f.
Estates Problems stuff3.
May only be created in a grantor1.Reversion - back to the
grantor after death of person it was first granted toa)
Third party1.Remainder - interest that remains after the
termination of the immediately preceding estateb)
Always followed by some future interest- either a reversion in
the grantor or a remainder in a third party
1.
Ways that one can convey a life estate, both at early common law
and in modern practice 2.
An estate that lasts for the life of the life tenant a.
Two separate estates representing different interests in the
same property, entitling first the life tenant to possession, and
then, after her death, the holder of the remainder (sometimes
called the remainderman).
1.Life estate and a remainder: b.
When you have something thats ambiguous1.That courts/lawyers
will apply - great argument2.
Easy/certaina)Ought to construe things as a fee simple3.
Rule of constructionc.
The more we can concentrate more sticks in the bundle for as
long as possible things will 1.The more simple we can makea)
Numerus clausus - prohibition of new or customized property
interests, pg 1971.
Standardization of estates - once the estates system developed,
judges decided that standardization of estates furthered
alienability by facilitating standardized transfers of the same
resources, either by the owner or by the owners heirs or
devisees.
d.
Life estate4.
Outline Page 16
-
The more we can concentrate more sticks in the bundle for as
long as possible things will be easier
1.
Applies to estates and all types of property interestsb)
Heller: purpose is to limit fragmentation of ownership and thus
promote the easy transferability of property rights
1.
By requiring that owners create only legally recognized property
interests, which have a standardized form, the principle directly
restricts freedom of ownership
c)
When the duration of a life estate is measured by the life of a
person other than the estate holder, it is a life estate pur autre
vie - for the life of another
1.Life estate pur autre viee.
Sometimes said that a restraint on alienation is "repugnant" to
a fee simple, and void for that reason. Pg 208
1.
Withholds from the grantee the power of transferring his
interest1.O conveys Blackacre to A and his heirs but any transfer
hereafter in any manner of an interest in Blackacre shall be null
and void
2.
White v. Brown, pg 2023.
Disabling restraintsa)
If the grantee attempts to transfer his interest, it is
forfeited to another person1.O conveys Blackacre to A and his
heirs, but if A attempts to transfer the property by any means
whatsoever; then to B and her heirs
2.
Forfeiture restraintsb)
Grantee promises not to transfer his interest/alienate the
property1.Enforceable by the contract remedies of damages or
injunction2.Rare except in landlord/tenant3.O conveys Blackacre to
A and his heirs and A promises for himself, his heirs, and
successors in interest that Blackacre will not be transferred by
any means
4.
Promissory restraintsc)
Types of restraints on alienation2.
General rule is that a restraint on alienation that is for a
reasonable purpose and limited in duration is valid
1.
Most are void2.Might just be bounded in time3.
Partial restraint - limiting conveyance to certain persons or
putting a time limit on the restrainta)
Economic efficiency - restraints prevent property from moving
into the hands of the person who would use it most productively
i.No matter what type of restraint, a total restraint on
alienation of a fee interest is void. 1.
Absolute restraintb)
Distinction between absolute and partial restraints, pg 209
3.
Alienabilityf.
Facts: Lide died leaving a will that expressly stated he didnt
want his home to be sold but for White to live in it.
1.
Issue: Will a will be interpreted as conveying a fee estate
unless the words and context clearly evidence an intention to
convey a lesser estate?
2.
Holding: Yes. Interpreting the language here as only a life
estate would create a partial intestacy. There is a general policy
against creating intestacy where a reasonable alternative
interpretation exists. Fee estate in White.
3.
Rule: Unless the words and context of a will clearly evidence an
intention to convey only a life estate it will be interpreted as
conveying a fee estate
4.
White v. Brown, pg 202g.
Equitable interest give to the beneficiaries who will enjoy the
use and enjoyment of the property1.
For the interest of the beneficiary not his owna)No
misrepresentationsb)
Take legal title and give to trustee who runs the trust who has
fiduciary duties to manage the property, but only for the
beneficiaries
2.
Take property and split the legal & equitable interest in
the propertya.
You could have another beneficiary if you want anna to have life
interest1.When you split it you make the beneficiary of the trust
the person you want to help you out with the giftb.
What is a trust? 1.TrustsC.
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You could have another beneficiary if you want anna to have life
interest1.And you want some other people to have it you name them
as beneficiary interest with some remainder
2.
Trustee is going to be bound by fiduciary duties by
beneficiariesc.Problems that can arise out of legal life estates
(that is, life estates not created in trust)d.
Facts: Weedon's will gave his property to his wife for life,
remainder to his grandchildren. She ended up needing to sell some
because necessary for her support. Court was asked to permit sale
of certain real property.
a.
Issue: May a court order the sale of property which is
encumbered by a future interest?b.Holding: Yes, but only if a sale
is necessary for the best interests of both the life tenant and the
remainderman. Remanded so Anna can motion to sell only enough to
provide adequate support for her unless compromise can be
reached.
c.
Rule: A court may order the sale of property which is held
subject to a future interest, but only if a sale is necessary for
the best interests of both the life tenant and the
remainderman.
d.
Baker v. Weedon, pg 2102.
Life estate not created in trust ^^ 3.
For example - start storing toxic wastea)Actively doing
something that makes the property less valuable clearly waste1.
Affirmativea.
Dont do enough to take care of it and it just goes to
shit1.Permissiveb.
Someone has done something that makes the property more valuable
but future interests in it are still upset
1.
Woodrick, pg 2182.
Ameliorativec.
Different types of waste1.
Whether the holder of a remainder interest in a parcel of land
may prohibit the life tenant of such property from destroying
structures on the land
a.
Rule: For an act to constitute waste in Ohio, the act must
diminish the value of the propertyb.Daughter got paid twice - court
said you can take down the barn but must payc.
Woodrick v. Wood, pg 2182.
Concept of wasteD.
Any estate can be made to be defeasible1.
Every fee simple determinable is a fee simple that is limited so
that it ends automatically when a stated event occurs.
1.
so long as"a)while used forb)until c)
Typical language of duration usually used to create a fee simple
determinable, such as:2.
NEVER SAY POSSIBILITY OF REVERSIONa)This is automatic, thats the
difference between FSD & FSSCb)
Possibility of Reverter: the future interest that accompanies a
fee simple determinable. 3.
The fee simple determinablea.
Such an estate is a fee simple that is limited so that it may be
cut short or divested when a stated condition occurs.
1.
but ifa)provided, howeverb)on condition that c)
Typical conditional language usually used to create a fee simple
subject to condition subsequent, such as:
2.
Analogous interest in grantee is executory interest1.When
grantor retains the power to cut short the conveyed estate before
its natural terminationa)
Right of entry or the power of termination - two terms for the
future interest that accompanies a fee simple subject to condition
subsequent
3.
The fee simple subject to condition subsequent b.
Fee simple subject to executory limitation. c.
Three types of defeasible fee simple estates: 2.
Defeasible estates: Any estate that ends, or may end, prior to
its natural end point and upon the occurrence of some specified
future event.
E.
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Fee simple subject to executory limitation. c.
Restraint against alienation - provision restricting the
transferees ability to convey interests in the conveyed
property
1.
Use restriction - a restriction on the right to utilize one's
personal or real property2.
Facts: P acquired real property by a gift deed from Toscano.
Included in the deed was a clause which purportedly restricted the
use and ownership of the property to the P. Upon violation of the
restriction, the property was to revert to D. P sought to a court
ruling that the restrictive condition was void as a restrict
against alienation and that P owned the property outright.
a.
Issue: Is a limitation on the use of property which also has the
effect of restricting its transfer void as a restraint against
alienation?
b.
Hold: No. Limitations on the use of property, although they
might also serve to impede its transfer, will not be void as a
restraint against alienation. Thus the part of clause that limits
use of property is valid, but language expressly restrict the
sale/transfer will be stricken as impermissible restraint against
alienation.
c.
First, that some state courts have rules of construction for
ambiguous conveyances - rules which may state a preference, for
example, for a fee simple subject to condition subsequent over a
fee simple determinable (a rule which we discussed in connection
with an earlier problem);
1.
Second, that there are mixed views as to whether and when
restrictions on land use should be regarded as restraints on
alienation.
2.
Two key points to take away from this case:d.
Notes and problems after Odd Fellows, pg 241e.
Independent Order of Odd Fellows v. Toscano, pg 2363.
When the use restriction materially affects marketability
adverselya.
When does a use restriction embodied in a defeasible fee become
so onerous that it amounts to an invalid restraint of
alienation?
4.
One very formal, concerned largely with the language at issue,
essentially the approach adopted by the majority in Odd
Fellows;
a.
A second approach, considered by the dissent in that case, which
looks at the effect or substance of the restriction, such that a
restriction on use might fail as, in effect, an unreasonable
restraint on alienation.
b.
Two general approaches that courts may use to address
restrictions on use that may appear to be restraints on
alienation:
5.
First, the remedy involved.a.Second, the effect of the use
restriction on alienation.b.Third, the potential benefits or harms
of the restriction to other land.c.Fourth, the extent to which the
restriction on use discourages potentially valuable improvements on
the property.
d.
Fifth, the potential impact of enforcing or voiding the
restriction on gifts to charity. e.
Factors that courts might consider when attempting to measure
the effect or substance of a restriction on use, to determine
whether it should fail as an unreasonable restraint on
alienation:
6.
Relationship between restrictions on use and restraints on
alienation F.
Not possessory but are capable of becoming possessory at some
time in the futurea.A future interest is a presently existing
property interest, but it confers only a future right to
possession.1.
Reversion1.Possibility of reverter2.Right of entry3.
Those retained by the grantor or transferor, such as: a.
Those that are both certain of becoming possessory and that
cannot be divested. 1.
Given only to an ascertained person, and i.Not subject to a
condition precedent, other than the natural termination of the
preceding estates.
ii.
Remain possessoryiii.
In other words, they are:2.
Indefeasibly vested remaindersa)
Vested remainders subject to openb)
Vested remainders - vested because we know who its going to go
to, remainder because its going to end naturally
1.Those created in a grantee or transferee, such as:b.
Two general classes of future interests: 2.
Future interestsG.
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Such as remainders created in a class of persons. 1.
At least one member of the class is ascertained;i.But other
potential class members may be created to share in the
remainder;ii.And there is no condition precedent (other than the
natural termination of the preceding estates).
iii.
These are remainders in which: 2.
Thats vested because we know after As life estate she's going to
takei.If B has subsequent children after the conveyance but before
the vestii.So like to A for life then to B's children and he has
one, then it can be that because who knows if he'll have another
one so its subject to open
iii.
To A for life then to the children of B, at the time of death B
has another kid or something
3.
Vested remainders subject to openb)
'To B and her heirs unless C comes home then to C and her
heirs'1.IF DECIDING BETWEEN THIS AND CONTINGENT REMAINDERS, THE
ANSWER IS ALWAYS CONTINGENT REMAINDER
2.
Vested remainders subject to divestmentc)
Person will have a letter or a name - on exam if its
ascertained1.
On exam - A remainder is vested if its given to an ascertained
person (someone who's alive that we know of)
d)
Because we dont know for sure who the people are were going to
take because they're not alive yet
1.
Or they're subject to something2.
That might not become possessory at some future timea)
B's nonexistent children have contingent remainder1.
Example: O conveys Blackacre to A for life, then to B's children
(B currently has no children)
i.Contingent because their takers are unascertained, or1.
B has contingent remainder - has to graduate from Princeton to
be entitled to possession
1.
Example: O conveys Blackacre to A for life, then to B if she
graduates from Princeton (B is 12yo)
i.Contingent because they are subject to a condition precedent.
2.
Remainders that are either:b)
Contingent remainders2.
A future interest held by a transferee that may either divest or
cut short some interest in another transferee (a shifting executory
interest) or divest the transferor in the future (a springing
executory interest).
a)
Shiftingb)
Dont need to know how to distinguish1.Springing c)
Executory interests3.
Executory interests cut short or divest the preceding interest;
1.Whereas remainders wait patiently or politely for the preceding
interest to end naturally.2.
Basic differences between remainders and executory interests:
c.
Beginning at the natural conclusion of a preceding estate
1.Rather, they cut off a preexisting interest when a specified
condition occurs. 2.
Difference between an executory interest and a remainder:
executory interests do not simply wait patiently or politely,"
d.
In some situations, its maybe appropriate to reform a conveyance
to get it to comply with what we think the granters was
1.
Permits courts to revise the grantor's instrument to get as
close as possible to the grantor's intentions when the grantor's
actual intentions are impossible to accomplish
2.
Connection with doctrine of changed circumstances w/r/t
termination of servitudes3.
Doctrine of Cy Pres, pg 306H.
The tenancy in common;a.Five types of concurrent interests known
at common law, and focus in this section on three of those
types:1.
Concurrent interestsA.Co-Ownership/Concurrent InterestsVI.
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There are no survivorship rights between tenants in common. a)A
conveyance of real property to 2 or more persons who are not
married to each other is presumed to convey a tenancy in
common.
b)
Potential problems of coordination and exclusion among
concurrent owners, and the possibility of an action for partition,
either in kind or by sale.
c)
Tenants have separate but undivided interests in the property
that are descendible and that may be conveyed by deed or will.
1.The tenancy in common;a.
Not subject to probate - which is an expensive, cumbersome, time
consuming judicial procedure to transfer a decedent's property
1.
Creditors of a joint tenant must seize and sell the debtor's
joint tenancy interests during the debtor's life because the joint
tenant debtor's interest disappears at his death
2.
Advantagesa)Singular characteristic of a joint tenancy is the
right of survivorship between joint tenants.1.
Clearly expressed intention in the grant itself1.Intenta)
Must receive interests at same moment in timei.Timea.
Must receive interests under same instrument i.Titleb.
Same share of the undivided whole1.Same durational estate2.
Must have identical interest in the propertyi.Interestc.
Each tenant must have right to possession of the whole property
in its entiretyi.Possessiond.
Four Unitiesb)
Modern law has abandoned this obsolete requirement as to
creation - there is little virtue in adhering to cumbersome feudal
law requirements.
a.
Riddle v. Harmon, pg 324 (below)b.
Common law 4 unities for creation required both tenants acquire
interest at same moment which in turn required that one party
holding the whole had to convey his interest to a 3rd person
("straw man") who would convey to the joint tenants in order for
such party to create a joint tenancy between himself and
another.
c)
Next, we started our discussion of modern trends away from a
strict insistence on the four unities, beginning with the
possibility of unequal shares.
d)
Severance - destruction of any one of the unities would operate
to sever the joint tenancy, because the four unities were necessary
to create the joint tenancy at common law
e)
Importance of intent (and the correct phrasing) to create a
joint tenancy, and 4 traditional unities 2.
Facts: P's wife owned real property in joint tenancy with P but
didn't want her interest to pass to P when she died. Terminated
joint tenancy by granting herself undivided one half interest,
which makes her tenant in common. Will devising her tenancy in
common to a third party was executed. P challenged and wife's
executrix D appealed.
a)
Issue: May a joint tenancy be terminated by the conveyance by
one joint tenant of his interest in the joint tenancy property to
himself?
b)
Straw man not necessary (a 3rd party to whom a transfer of
property is made in order to effectuate a transaction that may not
otherwise be allowed)
a.
Held: One joint tenant may unilaterally sever the joint tenancy
without the use of an intermediary device.
c)
Rule: A joint tenancy may be terminated by the conveyance by one
joint tenant of his interest in the joint tenancy property to
himself
d)
A minority of jurisdictions not requiring reconveyance to a
straw man for severance permit termination of a joint tenancy by
the filing of a declaration of an intention to do so, eliminating
even the fiction of having to convey to sever.
e)
We usually dont require recording/notice to sever JTa.
Different methods and limitations that might be used or required
to unilaterally sever a joint tenancy
f)
Riddle v. Harmon, pg 3243.
The joint tenancyb.
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We usually dont require recording/notice to sever JTa.Deed to
yourself as TiC (Riddle v. Harmon) not best wayb.Straw man deed to
a friend and have them deed it backc.Trust deed it to your kid in
trust, naming yourself beneficiaryd.
Facts: P & Harms owned joint tenancy, Harms executed a
mortgage favoring Simmons who assigned his interest to Sprague (D).
Harms died and P contended that the mortgage died with him.
a)
Issue: Does a mortgage on a joint tenants interest survive the
mortgagor?b)Held: No, unity of title required for joint tenancy
& if mortgage constituted a change it title that would destroy
the unity. But Illinois recognizes that mortgage does not
constitute a change until foreclosure plus running of redemption
period so mortgage does not sever joint tenancy therefore the
entire estate of the decedent JT passes to the survivor. This
effects a nullification of any liens thereon so Ds interest was
extinguished upon Harms' death.
c)
Rule: A mortgage on a joint tenant's interest does not survive
the mortgagor.d)
Harms v. Sprague, pg 3304.
The crucial difference between this case and Riddle is that the
mortgage didnt technically transfer title and, therefore, didnt
sever JT
5.
Not restored by redemption because time & title unities not
present.i.
Mortgage by one joint tenancy had the effect of severing JT
because unity off interest destroyed.
1.
After mortgage, former JTs would become tenants in common and
there would be no right of survivorship
2.
Holds that a mortgage effects a transfer of legal title subject
to an equitable right of the mortgagor to reclaim title by paying
off the loan secured the mortgage (equity of redemption)
a)Title theory of mortgages6.
Mortgage by one JT makes no alteration to title and thus does
not sever the JT1.
Holds that the mortgagee only has a lien against the property
(an inchoate right to seize title if the loan is note paid).
a)
more importantly, the different rules that courts may apply in
joint tenancy situations to mortgages and other conveyances, such
as leases or life tenancies, that fail to convey a full fee
interest;
b)
Lien theory of mortgages7.
Facts: P owned undivided 99/144 interest, D owned 45/144.
Tenancy in common a)Issue: Are partition sales employed only where
partition in kind is unworkable?b)
In this case limited number of competing interests/ease of
division = partition in kind very workable
1.
Held: Yes, partition sales should only be employed in
extraordinary circumstances because the forced sale of a party's
interest should be avoided.
c)
Rule: Partition sales are employed only where partition in kind
is unworkable.d)
Paying twice1.
Partitions in time can be trickyi.Vealencis got less in the
partition in time then they would have in the partition by
sale2.
Bray thinks owelty is a mistake for something that's going to be
related to the partitione)
Partition way to remedy isutations when joint tenants not
getting alongi.Modern trend to debunk presumptionii.Delfino - The
new trend has not yet swallowed up the old trendiii.
The traditional presumption (discussed in Delfino) that many
courts apply in favor of partitions in kind
1.
Modern trend toward ordering partitions in sale, despite this
presumption.2.
Including both: f)
Arguments that the Delfinos attorneys might have made to try to
overcome the traditional presumption as applied in that case.
1.Problems with valuation associated with partitionsg)
Delfino v. Vealencis, pg 3388.
Partition unavailable1.Have to be married couple2.
The tenancy by the entirety.c.
Ouster exists when the cotenant in possession refuses to allow
another cotenant to share the possession a.Ouster. 2.
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Majority rule: a cotenant in exclusive possession does not owe
rent to her cotenants, absent ouster.1.
Ouster exists when the cotenant in possession refuses to allow
another cotenant to share the possession after the latter has made
a demand for possession.
a.
Because they each have a right of the property of whole1.One
cotenant cannot adversely possess the property against
anotherb.
Cotenant usually liable for rent on the property to that
tenant1.Or for a share in certain profits to that2.
When one cotenant houses another is when problems arisec.
Doesnt want to lose that right of survivorship - wifea)Cannot
cancelb)
Deny access to the land, but could claim ouster and demand rent
from W1.Use legal rights to annoy (picketing)2.Possibly Waste
argument, but it would be tough3.
Uses various legal rights to annoy other guyc)
Facts: They're cotenants - husband leased some property to
another person who wants to put boxing thing there
1.
Different conveyances that sever joint tenanciesa)Did this lease
(between husband and Sampson) sever the joint tenancy? NO2.
Issue: Can one joint tenant who has not joined in leases
executed by her cotenant and a third party maintain an action to
cancel the leases where the 3rd party is in exclusive possession of
the leased property?
3.
Leases at issue were neither invalid nor severances of the joint
tenancya)
Rule: The act of one JT without express or implied authority
from, or consent of, his cotenant cannot bind or prejudicially
affect the rights of that cotenant; but, a lease to all of the
joint property by one JT is not a nullity but rather is valid to
the extent of his interest in the joint property.
4.
Ouster gives her a way to just sue Sampson, goal is to make
boxing unpleasant enough for sampson so he leaves
a)Ouster isn't proper until perfect adverse possession5.
Bottom of pg 354a)Mrs. Swartzbaughs concerns about adverse
possession, and the courts conclusions on this issue.6.
Swartzbaugh v. Sampson, pg 351d.
Achieve fairness between the parties, a.Respect the intent
expressed in the easement, b.Acknowledge the interdependence of
some landowners,c.Keep property easily marketable, without
unnecessary encumbrances.d.
Fundamental tensions that exist in many servitudes cases with
courts attempting to: 1.
When we create them we'll create them so they can run with the
landa)This right to use shouldnt be confused with the right to
possess (Thats associated with ownership right/not a use right)
b)
Evolution of easements essential to understanding the subsequent
evolution of real covenants and equitable servitudes, and more
modern efforts to simplify this area of the law. creation of
easements and the application of the statute of frauds.
c)
Agreement that allows a non owner to enter upon and use a piece
of property possessed by another person
1.
Benefited parcel is dominant estatei.Burdened parcel is servient
estateii.
One that benefits the owner of another parcel of
land1.Appurtenant easement - very clearly going to run with the
land, both pieces of propertya)
Tended not to be transferable in common law, relaxed nowi.Can
assign the rightsii.
That means one person holds it personally, if you sell it to
neighbor easement will not run with it
1.Easement in Gross - designed to deliver a personal benefit
b)
Affirmative easements - permits a person to use the servient
estate in a specified mannerc)
Two ways to classify easements, Appurtenant/in gross (every
easement is one or the other) or affirmative/negative
2.
Easementsa.Broad terminological categories of servitudes: 2.
Servitudes Generally/Easements in ParticularB.
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Majority are affirmative, only a few types of negative may be
created1.Affirmative easements - permits a person to use the
servient estate in a specified mannerc)
Confers no right to use the