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PROPERTY OUTLINE PART I

I.    Property, Possession, and Ownership (Chapter 1)

    A.    Real property: LAND AND ANY STRUCTURES BUILT ON IT

    B.    Personal propery: Tangibles: Things that can be seen or felt like a watch, painting, or book.

                    Intangibles: Cannot be seen or felt, bank account, stocks, bonds, or even the right to something.

    C.    Legal analysis: Term PROPERTY DENOTES THE LEGAL RELATIONSHIP AMONG PEOPLE IN REGARD TO A THING.

A.    POSSESSION:

    1.    Defined: Difficult to define but usually when one is in possession of somthing HE PHYSICALLY CONTROLS IT.

        a.    Also can be in POSSESSION OF THINGS NOT IN HIS PRESENCE like a chair in his backyard or things barried under his house.

        b.    Facts or legal conclusion: Possession may refer to either FACTS INDICATING PHYSICAL CONTROL W/ THE INTENT TO EXCLUDE OTHERS OR;

        c.    A CONCLUSION BY A COURT THAT A PERSON IS IN POSSESSION AND SHOULD BE PROTECTED AS THE POSSESSOR.

        d.    Possession distinguished from ownership: These terms are not the same. OWNERSHIP IS TITLE AND IS USUALLY SHOWN BY DOCUMENTS. POSSESSION IS PROVED BY SHOWING PHYSICAL CONTROL AND INTENT TO EXCLUDE OTHERS. Possession is easier to prove then ownership.

        e.    Constuctive possession: This is a legal fiction used to recognise

        f.    To say that I own something means that I have a LEGALLY PROTECTED EXPECTATION NOT TO HAVE ANOTHER INTERFERE IN A WAY THAT THE OWNER DOES NOT AGREE.

    g. 5 theories to justify the inst. of PRIVATE PROP:

            1)      Occupation theory: occupation or possession of a thing justifys a legal protection

            2)     Labor theory: Can own things produced by labor

            3)     Contract theory: That private property is the result of a K between the person and the community.

            4)     Natural rights theory: Natural law dictates and reconises private prop.

            5)     Social utility theory: legal protection of private prop. promotes maximum forfillment of human needs.

        h.    3 ecomonic theories

            1)     Universality: All things should be owned

            2)     Exclusivity: Gives owners the incentive to incure the cost and use their resources.

            3)     Transferability: b/c needed to shift stuff around.

        i.    Judicial remidies: Ejectment: To take back land from a tresspasser. Replivin: Means to get back something one lost.

B.    ACQUIRING POSSESSION OF WILD ANIMALS

    1.    Rule of capture: If wild animals are captured, they belong to the captor. BUT CAPTURE IS REQUIRED, MERELY CHASIING IS NOT ENOUGH.

        a.    Rational

            1.     Competition: To foster copition, resulting in more animals being caught, society does not reward the pursuer only the captor.

            2.     Ease of administration: Too difficult of to show entitlement simply b/c one was chasing. Easier to administrate by showing who actually caught the thing.

        b.    Wounded or trapped animals: If the thing has been MORTALLY WOUNDED OR TRAPPED SO THT CAPTURE IS ALOMST CERTAIN, THE ANIMAL IS TREATED AS CAPTURED. NOTE: THE ANIMAL MUST ACTUALLY BE CAPTURED AND NOT ONLY IN THE PROCESS OF THIS ACT.

    2.    Escaped wild animals: If a captured wild animal escapes, THE CAPTOR LOSES HIS POSSESSSION AND THE ANIMAL IS AGAIN SUBJECT TO CAPTURE BY ANOTHER.

    3.    No one owns a wild animal. It is unowned property b/c it can move from place to place.

    4.    Abandonment: Meas to leave something w/ the intent not to own it anymore at which time no one owns it.


C.    ACQUIRING POSSESSION BY FINDING ARTICLES

    1.    General rule: An owner of property DOES NOT LOSE TITLE BY LOSSING THE PROPERTY. The O's rights persist even if the proper has been lost or mislaid. BUT A FINDER HAS RIGHTS SUPEROIOR TO EVERYONE BUT THE TRUE OWNER. (There are some exceptions to this rule.

        a.    Ex. A find a ring. Takes to a jewler to get apprased and jewler keeps saying that A is not the owner. A would get the ring or $$ because THE PRIOR POSSESSOR HAS THE SUPERIOR RIGHT.

        B.    Prior possessor wins: The rule that a prior possessor wins over a subsequent possessor is important and applys to both PERSONAL AND REAL PROP. Rational

            1)     Protecting prior possession protects AN OWNER WHO HIS NO PROOF OF OWNERSHIP.

            2)     Entrusting goods to another is an efficient practice that promotes commercial exchanges and bailments.

            3)     Prior possessors expect to have possession over subsequents and law reinforeces this beliefe.

            4)     The protection of peaceable possession is ancient policy and aimed at deterring disruption of public order.

            5)     REMEMBER FOOL, REGARDLESS OF IF THE SUBSEQUENT POSSESSOR LOSES HIS OBJECT, HE STILL WILL PREVAIL OVER ANY SUBSEQUENT FINDER EXCEPT THE TRUE OWNER.

        d.    Prior possessor a trespasser: The prior possessor rule still applys even it the object is gotten through theft. The rational is that to give even stolen prop. to a subsequent possessor would NOT DETER CRIME, BUT RATHER IMMERSE OWNERS AND PRIOR POSSESSORS IN LITIGATION W/ SUBSEQUENT POSSESSORS TO PROVE THAT THE PRIOR POSSESSORS ARE NOT THIEVES.
        e.    What is possession: For a finder to become a PRIOR POSSESSOR, THE FINDER MUST ACQUIRE PHYSICAL CONTROL OVER THE OBJECT AND HAVE THE INTENT TO ASSUME DOMMINION OVER IT.

            1.    So in the case of a ship wreck, it is not enough to entend to salvage it. RATHER, one must make actul means to raise the ship. So he would have to put a salvage ship over the wreck and allert other searchers of his prior possession.

            2.     Rational: So it will he easier for cts to judge who had prior possession.
       

        f.    Unconscioius possession: A person may constructively possess something and be unaware of it. IE it could be on the premeises and she could not know it . IN THIS CASE THE PRIOR POSSESSOR RULE APPLYS AND THE UNCONSCIOUS POSSESSOR WOULD GET THE THING.

            1.    A owns anthing that is on her land or under the surface even though she is not aware of it. If A hires B to do some work and B finds this thing, A is entitled to it and not B.



    2.    FINDER VS. OWNER OF PREMISES: Generally, the finder is entitled to possession as against al but the true owner UNLESS the property was ound in a HIGHLY PRIVATE PLACE OR THE FINDER IS A TRESPASSER.

        A.    Object found under soil: In such cases possession belongs to the LAND OWNER AND NOT THE FINDER.

            1.     EXCEPTION:-Treasure trover: Some jr. give it to the finder, while others to the landowner.

        B.    Object found in private home or public place: Objects found inside someone's home are usually awarded to the homeowner. Possession of objects found in a PUBLIC place is determined by deciding wheter the prop WAS LOST (accidentally left by owner), or MISLAID (intentionally place somewhere and then forgotten). LOST PROPERTY GOES TO THE FINDER WHILE MISLAID PROPERTY GOEST TO THE OWNER OF THE PREMISES.

    3.    Abandon property: Property abondon by the true owner is awareded to the finder.

    4.    Statutory changes: Some state have enacted statutes abolishing the ct. made distinctions in finders cases, and award the property to the finder.




















    5.    Trover: Action to recover damages for wrongful conversion of property.

        a.    If one gets $$ in trover, then owners lose full legal right in prop.

    6.    Kapiloff Case: Can't sell something one doesnt have title to as when the P sold the stamps to the dealer.

D.    REMIDIES OF A POSSESSOR

    1.    Forms of action: At common law, a P had to bring suit in an appropriate form of action to obtain a remedy. These suits have been abolished but their impact remains in todays concept of possession.

        a.    Action to recover damages:

            1.     Trespass: Trespass required a showing that D intensionally or negligently acted to inflict a direct forcible injury to the P's property or person. This basis for a trespass actionis INJURY TO POSSESSION. This action included trespass to chattels and trespass to land.

            2.     Trespass on the case: Such an action would lie where one of the elements of a trespass action was missing ie. indirect r consequential injury rather then immediate injury.

            3.     Trover: A suit in trover was used to recover the value of the P's CHATTEL THAT THE D. HAD CONVERTED. Trover did not apply to trespass to land.

        b.    Actions to recover possession: Repliven was used to recover possession of a CHATTEL. Ejectment was used to recover possession of land.

        c.    Modern law: The basic difference in remedies afforded by these common law actions-THE RETURN OF THE THING AS OPPOSED TO DAMAGES-exists today in modern codes of civil procedure.

    2.    Defense of Jus Terii: The majority rule is that a defense jus tertii (only the true owner may bring suit) is NOT ALLOWED. thE FACT THAT A POSSESSOR RECOVERS damages from a D. DOES NOT BAR A SECOND RECOVERY BY THE TRUE OWNER.

    3.    Law and equity: In most jr's. today, law and equity courts have been merged and LEGAL REMEDIES (DAMAGES) AND EQUITABLE REMIDIES (INJUNCTION) MAY BE SOUGHT AND APPLIED IN THE SAME ACTION.

E.    BAILMENTS

    1.    DEF: A bailment is the RIGHTFUL POSSESSION OF GOODS BY ONE WHO IS NOT THE OWNER. True owner is BAILOR. PERSON INPOSSESSION IS THE BAILEE. A bailee must assume ACTUAL PHYSICAL CONTROL W/ INTENT TO POSSESS.

    2.    Rights and duties of a Bailee:

        a.    Rights against a 3rd party: A bailee may collect ful damages resulting from a 3rd party's wrongdoing; The bailee is then liable to the bailor for the recovered amount. THE BAILOR CANNOT RECOVER FROM THE BAILEE AND THE 3RD PARTY.

        b.    Duty of bailee to exercise care: The standard of care varies w/ the type of bailment and usually is commensurate w/ who gets the benefit of the bailment.

            1.     Sole benefit of bailee: EXTRAORDINARY CARE

            2.     Mutual benefit of bailor an bailee: ORDINARY CARE AND LIABLE FOR ORDINARY NEGLIGENCE

            3.     Sole benefit of the bailor: Only SLIGHT CARE AND LIABLE FOR ONLY GROSS NEGLIGENCE.

            4.     Modern trend: A standard of ORDINARY CARE UNDER THE CIRCUMSTANCES.

        c.    Duty to deliver: A bailee is held to STRICT LIABILITY for delivery. But, an INVOLUTARY BAILEE IS LIABLE ONLY IF NEGLIGENT IN DELIVERING THE GOODS TO A WRONG PERSON.

    3.    Contractual modification of liability: Most courts permit bailees to limit their liability by contract provisions IF THE BAILOR CONSENTS. But such provisions will not relieve the bailee FROM GROSS AND WILLFUL NEGLIGENCE.

F.    ACESSION: Acession is the improvement or augmentation of personal prop. of another by LABOR OR LABOR AND NEW MATERIALS. A person may lose title by the accessions of another, but is entitled to the uniproved value of the property lost.

G. ADVERSE POSSESSION:

    1.    Overview: If a landowner does not bring an action to eject an ADVERSE POSSESSOR w/in the statutory period, the owner is thereafter BARRED FROM BRINGING AN EJECTMENT ACTION.

        a.    Effect: The running of the statute of limitations not only BARS THE OWNER'S CLAIM TO POSSESSION, but also CREATES A NEW TITLE IN THE ADVERSE POSSESSOR.

        b.    Purpose: The doctorine of adverse possession protects title, bars stale claims, rewards productive use of land, and gives effect to expectations which is a basic policy of prop law.

        c.    Possessor's right before acquiring title: Before the statue of limitations runs, the adverse possessor has all the rights of the possessor, but he has no INTEREST IN THE PROPERTY THAT ARE VALID AGAINST THE OWNER.

    2.    Requirments of adverse possession: An adverse possessor must show:

        a.    ACTUAL ENTERY GIVING EXCLUSIVE POSSESSION: The community must reasonably consider the adverse possessor the OWNER. Constuctive possession is NOT ENOUGH; ACTUAL ENTRY ON SOME PART OF THE LAND IS REQUIRED.

        b.    OPEN AND NOTORIOUS: The possessor must occupy the prop. in an OPEN, NOTORIOUS, AND VISIBLE MANNER SO AS TO GIVE REASONABLE NOTICE TO THE OWNER THAT THE POSSESSOR IS CLAIMING THE DIMINION ADVERSE TO THE OWNERS RIGHT.

        c.    ADVERSE UNDER A CLAIM OF RIGHT: A claim of right means that the adverse possessor is acting ADVERSELY TO THE OWNER.

            1.     Objective test: The state of mind of the possessor is not controlling. The possessor's ACTIONS MUST APPEAR TO THE COMMUNITY TO BE ACTS OF THE OWNER. The test is similar to open and notorious.

            2.     Subjective test: Some jurs. interpret claimof right to mean POSSESSOR HAS A GOOD FAITH BELIEF THAT HE HAS TITLE.

            3.     Color of title: A few states require an adverse possessor to ahve color or title ie a fake deed, which is unknown to the possessor.

            4.     Boundry of disputes: If a nieghbor occupies adjacient land, MISTAKENLY BELIEVING IT TO BE HIS, THE MAJORITY HOLDS THAT HE IS AN ADVERSE POSSESSOR. The objective test is not determitive but somtimes good faith is still relevant. The minority view holds tht there is no adverse possessin unless the neighbor has ACTUAL HOSTILE INTENT TO CLAIM THE LAND.

                a.     Agreement on boundaries: An oral agreement may fix a boundary line, and if one party acts in reliance thereon, the other party is ESTOPPED from denying the boundary. ACQUIESCENCE IN A BOUNDARY OVER A LONG PERIOD OF TIME IS EVIDENCE OF AN AGREEMENT BETWEEN PARTIES.

            5.     Special situations concerning adversity:

                a.     Landlord - tenant: Entry made w/ permission CANNOT BECOME ADVERSE UNITL THE POSSESSOR (TENANT) CLEARLY REPUDIATES THE LEASE SO AS TO GIVE THE LANDLORD NOTICE THAT HE IS HOLD THE LAND ADVERSELY.

                B.     Co-tenants: A co-T in possession does not become and adverse possessor until she OUSTS THE OTHER TENANT AND CLAIMS SOLE OWNERSHIP.

        d.    CONTINOUS: Continous possession requires ONLY THE DEGREE OF OCCUUPANCY AND USE THAT THE AVERAGE OWNER WOULD MAKE ON THE PROPERTY. An adverse use is continous when it is made w/out a break in the essential ATTITUDE ON MIND REQUIRED FOR ADVERSE USE.

            1.     Seasonal use: A person can be in continious possession only during a particuliar season, if the possession is how the average owner would use the property. EX. a summer vaction place or hunting place.

            2.     Abandonment: If the possessor INTENTIONALLY RELINQUISHES THE PROPERTY FOR ANY PERIOD OF TIME THE CONTINUITY IS BROKEN.

            3.     Tacking by successive possessors: An adverse possessor can establish continuious possession by TACKING ONTO HER OWN PERIOD OF POSSESSION ANY PERIOD OF ADVERSE POSSESSION BY PREDICESSORS IN INTEREST- If there is PRIVITY OF ESTATE, IE THAT THE PRIOR POSSESSOR VOLUNTARILY TRANSFERRED TO A SUBSEQUENT POSSESSOR EITHER AN ESTATE IN LAND OR PHYSICAL POSSESSION.

                a.     Ouster or abandonment: An adverse possessor cannot tack on a prior period of possession if she as ousted the prior possessor or if the prior possessor has abondon the land.

                b.     Tacking on owner's side: Once adverse possession has begun to run against the owner, it runs against that owner and all his successors in interest ie tacking on the owners side.

            4.     Interuption by true owner: If the owner interupts the adverse possession by reentering w/ INTENT OF REGAINING POSSESSION, CONTINUITY IS BROKEN. An objective test is used, ie ordinary acts of the owner.

        e.    Payment of taxes: In some states payment of prop. taxes by the adverse possessor is mecessary her claim will prevail.

    3.    Disability of owner: If the owner is under a disability, ie infancy, or insanity, at the time of adverse entry, THE STATUTE IS TOLLED UNTIL DISABILTY ENDS. But only the intitial disability at time of entry tolls the statute, a different disability arising after the entry does not.

    4.    Extent of land acquired by adverse possession:

        a.    W/out color of title: An adverse possessor who enters w/ no color of title take possession ONLY OF LAND ACTUALLY OCCUPIED OR CONTROLLED.

        b.    W/color of title-constructive adverse possession: An adverse possessor w/ color of title, a fake deed, is in possession of the entire prop. described in the fake deed. ie he is in constructive adverse possession of the part of the tract he does not actually possess.

            1.     Requirement: The doctorin of constructive adverse possession UNDER COLOR OF TITLE applies only where the adverse possessor enters in GOOD FAITH and occupies a significant part of the property tht is recognised in the community as one defined parcel of land. Possession of 1 part of the land puts the owner on notice that he is claiming the entire tract.

    5.    Nature of title acquired by adverse possessor: Once the statue of limitations has run, the old TITLE IS EXTINGUISHED, AND THE ADVERSE POSSESSOR TAKE A NEW TITLE BY OPERATION OF LAW.

        a.    Relation back: An adverse possessors new title relates back to the date of his initial entry so as to bar any subsidiary claims by the new owner. The new title may be subject to liens, easements, covenants, or mineral interests of another.

        b.    Transferability: The new title can be transferred likd any other title, but it CANNOT BE RECORDED UNTIL A QUITE TITLE ACTION IF FILED AGAINST THE FORMER OWNER.

    6.    Interests not affected by adverse possession:

        a.    Future interest: Adverse possession does NOT run againt the owner of a future interest (r) if ENTRY IS MADE WHEN A LIFE TENANT HAS POSSESSION. Note that if entry had been made before the owner created the R, the statute would begin to run against the owner and his successorns in interest ( the owner of the R)

        b.    Liens, easements, equitable servitudes: An adverse possessor does NOT DESTROY ANY LIEN,COVENANT, ECT UNTIL HE INTERFERS W/ IT SO AS TO GIVE THE HOLDER THE RIGHT CAUSE TO SUE THE ADVERSE POSSESSOR.

        c.    Govt land: W/ few exceptions, public policy EXEMPTS GOVT. LAND FROM ADVERSE POSSESSION

    7.    Adverse possession of chattels: Title to personal prop. may also be acquired through adverse possession.

H.    RIGHT TO EXCLUDE: Traditionally, the cts hav afforded great protection to exclusive possession over one's property. Use may be restricted by zoning and transfer may be subject to restraints, BUT the law seldom permits another person to enter a possessor's property. Recently, the right to exclude has conflicted w/ civil rights and the 1st amendments. In these cases the right to exclude may be limited by federal or state cont. considerations.

II.    GIFTS AND SALES OF PERSONAL PROPERTY

        1.    General rule: A seller can transfer no better title than he has.

        2.    Exceptions: Title to $$ and NEGOTIABLE INSTRUMENTS passes to a BONA FIDE PURCHASER. Also, where a seller has VOIDABLE TITLE (ONE THE OWNER CAN VOID), A BFP takes title. ESTOPPEL AND ENTRUSTING GOODS TO A MERCHANT MAY ALSO BE APPLIED TO PASS TITILE TO A BFP. BUT A BFP TAKES NO TITILE FROM A THIEF.

III.    FREEHOLD POSSESSORY ESTATES

    A.    INTRO:

        1.    The Feudal Background: The concept of estates in Anglo America law arose out of the feudal system imposed upon England by the Norman Conquerours. The Statue Quia Emptores estatblished the principle that LAND SHOULD BE FREELY ANIENABLE.

        2.    The system of estates: An estate is an interest in land measured by SOME PERIOD OF TIME.

            a.     Types of estates: There or 4 POSSESSORY ESTATES

                (1)     The FEE SIMPLE: This estate has the POTENTIAL OF ENDURING FOREVER.

                (2)     The FEE TAIL: A fee tail estate also has the POTENTIAL TO ENDURE FOREVER, but ENDS IF AND WHEN THE 1ST FEE TAIL TENANT HAS NO LINEAL DESCENDANTS TO SUCCEED HIM IN POSSESSION.

                (3)     LIFE ESTATE: This estate will end at the DEATH OF A PERSON.

                (4)     LEASEHOLD ESTATE: This estate lasts for a FIXED TIME OR BY OTHER ARGREEMENT BETWEEN LANDLORD AND TENANT.

            b.     Freehold and Nonfreehold estates: The fee simple, fee tail (where not abolished), and life estate are FREEHOLD ESTATES, whereas NONFREEHOLD ESTATES ARE LEASEHOLD ESTATES (IE FOR A TERM OF YEARS, PERIODIC TENDANCY, TENDENCY AT WILL).

                (1)     Seisin: Only FREEHOLD ESTATES HAVE SEISEN; In NONFREEHOLD ESTATES siensin is in the landlord. Except where the land is leased, POSSESSION BY A FREEHOLDER EMBODIES THE CONCEPT OF SEISEN.

        3.    Creation of Estates: Estates are created by using appropriate words in a deed or will. WORDS OF LIMITATION DESCRIBE THE TYPE OF ESTATE; WORDS OF PURCHASE IDENTIFY WHO TAKES THE ESTATE.

        4.    Possessory Estates and Future Interests:

            a.     Possessory estates: A possessory estate gives the holder the RIGHT TO IMMEDIATE POSSESSION.

            b.     Future Interest: A future interest is an interest which WILL OR MAY entitle the owner to possession in the future.

        5.    Estates in personal property: Possessory estates and future interests can be created in both real and personal property.

        6.    Hierarchy of Estates: Estates are ranked according to their POTENTIAL DURATION: A fee simple is longer in duration then a fee tail, which is longer then a life estate. ALL FREEHOLD ESTATES ARE LONGER THE A LEASEHOLD ESTATE.

    B.    THE FEE SIMPLE:

        1.    Fee simple absolute: A fee simple absolute is ABSOLUTE OWNERSHIP. It is of POTENTIALLY INFINITE DURATION W/ NO LIMITATION ON ITS INHERITABILITY AND CANNOT BE DIVESTED OR END SHORT OF INFINITY.

            a.     Creation: At common law a fee simple was created by deed only using the words "AND HIS HEIRS." Under modern law thes words are not needed. Either a deed or will is presumed to pass the largest estate the grantor or testator owns.

            b.     Inheritability: If the owner of a fee simple dies intestate, the estate is inherited by his HEIRS as determined under the applicable statute of intestate succession.

        2.    DEFEASIBLE FEES: A fee simple can be created that is DEFEASIBLE UPON THE HAPPENING OF SOME EVENT. Defeasible fee simple estates have the POTENTIAL THOUGH NOT THE CERTAITY OF INFINITE DURATION.

            a.     Fee simple determinative: This estate ENDS AUTOMATICALLY WHEN SOME SPECIFIED EVENT HAPPENS (TO SCHOOL SO LONG AS USED FOR SCHOOL PURPOSES)

                (1)     Creation: A determinable fee is created by language that connotes tht the fee is to LAST ONLY UNTIL A STATED EVENT OCCURS.

                (2)     Tranferability: A fee simple determinable may be transferred or inherited but remains subject to the limitation which could possibly end it.

                (3)     Possibility of reverter: Since there is a possibility that the determinable fee may come to an end, THE GRANTOR HAS A FUTURE INTEREST CALLED THE POSSIBILITY OF REVERTER WHICH MAY BE EXPRESSLY RETAINED (BY WORDS IN A DEED OR WILL) OR MAY ARISE BY OPERATION OF LAW.

                (4)     Abolition: CA and Kentucky have abolished the fee simple determinable.

            b.     Fee simple subject to condition subsequent: A fee simple CUT SHORT AT TH GRANTORS ELECTION AFTER A SPECIFIC CONDITION OCCURS IS A FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT. This fee does NOT AUTOMATICALLY END (SPRING BACK), BUT ENDS AFTER THE CONDITON OCCURS AND THE GRANTOR ELECTS TO REENTER AND TERMINATE THE ESTATE.

                (1)     Creation: A fee simple suject to condition subdequent is created by giving the grantee a fee simple and the providing that it may be cut short if a condition happens. EX: To school, BUT IF OR UPON THE CONDITION OR PROVIDED OR HOWEVER, IT CEASES TO USE THE LAND FOR SCHOOL PURPOSES, THE GRANTOR HAS THE RIGHT TO REENTRY.

                (2)     Transferability: This estate may be transfered or inherited UNTIL THE TRANSFEROR CAN AND DOES EXERCISE THE RIGHT TO REENTRY.

                (3)     Right of reentry: The grantor's right of entry, a future interest, can be implied, but the language implying that a CONDITION SUBSEQUENT MUST BE STRONG.

                (4)     Distinguish for fee simple determinable: Since the 2 estates are similiar, courts are often called upon to construe ambigious language. The courts PREFER THE FEE ON CONDTION SUBSEQUENT B/C THE FORFEITURE IS OPTIONAL NOT AUTOMATIC.

            c.     FEE SIMPLE SUJECT TO EXECUTORY LIMIATION: This is a fee simple that upon the happening of an event, is automatically divested by an executory interest into a 3rd person. Ex.: To school, but if it ceases to use land for school purposes, then to the hospital.

    C.    THE FEE TAIL

        1.    Historical background: Used to keep the land w/in the family for succeeding gernerations.

        2.    Nature of the estate: The estate endures as long as DESENDANTS OF THE ORIGINAL GRANTEE ARE ALIVE and is inheritaible ONLY BY THE GRANTEE'S DESCENDANTS.
        3.    Creation: At common law, the language required was "to A and the heirs of his body." TODAY "TO A AND HIS ISSUE" WILL DO.

        4.    Characteristics: The fee tail originally had 2 important characteristics: 1) the tenant in fee tail could not defeat the rights of the tenant's lineal descendants; and 2) the fee tail could be inherited only by issue of the original grantee.

        5.    Types of fees tail: A grantor could specifically tailor a fee tail. A fee tail mail limited the succession to male descendants of the grantee. A fee tail special coul dhe inherited only by the grantee's issue of specific spouce.

        6.    Disentailing: Today, a fee tail can be converted into a fee simple absolute, cutting off rights of the original tenant's issue, by a deed.

        7.    Statute under modern law: The fee tail has been abolished in most states.

    D.    THE LIFE ESTATE

        1.    Def: A life estate endures for a period of one or more human lives.

        2.    Types of life estates:

            a.     For life grantee: The usual life estate is measured by the grantee's life

            b.     Pur auter vie: This is a life estte measured by the LIFE OF SOMEONE OTHER THEN THE OWNER OF THE LIFE ESTATE.

            c.    In a class: A life estate can be created in several persons (ex. to the children of A for their lives, remander to B) . The general rule is that the remander does not become possessory until ALL LIFE TENANTS DIE.

            d.     Defeasbile life estates: A life estate, like a fee simple, can be made defeasible

        3.    Alienability of life estates: A life tenant can transfer whatever estate he has

        4.    Limited Utility of legal life estate: Such an estate is limited b/c of its inflexibility, which creates obstiacles to various transactions like bank loans and lease of land.

        5.    Waste: The life tenant is entitled to the use and enjoyment of the land BUT CANNOT WASTE IT.

            a.     Affirmative/voluntary waste: This occurs when the life tenant destroys the property or exploits its natural resources.

            b.     Permissive/involuntary waste: This occurs when the land is allowed to fall into disrepair.

            c.     Ameliorating waste: This is when the principle use of the land is substantially changed to increase the value of the land.

        6.    Sale of property by a ct. If the life tenant and th owners of the remainder are all adults, are competent, and agree, A FEE SIMPLE IN THE LAND CAN BE SOLD. Even where one or more of the holders of the remainder cannot legally consent to a sale, a ct. may order a sale if it is in their best interest.

    E.    THE RULE AGAINST RESTRAINTS ON ALIENATION

        1.    Intro: A basic principle of the law of property is that land should be alienable. So certain restraints on alienation are invalid.

        2.    Types of Restraints: A restraint on alienation can be FORFEITURE FORM, DISABLING FORM, OR PROMISSORY FORM.

        3.    Restraints on a Fee Simple: A total restraint on alienation in any form is VOID. Partial restraints are usually VOID, BUT there are a few exceptions principally for cooperative housing.

            a.     Unenfourceable racial restraints: Racial restrictions in the form of a conditon subsequent giving the grantor a RIGHT OF REENTRY MAY NOT BE ENFORCED BY THE CTS. But upon a breach of racial restriction which triggers the possibility of reverter enforcement is permitted since possibility of reverter becomes possessory automatically.

        4.    Restraints on a life estate: A disabling restraint (ie makes land legally inalienable) is VOID. But FORFEITURE AND PROMISSORY RESTRAINTS ARE OFTEN UPHELD. A disabling restraint on EQUITABLE LIFE ESTATE, A SPENDTHRIFT TRUST IS VALID.


IV.    FUTURE INTEREST

    A.    Intro:

        1.    Future interest def: A future interest is a PRESENT, NONPOSSESSORY INTEREST capable of becoming possessory in the future.

        2.    Categories Limited: There are ONLY 5 FUTURE INTERESTS

                (1)     REVERSION

                (2)     POSSIBILITY OF REVERTER

                (3)     RIGHT OF ENTRY

                (4)     REMAINDER

                (5)     EXECUTORY INTEREST

        3.    Future interests in the grantor: 3 of them:

                (1)     REVERSION

                (2)     POSSIBILITY OF REVERTER

                (3)     RIGHT OF REENTRY

        4.    Future interest in the grantee: 2 kinds

                (1)     REMANDER

                (2)     EXECUTORY INTEREST

        5.    Legal or equitable interest: Future interests can be legal or equitable

    B.    Reversion:

        1.    Def: A reversion is a future interest LEFT IN THE GRANTOR AFTER SHE CONVEYS A LESSOR ESTATE THAN SHE HAS. This reversion may be expressly retained or retained by operation of law.

            a.     Vested interest: All reversions are vested interests even though not all reversions will become possessory

        2.    Alienability: A reversion is fully transferable

        3.    Compare to possibility of reverter: A reversion is ENTIRELY DIFFERENT from a possibility of reverter, which ARISES AFTER A DETEMINABLE FEE IS TRANSFERED.
    C.    Possibility of reverter: Def: A possibility of reverter is a FUTURE INTEREST REMAINING IN THE GRANTOR WHEN A FEE SIMPLE DETERMINABLE IS CREATED.

        1.    Alienability: At common law, this interest could not be transfered inter vivos. NOW MOST JR'S CONSIDER A POSSIBILITY OF REVERTER TO BE FREELY ALIENABLE, BOTH AT WILL AND DURING LIVE.

    D.    Right of Entry

        1.    Def: A right of entry arises IN A GRANTOR WHEN HE CREATES AN ESTATE SUBJECT TO CONDITION SUBSEQUENT AND RETAINS THE POWER TO CUT OF SHORT THE ESTATE.

        2.    Alienablity: can transfer.

        3.    Termination: A mojority of states follow the common law rule that a right of reentry (or possibility of reverter) could endure indefinitely b/c it was inheritable. But now some state have limited the period which these interest can exist by statute.

    E.    Remainder

        1.    Def: A remainder is a future interest created in a GRANTEE THAT IS CAPABLE OF BECOMING PRESENT POSSESSORY ESTATE UPON EXPIRATION OF A PRIOR ESTATE.

        2.    Essential Characteristics: A remander must be EXPRESSLY GRANTED IN THE SAME INSTRUMENT THAT CREATED THE PRECEDING ESTATE. The preceeding estate must be a FEE TAIL, LIFE ESTATE, OR TERM OF YEARS. The R. cannot DIVEST A PRECEDING ESTATE PRIOR TO ITS NORMAL TERMINATION

        3.    Estate in remander: A remainde estate may be a fee simple, life estate, a term of years, or possible a fee tail.

        4.    Classification of Remainders: Either vested or contingent.

            a.     VESTED REMAINDERS: A VESTED REMAINDE IS CREATED IN AN ASCERTAINED PERSON AND IS NOT SUBJECT TO A CONDITION SUBSEQUENT. "To A for life, then to B in fee simple" creates a VESTED REMAINDER IN B.

                (1)     Indefeasibly vested: The holder of this interest is CERTAIN TO ACQUIRE POSSESSION IN THE FUTURE AND WILL BE ENTITLED TO RETAIN PERMANENTLY THE ESTATE.

                (2)     Vested subject to open: This remainder is vested in a CLASS OF PERSONS, at least one of whom is qualified to take possession, but the class members' shares are not yet fixed b/c more persons can become members in the class.

                    (a)     Rule of convenience: Under this rule, the class closes whenever any member of the class can demand possession.

                (3)     Vested subject to complete defeasance: This is a remainder that can be completely divested ie to A for life, then to B, but if B does not survive A, then to C.

                (4)     Alienability: A vested remainder is alienable inter vivos and devisable by will. It desends to heirs if not otherwise disposed of.

            b.     Contingent remainders: A CONTENGENT REMAINDER IS GIVEN TO AN UNASCERTAINED PERSON, OR SUBJECT TO A CONDITION PRESIDENT. There is NO CERTAINTY OF FUTURE POSSESSION.

                (1)     Unascertained person: This means a person not yet BORN OR ONE WHO CANNOT BE DETERMINED UNTIL THE HAPPENING OF AN EVENT.

                (2)     Condition precendent: This is an EXPRESS condition set forth in instrument which must happen BEFORE THE REMAINDER BECOMES POSSESSORY. (EX. To A for life, then to B if B survives A) The termination of a preceding estate is NOT a condition precedent.

                (3)     Condition subsequent distinguished: Wheter a condition precedent or subsequent, (as vested remainder subject to divestment) depends UPON THE WORDS OF THE INSTRUMENT. If the condition is INCORPORATED INTO THE WORDS OF A GIFT, IT IS PRECEDENT, it IT DIVESTS OF A GIFT, IT IS SUBSEQUENT. If language is anbigous, then VESTED REMAINDERS ARE PREFERRED.

                (4)     Alienability: Contingent remainders were inalienable inter vivos at common law. TODAY CONTINGENT REMAINDERS ARE ALIENABLE, DEVISABLE, AND DESCENDABLE.

        5.    Destructibility of contingent remainders: This common law, still in effect in some states, says that a CONTINGENT REMAINDER IN LAND IS DESTROYED IF IT DOES NOT VEST BEFORE OR AT THE TIME THE PRECEDING FREEHOLD ESTATE ENDS. Thus, in a conveyance "to A for life, remainder to A's kids who reach 21" the remainder is destroyed if no child of A has reached 21 at A's death.

            a.     Merger: A life estate can end prior to death of the life tenant by MERGER OF THE LIFE ESTATE INTO THE NEXT VESTED ESTATE. If the remainder does not vest upon termination of the life estate IT IS DESTROYED.

            b.     Interests not affected: The rule applies only to contingent remainders. Vested remainders and executory interests cannot be destroyed under this doctorine.

            c.     Abolition: The destructability rule has been destroyed in most states. This means that they will wait until the remainders will vest.

        6.    Rule in Shelley's case: At common law, if one instrument creates a freehold in land in A, and purports to create a remainder in A'S HEIRS, and the estates are both LEGAL OR BOTH EQUITABLE, A (and not A's heirs) has the remainder.

            a.     Operation of Rule: MERGER will occur if the remainder is not subject to some condition precedent or if there is no interviening vested estate. THUS TO A FOR LIFE, THEN TO A'S HEIRS, GIVES A a REMAINDER WHICH MERGES W/ A'S LIFE ESTATE, GIVING A FEE SIMPLE.

            b.     Rule of law: The rule in Shelly's Case is a rule of law (not of construction). It can be AVOIDED ONLY BY NOT COMING W/ ITS TERMS IE GIVING A a TERM OF YEARS AND NOT A LIFE ESTATE.

            c.     Modern status: It has been abolished in most states

        7.    Doctorine of Worthier title: When an INTER VIVOS conveyance purports to create a FURTURE INTEREST in the GRANTOR'S HEIRS, the future interest is VOID AND THE GRANTOR HAS A REVERSION.

            a.     Testamentary branch of doctorine: If a person DIVISES land to HIS HEIRS, the divise is VOID AND THE HEIRS TAKE BY DESCENT.

            b.     Modern rule: Today the testamentary branch is non existant. The modern doctrine applies to PERSONAL PROPERTY as well as to land. It is a rule of CONSTRUCTION that raises a rebuttable presumption that no remainder has been created.

            c.     Operation of doctrine: The rule ordinarily comes into play when the GRANTOR HAS A LIFE ESTATE IN TRUST, w/ a remainder to the GRANTOR'S HEIRS, and the GRANTOR WANTS TO TEMINATE THE TRUST.

            d.     The doctrine is still valid in most states.

    F.    Executory interests

        1.    Background: At early law, EXECTUTORY INTEREST grew out of USES recognized by equity cts. to bypass the inflexibility law cts.

            a.    No springing estates: At law, a grantor could not create a freehold estate to spring out in the future b/c no seinsin was conveyed. Equity found no way around this restriction.

            b.    No shifting interests: At law, a grantor could not create a future interest that would CUT SHORT a freehold estate. Equity permitted shifting use.

        2.    Statute of uses (1536): This converted all equitable uses into legal estates.

        3.    Springing and shifting interests made possible: W/ the passage of the statute of uses, springing and shifting estate became possible at law, and became KNOWN AS EXECUTORY INTERESTS.

            a.     Springing interests: This is a future interest in a grantee that springs out of the grantor subsequent to its creation, thus divesting the grantor. Ex. To A when she marries.

            b.     Shifting interests: this future interest in a grantee divests a precdeing interest in ANOTHER GRANTEE PRIOR TO ITS NATURAL TERMINATION. Ex. to A, BUT if B returns from ROME, to B

        4.    Effect on Destructibility of contingent remainders: The recognition of executory interests had NO effect on this destructibility rule. Contingent remainders continued to be destroyed if they did not vest at or before the ending of the preceding estate.

            a.     Note: Executory interest are indestructable b/c no gap in seinsin can ever precede these interest. Since executory interests were indestructable, judges believed it was necessary to create a RULE AGAINST PERPETUITIES TO CURB THEM,

        5.    Effect of statute o uses on Conveyancing: The statute pemitted legal title to be conveyed by deed; thus began modern conveyance of deeds.

        6.    Equity after the statute of uses: The statute was avoided by creating a USE ON A USE or giving the feoffee to uses active duties. Thus arose the modern TRUST, (separation of legal and equitable interests)

        7.    The Statute of Uses today: Most states have accepted the Statute. But in ALL jurs. 2 reforms are in effect: 1) a conveyance can be made by deed 2) springing and shiffting interests can be created.

    G.    The Rule Against Perpetuities

        1.    The Rule: NO interest is good unless it MUST VEST, if at all, NOT LATER THAN 21 YEARS AFTER SOME LIFE AND BEING AT THE CREATION OF THE INTEREST.

        2.    Interests Subject to the RULE: The Rule applies to CONTINGENT REMAINERS AND EXECUTORY INTERESTS ONLY. It does not apply to vested remainders, reversions, right of entry, or possibility of reverter.

        3.    What might happen test: If there is ANY POSSIBILITY that the contingent remainder will vest too remotely, THE INTEREST IS VOID. The cts. do not wait t see what actually happens, but look at the interst at the time of the creation.

        4.    Who are the Lives in Being: Any person connected to vesting on the interest can be a validating life, provided the claimant can prove the interest WILL VEST OR FAIL W/IN 21 OF THE PERSONS DEATH.

        5.    Meaning of vest: The Rule does not apply to vested interests. But note that CLASS GIFTS DO NOT VEST IN ANY MEMBER OF THE CLASS UNTIL THE INTEREST OF ALL MEMBERS HAVE VESTED. Thus, if the gift to one member of the class might vest too remotely, the class gift if void. All or Nothing rule.

        6.    Remote Possibilities: An interest is void under the Rule, if there is ANY POSSIBILITY the interest might vest beyond the permitted period. ex. the fertile octogenarian, the unborn widow

        7.    Wait and See doctrine: About half the states have reformed the Rule. Under the wait and see doctrine, the interests are judged by ACTUAL EVENTS NOT BY POSSIBLE EVENTS.

        8.    Cy Pres Doctrine: This rule reforms an invalid interest, w/in the Rule's limitations, to approximate most closely the intention of the creator on the interest.

V.    TRUSTS

    A.    Creation of a trust

        1.    Intro: A trust is a fiduciar relationship in which one person (TRUSTEE) holds legal title to proprerty (RES) subject to equitiable rights in BENEFICIARIES. It is basically a device where by one person manages property for the benefit of another. A person who creates a trust is the SETTLOR OR TRUSTOR

            a.     Intension to creat an express trust: The settlor must manifest an INTENT to create an express trust. A written instrument (will or deed) is necessary for an express trust of Land. An express trust of PERSONAL PROPERTY MAY BE CREATED INTER VIVOS BY WRITTEN OR SPOKEN WORDS OR BY CONDUCT.

            b.     Elememts of an express trust: An express trust must have a TRUSTEE, a RES, and BENEFICIARIES.

    B.    Duties of a trustee

        1.    Prudence and loyality: A trustee must exercise the care of a REASONABLY PRUDENT PERSON as they would manage their own property.

        2.    Ct can change the literal meaning of some terms in a trust if they impair forfullment of the trust and the circumstance were not anticipated.

    C.    Spendthrift trust: This is one which the settlor imposes a valid restraint on alienation. A beneficiary cannot transfer his interest VOLUNTARILY and his creditors cannot reach it.

VI.    CONCURRENT OWNERSHIP

    A.    TENANCY IN COMMON

        1.    Nature of the Tenancy: Each tenant has an INDIVIDUAL INTEREST in the property, including the RIGHT TO POSSESSION OF THE WHOLE. When one co-tenant dies, the remaining tenants in common HAVE NO RIGHT OF SURVIVERSHIP RIGHTS. Equal shares are not necessary for tenants in common and the co-t's can own different types of estates in the same property.

        2.    Alienability: Each co-t can transfer his interest in the same manner as if he was the sole owner.

        3.    Presumption: This type of tenancy is prsumed any time land is conveyed to 2 or more persons that are not married.

    B.    Joint tenancy:

        1.    Nature of tenancy: Joint T's own an UNDIVIDED INTEREST OF THE PROPERTY AND THE SURVING CO-T HAS THE RIGHT TO THE WHOLE ESTATE. THE RIGHT OF SURVIVORSHIP IS A DISTINCTIVE FEATURE OF A JOINT TENANCY.

        2.    4 Unities requirements: To be joint tenants, the T's must take their interests

                (1)     AT THE SAME TIME

                (2)     BY THE SAME TITLE

                (3)     W/ IDENTICAL INTERESTS

                (4)     W/ AN EQUAL RIGHT TO POSSESS THE ENTIRE PROPERTY .

        3.    Creation: A joint tenancy can be created only by EXPRESSED WORDS

        4.    Severance of Joint Tenancy:Modern law generally holds that severance of 1 of the 4 unities severs the JT and destroys the right of survivorship. It destroys the JT and creates a tenancy in common.

            a.     Conveyance by JT: A joint tenant has the right to convey his interest, but by doing so he severs the JT w/ respect to that share.

            b.     Mortagage by JT: In TITLE THEORY STATE, a mortgage usually conveys legal title and thus severs the tenancy. In LIEN THEORY STATES (THE MAJORITY), a security interest, rather than a legal title, is conveyed and a MORTAGAGE DOES NOT SEVER A JT.

            c.     Lease by joint tenant: Depending upon the jr. a lease by one JT MAY SEVER A JOINT TENANCY, MAY NOT SEVER A JT, OR MAY TEMPORARILY SEVER THE DURATION OF THE LEASE.

            d.     Agreement among joint tenants: Joint tenants can agree that one tenant has the right to exclusive possession w/out severance.

            e.     Other situations: Divorse does not terminate a JT, UNLESS the parties agree. Where one JT MURDERS THE OTHER, SEVERANCE DOES OCCUR IN SOME STATES. Others say still that a 187 doesnt sever the JT.

        5.    Avoidance and probate: JT avoids probate since there is no need to change title at the JT's Death.

    C.    Tenancy by Entirety

        1.    Nature of tenancy: This tenancy can be created ONLY BETWEEN HUSBAND AND WIFE, holding as ONE PERSON. It is similiar to a JT EXCEPT THAT SEVERANCE BY 1 TENANT IS IMPOSSIBLE; THUS THE RIGHT OF SURVIVORSHIP CANNOT BE DESTROYED.

        2.    Creation: At common law, a conveyance to husband and wife created a tenancy by the entirety. The common law remains the belief in many states, but some states say a tenancy in common.

        3.    Rights of Tenants during marriage:

            a.     Common law: The fictional unity of husband and wife (w/ all legal rights in the H) prevailed. The husband could alienate is interest, including his right to EXCLUSIVE POSSESSION. But he could not destroy the wife's sole right to survivorship w/out her consent.

            b.     Modern Law: All states now give a wife an equal right to possession.

                (1)     Alienation: In some states both the H and W can alienate his or her interest. This means that creditors can levy against separate parts of the land. In other state neither can alienate so the creditors can never get the land.

        4.    Divorse: Divorse, terminating the unity of the marriage terminates a tenancy by entirty. In many states in now become a tenancy in common. In other states it is a JT.

        5.    Personal property: At common law, a tenancy by entirety cold not be created in personal property. Today most states permit it to be created in personal prop except joint bank accounts.

        6.    Modern status: This tenancy is not recognised in 1/2 of the states.

    D.    Rights and duties of co-T's (similar regardless of tenancy)

        1.    Possession by one Co-T: Each co-t is equally entitled to possession of the entire prop. The parties may agree amoung themselves that one co-t has the right to exclusive possession.

            a.     Accounting by co-T in possession: If one co-t OUSTS another, He (ouster) must pay reasonable rental value. In a minority of jr's. a co-t. in possession is required to pay fair rent value to the other co-t even if no ouster is present.

                (1)     Ouster: an ouster occurs when a co-T refueses to allow another co-T to enter. It may also occur upon an occupying co-t refusing to pay rent after demanded by the ousted co-tenant.

        2.    Accounting for rents recieved from a 3rd party: Such rents msut be shared equall w/ other co-T

        3.    Exploiting Natural resources: A co-T is entitled to mine or drill for oil but must pay to the other co-t a proportionate part of the net amount recieved. Some cts. says one co-t cann cut timber w/ out liability for value w/c can see it.

        4.    Actions by co-t to protect prop.

            a.     Taxes and interest on mortgage: Each co-t is liable for his share of taxes an mortage interest EXCEPT that a co tenant in EXCLUSIVE POSSESSION MAY HAVE BEEN ALL TAXES/INTEREST.

            b.     Repairs: Repairs are VOLUNTARY. Cant compell other co-t's to pay for them, but one can offset costs in accounting rent.

            c.     Improvements: No co-t has a duty to pay for IMPROVEMENTS, and the cost may NOT BE OFFSET IN AN ACCOUNTING FOR RENT. Only a portion can be reinbursted.

        5.    Co-T's as Fiduciaries: Co-t's are treated as fiduciaries, holding for all when a confidential relationship occurs. Ex. inheritance by sibilings.

            a.     Acquisition by outstanding title: If a co-t, held to fiduciary standards, acquires on outstanding title, he holds for the benefit of the other co tenants who contributed to its purchase.

        6.    Adverse possession: A co-t can become an adverse possessor only upon CLEAR NOTICE OF REPUDIATION OF THE COMMON TITLE BEING GIVEN TO OTHER CO-T'S. Exclusive possession alone is sufficienct.

        7.    Partition: Any common or Joint tenancy may bring suit in a partition. A ct. either physically divides (PARTITION IN KIND) OR SELLS the common prop., adjusts all claims of the parties and separates them. NOT AVAILABLE TO TENANTS BY THE ENTIRETY.

            a.     Owelty: If the place is divided and it is not equal, then one tenant will have to pay cash to the other to equalize the value.

VII.    MARITIAL PROPERTY

    A.    Common law Maritial Estates

        1.    During and After Marriage: In feudal times, upon marriage, most of the wife's persona property became the property of her husband. Additionally, her husband had control and pessession of her lands for the marriage's duration. The husband had a duty to support his wife, even after a divorce, UNLESS the wife had been fucking around or otherwise forfeited right to support.

        2.    Death of One Spouce: Dower and curtesy were developed to protect a surving spouce upon the death of another.

            a.     Dower: Upon the husband's death, a wife dower IN ALL FREEHOLD LAND WHICH HER HUSBAND IS SEISED DURING MARRIAGE AND WHICH IS INHERITABLE BY ISSUE BORN OF THE MARRIAGE. Dower is a life estate in 1/3 of each parcel of land.

                (1)     Avoidance of dower: It is fairly simple to avoid dower. There is no dower in land in which the husband had a life estate, a JT, or a lease hold. Nor does dower attach to personal prop. or equitable interest of the husband.

                (2)     Statutory abolition: Dower has bee abolished in all but 7 states and DC.

            b.     Curtesy: Upon a wifes death, a husband recieved a LIFE ESTATE IN ALL OF HIS WIFE' LAND ONLY IF ISSUE WERE BORN OF THE MARRIAGE. Note that in a few states retaining curtesy, the spouces are usually treated equally as to dower and curtesy right.

    B.    Modern statutory Rights

        1.    Upon divorce: Almost all common law estates provide for an EQUITABLE DISTRIBUTION OF THE SPOUCES PROP.

        2.    At Death-Elective Share: Almost all common law property states give the surviving spouce an elective share (usually 1/2 or 1/3) in the dead spouces prop. OWNED AT DEATH.

    C.    Community property:

        1.    Intro: 8 states have enacted community property which recognize and reward the contributions of both spouces.

        2.    What is community property: Community prop consists of EARNINGS AND PROPERTY ACQUIRED THEREBY OF EITHER SPOUCE DURING THE MARRIAGE. aLL OTHER PROPERTY OR EARNINGS BEFORE THE MARRIAGE ARE SEPARTATE PROP.

        3.    Commingling of Community and Separae Prop: If commingling occurs so tht it is impossible to tell and indentify each souce of the prop., the COMMINGLED WHOLE WILL BE PRESUMED TO BE COMMUNITY PROP..

        4.    Community serveces Used to Enhanse Separate Property: Where one spouce devotes time and effort in managing his or her separate property, any ehansed value is partly due to the spouce's skill and industry, and this portion belongs to the community.

        5.    Conveyance of share: Neither spouce can convey his or her share of the community prop. except to the other spouce. But, the spouces can AGREE TO CONVERT COMMUNITY PROPERTY INTO SEPARATE PROP. OF EITHER SPOUCE.

            a.     Joint Tenancy: In most states, when the spouces take title in joint tenancy, there is a rebuttable peresumption tht the parties desired to change community prop to joint prop w/ right of survivorship.

        6.    Management: Either spouce alone can manage community property and must act as a fiduciary in the exercise of management powers.

        7.    Rights at Dissolution of Marriage: At divorce, community property is usually divided equally. Upon death of 1 spouce, the dead spouce has the right to transfer 1/2 of the community prop by will to anyone.

VIII.    LANDLORD & TENANT

    A.    Intro:

        1.    Background: LL/T developed out of the fuedal relationship between a LL and his tenant farmer. Today, a lease creates an estate in land. It is BOTH a CONVEYANCE of an estate in land and A CONTRACT CONTAINING PROMISES, WHICH UNTIL RECENT TIMES WERE INDEPENDENT; If 1 party breached; the other was still required to perform. Traditionally, prop law was dominant; upon buying an estate in land a tenant assumed the risk of caring for the land. During recent years, CONTRACT PRINCIPLES HAVE BECOME MORE IMORTANT.

        2.    Lease Distinguished from other relationships: A tenant has the right to POSSESSION; this distinguishes the lease from other relationships

            a.     Oil and gas lease: Such a lease grants a profit or ownership of minerals in place and DOES NOT CREATE A LEASE HOLD

            b.     Billboard lease: A bill board lease creates a easement which gives the lessess A RIGHT TO USE.

            c.     Lodging agreements: These create a license (hotel guests) or lease (when lodger funishes the place.)

    B.    Types of Tenanacies and their creation

        1.    TENANCY FOR YEARS: A tenancy for years is an estate w/ a begining and end that is fixed from the outset. Usually, a CALENDER PERIOD (EG 1YEAR, 2 MONTHS). A tenancy for years diffres from all other tenancies IN THAT IT HAS A DEFINITE ENDING; AND EXPIRES W/OUT NOTICE.

            a.     Indefinite ending: Where a termination date is fixed upon the happening of some event, (like until the war ends), cts. have held that a tenancy for years is created since that is closest to the partys intention.

            b.     Maximum permitted: Unless restricted by statute, a term of years can be for any period.

        2.    Periodic Tenancy: An estate that continues from PERIOD TO PERIOD until either the landlord or tenant GIVES NOTICE OF TERMINATION. Can be from month to month and year to year.

            a.     Creation: A periodic tenancy may be created by an express agreement or by provision for payment of the rent montly, or yearly.

                (1)     Note: Where the ANNUAL RENT IS PAYABLE MONTHLY, MOST JR'S. HOLD THE PERIOD TO BE YEAR TO YEAR.

                (2)     By operation of law: A periodic tenancy is created by operation of law where the tenant HOLDS OVER AFTER THE LEASE EXPIRES OR WHERE HE TAKES POSSESSION UNDER AN INVALID LEASE.

            b.     Notice of termination: A perodic tenancy continues until PROPER NOTICE IS GIVEN. Notice must be EQUAL TO THE LENGTH OF THE PERIOD, except 6 months notice is required for a year to year tenancy. Notice must speicify THE LAST DAY OF THE PERIOD AND MUST TERMINATE THE LEASE ON THAT DAY.

        3.    Tenancy at will: An estate terminable AT THE WILL OF EITHER THE LANDLORD OR THE TENANT IS A TENANCY AT WILL.

            a.     Terminable by one party: Such an estate is not a tenancy at will. A term of yrs, periodic tenancy, or life estate can be made determinable at the will of only 1 party. Yet, if the tenancy is not a term of yrs, perodic tenancy, or life estate, and is terminiable at the will of only 1 party, by law the other party can terminate at will.

            b.     Termination: An estate at will may be terminated either by the acts of the parties (abandonment, notice) or by operation of law(ie sale of prop. or death). At common law no notice was necessary fro termination; however today 30 days notice is usually required.

        4.    Statute of Frauds: The statute requires a term of yrs., periodic tenancy, or tenancy at will to be in writing to be enforceable.

            a.     Short term lease exception: Most states exempt short term leases, usually 1 yr. from the statute of frauds requirment of writing.

            b.     Oral lease to commence in the future: An oral lease for a year to commence in the future is VALID (under majority view) even though an oral contract (other than a lease) not to be performed w/ in a yr is void.

            c.     Entry and rent payment under an invalid lease: ALthough an oral lease may be void, entry by a tenant creates a TENANCY AT WILL. As soon as the tenants pays rent, A PERIODIC TENANCY IS CREATED W/THE PERIODS DETERMINED BY THE RENT PAYNENTS.

        5.    Hold over tenants: A tenant who hold over when his term expires is a TENANT AT SUFFERANCE. This situation lasts only until the LL evicts the Tenant or elects to hold the Tenant to another term. Some states also allow other remedies such as double rent or damages, especially where the hold over his WILLFUL.

    C.    ASSIGNMENTS AND SUBLETTING

        1.    Assignment: Unless the lease prohibits, a tenant can assign her interest in the leasehold. Thus, the assignee comes into PRIVITY OF ESTATE, w/ the LL and each can sue the other on lease covenats that run w/ the land.

        2.    Sublease distinguished from Assignment: Unless the lease prohibitates, a tenant can sublease and thus become the LANDLORD OF THE SUBLEASE. THERE IS NO PRIVITY OF ESTATE BETWEEN THE SUBLESSES AND THE ORIGINAL LANDLORD.

            a.     Reversion Retained: At common law, a sublease occurs if the T RETAINS A REVERSION, IE THE TENANT IS ENTITLED TO POSSESSION AGAIN BEFORE THE TENANT'S LEASE EXPIRES.

            b.     Right of entry retained: If a tenant retains a RIGHT OF ENTRY upon default in rent, some cases hold that the transfer is a sublease. This is contrary to the common law rule that holds it is an assignment since no reversion was retained. Recently, a few cases have held tht the INTENT OF THE PARTIES DETERMINES WHETHER A TRANSFER IS A SUBLEASE OF ASSIGMENT.

        3.    Duty to pay rent: Generally, a land lord can sue for rent any person who is either IN PRIVITY OF CONTRACT OR PRIVITY OF ESTATE w/ him.

            a.     Assingment: if there is an assignment, the land lord can sue the tenant (privity of contract) or the assignee (privity of estate). The assignee's liability ends when he reassigns to a 3rd party.

            b.     Sublease: A sublease is not liable to the landlord for rent.

            c.     3rd party beneficiary suits: If an assignee or sublessee expressly assumes the covenants to the master lease, he is directly liable to the LL as a 3rd party beneficiary of the contract between the tenant and the assignee or sublease.

        4.    Convenants against the assignment or sublease: Such covenant are valid, but b/c they are restraints on alienability they are strictly construed.

            a.     Majority view: If there is a covenant against transfer, absent a provision that the landlords consent to transfer cannot be unreasonably w/held, the landlord MAY ARBITRARILY REFUSE TO ACCEPT A NEW TENANT AND HAS NO DUTY TO MITIGATE DAMAGES.

            b.     Waiver of consent: A covenant against assignment or sublease can be waived by a land lord if he expressly or impliedly cansents (unknowingly accepts rent from an assignee). The rule in Dumpors Case hold that once the covenant is waived, it is DESTROYED.

        5.    Covenants Running to Assignees: To run to assignees;

                (1)     the parties must so INTEND

                (2)     MUST BE IN PRIVITY OF ESTATE

                (3)     THE COVENANT MUST TOUCH AND CONCERN THE INTEREST ASSIGNED (IE LEASEHOLD OR REVERSION)

            a.     Covenants to do or not to do act: A covenant by the tenatn OR the LL to do ro not to do a physical act ON THE LEASED PREMISED TOUCHES AND CONCERNS THE LEASEHOLD AND RUNS W/ IT. (EX FUNRISH HEAT)

            b.     Covenant to pay $$$: Such a covenant touches and cocerns the land if the payment is for property improvements or if it protects the property to make it more valuable.

            c.     Covenant to insure: A covenant by the tenant to insure the property touches and concerns IF THE ll IS REQUIED TO USE THE PROCEEDS FOR REBUILDING.

            d.     Covenant to return a security deposit: There is a split of authority as to whether the land lord's promise to return the deposit runs w/ the property when it is transferred (ie runs w/ the reversion) or is a personal promis between the land lord and the original tenant.

            e.     Promise to arbitrate disputes: A promise to arbitrade disputes arising under the lease touches and concerns the property.

            f.     Implied covenants: An implied convenant, like the covenant of complete joyment, runs w/ the premises.