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PROPERTY
I. Possession and Ownership
A] Possession
1- Object physically
controled, but can also possess objects not in your physical presence.
2- Must have INTENT to
exclude others from control of the object or property.
B] Ownership
1- Title, can have it w/o
possession
2- Proof by document, ie
deed, receipt
3- v. proof of possession is
facts that show physical control or intent to exclude
ex. landlord has
ownership
tentant has possession
C] Vocabulary
1- Ejectment (v trespass)
real property action,
requires to get someone off the property, no moneyary relief.
imp for adv poss
equitable relief
2-
Trover: damages remedy when D has converted P's personal property/chattel.
3- Converted: take proerpty
and use it as my own
4- Replevin: caction to
recover possession of chattels; equitable relief
5-
Trespass: to land or chattels; where chattels are damaged but not converted to D's use.
D] Policy Reasons why we protect Possessors - *whenever you can use
include policy arguements use them, =better grade
1- Efficient and easy way to
protect ownership
2- Protecting possession
facilitates trade in the possessed object because buyer can rely on seller's possession.
3- Prevents a stronger person
from ousting a possessor and distrubing the peace and order.
4- Easy and efficient way to
allocate resources
5- Rewards people for making
good use of property, or in case of a finder, it rewards person for making sueful and item
available to society.
E] Possession of wild animals
1- Pursuit isn't enough
2- Must exercise control over
animal and must be mortally wounded.
3- Show a relation of
manifest power over the animal
4- When have possession =
full ownership
5- Policy - promotes
certainty and peace in society
6- A possessor not
necessarily have ownership if there is a landowner interest.
F] General notion of acquisition by find - an owner of property doesn't
lose title by losing the property.
1- Finder has rt superior to
all other
2- Exception; a prior
possessor has superior rt to the finder
3- Policy reasons
a) Protect owner who
has no indication of ownership
b) Entrusting goods to
another is an effecient practice
c) Prior possessors
expect to prevail over subsequent possessors
d) Protecting peacable
possession is an ancient policy
G] Bailment: rtful possession of goods by someone who isn't the true
owner
1- Same rules as possession
2- Involuntary bailment -
obligation is look after someon'es property, ie hotel
3- bailor = trueowner, one
who gives property
bailee = one who
receives proeprty; may also include a finder
4- Commercial bailments -
higher duty of care than personal bailments
H] Unconscious Possession
1- Constructively possess
something but unaware of, ie something on property.
a) Have benefit of
prior possessor rule
b) Land owner is owner
of everything ATTACHED TO or UNDER the land. (difficult ot define attached to,
questionable)
c) In order to have rt
ag/ a finder who was on the land the property owner must have exercised custody or control
over her property.
I] Finder v. Owner
1- Where the finder is a
trespasser - owner always prevails over finder
policy discourages
trespass
2- Finder is an employee -
most cts rule ee acting for er and she has contractual duty to report object found
policy
-rewarding honesty is a social good
-reporting find is 1st step to returning obj to owner
-finder on premises for limited purpose
3- Owner entitled to all
objects found
4- Object found under the
soil go to the owner
policy - owners of
land expect objectects under land to go to them.
exception -
treasure trove = $ intentionally buried w/ intent of returing to claim it. State gets the
treasure trove.
5- Object found in a private
home - usually rewarded to owner of the home.
policy - because
owner has intent to exclude everyone and admit others for only certain limited use.
exception - when owner hasn't moved the house.
6- lost v. mislaid
a) Property which is
accidently or casually lost goes to the finder of the prop rather than the owner of the
property.
b) Mislaid - goes to
the owner of the premise.
policy = true owner will remember where he put it and go to the owner of the prop to
find it, stronger relationship of a bailment.
7- Private portion of a
public place v public area of a public place.
a) Common-law rules
public area is goes to the finder
private portion is goes to the owner of the premisis
b)statutory rules:
impose duty on a finder of giving notice of her finding for the purpose of discovering the
owner. If the owner does not claim the object w/in a provided time the finder usually gets
the object.
Anderson v. Goldberg P cuts logs on land w/o owner's consent, D(3d party took prop) P's
prior possession as a trespasser suff to enable her to bring an action of replevin ag/ the
D. black letter law rule = possession of prop, even if wrongfully obtained is suffient
title to enable the party to maintain an action ag/ a stranger who takes it away from her.
8- Treasure trove goes to the
finder.
II. ADVERSE POSSESSION
Definition - using another's land w/o permission for a period of time.
If this is continued for the period of the statute of limitations, if an action is brought
to recover the land it will give the occupier of the estate possession and ownership.
There must be an action brought for there to be a change in title. If brought by the
adverse possessor it is a quiet title.
A] Adverse possession creates a new title in the adverse possessor.
B] Policies behind adverse possession:
1-Protects ownership because title can be
difficult to prove. This makes land records more reliable by protecting possessors whose
record title is deficient.
2-It limits searches of titles to a reasonable
period of time.
3-It bars stale claims by requiring a lawsuit
to be brought to eject a possessor while the witnesses' memories are still fresh.
4-It rewards those who use the land
productively.
5-Honors expectations - persons in possession
acquire attachments to land and expectations that they can continue to use the property as
they have done for a long time.
C] 4 requirements of adverse possession
1- You must be an actual, exclusive possession,
just you. The owner cannot be on the property w/ you, nor can other persons be using it.
2- Possession must be hostile or adverse to the
true owner under a claim of title or right. Not squatters, they know they aren't supposed
to be there.
When you have the
owner's permission to enter the property the possession is not hostile.
3- It must be for a continuous period of time
and uninterupted during the statute of limitations. Exception for seasonal property - if
it's the use that the owner would've sued it for, ie vacation home.
4- open & notorious; black letter law =
degree of occupancy and use that the average owner would make of the property. Some cts
hold this to be a substantial enclosure (house) or the land must be cultivated or
improved.
** Must look to the
individual state's adverse possession statute for specifics.
Manilla v Gorski when
the encroachment of an ajoining owner is of a small area and the fact of an intrusion is
not clearly apparent to the naked eye but requires an on-site survey for certain
disclosure the encroachment is not notorious.
Some cts hold that
the if the owner has actual knowledge of the adverse possessor even if it's not open and
notorious, the s.o.l. will run.
Monroe v. Rawlings
wild, undeveloped land, not suitable for farming but suitable for hunting and fishing can
be adverly posessed by acts indicating dominion.
factors in the case looked at: paying taxes, use during seasonal times, selling timber to
others, executing oil and mineral leases, substantial enclosure
D] color of title = actually believing that you have title for the
proprty usually but it's based on a bad deed, always based on a written instrument.
Not required for adv poss
2 advantages
1)usually a shorter
statute of limitations
2)gives constructive possession for the full area of land covered by the defective writing
even though their activities were only on a part of the land.
E] claim of title = a claim of rt, simply believing you have possession
hostile to that of the true owner.
F] tacking - successive occupants tack on to another, only when
successive occupants are in privity. There must be some reasonable connection betwen
successive occupants so as to raise their claim of rt above the status of a wrongdoer or a
trespasser.
privity = being able to trace back rt in a
logical way. This can also be done by simple turning over of possession after the statute
of limitations has run.
G] Boundry Disputes
3 ways to resolve
1- Agreed boundries: if there is an uncertainty
of boundries between neighbors of the prop line, an oral agreement to settle the matter is
enforcable if subsequent conduct by the parties confirms the agreement.
2- Acquiesence: evidence of the parties fixing
the boundry lines.
3- Estoppel: when one neighbor makes
representations or engages in conduct that tends to indicate the location of a common
boundry and the other neighbor changes her position in reliance the 1st neighbor is then
estopped to deny the validity of her statments or her acts.
H] Adverse Posession of Chattel
1- Every jurisdiction has S/L of time limits on
owner to bring suit to recover possession of property.
2- Same ruls as w/ personal property.
3- Discovery Rule - True owner's cl of action
accrues when she first knew or reasonably should've known thru exercise of due diligence
of cause of action including identity of possessor.
If true owner
immediately after loss fails to use reasonable diligence to find possessor and use of such
diligence would've identified possessor the S/L begins to run immediately.
Tacking allowed
under this rule by many cts.
Once statutory
period passed, the possesor becomes for all practical purposes the owner of the property.
4- Disabilities tolled - S/L extened longer if
specific disabilities are present.
*A disability is immaterial unless it existed at the time the cause of action ACCRUED (all
elments of cla of action are there).
(1) age of minority 18
yrs or younger
(2) mental incompetency
or unsound mind
(3) imprisonment
*no tacking of disabilities, whichever disability lasts longest will rule if there are
two, can't add them together.
5- Under UCC entrusting goods to a merchant who
deals in that kind of goods gives merchant poer to transfer all rights of the entrustor to
a buyer in ordinary course of business.
Merchant may vest good
title in buyer as against original owner.
policy: allows good-faith purchases to
obtain good title.
III. ESTATES
A] Two types:
1- freehold - characterized by seisin (you have
title of land)
2- non-freehold/leashold (no title)
B] Creation of estates is by use of appropriate sue of words in a deed
or a will.
words of limitation - discribes what type
of estate created.
words of purchase - identify the person in
whom estate is created.
O-->to A for life,
remainder to heirs of B.
words of purchase:
to A
words of
limitation: for life
to heirs of B =
both purchas & limitation
C] Posessory Estates v. Future Interests
Posessory Estates
- rt to immediate possession
Future Interest -
Exists NOW but doesn't entitle owner to present possession but will or may be come
possessory Estate in future.
D] FEE SIMPLE ABSOLUTE - absolute ownership
1- Potentially infinite duration
2- No limitations on its inheritability
3- Can't be divested
4- Will not end upon happening of any event
5- Created by insturment using words: ...and
her/his heirs
6- Under modern law either deed or a will is
presumed to pass the largest estate to the grantee that the grantor owned.
*Grantor can only pass
estate as much as he owns, ie. only a life estate if he only has a life estate, fee simple
determinable if that's what he has.
7- If owner of fee simple dies intestate fee
simple inherited by owners heirs.
E] Fee Tail - estate that has the potential of enduring forever but
will cease if and when the first fee tail tenant has no lineal descendants.
created by: O-->A and heirs of her
body.
F] Life Estate - ends at death of specified person.
"...to A for life."
G] Defeasible Estates - When a fee simple is created so that it's
defeasible on the happening of some event and owner of the fee simple then losses or may
lose the property.
potential of infinite duration but not the
certainty.
1- Fee Simple Determinable - fee simple estate
that'll end AUTOMATICALLY when a specified event occurs.
a) If contingency
causing end of estate occurs it automatically reverts to the grantor.
b) Created by language
stating the grantor is giving a fee simple only until a state even happnes.
c)KEY WORDS (memorize)
to A so long as...
to A until...
to A while...
d) Simply words stating
motive or purpose of the grant aren't sufficient to create a determinable fee.
e) Maybe tranferred or
inherited same as a fee simple as long as the state event hasn't happened. But fee simple
remains subject to the limitation no matter who holds it.
f) Grantor has
POSSIBILITY OF REVERTER
2- Fee Simple Subject to Condition Subsequent -
doesn't automatically terminate, but may be cut short at the grantor's election of the
stated condition happends.
a) Doesn't
automatically end
b) May endure forever
c) Created by first
giving the grantee an unconditional fee simple, then providing that the fee simple may be
divested by grantor or her heirs if a specified condition happens.
d) language
to A, but if (x event)
to A, upon condition
to A, provided, however...(grantor retains rt of reentry)
e) It can be transfered
or inherited in the same manner as a fee simple until the tranferor exercises the rt of
entry.
f) Future interest
created is a Rt of Entry
g) The law does not
require that the rt of entry be EXPRESSLY retained by the grantor, if the words of the
instrument are reasonably suseptible to the interpretation that the rt of entry was
retained by the grantor the cts will interpret it that way.
h) If the construction
of the language is ambiguious the ct prefers the fee simple on condition subsequent
because the forfeiture is optional.
3- Fee Simple Subject to Executory
Limitation/Interest - a fee simple that on the happening of a stated event is
AUTOMATICALLY DIVESTED in favor of a THIRD PARTY.
H] FUTURE INTERESTS
Checklist for future interests problems on an
exam.
1- Pay careful attention to the exact language
used in the grant.
2- Read and analyze the interest in the grant
in sequence go comma by comma.
3- Classify the present estate, keep in mind
that some future intersts can only follow a particular type of present interest.
examples: possibility of reverter can only
follow a determinable estate; a rt of entry can only follow a fee simple subj to cond sub
4- Look at WHO has the future interest.
if it's retained by the grantor =
reversion, a possibility of reverter, or a rt of entry
If it's given to someone other than the
grantor it must be a remainder or an exectory interest.
5- Think about HOW the future interest will
become possessory
a) For interests in the grantee:
1- A remainder waits patiently for the natural termination of the preceeding estate.
2- An executory interest either divests the prior estate or springs out of the grantor's
interst cutting short the prior estate.
b) For future interests remaining the in
grantor:
1- The reversion usually follow the natural termination of the prior estate.
2- The possibility of reverter does not cut short the preceeding determinable estate, but
succeeds it.
3-The rt of entry, like the exec interest, divests the preceding estate.
6- Determine whether the interest is vested or
contingent.
a) A contingent
interest is given to an unascertained person or is subject to a condition precedent, if
it's a condition subsequent it's a vested remainder subject to divestment.
b) Classify each
interest in sequence by looking at the words between the commas setting off the interests.
A condition precedent comes between the commas and a condition subsequent divests the
vested interest.
condition precedent
To A for life, then to
B, if B survives A and if B does not survive, to C.
If the condition is in the same clause as that granting the estate then it's a
condition precedent.
condition subsequent
To A for life, then to
B, but if B does not survive A, C.
7- Apply the following rules to contingent
interests:
1- Destructibility of
contingent remainders
2- The Rule in Shelly's
case
3- The Doctrine of
Worthier Title
4- The Rule Ag/
Perpetutities
8- Definition: a non-possessor interest capable
of becoming possessory in the future.
1- Reversion
2- Possibility of
Reverter
3- Rt of Entry
4- Remainder (vested or
contingent)
5- Exectory interest
9- Future interest retained by the grantor
a) Reversion - a future
interest left in the grantor after she conveys a vested estate of lessor quantum than she
has.
1- All reversions are treated as vested interests n the transferor, no contingent
reversion
2- A vested reversion is alienable during life, and descendable and devisable at death.
3- A reversion never follows a defeasable fee.
4- Simply remember if the owner carves from her estae anything less than what she
originally had it's a reversion.
5- examples:
O(fee simple) ---->fee tail or life estate--> A
O has conveyed a lesser estate thus O has a reversion
C age 80 life estate ----> 99 yr lease to D
C still has a reversion because C conveyed something less than he had.
O ---->A for life, then to B and her heirs.
A has a life estate, B has a vested remainder in fee simple. O has conveyed an estate of
equal size of her original estate, thus no reversion.
O --->A for life, remainder to B if B survives A.
O has reversion because O has not created a vested remainder in fee simple. O has created
a contingent remainder. If B dies before A Blackacre will return to O at A's death. If A
dies before B Blackacre will go to B at A's death. O doesn't have a contingent reversion,
all reversions are vested. O has a vested reversion which can be divested by B's interest
becoming possessory at A's death.
6- Reversions are alienable in most jurisdictions under modern law.
b) Possibility of
Reverter - arises when a grantor carves out of her estate a determinable estate of the
same quantum. In almost all cases it follows a determinable fee. Waits for preceeding
estate to end, doens't divest anyone of an estate.
1) O-->to Bd of Educaion so long as Blackacre is used for school purposes.
B deter. fee
O possibility of reverter, O's interest is not a reversion because O owning a fee simple
has conveyed a fee simple determinable to B (only a reversion if you grant a lesser
estate).
2) O-->to A and her heirs so long as liquor is not sold on the premises.
A - deter. fee
O - poss of reverter
3) O-->to church so long as used for church purposes, and when it shall cease to use
for church purposes, to the Red Cross.
church - fee simple subj to EI.
Red cross - exec interest
4) Alienable in most jurisdictions under modern law.
c) Right of Entry -
retained when the grantor creates an estate subj to a condition subsequent and retains the
power to cut short the estate.
1) O --> To Bd of Educaion, but if the board cease to use for school purposes O retains
right to re-enter.
B - fee sim sub to cond sub
O - rt of entry
2) O--> To A and her heirs but if intoxicating liquor is sold on the premesis, O has
right to re-enter.
3) There are statutory limits to the rt of entry, many states limit it to 30 years.
4) But if (grant the interest and then give a condition) = fee sim sub to cond subs.
For a condition precedent, the condition would be in the same clause w/o a comma.
5) Alienable in some states
6) Not alienable in some states because it wasn't in common law.
7) In some states it's so strict that attempting to transfer the rt of entry it is
destroyed and grantee gets a fee sim abs
8) Can't force a rt of entry w/ racial restrictions.
Shelley v. Kramer - judicial enforcement of a racial covenant forbidding use of property
by black persons was discriminatory state action forbidden by the Constitution.
possibility of reverter upheld, because it's not state action because you get it
automatically. But this is a highly criticized exception.
d) List of correlative
estates:
life estate - reversion
fs det - poss of rev
fs sub to con sub - rt of entry
10- FUTURE INTERESTS IN THE GRANTEE
REMAINDER: a future
interest in grantee that has the capacity of beocming possessory at the expiration of the
prior estates. It cannot divest the prior estates. Any interest divesting or following a
fee simple must be executory interest, not a remainder.
a)essential characteristics of remainders
1-It must have a preceeding estate. It can be created only by an express grant in the same
instrument in which the preceeding possessory estate is created. It cannot arise under
operation of law.
2-It must follow a fee tail, a life estate, or a term of yrs. It can't follow a fee
simple.
O-->A and the heirs of her body, and if A dies w/o issue, to B and her heirs.
A has a fee tail. B has a vested remainder sub to complete divestment.
O-->to A for 10 yrs, then to B and his heirs.
b) Rule: The remainder must be capable of becoming possessory on the natural termination
of the preceeding estate. It cannot divest a preceeding estate prior to its normal
expiration.
O-->To A for life, and on A's death, to B and her heirs.
A-possessory life estate
B-remainder in fee simple, B's interest is a remainder because it can become possessory on
A's death, it will not divest A's life estate prior to A's death.
c) There can never be a remainder divesting a fee simple, any interest divesting or
following a fee simple must be an executory interest. This is because a fee simple is of
infinite duration and a remainder must wait patiently for the preceeding interest to
expire.
O-->To A and her heirs, but if A dies w/o issue surviving her, to B.
B has an executory interest here, not a remainder.
d) An estate in remainder may be a fee simple, life estate, fee tail, whatever.
ex. O-->To A for
life, then to B for 10 years, then to C for life, then to D.
B - remainder for a term of years
C - remainder for a life estate
D - remainder in fee simple
e) How to classify remainders:
vested - created in an ascertained person and not subject to any condition precedent.
contingent - either created in an unascertained person or subject to a condition
precedent.
1. To classify remainders it's very important to go through clause by clause.
ex. O-->to A for life, then to B and her heirs if B survives A and if B does not
survive A, to B's children and their heirs.
A - life estate
B - contingent remainder because capable of becoming possessory at the end of A's life
estate, doesn't divest A. It's a fee simple because it's to B and her heirs. contingent
because of the condition of survivorship.
C - contingent remainder - Remainder because it waits for life estate to end, doesn't cut
it short. A remainder to a class of children in fee simple because of hte "and their
heirs". Contingent because expressly subject to condition precedent. These are
alternating contingent remainders.
2. A remainder is vested in A when throughout its continuance A or A and her heirs have
the rt to immediate possession whenever and however the preceeding freehold estates may
determine.
ex. O-->To A for life, then to B in fee simple.
B, an ascertained person, has a remainder not subject to any condition precedent.
3. Three kinds of vested remainders:
1) indefeasibly vested remainder - the holder of the remainder is certain to acquire a
possessory estate at some time in the future and is also certain to be entitled to retain
permanently thereafter the possessory estate.
O-->to A for life, then to B and her heirs.
B is certain to take possession on A's death. If B dies before A then B's heirs takes it
in B's place. B's remainder is indefeasibly vested.
2) remainder subject to partial divestment/subject to open
O-->to A for life, then to A's children.
Vested remainder subject to open. Is vested in a class of persons at least one of whom is
qualified to take possession. But the shares of the class members are not yet fixed
because more persons can subsequently become members of the class.
A - life estate, if A has no children then the remainder is contingent. If A has a child,
B, B has a vested remainder subject to partial divestment.
Class gifts, the class is either open or closed. It's open if it is possible for other
persons to enter the class. It's closed if it's not possible for other persons to enter
the class.
Class closing rule - when the preceeding estate ends the class closes. When a vested
remainder subject to open becomes possessory the class closes and no one conceived after
that date can share in the class gift. The class closes whenever any member of the class
can demand possession.
O-->A for life, then to then children of B.
A and B are alive, then A dies and B has two children, C and D. The class closes at A's
death and the property is divided between C and D. Children of B conceived after A dies do
not share in the gift.
3)vested remainder subject to complete defeasance: it is either vested, subject to being
divested by the operation of a condition subsequent or vested subject to defeasance by an
inherent limitation of the estate in remainder.
1. O-->to A for life, then to B, but if B does not survive A, to C.
Example of condition subsequent. The vested remainder in B is subject to total divestment
upon the occurance of a condition subsequent, that of B dying leaving A surviving. C's
executory interest divests B if the condition subsequent happens. B has a vested remainder
subject to complete defeasance by C's executory interest.
2. O-->to A for life, then to B for life, then to C and her heirs.
Example of an inherent limitation in the estate in remainder. B has a vested remainder for
life subject to total defeasance if B fails to survive A. The defeasance occurs because of
the inherent limitation in the remainder for life. A remainder for life fails if it does
not become possessory w/in the life tenant's life. C has an indefeasibly vested remainder
in fee simple.
3. O-->to A for life, then to the children of A, but if no child survives A, then to B.
Example of how a remaider can be vested both subject to comlete defeasance and open.
Assume A, who is living has a child, C. C has a vested remainder subject to open up and
let in her brothers and sisters. It is also subject to complete defeasance if A leaves no
children surviving her. This would happen if C and all other children of A die before A
does. B has an executory interst.
A vested remainder is alienable inter vivos and devisable by will. A vested remainder
descends to heirs if it's not otherwise disposed of.
A vested remainder is not transmittable if the remainderman cannot pass to another w/
his death.
O-->to A for life, then to B, but if B does not survive A, to C. If B dies during A's
life B can pass nothing upon her death. In that case C's executory interest would divest B
at B's death and become a vested remainder.
4. CONTINGENT REMAINDERS - limited to an unascertained person or subject to a condition
precedent.
1. O-->to A for life, then to A's children.
An unborn child is an unascertained person. A has no children the remainder is contingent
because the takers are not ascertained at the time of the conveyance.
2. O-->to A for life, then to B's heirs.
B is alive, since heirs are only ascertainable at death, they are unascertained. If B dies
during A's life, the remainder will vest in B's heirs. If A dies during B's life, it
reverts back to O until B dies.
a) Whenever O creates a contingent remainder in fee simple there is a reversion in O.
Whenever O creates a vested remainder there is NEVER a reversion in O.
b) What is not a condition precedent:
1. The termination of the preceeding estate is not a condition precedent.
2.Surplus language - language simply refering to the termination of the preceeding estate.
O-->to a for life, and on A's death, to B.
3. Survivorship
O-->to A for life, then to A's issue and if A dies w/o issue, to B.
Remainder subject to a condition precedent other than survivorship is not also subject to
an implied condition precedent of survivorship.
B's remainder is contingent upon A's dying w/o issue, it is not contingent on B surviving
A. Some cts, very few, does look at this at having 2 conditions precedent.
c) Alternate Contingent Remainders
O-->to A for life, then to B, but if B does not survive A, to C.
B has a vested remainder subject to divestment by C's executory interest.
O-->to A for life, then to B if B survives A, but if B does not survive A, to C.
A condition precedent has been express attached to B's remainder. The condition of
survivorship is also contained in C's remainder.
With alternate contingent remainders there's a reversion in O. Because at commonlaw a
life estate could terminate prior to the life tenant's death by forfeiture or merger.
Though completely unrealistic still must be considered to have a reversion in O.
5. If the instrument is ambiguous the law favors a vested construction rather than a
contingent one. Promoted alienability,etc.
11- EXECUTORY INTERESTS - a future interset in
a grantee in order to become possessory must divest or cut short a prior estate or spring
out of the grantor at a future date.
1. O-->to A and her heirs, but if B returns from Rome, to B and her
heirs.
shifting executory interest--A fee simple subject to executory limitation. B has a
shifting executory interest. Shifts because A has the fee simple that shifts to B if B
returns from Rome.
O-->A for life, and on A's death, to B and her heirs, but if B does not survive A, to C
and her heirs.
shifting: C has a shifting executory interest. It vests, if at all, by cutting off B's
vested remainder. If you classify b's interest in sequence it is a vested remainder and
any future interest in a grantee is a divesting executory interest. A remainder cannot
follow a vested fee simple either in possession or in remainder. In other words if you
have a vested remaider, it's an executory interest if something follows it.
2. O--> to my daughter A when she marries B.
springing executory interest--O retains a fee simple and creates an executory interest in
A to spring out of O in the future when A marries B.
O--> to A for life, and one day after A's death, to B and her heirs.
Springing executory interest. W/ A's death estate goes back to O and stays there for one
day, then it springs out to B.
**Special case: future interest in a grantee that follows a fee simple determinable, it's
neither shifting nor springing, because a fee simple determinable ends by it's own special
limitation. The executory interest doesn't divest the fee simple determinable it only
succeeds it.
O-->to Bd of Ed so long as used for school purposes, then to the Red
Cross.
12. Destrucibility of Remainders - a legal contingent remainder in land
is destroyed if it does not vest at or before the termination of the preceeding freehold
estate. Abolished in most states.
O-->to A for life, remainder to A's children
who reach age 21.
At A's death her
children are all under age 21, the remainder is destroyed and blackacre goes back to O.
-rationale is lack of
continuity of seisin. There's a gap.
O-->to A for life, then to B for life, then
to B's children who reach age 21.
B dies leaving oldest
child at age 19. A still alive. The contingent remainder in B's children is not destroyed
because B didn't have seisin.
4 guidelines
1-Doesn't apply if preceeding estate is a
leasehold estate.
2-A life estate can terminate before the death
of the life tenant.
3-Only applies to contingent remainders.
4-You can avoid it by creating a term of years
to creating a trustee to preverse contingent remainders.
13. Rule in Shelley's Case - abolished in most states. If one
instrument creates a freehold in land in A and purports to create a remainder in A's heirs
or the heirs of A's body then the remainder becomes a remainder in fee simple in A.
O-->to A for life, then to A's heirs.
merge them together and A simply has a fee
simple
14. Doctrine of Merger: a life estate in A and a remainder in A will
merge unless there is an intervening estate or the remainder in A is subject to a
condition precedent to which her life estate is not subject.
O--> to A for life, and if A does not marry
to her heirs.
because of condition in the middle it won't
merge
O--> to A for life, then to B for life, then
to A's heirs.
because of B's estate it won't merge
policy: it promotes alienability.
15. Doctrine of Worthier Title
O-->to A for life, then to O's heirs.
O has a reversion, O's heirs have to remainder
T-->to A for life, then to T's heirs.
a) When an inter vivos
conveyance purports to create a future interest in the heirs of the grantor the future
interst is void and the grantor has a reversion.
b) Testamentary- if a
person divises land to her heirs the devise is void and the heirs take by descent. obscure
case in Iowa only
c) Modern rule:
1)applicable to personal property as well as land. 2)It's a rule of construction, not a
rule of law.
For the doctrine to apply a future interest must be given to the grantor's heirs or next
of kin or some other equivalent term. Applies to all kinds of future interests. The
character of the preceeding estate is immaterial.
16. Rule ag/ Perpetuities: no interest is good unless it must vest, if
at all, not later than 21 years after some life in being at the creation of the interest.
a) policy: compomise between alienablity and
giving the grantor intent merit.
b) measuring/validating life: person who
enables you to prove that the interest will vest or fail w/in 21 years after some life in
being at the creation of the interest.
c) What might happen test: if there's any
possibility that the contingent interest will vest later than 21 years after the life in
being the contingent interest is void from the outset.
d) How to find a life in being:
1) Assemble all persons who
can affect vesting of the particular interest in question.
2) Test each of these persons
to see if that interest will vest or fail during that person's life or upon or w/in 21 yrs
after that person's death.
3) If there is no person
among this group of relevant lives who meets these requirements the interest is void.
4) The lives in being must be persons alive at the time of the creation
of the interest.
*validating lives don't
have to be persons mentioned in the intstrument.
*Since an interest
satisfies the rule if it's vested upon creation, you should classify the interest
initially to see if any interest is then vested.
Class gifts: when
there's a gift to the class the gift isn't vested in any member of the class until the
interest of all memebers have vested.
indefinite failure of
issue rule - occurs when A is dead and all of her descendent are dead also. This violates
the rap because someone's issue could go on forever and the contingency would never vest.
O-->to A and the heirs of her body, and if A dies w/o issue to B and his heirs.
construed to mean if A dies w/o issue living at the time of death
Cy pres doctrine:
doctine which allows a ct to reconstruct an instrument to carry out the grantor's intent.
fertile octagenarian: a
person is presumed to be able to have children until they are dead.
unborn widow: the law
assumes that a person's surviving spouse might turn out to be a person not now alive.
future interest
retained by the grantor isn't subject to RAP
apply doctrine of
destructibility first, then RAP
17. Doctrine of Restraint on Alienation - when you own land, especially
in fee simple, no one should be able to limit this, it's an economic theory underlying
from the Statute of ___(Quiet entories or something).
Disabling, Forfeiture, Promise
a) Forefeiture restraint
O-->to A so long as
A doesn't abolish the house w/o O's consent. Restraint on demolition, valid
O-->to A so long as
A doesn't sell the house w/o O's consent. Restraint on alientaiton--Not Valid.
Disabling
-enjoin
Promissory
-damages
Forfeiture
-kick out
Fee simple
void
void
void
life estate
void
valid
valid
leasehold
void
valid
valid
*sometimes the cts only
uphold as valid for landlord, if reasonable. Neither remedies are too useful nor used
often.
18. Waste - usually arises w/ a life estate or someone w/ a future
interest.
O-->to A so long as
A resides on the property.
O has a rt to bring an action for waste.
A's fee simple determinable will change to a fee simple absolute if A dies w/o moving.
-remedies for waste: injunction or damages
damages: there is no known or estimatible time period, thus no way to calculate damages.
If catch A before he burns down teh house you can get an injunction.
-thus both actions are difficult to do
Financial waste
life tenant - pays interesst on mortgage and taxes but future interest to be pay the
principle. If fut int won't pay the other can pay and then sue hime for it. Some cts say
only get to collect out of interest in this realestate. If life estate holder wants cash,
likely not too great getting a lien on the fut int.
Brokaw v Fair
child - ct says building the apt complex would change the "residence".
arg is remainder men have interest in getting exactly what was orignally given, even if
change would be financially better. Ameliorative waste - good waste
life estate holder can't encumber the estate, he can encumber on his life estate, but as a
practical matter no bank would give him this loan ag/ a n uncertain, measly life estate.
Baker v Weedon -
widow wants to sell property to privde $ to survive. Rem holders don't want to sell 'til
later.
-find out what else is imp about this case.
19. Time Value of money - see supp chart
20. MARITAL PROPERTY
a) Doctrine of dower and
courtesy, discussed earlier
b) Doctrine of Jure Exaris -
husband controled wife's property. This has been done away w/ by married women's laws. Now
each controls own property in their own name.
c) Death
1. American law
modified law to make a spouse an heir
2. add that if spouse
tried to disinherit the spouse by will, the living spouse can Elect ag/ the Will - be a
forced heir
3. Uniform Probate
Code: to avoid unfairness, take all the property in and out of the probate estate, add up
and divide up for spouse, 1/2 or 1/3 (this includes gifts, trusts, etc.)
-this only works if she gets less than 1/3 or 1/2, she can take away from the other people
-this can be defeated by a pre-nuptial agreement.
d) Divorce
1. traditionally women
were pd alimony and child support, we didn't look at property, just left it to who's name
it was in.
2. Today
-
Equitable Distribution Statute - Ct uses idscretion on how to divy up property, list of
factors.
- Alimony dead and gone, now it's moving property
- child support payments still given
- almost all states try to use this system; still may not be best
for woman , they're worse off while men are better off.
- fault doesn't enter in Equitable Distribution
3. Community Property
- ties from french, spanish laws
- idea is earn $ while married, this is owned 1/2 and 1/2 by each
spouse
- Different from Equitable Distribution - no distrection of percentages
- Only applies to earning - to applicable to gift,s prop owned
before marriage, etc.
- problems: tracing what and where, anything earning while in a
community property state remainds 1/2 and 1/2 owned to the present even though not in a
comm prop state when divorcing.
- death: surviving spouse owns 1/2 already, then spouse also made an
heir, thus gets 3/4
21. HOMESTEAD
3 meanings:
1) acquire from fed,
staking it and using it, not much today
2) an exemption from
the claims of your creditors
3) Idea that upon daeth
of owner of the home, prop passes to surviving spouse in a LIFE ESTATE; some extend to
minor children until legal age. Interrupts passage of title to property. in about 10-15
states
22. Concurrent Estates
-all owners have
simultaneous rt to possess al of the property at the same time.
-no unilateral rt to
partition; can't divide it up by yourself, ct can but you can't.
-common way to get
concurrent estate: deed or intstate succession, always T/C not Jt/T
