1 I. Original Acquisition

○ Original Acquisition • Fera naturae: when you capture animal (deprive it of its liberty, take occupancy) in wild, it’s yours (mere pursuit is NOT occupancy. (Pierson had possession of the animal since he captured it) ○ Actual physical possession is the best possession. ○ To have property rights over animals (possession) exclude others. • Ratione Soli: by right of the soil, anything on your land is yours ○ When there is a violent or malicious act to a person’s occupation, profession, or livelihood, there is a cause of action. (Keeble’s trade was shooting fowl, so Hickeringill interfered by intending to shoot gun) ○ Trespassers cannot obtain ownership of an item on another’s land. (Post was hunting for the fox uninhabited land, so no trespass)

○ Regaining Possession of Wild Animals • Animus Revertendi: “disposition to return,” person must return animal when it is captured alive or escapes • Right to retain possession, not to regain possession. Once animal regains natural liberty, you no longer have possession • First in time, first in line – first person to catch the animal owns it. ○ However, if there is indication of ownership (tag on ear, comes when called), ownership is regained.

II. Nature of Property Rights: Rights against Others

○ Right to exclusivity is fundamental property right • Property owner does not have to give up any part of land to help neighbor. ○ Refusing to incur miniscule cost to prevent huge is fine. (Jacques v. Steenberg Homes: Jacques did not need reason to exclude transport of motor home across his property).

○ of capture (based on fera naturae): whoever captures (produces) gas from land first owns it. In the ground, it’s in its natural state & belongs to no one. Anderson v. Beech: Beech injected oil into reservoir under P’s prop  lost ownership by injecting into ground

○ Percolating waters: ooze from the surface w/out defined channel • English Rule: owner has absolute right to do what he wants w/all percolating waters (above & below) • American Rule: owner’s use can’t unreasonably injure others • Unreasonable = resale, waste, negligent/malicious use Finley: D’s quarry ruins P’s land b/c of excess water. Can’t recover under either theory. • Support: ○ Lateral support: right to have land supported by adjacent land. ○ Subjacent support: right to soil underneath prop for support (only land, not h2o)

○ Navigable-in-fact: • If river can be used for commerce/transport travel, is allowed on river and its banks (if necessary?). • Doesn’t have to be navigable whole year; just enough for trade/trans. 2 Adirondack League owns part of river. SC (D) has right to travel down river b/c nav-in-fact • Navigable-in-law: waters dedicated to public use, including right to fish

III. Property Rights against the Regulatory State

○ Property right (ownership, title): govt. enforces your exclusive right to the property ○ Police power: govt. power to make regulations for the body politic in public interest ○ Constitutional Clauses that Protect v. Govt. Takings: • Clause: no law can be made that impairs the obligation to contract. • Due Process Clause: “No person shall be deprived of property w/out due process” • Economic DP: if law has any rational basis to help public, ct. won’t overturn • Takings Clause: • “Nor shall private property be taken for public use, w/out just comp.” ○ Just compensation: full market value b/w willing buyer and seller • Leaves open possibility of taking land for private use • Tests ○ Two-part test: 1) Substantially advances a legitimate state interest 2) Doesn’t deprive owner of economically viable use

○ State can destroy one’s property to save other property of greater public value Miller: State can order P to cut down red cedar trees to prevent disease from spreading ○ Even if regulation has a negative impact on land, that isn’t necessarily a taking. • A taking is when it is taken too far PA Coal: Statute went too far (aka taking) when made it commercially impracticable for D to mine (and he had a right to do so by ) ○ **If all value (90% or more) is taken by regulation, then it is considered a taking which requires compensation. ** ○ Publilc Nuisance Exception: govt. can take for interference w/public welfare/safety Lucas v. SC Coastal Council: SC Act is a taking  barred P from erecting homes on two pieces of beachfront property. State agrees, and argues for public nuisance exception.

IV. Finder’s Rights

○ Finder is treated as owner against the whole world, except the true owner. Armory found the jewel so its his, even though he gave it to a jeweler to see what stone’s value is. Hannah (P) finds brooch in D’s house. Ct. determines it belongs to P b/c D owned the house but didn’t possess it  so he didn’t possess brooch. Elewes: Boat on land which owner leased to tenant who is digging hole (& discovers). Boat = ch. (landowner) • Chattel  not included in lease  recovers b/c first in time • Part of soil/ (fixtures  lights, pluming, cabinets, ect)  included in lease  ○ Hierarchy of entitlement to possession: • True owner • Earliest known possessor other than true owner • 2nd earliest known possessor, 3rd earliest known possessor… ○ English Rule: • Prefers earliest known possessor (includes unconscious possessors) • Prefers owner of locus in quo (owner of the place) as earliest known possessor • Exception: public/semi-public places ○ Finder wins, owner does not have possession of everything on his land. Bridges: Guy finds purse on shop owner’s floor right when they open  it is a public/semi public place  finder gets it (first in time). 3 • If $ was behind counter, owner would have possession & that’s different. • If shop had been locked overnight, shop owner = possessor. ○ American Rule: • Only conscious possession counts (Homeowners didn’t know they had $, so Hurley would get) • Prefers the finder • Exception: trespass ○ When finder is a trespasser  not possession • New York Rule: American rule “on steroids” ○ Stronger preference for finder, exception being if it is a crime. ○ Courts usually don’t split ownership claims – too complicated. ○ Categories of property: • Abandoned: owner no longer wants to possess, voluntarily relinquished all rights. Benamin: Humbach think $ in airplane wing carefully tied & placed there = abandoned (not mislaid) • Lost: owner unintentionally & involuntarily parts w/possession • Mislaid: owner voluntarily &intentionally puts somewhere & forgets. ○ Owner of locus in quo preferred  person might remember where left it McAvoy: P finds purse in D’s barbershop. Real owner never found. Ct. rules belongs to D. • : owner conceals coins or currency. Must be hidden really long. ○ Distinction b/w lost & mislaid property eliminated. Possession/title to finder. Hurley (P) finds $ hidden in pipe in D’s home. Ct. says not distinction.

V. Possession of chattel is transferred from bailor to bailee for limited purpose

BAILMENT: transfer of possession (contract) ○ Elements: • Physical event • Requires intent of bailee ○ Bailee can’t be forced, must agree • Intent manifested by exerting dominion and control (excluding others/poss.) ○ Must know what you are exerting control over ○ Eg. Borrow sugar in a cup to bake a cake • Sugar – transfer of title; Cup – transfer of possession equaling ○ Humbach: When a person takes possession of a container, they are taking responsibility for its contents. Samples v. Geary: P puts fur piece in jacket & gives to coat check. Humbach says they were responsible  coat = container, fur piece = contents ○ Bailee’s intention to possess is what counts (Coat check boy did not intend to possess the scarf thing) ○ Negligence • Level of care to prove negligence determined by prop’s APPARENT value Peet v. Roth Hotel: Hotel loses ring when left @ desk & doesn’t realize its value. Ct. holds them to ordinary care  what ordinary man would think in same situation. Holds hotel liable. • Rebuttable presumption of bailee’s negligence (acceptance of bailment + loss) ○ Bailor: property bailed & not returned in good condition ○ Bailee: loss did not result from his negligence (used ORDINARY CARE) ○ Bailor: bailee is at fault (negligent) Noworta: P’s cabinets were destroyed by fire at D’s office (D was fixing them). • Bailor (P) would prove cabinets bailed and not returned in good condition, • Bailee (D) can rebut by showing that he did not cause the harm  D sucessful • If bailee (D) succeeds  burden shifts back to bailor to show fault. • If bailee is negligent, liable for ACTUAL value of property ○ Strict Liability • Strict liability for conversion (bailee refuses to return property) 4 • Can be a converter even if the property is accidentally taken • If bailee does something outside scope, bailor not required to take back • Strict liability for misdelivery • Bailee gives goods back to 3rd party rather then bailee ○ Categories of Bailments: • Sole benefit of bailor: must demonstrate gross negligence (lesser standard of care) ○ Gratuitous bailment • Reciprocal benefit: ordinary negligence • Sole benefit of bailee: must demonstrate slight neg. (higher standard of care)

TRANSFER OF TITLE (, sale, ect.) ○ Elements: • Non-physical (ideational) • Requires intent of transferor/transferee • Any objective manifestation of intent: don’t have to know what you’re control. ○ Against a wrongdoer, possession is title. • Wrongdoer cannot defend an action for conversion/damage to property by saying that bailee is not the true owner. ○ Jus Tertii: right of a third person. Wrongdoer can’t defend by claiming jus tertii (Eg. I lend my car to Jenny and go to England. Bobby gets into an accident w/her and claim he doesn’t have to pay Jenny b/c it’s not her car. Since he is wrongdoer, possession is title).

VI.

I. Adverse Possession ● Fundamentals of Adverse Possession Emerged from Medieval Concept of Seisin: • Seisin: Possession of land coupled w/claim of right to be there indefinitely or for life • Person who takes possession of land  Can be owner or AP • Only person who can sue trespassers • True owners have right or re-entry (right to get back on land) • AP gets his rights by just taking possession • Rights against everyone besides true owner • Even when S of L is running (NY is 10 years) • True owner can sue AP by right of re-entry • AP can sue any trespasser by right of entry • Disseisor: person who has removed a right from person who has seisin. Has right to entry by lawsuit. • Wrongdoers • AP is treated as the true owner by wrongdoers • AP treated as true owner while S of L is running, too. • Wrongdoer cannot force an AP to prove he is true owner (Winkfield) • Action in ejectment: an action to recover possession (put P in possession)

● Acquisition by Conquest: ○ English Rule (OLD): had to occupy land to have possession ○ Modern Rule: A person who has constructive possession (don’t actually have poss. but court pretends they do) can bring action for trespass. ○ To establish Constructive Possession: 1) Must own property 2) No adverse possession of land 5 Gillepsie: D brings action against P who lives 20 miles away and owns land that D wants to cut down. Ct. holds P does not have constructive possession.

● ELEMENTS: 1) Actual possession of the land 2) Open and notorious: possession is not secretive; apparent • Must raise a flag and show the world • Ordinary owner using reasonable, ordinary care would notice AP • Using cave NOT open & notorious • Sewer lines usually ARE open & notorious • AP has no duty to tell true owner he is owner Lawrence (husband) continues to live on land for 20 years after wife dies. He never tells anyone that the land was supposed to go to the town. Ct holds that fine, b/c his possession was open & notorious.

3) Hostile & under claim of right: possession must be w/ frame of mind of owner • Must be adverse  AGAINST true owner as opposed to under true owner • Can’t be subservient • Presumed if other elements established • Humbach: Objectively manifested intention is all that counts (actual intent doesn’t have to be hostile) ○ Humbach: NO requirement that owner know about possession AND NO requirement that AP actually know/intend that poss. = adverse • Doesn’t matter what AP was thinking  just that he was ACTING like the true owner would act in the circumstances Nome 2000: Ds activities of building cabin, picking berries, having fence constituted AP on northern part of land. Using trails & picking up litter on southern part wasn’t AP). ○ Requisite hostility depends on nature of the land Ewing paid taxes & brought action for ejectment on gravel lot. He acted like true owner  didn’t need to erect a fence or anything b/c of the nature (gravel of the lot) • Three views (Lawrence v. Town of Concord): • Majority: Hostility is presumed if person acts like true owner • Honest Mistake Doctrine (Maine Doctrine): • AP under a mistaken belief is not hostile  NO AP • Good faith Rule: • AP in bad faith can’t obtain possession • AP must show occupation (of ) by demonstrating: ○ Usually cultivated ○ Improved ○ Protected by substantial enclosure Birnbaums = AP over small parcel land behind their prop  maintained grass/flowers & had fence 4) Continuous: possession for 1 period • Doesn’t require 24/7 • Measured by what is normal for the land in question (eg. Seasonal use) Rays overall preservation of cottage, in virtual ghost town, demonstrates occupancy. • Easement by prescription has less stringent continuous requirement Bovas use path across D’s property seasonally = prescriptive easement 5) Exclusive: one party in possession • While AP may have primary possession, owner may take actions for short period of time resulting in shared possession. Affects AP’s continuity. • Court prefers true owners where there is conflict

○ PURPOSE: To protect true owners from stale claims **Constructive possession follows title unless when there’s an adverse possessor**

6 II. Tacking ● Fundamentals of Tacking ○ To tack onto a prior AP’s possession, the successor must show that there was a transfer and that the periods of possession were consecutive • AP2 gets credit for AP1’s possession • Must be privity of estate (legal relationship to the land): 1) Transfer by Deed 2) Transfer by Will 3) Transfer by Inheritance

○ No tacking when: • AP2 ousts AP1 • AP1 abandons property and AP2 takes possession • Chain of AP broken by owner’s ejectment action

●Examples of Tacking • If was possessed in 1990 by AP, title will ripen in 2011 (if S of L 21 years). • 1) In 1995, O transferred conveyed her interest to O2. • This right of entry has 16 years left on it, due to AP that began in 1990. • 2) What about change in AP? In 1994, AP transfers his interest to AP2. • Gets credit for AP’s possession until 1994  pick up here AP left off • AP takes possession in 1985 from O. In 1995, B takes possession when AP on vacation. When AP returns, B refuses to leave. AP just moves away, knowing there is nothing else he can do. If B remains in possession, when will she acquire title? • AP has right of entry against B and right of ejectment against B • 3) NO privity of estate  one AP ousting another  no transfer of interest • 21 years from when cause of action accrues (2016) • 4) AP brings action as soon as B takes possession. • If AP acts like true owner and brings action relatively quickly, regains poss. • 5) AP on vacation for 6 months and B takes possession. AP returns and brings ejectment action. Is 6 months too long for AP to maintain continuous possession? • Probably. AP can abandon his claim on the land before title accrues. Exception to idea that you can’t abandon title to real property. • 6) AP comes back 8 years later and sees B in possession. Brings action v. B and wins. • AP not acting like true owner. So S of L starts over.

III. Tolling ● Fundamentals of Tolling for Disability ○ Gives extra time to some classes of people to bring ejectment action ○ Statutory Interpretation: An action to recover the title to or possession of real property shall be brought within twenty-one years after the cause of action accrued, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person, after the expiration of twenty-one years from the time the cause of action accrues, may bring the action within ten years after the disability is removed ○ Can’t get title by AP against government (S of L doesn’t run) ○ Two Periods: • General Period: 21 years • Begins when cause of action accrues  AP takes possession • Disability Period: 10 years • Begins after disability is removed **Disability must have existed at time cause of action accrued 7 • Disability includes: • Minors, mental incapacity, imprisonment, military service • Rules about the periods: • Basic Rule: where disability exists when AP takes possession, time to Bring an ejectment action will expire either at end of S of L (21 yrs) or tolling period, whichever ends later. • Either period could end after the other, depending on situation • Entire 10 year period will not be added to 21 year period. If disability exists for 21 years, person will get ownership after 21 years. • But, good portion of disability can be added on to 21 years. If disability is removed after 19 years, there would be 8 years added onto the 21 years. • 21-year period is never shortened. Shortening would make it even harder for disabled person to lay claim.

● Problems for Tolling for Disability • Steven’s Hypos (SOL 10 years, Tolling Period 5 years): • 1) X takes possession of Blackacre in 1990. In 1992, Blackacre is transferred (from a person with no disability) to Y, who is 3 years old. X's title will ripen in 2000. • Tolling will not occur because the owner's disability did not exist at the time X took AP. Y was NOT owner in 1990  title transferred in 1992. Only matter if owner at TIME of AP had disability. • 2) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 17 years old. X's title will ripen in 2000. The normal statute of limitations begins to run in 1990, when X takes possession. • Tolling occurs because the disability existed when X took possession. • Tolling period begins in 1991, when Y is 18 years old. Both the normal SOL & tolling period run concurrently. The 5 year tolling period will end in 1996, five years after it began in 1991. The normal SOL ends later, in 2000. Thus, the date the normal SOL ends is the time when title ripens and Y's right of re-entry expires. • 3) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 5 years old. In 1998 (when Y is 13), Y's guardian sells Blackacre to Z, who has no disability. • This sale marks the removal of the disability and starts the tolling period (The tolling period would also begin if Y had reached the age of majority. Tolling begins when the disability is removed.). • Tolling occurs because the disability existed when X took possession. • X's title will ripen in 2003 • The normal SOL and the tolling period run concurrently. So, the SOL starts in 1990 and runs for 10 years until 2000. However, the tolling period begins in 1998 and runs for five years, ending in 2003. • Thus, because the tolling period ends later than the normal SOL, the end of the tolling period marks the time that X's title ripens and Y's right of re-entry (right to bring an ejectment action) expires. • 4) X takes possession of Blackacre in 1990. At that time, Blackacre is owned by Y, who is 6 years old. Y continuously owns the property. • X's title in Blackacre will ripen in 2007. • The normal SOL expires in 2000. • However, Y does not reach the age of majority until 2002. When Y turns 18, the disability is removed and the tolling period begins. The 8 tolling period runs for 5 years and ends in 2007. • Thus, because the tolling period ends later than the normal SOL, the end of the tolling period marks the date that X's title ripens and Y's right of re-entry expires.

• Hypos (SOL 21 years, Tolling 10 Years): O owns Blackacre in 1975 and AP takes adverse possession on July 1, 1975. When does AP Acquire possession title in each of the following scenarios? • 1) O is insane on July 1, 1975 and dies intestate in 1980. H is his heir w/no disability • Disability period begins in 1980, ends in 1990 • General Period ends in 1996 • AP acquires title in 1996 • 2) O is insane on July 1, 1975, and dies intestate in 1995. H is heir and has no disability. • Disability ends 2005 (10 years after O dies in 1995) • General Period ends in 1996 (21 years after AP in 1975) • AP acquires title in 2005 • 3) O has no disability & dies intestate on July 3, 1975. H (heir) is 6 at O’s death. • General Period ends in 1996 (21 years after AP in 1975) • No Disability Period because O did not have a disability on July 1, 1975 (i.e. when AP began).  Just matters if owner at time of AP had disability. Since O owned it at time of AP and didn’t have disability, there is no tolling. H didn’t get it until 2 days after AP. • AP acquires title in 1996 • What if O had died on June 30, 1975 instead??? • General Period ends 1996 • Here, H has possession BEFORE AP takes possession. So his disability IS accounted for. • So, he would reach the age of majority until 1987 (disability ends) and tolling would begin then. Thus, it would not end until 1997. • AP acquires title in 1997 • 4) O is insane on July 1, 1975, and dies intestate in 1995. H, his heir, is two years old at the time of his death. • General Period ends 1996 • Can’t tack disabilities • Just matters if owner at time of AP had disability. He did, but he died. Since H was not the owner at the time of AP, there is no tolling

IV. Mesne Profits ● Fundamentals of Mesne Profits ○ Profits “captured” by the AP between the start of possession and the lawsuit ○ Any value derived from the land (i.e. fair rental value) ○ Owner can bring trespass action to recover from AP • Action in ejectment first, then action for trespass to recover mesne profits ○ Two standards of damage: 1) Mesne value: value accrued; 2) Damage done to the land ○ BUT, if title has ripened by AP, there is nothing he can do  no mesne profits

VII. Gifts: 9 Transfer of an interest of property without consideration

1) Elements: 1) Donative Intent • “In praesenti:” present intent, not in future 2) Delivery (Actual or Constructive) ○ Core meaning  transfer of possession is necessary (dominion & control) • If both parties maintain dominion & control, then NOT valid gift • Gift w/out delivery is just gratuitous promise that isn’t enforceable. ○ Delivery through Intermediary • If intermediary is agent of donor, gift complete upon delivery to recipient • If intermediary is agent for donee, then gift is complete upon delivery to inter. • What about if you don’t know who intermediary is agent for? • Donor decides who the intermediary is the agent to. (Int. usually equally close to both OR donor will die while gift possessed by int.) • Usually depends on the degree of donative intent • If the court finds sufficient donative intent, will normally find that the intermediary is acting for the donee. • If the court does not find sufficient donative intent, will normally rule that intermediary is acting for the donor. ○ Sometimes it’s not easy to give donee dominion and control (eg. horses) Irons: Dad gives son a horse but NO delivery b/c he doesn’t act like he owns it & exert dominion & control over it (eg. hand over bridle, make it known to everyone else) • When actual delivery is easy & doesn’t happen, likely that no donative intent ○ If delivery is b/w family living together, delivery requirements are altered • Cannot expect donor to move something out of the house ○ Constructive delivery: not actual delivery, but treated as actual delivery b/c  strong of donative intent AND a shifting of predominant dominion & control • If actual delivery inconvenient, then expressing donative intent AND giving donee the means to access counts as delivery. • Example is key to a box: ○ Donnee needs exclusive dominion & control for gift to take effect ○ Opening container must occur before death, unless inconvenient or unusual circumstances ○ Checks • Delivering check DOESN’T meet delivery requirement, but DOES show donative intent. • Check must be cashed for delivery to be completed 3) Acceptance • PRESUMED unless person rejects

Constructive Delivery Hypos: • 1) O hands a key to a safety deposit box to A and says, “There are 100 shares of IBM stock in this box, and I’m giving them to you now.” A did not open the box until after O’s death. Is the gift valid?  YES, valid gift. • 2) O, on his deathbed, tells his nephew, “There’s a ring over on the dresser that I want you to have.” Nephew goes over and picks up the ring. Does he have to give it to O, so that O can actually deliver it to the nephew?  NO, gift is valid upon nephew picking up the ring. • 3) Suppose O died before nephew picked up the ring… 10  Then there is not a valid gift because dead donors do not have donative intent • 4) If the ring was in the dresser across the room, and O only gave his nephew the key to the dresser, and then died….  there would not be a valid gift because actual delivery was practical • 5) If the key was to a safety deposit box across town, then constructive notice would have been appropriate and a valid gift would have been made • 6) Uncle gives nephew a key to safety deposit box, but retains one himself. Uncle continues to access the box until he dies. Can nephew claim a valid gift upon Uncle’s death?  NO. Since both parties maintained dominion and control, there was no valid gift, and nephew was not entitled to the contents • 7) FINAL EXAM QUESTION: Giving someone a treasure map is not the same as giving someone a key because the donor still has access to the treasure (analogous to the 2 key sits) ***If both parties maintain dominion & control, then there is not a valid gift ***If actual delivery is relatively inconvenient, then expressing donative intent AND giving donee the means to access counts as delivery

II. Types of Gifts 1) Inter Vivos • Gifts are made by donors who expect to live for awhile • Ordinarily not revocable • Inter vivos gifts give to donee immediately Gruen gave son future interest in painting & retained . Ct. holds its inter vivos. • Person on deathbed can make inter vivos gift. ○ Depends on intent of donor  intent for it NOT to be revocable Newell given ring by friend on deathbed. Newell insists he take ring back when doesn’t die. When he actually dies, Bank refuses to give back to Newell. Ct holds it is inter vivos since not meant to be revoked. 2) Causa mortis • Gifts made by donors in fear of death from existing disease or impending peril • Allows for gifts with conditions subsequent b/c its revocable • Assumed that deathbed gift is causa mortis, unless evidence of intent of irrevocability 3) Testamentary gifts • Gifts made by wills (not enforced until 1540’s Statute of Wills) • Requirements: • Must be in writing • Must be subscribed by the testator • Must be witnessed by 2 or 3 persons • Upon writing a will, the future beneficiaries gain NO legal rights (until death) • Therefore, the testator can change or revoke the will at any time • Testamentary gifts give NO future interest  doesn’t commence until death

VIII: The Estate System

Types of Estates, classified by Potential Duration Greatest Duration 1) Absolute: potentially perpetual duration ○Defensible Fees: Conditions attached to Fee Simple Estate is set up to expire or be divested (cut short) if a specific event occurs  Commonalities: 1) terminate by specific event, 2) terminate before line of heirs runs out a) Fee Simple Determinable: upon termination, land goes back to grantor b) Fee Simple on Condition Subsequent: c) Fee Simple on Executory Limitation: upon termination, land goes to 3rd par. 11 2) 3) Life Estate 4) Term of Years 5) Periodic Tenancy: Leaseholds that last week to week, month to month, etc. 6) Tenancy at Will Least Duration

FEE SIMPLE TERMINATES LAND GOES TO FUTURE INT. Determinable automatically grantor possibility of reverter Condition Subsequent grantor’s election grantor right of re-entry Executory Limitation automatically 3rd party executionary interest

Breaking it Down: 1) Fee Simple Absolute ● Fundamentals of Fee Simple Absolute ○ Duration: Potentially perpetual ○ All other estates are “carved out of” it •All other estates are called “particular estates” ○ Estate of general inheritability • Descends to line of heirs • Esheat: when line of heirs runs out, to state ○ Typical Creating Words: “to A and his heirs” ○ Stating purpose of the conveyance in deed DOES mean that interest in land terminates once the purpose is over (majority) ○ Minority: no language of reverter = fee simple absolute (minority Station Associates: land “granted, demised, released, and conveyed.” Didn’t say what would happen when ceased to be used as life saving station. Ct. follow minority  no specific lang re reverter = fee simple abs.

1a) Fee Simple Determinable ● Fundamentals of Fee Simple Determinable ○ a.k.a. fee simple on special limitation ○ Duration: Potentially perpetual (potential for termination) ○ Key Feature: the “special” limitation • The limitation does not have to be related to the land itself • Typical Creating Words: • “To A and his heirs” + words of duration ○ Words of duration: during, while, until • Examples • To X and his heirs so long as the land is used for agricultural purposes • To X and its successors and assigns while the land is used for school. • To X and her heirs while Cordville remains an unincorporated hamlet. • To X during the time that he takes care of me. • To X for 10 years, or until breach of , whichever is first. • Right to repossess: Possibility of reverter: possibility that possession might revert to GRANTOR if specific event occurs • Generally (in many states, including NY), you don’t need specific language about reverter as long as there is specific language about duration • Exception: North Carolina (as shown by the above Dare Co.)

12 1b) Fee Simple on Condition Subsequent ● Fundamentals of Fee Simple on Condition Subsequent ○ Duration: Potentially perpetual ○ Key Feature: the “condition subsequent” 1) Specific Event occurs 2) Grantor chooses to exercise his right or re-entry & take possession ○ Typical Creating Words: • “To A and his heirs” + words of condition + words of re-entry (not automat) • Words of Condition: on the condition that, provided, but for, ect. • Examples • To X and his heirs but if the land used for non-agricultural purpose, grantor may re-enter. • To X and its successors and assigns on the condition that land used as school. • To X and her heirs provided Cordville remains an unincorporated hamlet. • To X for life but all rights to land return to me @ my choice when he stop taking care of me. • To X for 10 years; in the event, however, that there is a breach lessor may immediately or as soon as practicable, resume possession. ○ Right to repossess: right of re-entry or “power of termination (waivable): possibility that possession might revert to GRANTOR if specific event occurs • Must be exercised through judicial process • Right of entry is governed either by a special statute of limitations OR otherwise the statute of limitations of ejectment ○ Courts today will generally look at the whole document, along with all of relevant facts and circumstances ○ Court’s Hierarchy of Preference •Fee Simple Absolute •Fee Simple on Condition Subsequent •Right of Re-entry can be waived, and thus forfeiture is easier to avoid •Fee Simple Determinable ○ Differences b/w: FEE SIMPLE DETERMINABLE FEE SIMPLE ON COND. SUBS. Possibility of Reverter Right of re-entry Automatic Requires election Forfeiture non-waivable Forfeiture waivable Words of duration Words of condition, re-entry Holdover PCDG is ok Holdover PCDG is not ok

2) Fee tails ● Fundamentals of Fee Tails ○ CAN be conveyed, but CAN NOT be conveyed in a way that cuts off the heirs (unlike fee simple) •Then conveyor’s heirs will still inherit the land upon the conveyor’s death ○ Words of Conveyance: • “To A and the heirs of his body” • “To A and the heirs male of his body” • “To A and the heirs female of his body” • “To A and the heirs of his body…” ○ Estate of special inheritance lineal descendants only (not collateral heirs) • Lineal = children, grandchildren, great grandchildren, etc. ○ Grantor retains reversion or (if required heirs run out, the land goes back to 13 the grantor which is likely since its only lineal heirs) ○ Considered obsolete today

3) Life Estates ● Fundamentals of Life Estates ○ Limited to the life of the individual • Life estate pur autre vie – a life estate for the duration of a third party’s lifetime • Ex. “to A for the life of B”  If A dies before B, Then nobody has a right to possession. So, whoever takes possession cannot be ousted. Once B dies, the land reverts to the grantor ○ Life estates are NOT estates of inheritance (no heirs) ○ DOCTRINE OF WASTE (applies just to LE?): right of future interest holder to receive the land as the present interest holder did. Ordinary wear and tear acceptable. • Voluntary Waste: cause the waste yourself by affirmative action (cutting trees) • Permissive Waste: permitting premises to decline by not taking care of them • The tenant has to make ordinary repairs, but does not have to make extraordinary repairs (eg Must fix pluming, window, ect.) Estate of Jackson: Before she dies, hail storm house. Permissive waste  she had a duty to take care of hail damage during her life. • Ameliorative Waste: making positive changes to the property; however one person’s improvements is another’s waste & future should get same state as pres. • Failure to pay taxes on life estate can give rise to cause of action in waste ○ NOT revocable ( is) ○ Intent of testator, based on entire language of will & characteristics of conveyance, dictates interest beneficiaries will receive Estate of Kinnert: Deceased lets adopted sons occupy house for rest of lives, as long as don’t leave for more than 60 days. Ct. holds although it looks like license, its determinable life estate b/c of intent • D claims was devise  transfer of REAL ESTATE by will (wants inheritance taxes) • P claims will bequested license: ○ Bequest: transfer of by will ○ License: privilege to live on land & do certain acts, but not exclusive possession ○ Reservation: carves out a new interest for the grantor (eg. easement) • (Humbach hates): grantor can ONLY reserve interest for himself, not 3rd party (rule in NY) • Humbach: should be able to have reservation in 3rd party. Nelson grants Irene Parker life estate, then future interest to Daniel. Problem  Nelson drafted deed as though life estate already existed. Ct. follows Humbach rule  can have 3rd party reservation  trying to follow intent of grantor.

II) Future Interests ● Fundamentals of Future Interests ○ Five Kinds of Future Interests • Following a fee simple : • Possibility of reverter (retained by transferor) • Right of re-entry (retained by transferor) • Executory interest (retained by someone other than the transferor) • Following a “lesser” (particular) estate: • Reversion (retained by transferor) • Remainder (retained by someone other than the transferor)

○ Reversion: if grantor of life estate doesn’t specify who gets interest when life estate person ○ Remainder: future interest in someone other than transferor that must take effect, if at all, 14 immediately upon the natural expiration of a preceding freehold, particular estate.** ○ CONTINGENT: remainderman’s right to immediate possession is subject to condition precedent. • B doesn’t get possession unless something happens first • Three ways to be contingent: ○ To unascertained persons • “Remainder to B’s 1st child to reach 21, and his or her heirs” ○ To unborn persons • “Remainder to B’s next born child and his/her heirs” ○ Subject to occurrence of some specified event • “Remainder to B and his heirs if B marries C” ○ Conditions: • Condition precedent: pre-condition that must occur before possession • Condition subsequent: something who’s “after the fact” occurrence that will cut off (divest) right to present/future interest • “Vested subject to divestment” ○ VESTED: remainderman’s right to immediate possession w/out preconditions • B takes w/out further ado, once life estate ends • All remainders except contingent remainders  remainderman is born, ascertained, and no specified even need occur before possession. ○ Other terms: • Shifting Interest: future interest created to give property to 3rd parties • Springing Interest: future interest created to cut off a grantor’s reversion on the occurrence of some event. Possession directly following grantor’s poss. ○ Contingent Remainders can’t spring out of term of years (vested rem. can) ○ Statute of Uses  Allowed for springing and shifting executory interests “To A and his heirs, but if liquor is served on the property, to B and his heirs” ○ After Statute of Uses  this conveyance creates a fee simple on executory limitation in A, and a shifting executory interest in B

IX: Statute of Uses & Rule against Perpetuities

I) Statute of Uses ○ Goal: to get rid of the “uses” (via trusts?) and to eliminate trustees • Wants to turn trustees’ estates into NA & create bare legal titles in beneficiaries ○ Method: To execute the uses, i.e. convert the equitable interests into legal interests • It transferred the legal title to the beneficiary ○ Primary impact: converts equitable springing & shifting interests into legal executory interests, makes possible to create exec. interests for first time (void before under the Rule) ○ Result: the creation of trusts ○ Trust: • Allows you to split the title of the property into two parallel and simultaneous titles  “legal” title and “equitable” title. • Trustee gets LEGAL TITLE • Beneficiary gets EQUITABLE TITLE **Trustee just has duty of ownership, beneficiary gets benefits • Point is to evade certain legal consequences  arose to get around restrictions on land use (e.g. for benefit of wife & clergy) • Wording ○ “To A for the use of B”→→○“To A for the trust of B” 15 II) Two Doctrines now Obsolete b/c Rule against Perpetuities ○ Rule in Shelly’s Case • Two Conveyances: I. “To A and his heirs” II. “To A for life, remainder to A’s heirs” • How it was read: • Read II the same as I • A gets a fee simple • No contingent remainder to heirs • Why is it now obsolete? ○ Doctrine of Worthier Title • Idea is that title is worthier if it is inherited rather than purchased • Wills • If a transfer by will is the same as what would have been inherited, then the will is invalid as to that point and the transfer is made through inheritance (passing through will is considered “purchase” in the law) • Inter vivos grants: • “To A for life, remainder to O’s heirs” • A gets a life estate • O gets a reversion • If O’s heirs ever take, they take through inheritance from O • Why is it now obsolete?

III) Rule against Perpetuities ○ A contingent interest is void if it does not vest within a life in being + 21 years ○ Goal: to prevent dead hand control & to get rid of contingencies remaining open too long/prevent land from being tied up for long periods of time **Most important doctrine for people to control land after it has been transferred ○ How to approach a problem: • Look at the TIME of the conveyance • Is there any possible way that the future interest will not vest within allotted time? You must KNOW the interest will vest w/in life in being + 21 years • Measuring life can be anyone  grantor, tenant, or person capable of producing members of a class • Class gift: class must be closed   must be IMPOSSIBLE to add new people to the class on the date that the trust closes. ○ Three doctrines to avoid Perpetuities problem: *Some courts modify the Rule by these techniques*: • Wait & See Doctrine: although may theoretically violate RAP, court should wait & see if it actually violates it • It it doesn’t violate it, it’s cool • If it does, court will save it by adjusting age contingency ** Court takes this approach here • Abolishing All or Nothing Rule w/respect to class gifts • Implied Savings Clause: court will insert savings clause so that gift is effectuated as near as possible to donor’s intent. Estate of Anderson: Educational trust created for 25 yrs to nieces/nephews, then to Howard (now 53). Contingent interest void  ○ Class is open b/c unascertainable who’s in class (25 yr window where you don’t know how many nieces will be born or die  years 21 -25 can still be born/die ○ What would make it vest? If Howard died < 25 years and could be determined who heirs are 16 ○ RoP designed to carry out testator’s intention  applies wait & see doctrine Symphony Space: D sold SS (non-) for tiny amt w/multi-conditional buy back option. P defaulted, D tried to get it back  purchase option void under RAP b/c option (multi-conditional buy back) is exercisable/open for more than 21 years  void. HUMBACH HATES  strict application RAP

● Hypos A has one child  “x” who is age 2 1) “To A for life than to A’s first grandchild and his heirs” •Void: Grandchild could be born more than life in being +21 years  don’t know when/if grandchild will be born 2) “To A for life then to A’s eldest child to survive him and his heirs” •Valid: At the moment of A’s death, we know who has the interest 3) “To A for life then to A’s first child to reach age 18” •We may not know which child will be the first to reach 18 within A’s lifetime • If X is the first child to reach age 18, then he could be the measuring lifetime • If X is not the first child, but another child is the first to reach age 18, then that other child would reach 18 at the most 18 years after A’s death. • Valid • A is a measuring life  if A dies now, X will reach age 18 in 16 years, which is less than 21 years. Thus, interest would vest in life in being (A) + 21 years 4) “To A for life then to A’s first child to reach age 25” •Void • A is not measuring life  if A dies now, X would reach age 25 in 23 years, which is more than 21 years after his death. Thus, soonest the interest could vest is A + 23 years • X is not measuring life  X could have kid reach age 25 more than 21 years after his death 5) “To A for life then to A’s first child, now alive, to reach age 25” • X is the only child alive at the time of conveyance, so he is the only one who can take 6) “To A for life then to A’s children who reach age 25 and their heirs” • Class Gift • “All or Nothing Rule”: all the members of the class must have valid interests, or nobody’s interest is valid • Void. We may have to wait more than 21 years after X and A’s deaths to find out if a child reaches age 25. • When dealing with a corporation, there’s no life in being at all, and so the Rule boils down to merely 21 years. • Fee simple on executory limitation to a corporate body, rather than a human being, The executory interest will usually be void if there is a chance it will vest later than 21 years after the conveyance. • You best do something to create a life in being, so that the Rule Against Perpetuity won’t apply 7) “To A for life, then to A’s widow for life, then to A’s eldest surviving child” • Void. Could be a different widow that wasn’t born yet at time of conveyance

X: Leasehold Estates

I) Introduction to Leasehold Estates ○ NON-FREEHOLD ESTATES: Greatest Duration 4) Term of Years: “on or before a definite date” 5) Periodic Tenancies: from month to month, year to year, ect. 6) Tenancy at Will Least Duration

17 Breaking it down: 4) Term of Years ● Fundamentals of Term of Years ○ On or before a definite date  when term ends, tenancy ends ○ Usually, maximum term is 99 years ○ Created by a demise: landlord demises interest to the tenant • Creates a term and a reversion • Landlord = reversioner • Tenant = termor ○ Statute of Frauds (1677): • If the lease is for over a year, it must be in writing per SOF otherwise its void • Oral leases for more than year become tenancies at will • Eg. Oral lease for 15 months  not valid for ANY period b/c TAW • Void doesn’t mean “void”  only means the duration clause would be void • Provisions other than duration will be enforced within TAW ○ No additional notice is required (you get your notice when you start) ○ Holdover Tenant or Tenant at Sufferance  tenant who possesses > term of years • Landlord can bring a trespass action OR hold tenant to a new term

5) Periodic Tenancies ● Fundamentals of Periodic Tenancies ○ Indefinite in duration ○ Created by: • Express agreement • Implication upon a VOID lease (S of F) ○ Key Features: • One long continuous tenancy (not discrete terms) • Weekly, Monthly, yearly • The reservation period determines the kind of tenancy, not payment per. (eg. We have yearly reservation, but we pay month to month) • Required notice to terminate: one term at end of previous term • Must be definite & unequivocal 28 Mott Street: Must be in STRICT compliance w/statutory guidelines  landlord did not state date landlord elected to terminate

• At least one term beyond when the notice is given • Eg  month to month tenancy requires one month notice • BUT, year-to-year tenancy requires SIX-month tenancy • May be terminated only at end of a period  need both term and period requirements to make notice valid ○ Improper notice  ineffective termination ○ Eg: Suppose a tenancy from month to month beginning November 15… Earliest possible termination? • January 15th • As of November 16, the next period ends on Dec 15, but that’s less than a month away, so it is not within the notice period • Therefore, the earliest termination is January 15th ○ Tenancy at will becomes periodic tenancy when rent paid/received on weekly, monthly, yearly, ect. basis. 28 Mott Street  Never arrive at agreement & tenant moves in. Pays under yearly reservation & 18 pay bi-monthly. Landlord gives 30 days notice, tenant brings action. Tenancy at will  periodic tenancy.

6) Tenancy at Will ● Fundamentals of Tenancy at Will ○ Lasts as long as either landlord or tenant desires. No set duration. Both parties have right to terminate at will (so you just have to have 1 person’s will? Garrish?) ○ Often by statute, reasonable notice to quit or vacate must be given Garner v. Gerrish: Lease to D said start date until date of tenant’s choice. Tenancy at will  no duration in will & tenancy goes on for as long as either party chooses (but I thought it was terminated by either party as any time?) ○ Summing Up: • Life estates measure by someone’s lifetime • Term of years are set to terminate on a specific date • Tenancy at will can be terminated by any part at any time

● Fundamentals of Tenancy at Sufferance ○ Created when tenant wrongfully held over ○ Endures only until landlord evicts or elects to hold over to another term. ○ Landlord still entitled to rent from tenant at sufferance.

II) Landlord & Tenant ○ Landlord-Tenant Relationship, Landlord Breaches, Tenant Breaches:

1) Landlord & Tenant Relationship ○ Dual relationship  leases have both property and contract rights • Privity of Contract: Legal Relationship based on Promises ○ Landlord’s promise to allow possession ○ Tenant’s promise to pay rent • Privity of Estate: Legal Relationship based on Ownerships ○ Landlord conveys possession to Tenant, for whole term ○ Rent is reserved by Landlord, captured by Tenant for Landlord (Like selling the cow but reserving the milk) • Doctrine of Quiet Enjoyment (privity of contract or estate?) ○ Right to quiet use & enjoyment of premises w/out interference from L ○ Enjoyment by means of possession ○ Applies to both residential & commercial leases ○ Implied promise by landlord for quiet enjoyment ○ Principle of overlap  rights and duties in basic rent-possession relationship • “Strange Results” that come about b/c of the interplay of the 2 privities ○ Non-payment of rent  no common-law forfeiture (Privity of estate blocks the K remedy of non-performance) ○ Eviction extinguishes rent obligation • But “eviction” requires ouster by: • Landlord • Paramount title holder ○ Actions of 3rd parties, accidents  no effect on rents • T as “owner” bears risks of ownership • T has ejectment action against 3rd party ○ “Independence of Covenants” (covenant = promise in /leases) 19 • Promises in lease are INDEPENDENT  not dependent on perf. of other party’s promise (unlike K law) • Usually overlap is indistinguishable but sometimes privities become unraveled

○ : conveyance of leasehold for full term of the lease • The basic relationship: ○ T1 (assignor) assigns lease to T2 (assignee) ○ Assignee (T2) takes tenant’s position in the Landlord/Tenant position and the original Tenant is no longer in any relationship (sort of)… • T2 and L are in privity of estate (b/c the ownership changes b/c its for good) ○ So no chain of payment, b/c T2 now has ownership ○ Assignee (T2) liable on covenants that run w/the land  3 things: • Intent to run with the land • Touch and concern the land, about the use of real estate • Privity of estate (always privity in estate b/w L & T) • T2 and L are NOT in privity of K • L and T1 remain in privity of K, but do not remain in privity of estate • T1 is like co-signer  if T2 does not pay rent, T1 will have to pay Tri-City: Mere fact that landlord contents to assignment does NOT release T1 from paying; must have clause that explicitly says it like here. • L could sue either, but T2 would have primary obligation to pay (poss) • If T2 didn’t pay, T1 could sue in subrogation to get reimbursed • Majority: if tenant abandons, he is still liable for rent. • Minority: if tenant abandons, NOT liable for rent Tri-Cities abandon property. Minority rule  not obligated to rent. • Novation: L and T2 make new lease • T1 is off the hook and T2 has all the responsibilities in both privities

○ Subletting: reversion (or right-of reentry) back to leasor ACS: 2-day reversion is a sublease New L/T relationship: Landlord  Tenant  Subtenant • Subtenant becomes tenant of orig. tenant, aka T1 is prime tenant & landlord to subt. • Prime tenant (T1): ○ Remains in privity of estate and K w/landlord • B/c I’m going to have a chain of payment to Rosa (Nicole  me  Rosa) • Privity of estate is very valuable ○ Retains a reversion interest in land being transferred • Prime landlord: ○ Can refuse subtenant’s rent ○ He has no relationship w/subtenant • Traditional Rule: landlord can withhold consent to sublet for any reason, if it is not specified in lease ○ Modern Rule: impose standard of reasonableness for w/holding consent??? Julian: Landlord will not allow sublet of upstairs apt. Modern rule  landlord can’t w/hold consent, unless its reasonable.

2) Landlord Breaches ○ Eviction severs the privity of estate & privity of K • Cancels the obligation to pay rent ○ Two Kinds  Actual eviction or Constructive Eviction • Constructive Eviction: landlord makes the premises “untenantable” ○ Breach of duty by landlord 20 ○ Notice ○ Tenant abandons possession • Need full abandonment (not partial) (Moe’s Pizza) ○ Rent obligation ceases Blackett successfully brings constructive eviction claim b/c bar playing music too loud. Case turned on fact that landlord owned premises & bar was his tenants. ○ of : lessor is responsible for the quality of the product • Main Exchange (traditional): ○ Rent  Possession ○ Lessor NOT obligated to make repairs, unless it was written into lease • Main Exchange (modern): ○ Rent  Possession + Services • Reasons for Implied Warranty of Habitability: ○ Custom, usual practice, practical necessity  centralized repair & service responsibility ○ Residential T must rely on L for upkeep ○ Legal Theories: • Requirements of law are implied into lease • Intention of parties: “livable” ○ Standards of habitability (Park West) • Housing codes (substantial violation = prima facie evidence) • Suitable for purpose for which leased (residence) • Threats to tenant health & safety • More than de minimis • More than merely not “perfect” or “non-aesthetic” • Implied Warranty of Habitability CANNOT be excluded from lease • Remaining problem: “independence of covenants” ○ Javins/Park West Solution • Treat leases like ordinary • BUT Ks don’t work b/c two K principles contradict each other: ○ Material breach by one party excuses the other ○ Acceptance of a defective performance eliminates the excuse ○ BETTER SOLUTION  Conveyance Theory • Courts abhor forfeiture • Anybody who has breached can cure it by $  if the violation can be cured by $, the court should relieve it against forfeiture. • As a result, tenants can w/hold their rent w/out much fear of eviction! ○ Modern Rule: Mutual/ Dependent covenants  landlord breach is a significant inducement = tenant can disregard his obligations • Traditional Rule: independent covenants (so are covenants dependent or ind????) Wesson: D notifies landlord of leaky roof and after 4th repair, still not fixed. No constructive eviction, but can get out based on theory of mutual covenants  landlord didn’t fix roof which directly interfered w/his business (significant inducement), so D could disregard his obligations

3) Tenant Breaches (Rules of Mitigation) ○ If T wants to terminate early  • Surrender ○ Traditional View  Landlord can accept or reject the surrender • Abandon (wrongful) ○ If T wrongfully abandons, L may: 1) Do nothing & hold tenant for full rent 2) L accepts “proffered surrender” and L can relet for own account to new T ○Tenant gets off free **NOTE: 1 & 2 can’t be done together 21 3) Notify T that L is entering & reletting on T’s account (Holy Properties) • L rents the property as an agent for T and T will be responsible for any shortfall/deficency ○ What about if T attempts to relet w/o notification? • Emerging law is that L HAS OBLIGATION TO MITIGATE (find new T) ○ In K law, there is no duty to mitigate **Depends on what state your in if there is a duty to mitigate Holy Properties follows traditional rule  no duty to mitigate  landlord can collect full rent. • It = “acceptance of proffered surrender” • Exception: “survival clause”… ○ L allows surrender but then acts as T’s agent. If relet is for less than T’s rent, then T is liable for the difference • Note the difference: • L sues for rent as it accrues (estate; no mitigation) • L sues for damages, for anticipatory breach (mitigation “required”) ○ Other Possible Rule: • If T abandons possession w/out justification, L must make reasonable efforts to relet (aka MITIGATE) • Criticisms of this rule  not ordinary K law to require mitigation of this sort

XI. Concurrent Ownership

I. Background of Concurrent Ownership ○ Two or more people having right to possess land at the same time (1) Tenancy in Common (2) Joint Tenancy (3) Tenancy by the Entirety •  Civil Law Doctrine, only applies to 8/9 states (CA, TX) ○ Each owner has an undivided right to possess the entire parcel** Martin: One couple had 7/8 interest, other has 1/8. Couple w/7/8 rents to others. BOTH couples have right to possess whole, AND have to share income they receive from 3rd parties.

II. The Different Types of Concurrent Ownership ○ TENANCY IN COMMON • Each co-tenant has an undivided part interest in the property ○ Can hold different shares; doesn’t have to be equal (eg. 7/8 v. 1/8) ○ Can hold different interests/estates (eg. A =life estate & B = a fee simple) • **Modern rule  presumption of Tenancy in Common** (ct. likes heirs) • Interest is inheritable/conveyable  will, deed, inherited via intestate succession ○ If A or B dies, that one’s heirs will get 50% • Can rent the interest you have • Conveyance  “O conveys Blackacre to A and B” ○ JOINT TENANCY • Each co-tenant has an undivided equal interest in the property • Right of Survivorship  when 1 tenant dies, other(s) have automatic right of succ. • The Four Unities ○ Time  interest in joint tenants must be created at the same time ○ Title interest in both tenants must be created by same instrument (eg deed) ○ Possession  both joint tenants must have complete right to possession ○ Interest  both joint tenants must have identical interests 22 • Eg. 2 people  undivided 1/2s; 3 people  undivided 1/3s • Can convey interest, but then it becomes a tenancy in common ○ NOT devisable/inheritable • Conveyance: ○ “To A and B as joint tenants” (Majority Rule) (NY), OR in some states Downing: Words “joint tenancy” W/OUT right of survivorship is enough. ○ “To A and B as joint tenants w/rights of survivorship” • Often used as a “will substitute” • Traditional Rule  presumption of Joint Tenancy ○ Courts disfavor b/c passes to other tenant, not deceased’s heirs. Rude surprise could happen if people didn’t know they created joint tenancy. ○ TENANCY BY THE ENTIRETY • Only possible between husband & wife • Like joint tenancy • Automatic right of survivorship • Each has an undivided equal interest ○ Not devisable, inheritable, conveyable ○ Neither party can unilaterally convey • Interests of each are indestructible (actually, are destructible by divorce) • Conveyance  presumptively created if married (Prario v. Novo) • UNLESS, it specifically says it’s a joint tenancy or tenancy in common • Note: If you think you’re married but you’re not  joint tenancy ○ Solutions for disputes about use of concurrent tenancy/disposition: • Management Agreement  better solution • : ○ Voluntary ○ Compulsory – the court carves up the property • Doesn’t usually work by dividing up the actual property, but rather the court will order a sale and then divide up the proceeds • Goal of sale partitions is equity • Guaranteed way of getting lowest price for your property!

● Humbach’s HYPOS ○ A & B are tenants in common. B dies. • A and B’s estates as tenants in common ○ A & B are joint tenants. B dies. • A owns the entire estate. Is a tenant in severalty (sole owner after a joint tenancy is extinguished) ○ A & B are joint tenants. A conveys her interest to X. • B & X are tenants in common • If a joint tenant conveys his interest to a third party, then the third party and remaining joint tenant would be tenants in common • Conveyance of a joint tenant’s half severs the joint tenancy and converts it into a tenancy in common ○ After the above conveyance, B dies. • X & B’s estate are tenants in common ○ A, B, and C are joint tenants. A conveys her interest to X. • B & C continue to be joint tenants of the 2/3 interest (1/2 each), and are tenants in common with A, who has a 1/3 interest ○ A, B, and C are joint tenants. A conveys her interest to C • C has a 1/3 tenancy in common 23 • B & C have an undivided 2/3 interest as tenants in common with C, and B&C are joint tenants of the 2/3 interest (1/2 each) ● If B dies… • C gets B’s ½ of the 2/3 interest, and thus owns the entire parcel ● If C dies… • B gets C’s ½ of the 2/3 interest, and C’s heirs get the undivided 1/3 as tenants in common

III. Marital Stuff ○ Creditors & Tenancy in the Entirety: • Two rules (states almost split 50/50) ○ Creditor can’t get anything b/c neither spouse can convey his share ○ Creditor can get levy against one person’s interest, but it’s not desirable b/c then he has to share it w/the other person Sawdo v. Endo: Fraudulent conveyance where dad tries to convey his interest to son after car accident to protect from creditors. ○ Who owns the wedding gifts? • Historically, the wedding presents all belonged to the wife • Today, the couple probably owns the gift equally • However, it is the donative intent of the giver that really counts ○ Common Law Rule (and actually still the rule): • In a marriage, each spouse is on “his/her own footing” with regards to property, UNLESS there’s been specific intent of donating to the other ○ Husband & Wife • Seisin jure uxoris – women could be “owners”, but seisin would be held by husband • Married Women’s Act  overturned the hold common law of seisin jure uxoris Following is abolished by it: ○ Dower: Gave surviving wife a life estate in 1/3 of all lands of which husband was seized at any time during coverture ○ Curtesy: Life estate in all freeholds provided issues was born alive • Dower & Curtsey have been abolished in favor of Statutory Share: ○ Gives surviving spouse a right to ½ or 1/3 of the husband’s estate irrespective of what the wills says • Is career marital property? ○ Nature and extent of the contribution by the spouse seeking equitable distribution, rather than the nature of the career, should determine whether career is marital property. Elkus did contribute to his wife’s success as a singer, so he is entitled to equitable distribution

IV. Community Property ○ Civil law doctrine (borrowed in many common law jurisdictions) ○ Exists in 9 western states (i.e. TX, NM, AZ, CA, WA, ID ○ Basic notion: Everything shared 50-50 ○ Acquired during marriage as: • Earnings • Income from community property • Proceeds from community property (sale of community property) ○ Community property, UNLESS Separate Property: • Owned before the marriage • Acquired by gift, inheritance or devise • Income from separate property (except ID, LA, TX) 24 ○Control: • “Head and master” rule ○ Husband owned control – sole decision making power • 14th Amendment ○ Mid 80’s  “Head and master” rule was found unconstitutional ○ When community property is brought into a non-community property state, it becomes tenancy in common.

XII. Concurrent Ownership

Incorporeal Interests: interests that do NOT give a right to possess ○ ○ Real Covenants ○ Equitable Servitudes

I. Intro to Easements ● Fundamentals of Easements ○ Incorporeal interest ○ Right to make limited use of land, rather than general right of use to possess • Most common = “the right of way” (i.e. driveway over a parcel of land) • Easement for pipes or other conduits • To Fishing, hunting, “take turf”, “take firewood” ○ Profits a prendre (“Profits”) • “Benefits for the taking”  Right to go on someone’s land and take something from soil (i.e. mineral, timber, oil, goal, coal, ect). ○ Easements don’t have to be adjacent to the land they are benefitting ○ Terminology: • Servient Tenement: land subject to/burdened by the easement • Dominant Tenement: land that gets the benefit of the easement • Appurtenance of the dominant tenement: part of the rights of dominant tenement; • Easements in gross: not a subsidiary right, but the whole entire property right in itself (personal right of E-owner) ○ Kinds of Easements: • Affirmative  right to go onto someone’s land to do something • Negative  right to prevent the subservient owner from doing something ○ Light and air ○ Blocking a view ○ Natural easements ○ distinguished • License = revocable; Easement = IRREVOCABLE license • “Personally” indicates license (or easement in gross) • Factors to look at when considering easement v. license: 1) Created by warranty deed – suggesting an interest in real property 2) The word “grant” is used • License: word “permit” is used 3) Specific words of inheritance were used 4) No rights of revocation are withheld • Cooper v. Boise Church (Church allowed to put up electric sign on P’s land  license) ○ License b/c: • Price paid was nominal 25 • Not practical to have an easement for a large neon sign • Person who granted the right was not the true owner

II. Creation of Easements ● Types of Easements: ○ Express language in deed (the normal way to create easement) ○ Implication in a deed ○ Prescription “adverse possession” equivalent ○ Easements by estoppel (aka executed parol licenses) (Mund v. English) ○ Easements in invitum

Breaking it down ○ Express language in deed (the normal way to create easement) • Express grant Brown v. PA Central (RR stopped operating & abandoned their right of way. Ct. holds its an easement  when an easement is abandoned, its extinguished. • Express reservation: someone conveys land to someone else & retains easement over the land conveyed • “Personally” is consistent w/license  HUMBACH says easement in gross Simmons v. Abbondandolo (Seller sold portion of land & “reserved an easement” Ct held it was license (not assignable/limited duration). HUMBACH = easement in gross.

○ Implication in a deed • Implied grant (Grantee gets easement upon transfer) • Implied reservation (Grantor keeps easement upon transfer) • Has to be a specific deed that implies the easement (can’t be implied out of nothing) ○ Based on Prior Use • Prior use ( = quasi-easement) • Apparent (& continuous) ○ Continuous: must look like permanent use ○ Apparent: something about servient parcel that shows use is being made at time of conveyance • Driveway, car tracks, etc • Underground use (i.e. pipes) can be  based on manholes, ect. VanSandt v. Royster (P not aware of sewer line when he bought property). Something can be apparent but not visible. • Necessary ○ “Reasonably necessary” for implied grants  favors grantee • Grant should be construed to give bargain to grantee ○ “Strictly necessary” for implied reservations  favors grantor • Seller trying to impose on buyer (wants to retain a right) • Courts more hostile towards ○ By Reference to a Subdivision Map • When deed describes property conveyed “by referring to a subdivision map that shows streets” ○ Streets appurtenant to the lots are implicitly able to be used by the owners of the lots • Majority Rule  can use ALL of the streets on the maps • NY Rule  can only use “most direct route” ○ By necessity • Proof of severance 26 ○ Must show WHEN your land went from common ownership to ind. • Absolute necessity at time of severance ○ When dom. & servient were severed, it was absolutely necessary ○ Boat access does not cut off claim of absolute necessity. Morrell v. Rice (Land accessible by boat. No easement was ever created). Ct. says there is easement by necessity. HUMBACH says necessity should have been viewed from TIME of CONVEYANCE. • No interruption of necessity •Interruption of necessity  cannot be revived

○ Prescription “adverse possession” equivalent ○ “Adverse” actual user • When both parties use driveway for entire SOL, each has obtained an easement and is acting under claim of right. It’s not permissive. Paxson v. Glovitz (Glovitz built fence in middle of shared driveway. Since both parties occupied for full SoL (previous owners had easement), each acquired easement by prescription). ○ Continuous & uninterrupted ○ Under claim of right (not subordinate) ○ Without “knowledge & Acquiescence” of servient owner ○ “Exclusive”

○ Easements by estoppel (aka executed parol licenses) (Mund v. English) • A license created by words alone (parol) that has somehow been effected by being “executed” • Normally, easement only valid in writing (SoF). Oral easements only valid as long as grantor wishes  licenses. • BUT, if in reliance on the permitted use, the licensee makes improvements (spends money, etc), THEN, estoppel applies and the right to use becomes irrevocable  easement by estoppel. • Reliance must be reasonable. Mund v. English (Son & mom install well on mom’s prop and share construction costs. Son builds house. Equitable estoppel b/c made valuable improvements (build house) in reliance on well.

○ Easements in invitum • Easements by force • Created when someone goes ahead and takes it • Also known as private eminent domain • Two Approaches: ○ Disproportionate Hardship concerns: court imposes an easement on one’s land for another b/c he needs it very much. ○ Different (Minority?) Approach: court will allow owner to stay, as long as he pays fair $ Goulding v. Cook (Ct. orders Gouldings to move septic tank in Cook’s yard  min rule) III. Scope of Easements ● Fundamentals of Scope of Easements ○ Generally determined by the language of the deed ○ Can easements be relocated unilaterally? Davis v. Bruck, Lewis v. Young • General Rule: No. Creation of an easement is for a specific location. Can only be moved if mutually decided. • Minority Rule (NY): Yes. Can unilaterally relocate the easement if it doesn’t burden the other party (or easement owner?). ○ Scope of easement presupposes that needs of dominant tenement will change and 27 scope can expand to meet those needs ○ Appurtenant easements have definite dominant tenement  owner cannot add onto dominant tenement (aka can’t add a piece of land to it) ○ Increasing the physical burdens on an easement do not count as misuse of easement.

IV. Real Covenants ● Fundamentals of Real Covenants ○ Runs w/the land; attached to the land (like easement) ○ Three requirements to distinguish from personal covenant: 1) Intention to run w/the land • “Binding upon and inures the benefit of…__ and his successors” • Orange v. Rockland: Absence of covenant is not dispositive  if it benefits the land to whom it is made, there is a presumption that it is valid. 2) “Touches & Concerns”: can only affect the person as applied to the land Ways it can touch and concern: • Physical Effects Test  if it physically effects the land, it touches & concerns • “Economic” or “practical approach  if performance of covenant effects value/use of land, it touches & concerns • Two biggest problems: ○ Can an affirmative covenant touch & concern? YES (most states) ○ Covenant to pay money touch & concern? YES. • B/c it affect the way the land is being used • Eg. Community associations 3) Privity of Estate: whoever owns land from time to time, bound by covenant ○ MAJORITY: vertical and horizontal ○ Minority: just vertical ○ Vertical Privity (successive)  continuous lawful succession, prove all the links in the chain of the title • NO vertical privity when you have an AP ○ Horizontal Privity (simultaneous)  deed b/w covenator & covenate ○ (Mally v. Hannah)  Only have to show this property derives from the original grantor and party burdened shows that his property derived from original grantee who took land subject to restrictive covenant • HUMBACH: DON’T need NOTICE ○ Power: • Gives people total flexibility of K law to control future uses of land  especially for negative control over future uses of land (pvt land use planning)

V. Equitable Servitudes ○ Three requirements to make enforceable: 1) Notice ○ Actual ○ Constructive: once a deed is recorded, all subsequent deeds contain covenant (don’t have it written out, but purchaser is deemed to have notice) • Buyer claims his title under a deed that is under the covenant **This has made covenants very useful  very easy to get all the property under a covenant b/c only have to have it in one deed 2) Directive chain of title rule 3) Obnolescene ○ Tulk v. Moxhay (Facts: Owner to Lester Sq transfer to buyer who must keep as park. Buyer sells to 28 3rd party who knows about covenant but claims he doesn’t have to abide by it). • Equity attached to property  if you have notice of the equity, and you buy property, you are also bound by the equity (can’t profit from own breach)

VI. Termination of Easements ● Fundamentals of Termination: ○ Express Agreement ○ By prescription: if owner of servient land blocks the easement, and easement owner does not bring an action in time, then he will lose his right to sue ○ By abandonment  most ○Mere non-use does not extinguish an easement ○ Abandonment: non-use coupled w/conduct inconsistent w/making future use • Objective manifestation of intent • Eg. RR stops using easement & takes up tracks & sells them ○ Central Orgeon (Easment for hunting & fishing that hasn’t been used in 30 years). Mere non- use doesn’t extinguish their right to the easement.