Part I. An Introduction to Some Fundamentals Chapter 1. First Possession: Acquisition of Property by Discovery, Capture, and Creation A.

. Acquisition by Discovery i. Johnson v. MIntosh Discovery Rulethe first to find a non-Christian land has a right to it if they are European (originated in England) o The discoverer is the only one who can buy the land Conquest Ruleif there is land you can take it by sword Only the U.S. Government has the power to perfect(sell) the land Fundamental Principles: o Title to property, rights to property, are relative You cannot decide who has the right without first knowing the claimants o You cannot give that which you do not have o First in time, first in right B. Acquisition by Capture i. Pierson v. Post In order to have possession of a wild animal you must deprive it of its natural liberty and bring it under certain control Majority wanted certainty, peace, and order in society Dissent wants dead foxes How do I acquire a wild animal? By depriving its natural right and bringing it within certain control Theme: first in time ii. Ghen v. Rich Custom-the courts will refer to the custom and will recognize it If it is widely recognized by the trade, the law will consider it Theme: custom gives rise to inference iii. Keeble v. Hickeringill Ratione Soli o If you own the land, you own the animals o By owning the land, you are viewed as having constructive possession of the wild animals on it, not manual possession o Is this rational? o Does Keeble have P v. P possession? No, because they are not deprived of their natural liberty Hickeringill disturbed Keebles possession of the ducks Rights to land give constructive possession, meaning lets pretend o Why does constructive possession exist? Incentive for others to stay off of your property o Why is it important that we discourage trespass? If the law doesnt, people will take it into their own hands

 iv.

Reasoning of this case: o Commerce, livelihood of Keeble, constructive possession, fair v. unfair competition Theme: Business man v. bad guy Harold Demsetz, Toward a Theory of Property Rights

1. Wild Animals: in their natural state are unowned. They become private property upon being reduced to possession. a. Acquisition of Title 1. Possession The first person to exercise dominion and control over such an animal becomes, with possession, the owner of the animal 2. Constructive Possession Animals caught in a trap or net belong to the one who owns and has set the trap or net. By setting such a trap, one is said to constructively possess those animals snared. 3. Mere Pursuit Mere pursuit does not constitute the exercise of dominion and control sufficient to give the hunter a property right in the animal. However, where an animal has been mortally wounded so that actual possession is practically inevitable, a vested property right in the animal accrues that cannot be divested by anothers act in intervening and killing the animal. 4. Trespass While a land owner is not regarded as the owner of all wild animals found on his property, a trespasser who kills game on anothers land forfeits title in favor of the landowner. This is to prevent the act of trespassing from benefiting the trespasser. 5. Violation of a Statute One who violates a statute (failure to have a hunting license) forfeits title in animals caught pursuant thereto. b. Loss of Title 1. Escape If a wild animal, captured and held in private ownership, escapes and resumes its natural liberty, the former owner loses his property right in it. The animal once again is unowned, and the first person hereafter to capture it becomes the new owner. 2. Habit of Return If a wild animal escapes and, though wandering about without restraint, periodically returns to its owners home, or if, though endeavoring to escape, it is still pursued by the owner or is by other means liable to be recaptured by the owner, title is not lost. C. Acquisition by Creation 1. Property in Ones Ideas and Expressions: General Principles of Intellectual Property i. International News Service v. Associated Press This case merges unfair competition and property Quasi property= as if property

Congress should be protecting the intellectual property, the interest in the property or quasi property ii. Cheney Brothers v. Doris Silk corp. iii. Smith v. Chanel, Inc. iv. Douglas Baird, Common Law Intellectual Property and the legacy of INS v. AP 2. Property in Ones Persona i. White v. Samsung Electronics America, Inc. Property rights serve human valuesthere is a balance at work here 3. Persona: A celebritys right of publicity (the right to control he commercial value of their name, likeness, or personality) is tangible personal property. This protects people from losing the benefit of their work in creating a recognizable persona or identity. This right exists both at common law and by statute. 3. Property in Ones Person i. Moore v. Regents of the University of California Conversionunauthorized exercise of dominion and control over the property of another A property interest must be present Moore had a property interest in his cells, and the hospital took dominion and control over that property Theme: who owns it until its given up 4. Human Tissue: While a person has a property right to their own tissue, that right evaporates once a sample is voluntarily given to a third party. ii. Jacque v. Steenberg Homes, Inc. iii. State v. Shack Chapter 2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift A. Acquisition by Find i. Armory v. Delamirie Finder has every right in the world to an object, save for the true owner and prior possessor Bailment: rightful possession of goods by a person (the bailee) who is not the owner In voluntary bailment situations the courts usually bar an action by the true owner against the present possessor if the bailee has recovered from the present possessor True owner has a right over the finder o If the finder sells the chattel the true owner has right over the person who bought the chattel from the finder ii. Hannah v. Peel

Hannah has a right to the brooch, save for the true owner and prior possessor Peel claims constructive possession because it was on his property, but he never knew about it Court ruled there was no possession because Peel had never lived there Actual v. constructive possession (actual trumps constructive) Court is concerned whether it is a public or private place, which leads to an aspect of control iii. McAvoy v. Medina Goal of finders law: solve the issues between finders in relation to true owners and public/private places Rule: landowner gets anything under or attached to their land o This is because of expectations. When one purchases land they expect to own everything there If an item is lost, it goes to the finder It an item is mislaid, it goes to the shop keep where it was mislaid Rule: where an actor takes significant (but incomplete) steps toward full control and is interrupted by wrongful acts, he has a pre-possessory interest, a qualified right of possession Themes thus far: protect true owner, protect legitimate expectations, reward honesty C. Lost, Mislaid, and Abandoned Property 1. Concept: The fact that the owner has either lost or mislaid his property does not lead to the divestiture of his title. Title to such property persists despite the fact that it has been lost of mislaid. The owner surrenders title when he abandons the property a. Lost Property Property is lost when the owner has accidentally and involuntarily parted with his possession and does not know where to find it. To determine whether property is lost, the key factor is the place where it is found: judging from the place where found, would a reasonable person conclude that the owner had accidentally and involuntarily parted with possession of it and does not know where to find it? b. Mislaid Property Property is mislaid when, judging from the place where found, it can reasonably be determined that it was intentionally placed there and thereafter forgotten. c. Abandoned Property Abandoned property is property that the owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. It is necessary to show an intent to give up both title and possession 1. Distinguish from Lost A chattel is not abandoned merely because the owner has parted with its possession. If the owner of a chattel involuntarily parts with possession of goods, they should be categorized as either lost or mislaid. Lost or mislaid goods are treated differently from abandoned chattels. To show that a chattel has been abandoned, one 4

must show that the former owner voluntarily gave up and relinquished his ownership in the chattel. 2. Acquisition of Title If a chattel can be categorized as abandoned, it becomes, by virtue of the abandonment, unowned. As with wild animals, ownership of an abandoned chattel is acquired by reducing it to possession. Title to abandoned chattel is acquired by 1. Actual or constructive dominion and control over the thing, and 2. An intent to assert ownership over it. 3. Escheat Where abandoned property is held by an intermediary with no property interest in the property, the state may assume title to the property through a process called escheat. Property may be escheated only by the state in which the property is located. Intangible property is considered to be located at the domicile of the property owner. 2. General Rules for Lost or Mislaid Property: Once you have established that property is lost or mislaid, you must discuss who has the right to possess the property as against the whole worldexcept the true owner. a. Finder of Lost Property i. General Rule: Finder entitled to possession except against true owner 1. If property is categorized as lost, the one who reduces it to possession becomes its finder. Possession is physical control coupled with an intention to assume dominion over the object. The intent may be manifested by an effort to keep others away, or may be implied, as in the case of an article discovered on the land of an owner. Generally, the finder of lost property is entitled to possession of it as against all except the true owner ii. Exceptions to the general rule 1. Trespasser To penalize one who trespasses onto private property, most courts would hold that a trespasser-finder will not be allowed to secure possessory rights in the lost property. The right of possession will therefore fall to the owner of the place where the item of property is found (locus in quo). 2. Buried Articles On a theory of constructive possession, it can be held that the owner of real property possesses all that which lies beneath the surface of his land. On this basis, if one finds an article buried beneath the surface, the right of possession ought to belong to the owner of the locus rather than the finder. b. Finder of Mislaid Property: The finder of mislaid property does not acquire the right to possession. The owner of the locus in quo becomes entitled to possess the mislaid property against all the world except the true owner.

Rationale: Since, by definition, mislaid property is that which has been intentionally placed where found and thereafter forgotten, when the true owner realizes where he has mislaid his property he will return to that location to retrieve his property. On this basis, in a effort to return property to its owner, the right of possession is given to the owner of the locus in quo and not the finder.

B. Acquisition by Adverse Possession 1. The Theory and Elements of Adverse Possession i. Powell on Real Property The law of adverse possession is a synthesis of statutory and decisional law The action the adverse possessor brings is one to quiet title or to perfect their ownership Statutes of limitations run, when they are tolled they pause Adverse Possession requires: 1. Actual entry a. Exclusive possession 2. Open and Notorious 3. Hostile/adverse claim of right a. Good faith b. Aggressive trespass c. State of mind irrelevant 4. Continuous for the statutory period ii. Henry W. Ballantine iii. Oliver Wendell Holmes iv. Van Valkenburge v. Lutz Color of title, faulty title or deed claim founded on a written instrument (a deed or will) or a judgment or decree that is for some reason defective and invalid What does it mean that state of mind is irrelevant? o We dont care what they thought, we care about what they did o The adverse possessor acts as a true owner, no matter what they thought How does one ripen adverse possession into title? o Follow the four objectives v. Mannillo v. Gorski Maine doctrine: rewards the bad guy Connecticut doctrine: state of mind is irrelevant If the true owner isnt going to protect their land, why should the law do anything but follow their example and also do nothing? Hence adverse possession o Theory of the sleeping owner 2. The Mechanics of Adverse Possession 6

i. ii.

iii. iv.

v. vi.

Howard v. Kunto Tacking 2 kinds: o tacking property: I sell you my house with the deed as well as 50 feet Ive been adversely possessing thats not in the deed o tacking time: tack the time the previous owner spent on the land to the time youve spent on the land to meet the amount of time required for adverse possession Privity Types: Business agreement, Gift/will, Relationship, Identity of interest Legally cognizable relationship Court says privity is ok, in the case of adverse possession because: we can be comfortable that this is something more than a series of trespassers Privity in the context of tacking: requires that each party voluntarily transfers title to the next party Disabilities (minors, prisoners, those of unsound mind) 21 year statute of limitations Adverse Possession Against the Government i. Adverse Possession of Chattels OKeeffe v. Snyder How is voidable title different than a void title? o Voidable title: Beard buys an OKeeffe from me for $5 because I didnt know it was an OKeeffe o Void title: Beard stole it from me Say Beard sold the OKeeffe he bought from me to his son for $5 o Since the son purchased it on good faith, the government is willing to protect him as a good faith purchaser for value o I can get the money back from Beard, but not the painting back from the son The court sees this as two innocent people (Beards son and I) on each end of a transaction, and protects boy of us to the extent they are willing Discovery rulethe statute is tolled so long as the true owner exercises diligence to locate the chattel o If the chattel is missing, and the owner is trying to find it, then the statute tolls

F. Adverse PossessionStatute of Limitations: Title to personal property by adverse possession results from the running of a statute of limitations, which requires that the cause of action for recovery of the property be brought within a specified period after it accrues. When the period specified has run, the presumption that the person in possession has the right to possession cannot be overcome by the former owner; the 7

party in possession thereafter has an enforceable right to possession superior to everyone and thus becomes the true owner. In an action for recovery of the property, the defendant must plead the statute of limitations as an affirmative defense. 1. RequirementsAs with real estate, the cause of action does not accrue and, therefore, the statute of limitations does not run unless the possession relied on is: actual; open and notorious; hostile and adverse, under a claim of right; and exclusive and continuous. a. Actual The property has not been given to another. b. Open and Notorious There must be some visible act of dominion or use on the part of the possessor that is inconsistent with the absolute right of property in the owner, so as to give reasonable notice to the owner. In the case of thieves, a secret holding is presumed. A finder of lost or mislaid property is presumed to hold openly. c. Hostile and Adverse Possession must not be by consent and not in subordination to the rights of the true owner. d. Exclusive and Continuous Possession must be exclusive to the adverse possessor (except for tackingsee below. Since the possession must be continuous for the statutory period, interrupted periods that together total the required time are insufficient. 2. Statute of LimitationsTitle passes when the statutory limitation period has run. a. Accruing of Claim The accruing of the claim or cause of action is often a crucial question. Demand and refusal may be required b. Tacking Successive possessors of the property may tack or combine their respective periods of possession as long as they are in privity (the property is sold, given, or bequeathed to the subsequent possessory) c. Tolling the Statute Tolling the statute means that the time during which the following conditions are met is not counted in the time period, or that the period, which has otherwise expired, is extended beyond a certain event. 1. Disability of Plaintiff When a person entitled to maintain an action is a minor, mentally incompetent, or imprisoned on the date the action accrues, she may bring the action after removal of the disability within a period permitted by statute. 2. Defendant Out of Jurisdiction When the wrongdoer, who is a resident of this jurisdiction, is outside the jurisdiction, the statute is tolled until the wrongdoer returns. 3. Fraudulent Concealment When a potential defendant fraudulently conceals himself after the action accrues, so as to avoid service, the statute is tolled until the concealment has ended. 3. Bona Fide Purchaser of Stolen GoodsA bona fide purchaser of stolen goods is not protected against the claim of the owner unless the statute of limitations has run on the owner. Since a secret (rather than open and notorious) holding is presumed in the case of stolen goods, the running of the statute is unlikely. The risk is on the purchaser.

Part II. The System of Estates (Leasehold Aside) Chapter 3. Possessory Estates Estates in land are possessory interest in land. These interest may be presently possessory (present estates), or they may become possessory in the future (future interests) A. Present Possessory Estates 1. Fee Simple Absolute largest estate permitted by law. Invests the holder of the fee with full possessory rights, now and in the future. The holder can sell it, divide it, or devise it; and if she dies intestate, her heirs will inherit it. The fee simple has an indefinite and potentially infinite duration. 2. Defeasible Fees fee simple estates of potentially infinite duration that can be terminated by the happening of a specified event. a. Fee Simple Determinable [Possibility of Reverter] an estate that automatically terminates on the happening of a stated event and goes back to the grantor. 1. Words to flag: for so long as, while, during, until 2. May be conveyed by the owner, but the grantee takes the land subject to the termination of the estate by the happening of the event 3. Correlating future interest in grantor: possibility of reverter a. Need not be expressly retained grantor does not have to expressly retain a possibility of reverter. It arises automatically in the grantor as a consequence of his conveying a fee simple determinable estate, with its built-in time limitation b. Transferability of the possibility of reverter the possibility of reverter can be transferred inter vivos or devised by will, and descends to the owners heirs if she dies intestate. c. Although a possibility of reverter becomes possessory in the future, it is a vested interest, not a contingent interest, because both the owner and the event upon which it will become possessory are certain. This is true even if the reversionary interest is determinable or defeasible. Because it is a vested interest, a reversionary interest is not subject to the rule against perpetuities. 4. A possibility of reverter arises only in the grantor, not in a third party. If a comparable interest is created in a third party, it is an executory interest. b. Fee Simple Subject to a Condition Subsequent [Right of Entry] created when the grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon the happening of the event stated in the conveyance, the estate of the grantee continues until the grantor exercise her

power of termination (right of entry) by bringing suit or making reentry. 1. Words to flag: upon condition that, provided that, but if, if it happens that 2. Correlating future interest in grantor: right of entry a. Need be expressly reserved it is necessary to expressly reserve the right of entry in the grantor; this retained interest does not automatically arise as in the case of a fee simple determinable and possibility of reverter. b. Failure to reserve right of entry must expressly state that someone will have the right to enter upon the stated event, instead of just stating the event. c. Waiver of right of entry grantor may waive her right or power to enforce a forfeiture by express agreement or by her conduct i. Requires more than just inaction d. Transferability of right of entry in most jurisdictions, a right of entry is still not alienable inter vivos. In most states, rights of entry are devisable; and in all states, they descend to the owners heirs. e. Although a right of entry becomes possessory in the future, it is a vested interest, not a contingent interest, because both the owner and the event upon which it will become possessory are certain. This is true even if the reversionary interest is determinable or defeasible. Because it is a vested interest, a reversionary interest is not subject to the rule against perpetuities. 3. A right of entry can be created only in favor of the grantor and her heirs. If a similar interest is created in favor of a third party, the interest is called an executory interest. c. Fee Simple Subject to an Executory Interest estate that, upon the happening of a stated event, is automatically divested in favor of a third person rather than the grantor d. Fee Tail to A and the heirs of his body limits inheritance to lineal descendants of the grantee. Abolished in most jurisdictions e. Life Estate estate that is not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more persons. It may arise by operation of law or may be created by ac act or agreement of the parties. 1. Indefeasible will end only when the life tenant dies 2. Defeasible determinable, subject to a condition subsequent, subject to an executory interest

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B. Future Interests an estate that does not entitle the owner thereof to possession immediately, but will or may give the owner possession in the future. A future interest is a present, legally protected right in property; it is not an expectancy. 1. Remainders a future interest created in a transferee that is capable to taking in present possession and enjoyment (capable of becoming a present interest) upon the natural termination of the preceding estates created in the same disposition. Unlike a reversion, which arises by operation of law from the fact that the transferor has not made a complete disposition of his interest, a remainder must be expressly created in the instrument creating the intermediate possessory estate. A rule of thumb is that remainders always follow life estates. 1. A remainder cannot cut short or divest a preceding estate prior to its normal expiration. Therefore, a remainder can never follow a fee simple, which has a potentially infinite duration. Future interests that cut short a preceding estate or follow a gap after it are called executory interests. a. Indefeasibly vested remainder remainder that: i. Can be created in and held only by an ascertained person in being; ii. Must be certain to become possessory on termination of the prior estate (there is no condition that may operate to prevent the remainder from someday becoming a present interest) iii. Must not be subject to being defeated or divested iv. Must not be subject to being diminished in size b. Vested Remainder Subject to Open this is a vested remainder created in a class of persons that is certain to take on the termination of the preceding estates, but is subject to diminution by reason of other persons becoming entitled to share in the remainder. It is also called a vested remainder subject to partial divestment. 1. Divesting interests are executory interests once the remainder vests in one existing member of the class, the divesting interest in the unborn members of the class is called an executory interest 2. Effect on marketability of title note that where there are outstanding interests in the unborn children, the vested remainderman and the life tenant cannot jointly convey good title. c. Vested Remainder Subject to Total Divestment arises when the remainderman is in existence and ascertained and his interest is not subject o any condition precedent, but his right to possession and enjoyment is subject to being defeated by the happening of some condition subsequent. d. Contingent Remainder there are two ways to create a contingent remainder

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1. Subject to condition precedent a remainder will be classified as contingent if its taking in possession is subject to a condition precedent (contingent as to event) 2. Unborn or unascertained persons a remainder is contingent if it is created in favor of unborn or unascertained persons (contingent as to person), because until the remainderman is ascertained, there is no one ready to take possession should the preceding estate come to an end. 3. Destructibility of Contingent Remainders at commons law, a contingent remainder had to vest prior to or upon termination of the preceding freehold estate or it was destroyed a. Rule Abolished Today, the rule of destructibility has been abolished in all but a few states. b. Related doctrine of merger whenever the same person acquires all of the existing interest in land, present and future, a merger occurs. That person then holds a fee simple absolute. 2. Executory Interests there are only two future interests that can be created in a transferee: remainders and executory interest. If it is not a remainder because the preceding estate is not a life estate, then it must be an executory interest. Thus, an executory interest is any future interest in the transferee that does not have the characteristics of a remainder, ie it is not capable of taking on the natural termination of the preceding life estate. More specifically, an executory interest is an interest that divests the interest of another. a. Shifting executory interest divests a transferee. A shifting executory interest is one that divests the interest of another transferee, it cuts short a prior estate created by the same conveyance b. Springing executory interest Follows a Gap or Divests a Transferor. A springing executory interest is an interest that follows a gap in possession or divests the estate of the transferor. c. Executory interest follows a fee a remainder cannot follow a fee simple interest of any kind. Therefore, any interest that follows a fee and is held by a third person is an executory interest. d. Differences between executory interest and remainders it is important to be able to distinguish between executory interests and remainders for the following reasons: 1. Executory interest are not destructible, while contingent remainders are still destructible in a few jurisdictions; 2. Executory interest are not considered vested, whereas contingent remainders can become vested; and the Rule in Shelleys Case does not apply to executory interests, but it does apply to remainders limited to the heirs of the grantee 3. Transferability of remainders and executory interests

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a. Vested reminders are transferable, devisable and descendible b. Contingent remainders and executory interest are transferable inter vivos c. Contingent remainders and executory interest are usually devisable and descendible d. Any transferable future interest is reachable by creditors e. Practical ability to transfer marketable title 4. Class gifts in a gift to a class, the share of each member of the class is determined by the number or persons in the class. a. Definitional problems 1. Dispositions to children generally includes that persons children from all marriages as well as adopted and nonmarital children. Stepchildren and grandchildren are generally not included. 2. Dispositions to heirs issue and descendants refer to the lineal offspring of the designated person, whatever the degree of relationship 3. Class members in gestation persons in gestation at the time set for distribution are included in a class. The common law presumption is that a child born within ten lunar months or 280 days after the necessary point in time was in gestation at that time. b. When the class closes the rule of convenience a. Its a rule of construction, not a rule of law. b. It is applicable in the absence of an expression of intent to include all persons who meet the class description regardless of when they are born. c. Under the rule, a class closes when some member of the class can call for a distribution of her share of the class gift. d. It is presumed that the ordinary transferor intends to include all members of the class, whenever born, provided that this would not cause any undue inconvenience. e. Thus, the rule of convenience is based on a policy of including as many person in the class as possible, consistent with permitting a distribution of the property at the first opportunity without the necessity of a future rebate. 1. Outright Gift Class closes at time gift is made when a will makes an outright gift to a class, if any class members are alive at the testators death, the class closes as of the date of the testators death a. No class members alive at testators death class stays open: If there are no members of the class living

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at the testators death, all after-born persons who come within the class designation are included. 2. Postponed Gift class closes at time fixed for distribution: when possession and enjoyment of a gift are postponed, as where the gift follows a life estate, the class remains open until the time fixed for distribution 3. Dispositions subject to condition of reaching given age when there is a gift to a class conditioned upon the members attaining a certain age, the class closes when: a. The preceding estate, if any, terminates, and b. The first class member reaches the specified age. That class members minimum share should be determined and distributed to her when she reaches the specified age.

A. Up from Feudalism 1. Tenure 2. Feudal Tenures and services 3. Feudal Incidents 4. Avoidance of Feudal Incidents 5. The Decline of Feudalism B. The Fee Simple a. Fee Simple Absolute: the biggest estate weve got, the whole bundle of sticks, total ability to do whatever you want with your property, (statutes may take this away) b. Services v. Incidents: inform our understanding of how all of this developed, these are historical things i. Incidents: personal and if the person in possession dies in possession then they go to the lord/king (a classic form of taxation) ii. Services: ie) the king calls for 40 men to serve for 40 days c. Magic words i. Words of purchase (WHO) To A ii. Words of limitation (WHAT) for life, and her heirs d. Issue: kids and grandkids, everyone below you in a direct line e. Ancestors: in a DIRECT line above you (not aunts or uncles) f. Collaterals: defined by who they are not, not ancestors or issue i. Siblings, nieces, nephews g. Intestate: died without a will, the state basically makes one for you 1. How the Fee Simple Developed a. Rise of Heritability b. Rise of Alienability c. Rise of the Fee Simple Estate 2. Creation of a Fee Simple 3. Inheritance of a Fee Simple

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C. The Feel Tail D. The Life Estate i.

White v. Brown Restraints on alienation are: not ok in an FSA; disproved by the law, void; take property out of the stream of commerce; void unless reasonable and clearly spelled out (would be ok on life estate) Reasons restrains on alienation are unflavored: discourage upkeep and improvements on land; no credit can be given on the land ii. Baker v. Weedon Contingent remainder: remainder contingent on whether Anna Baker has kids of her own, which lasts until the day she dies o If it is contingent it cannot be vested, if it is vested it cannot be contingent a. Defeasible feesfocus on the words in the gift to determine whats being given 1. Language look for language of duration (opposed to an outright gift) 2. Syntax look for sentence structure that gives one solid thought 3. Consequences this is the key! b. Affirmative waste- acts that substantially reduce property value c. Permissive waste- failure to take reasonable care of the property d. Ameliorative waste- uses by the tenant that increase the market value of the land, rather than decrease it iii. Woodrick v. Wood E. Leasehold Estates F. Defeasible Estates a. Fee simple defeasible-will/may come to an end due to some external event i. Has duration language, is a single thought, happens automatically b. When giving a fee simple defeasible, there are 2 types of future interest to be given: i. Possibility of reverter fee simple determinable ii. Right of (re)entry/power of terminationfee simple subject to condition subsequent c. FSD-fee simple determinable-fee simple so limited that it will end automatically when a stated event happens i. Accompanied by a possibility of reverter (not a reversion) d. FSSCS-fee simple subject to a condition subsequent-fee simple that does not automatically terminate but may be cut short or divested at the transferors election when a stated condition happens i. Has the language of an outright gift, syntaxically is a separate condition, there is an action required ii. Accompanied by a right of entry/power of termination e. Fee simple subject to executory limitation i. Accompanied by an executory interest, happens automatically i. Mahrenholz v. County Board of School Trustees ii. Mountain Brow Lodge No. 82 v. Toscano

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iii. Ink v. City of Canton iv. City of Palm Springs v. Living Desert Reserve Chapter 4. Future Interests A. Introduction B. Future Interests in the Transferor 1. Reversion- the interest remaining in the transferor when the transferor has given away a vested estate or estates of lessor quantum than the estate the transferor had (always transferable, always alienable) 2. Possibility of Reverter- accompanies a fee simple determinable 3. Right of Entry- accompanies fee simple subject to condition subsequent C. Future Interests in Transferees 1. Introduction 2. Remainders- any future interest in favor of a transferee that: a. Can (is capable) become a present possessory interest (immediately) upon (but no sooner than) the natural expiration for all prior interest simultaneously created AND b. Cannot divest or cut short any interest other than an interest in the transferor i. The interest must be capable of becoming possessory at the termination for the following estate ii. It cannot divest or cut short any prior interest created in a transferee c. Vested- A remainder is VESTED if both: i. Given to an ascertained taker AND ii. It must only await the natural termination of the prior estates in order to become possessory (not subject to any condition precedent) d. Contingent- A remainder is CONTINGENT if either: i. The taker is unascertained ii. A condition precedent must first occur before we know whether it will become possessory 3. Executory Interests a. 2 Prohibitory Rules: No Shifting Interests; No Springing Interests b. The Rise of the Use c. Abolition of the Use: The Statute of Uses d. Modern executor Interests Chapter 5. Co-ownership and Marital Interests A. Common Law Concurrent Interests 1. Types, Characteristics, Creation 2. Severance of Joint Tenancies i. Riddle v. Harmon ii. Harms v. Sprague 3. Multiple-party Bank Accounts 4. Relations Among Concurrent Owners a. Partition

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i. Delfino v. Vealencis b. Sharing the Benefits and Burdens of Co-ownership i. Spill v. Mackereth ii. Swartzbaugh v. Sampson Chapter 10. Private Land Use Controls: The Law of Servitudes Creation of easements a. Express grant must be in writing and signed by the grantor. May be created by conveyance. b. Express reservation when the owner of a tract of land conveys title but reserves the right to continue to use the tract for a special purpose after the conveyance. Under the majority view, the easement can e reserved only for the grantor; an attempt by the grantor to reserve an easement for anyone else is void. c. Implication created by operation of law rather than by written instrument. a. Easement implied from existing use [quasi easement] an easement may be implied if, prior to the time the tract is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant part and a court determines that the parties intended the use to continue after division of the property. i. Existing use at time tract was divided for a use to give rise to an easement, it must be apparent and continuous at the time the tract is divided. ii. Reasonable necessity whether a use is reasonably necessary to the enjoyment of the dominant parcel depends on many factors, including the cost and difficulty of the alternatives. iii. Grant or reservation an easement implied in favor of the grantee is said to be created by implied grant, while an easement implied in favor of the grantor is said to be created by implied reservation. b. Easement by necessity when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line, a right of way by absolute necessity is created by implied grant or reservation over the lot with access to the public road or utility line. d. Prescription analogous to adverse possession. Requirements: open and notorious use, adverse use, and continuous and uninterrupted use for the statutory period. a. Negative easements cannot arise by prescription. An easement by necessity cannot give rise to an easement by prescription. However, if the necessity ends, so does the easement, and the use is adverse from that point forward. Termination of easements an easement may be created to last in perpetuity or for a limited amount of time. To the extent the parties to its original creation provide for the natural termination of the interest, such limitations will control. A. Stated conditions if the parties to the original creation of an easement set forth specific conditions upon the happening of which the easement right will terminate, the conditions will be recognized. B. Unity of ownership the ownership of the easement and of the servient tenement must be in different persons. If ownership of the two comes together in one person, the easement is extinguished.

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C.

D.

E.

F.

a. Complete unity required for an easement to be extinguished, there must be complete unity of ownership as between the interest held in the easement and that held in the servient tenement. i. If the holder of an easement acquires an interest in the servient tenement, the easement is extinguished only if he acquires an interest in the servient tenement of equal or greater duration than the duration of the easement privilege. ii. If the holder of the servient tenement acquires the easement interests, the title acquired must be equal to or greater than her interest or estate in the servient tenement. b. No revival if complete unity of title is acquired, the easement is extinguished. Even though there may be later separation, the easement will not be automatically revived Release an easement may be terminated by a release given by the owner of the easement interest to the owner of the servient tenement. A release requires the concurrence of both owners and is, in effect, a conveyance. The release must be executed with all the formalities that are required for the valid creation of an easement. a. Easement appurtenant these types of easements are tied to the land of the dominant tenement. This characteristic requires that the easement interest not be conveyed independently of a conveyance of the dominant tenement. However, an easement appurtenant may be conveyed to the owner of the servient tenement without a conveyance (to the same grantee) of the dominant tenement. b. Easement in gross the basic characteristic of an easement in gross is that unless it is for a commercial purpose, it is inalienable. However, it can be released [conveyed to the owner of the servient tenement]. Abandonment an easement can be extinguished without conveyance where the owner of the privilege demonstrates by physical action an intention to permanently abandon the easement. a. Physical act required easement holder must physically manifest an intention to permanently abandon the easement. b. Mere words insufficient oral expressions of the owner of the easement that he does not intend to use the easement again are insufficient to constitute an abandonment of the easement. c. Mere nonuse insufficient Estoppel an easement may be extinguished by virtue of the reasonable reliance and change of position of the owner of the servient tenement, based on assertions or conduct of the easement holder. There are 3 requirements: a. There must be some conduct or assertion by the owner of the easement, b. A reasonably reliance by the owner of the servient tenement, c. Coupled with a change of position. Prescription an easement may be extinguished dby prescription. Long continued possession and enjoyment of the servient tenement in a way that

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would indicate to the public that no easement right existed will end the easement right. a. The owner of the servient tenement must so interfere with the easement as to create a cause of action in favor of the easement holder. The interference must be open, notorious, continuous, and nonpermissive for the statutory period. G. Necessity easements created by necessity expire as soon as the necessity ends. H. Condemnation condemnation of the servient estate will extinguish the nonpossessory interest. Courts are split, however, on whether the holder of the benefit is entitled to compensation for the value lost. I. Destruction of the servient estate if the easement is in a structure in voluntary destruction of the structure will extinguish the easement. Voluntary destruction will not terminate the easement. Scope interpreted to employ the reasonable intent of the original parties a. In the case of easements by necessity, the extent of the necessity determines the scope of the easement. Because there is no underlying written instrument to interpret, courts will look instead to the circumstances giving rise to the easement. b. With implied easements, the quasi-easement will provide the starting point for the courts construction of the scope of the easement. Modifications in the easement will be enforced to the extent that they are necessary for reasonably foreseeable changes in the use of the dominant parcel. Licenses privilege their holder to go upon the land of another (the licensor). Unlike an affirmative easement, the license is not an interest in land. It is merely a privilege, revocable at the will of the licensor. a. Assignability a license is personal to the licensee and therefore not alienable. The holder of a license privilege cannot convey such right. b. Revocation and termination licenses are revocable by nature, at any time by a manifestation of the licensors intent to end it. c. Failure to create an easement if a party attempts to create an easement orally, the result is the creation of a license, a revocable privilege. A. Easements a right, created by an express or implied agreement, to make lawful and beneficial use of the land of another. Easements can be viewed by the Tract Index 1. Historical Background, and Some Terminology a. Appurtenant easement tied to the land, available to anyone who uses the land. The benefits to be realized by the easement must be directly beneficial to the possessor of the dominant tenement in his physical use and enjoyment of that tract of land. i. The benefit passes with transfers of the benefitted land, regardless of whether the easement is mentioned in the conveyance.

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ii. If the servient parcel is transferred, its new owner takes it subject to the burden of the easement, unless she is a bona fide purchaser with no notice of the easement b. In gross easement personal to the owner of the easement, not tied to the land. Generally, an easement in gross is transferable only if the easement is for a commercial or economic purpose. c. Appurtenant easements are favored because it is a lot easier to find the owner of the easement when it is tied to land d. Servient estate estate that serves, the one that is burdened by the easement e. Dominant estate the one benefitting from the easement (may not exist in gross easements 2. Creation of Easements i. Willard v. First Church of Christ, Scientist 1. You cant have an easement in your own property ii. Holbrook v. Taylor iii. Shepard v. Purvine iv. Henry v. Dalton v. Van Sandt v. Royster vi. Othen v. Rosier 1. Adverse usage is a requirement of prescriptions 2. Permissive land use is a part of a license, which is revocable vii. Raleigh Avenue Beach Assn. v. Atlantis Beach Club 3. Assignability of Easements i. Miller v. Lutheran Conference & Camp Assn. 4. Scope of Easements i. Bown v. Voss 5. Termination of Easements i. Preseault v. United States 6. Negative Easements 7. Conservation and Other Novel Easements B. Covenants Running With the Land Covenants running with the land at law (real covenants) a written promise to do something on the land or a promise not to do something on the land. Real covenants run with the land at law, which means that subsequent owners of the land may enforce or be burdened by the covenant. To run with the land, however, the benefit and burden of the covenant must be analyzed separately to determine whether they meet the requirements for running 1. Requirements for burden to run if all requirements are met, the successor in interest to the burdened estate will be bound by the arrangement entered into by her predecessor as effectively as if she had herself expressly agreed to be bound a. Intent the covenanting parties must have intended that successors in interest to the covenanttor be bound by the terms of the covenant. The requisite intent may be inferred from circumstances surrounding creation of 20

the covenant, or it may be evidenced by language in the conveyance creating the covenant. b. Notice under the common law a subsequent purchaser of land that was subject to a covenant took the land burdened by the covenant, whether or not she had notice. However, under US recording statutes, if the covenant is not recorded, a bona fide purchaser who has no notice of the covenant and who records her own deed will take free of the covenant. c. Horizontal privity relationship between the original covenanting parties. Horizontal privity requires that, at the time the promisor entered into the covenant with the promise, the two shared some interest in the land independent of the covenant d. Vertical Privity to be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time she made the covenant. e. Touch and concern as a general matter, for the burden of a covenant to run, performance of the burden must diminish the landowners rights, privileges, and powers in connection with her enjoyment of the land. i. Negative covenants for the burden of the negative covenant to touch and concern the land, the covenant must restrict the holder of the servient estate in his use of that parcel of land 1. Note the similarity of negative covenants and negative easements. The primary difference between them is that negative easements are limited to a few traditional categories, but there are no limits on negative covenants. ii. Affirmative covenants for the burden of an affirmative covenant to touch and concern the land, the covenant must require the holder of the servient estate to do something, increasing her obligations in connection with enjoyment of the land 2. Requirements for the benefit to run if all requirements for the benefit to run are met, the successor in interest to the promise will be allowed to enjoy the benefit a. Intent the covenanting parties must have intended that the successors in interest to the covenantee be able to enforce the covenant. Surrounding evidence of intent, as well as language in the instrument of conveyance, is admissible. b. Vertical privity the benefit of a covenant runs to the assignees of the original estate or of any lesser estate. The owner of any succeeding possessory estate can enforce the benefit at law. In the majority of states today, horizontal privity is not required for the benefit to run. As a consequence, if horizontal privity is missing, the benefit may run to the successor in interest to the covenantee even though the burden is not enforceable against the successor in interest of the covenantor c. Touch and Concern for the benefit of a covenant to touch and concern the land, the promised performance must benefit the covenantee and her successors in their use and enjoyment of the benefited land. 3. Remedies damages only. Only money damages are awarded, not injunctions. If you want an injunction, you have to have an equitable servitude.

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1. Historical Background a. Covenants Enforceable at Law: Real Covenants b. Covenants Enforceable in Equity: Equitable Servitudes i. Tulk v. Moxhay c. Creation of Covenants i. Sanborn v. McLean Equitable servitudes if a plaintiff wants an injunction or specific performance, he must show that the covenant qualifies as an equitable servitude. An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction against violation of the covenant.

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