Professional Documents
Culture Documents
ACQUISITION
5 July 1773: William Murray and others, apparently including Thomas Johnson, Jr.,
purchased Parcel 1, located in what is now Illinois, for $24,000 from the Illinois tribe.
18 October 1775: Louis Viviat and others, including Thomas Johnson, Jr., purchased
Parcel 2, also located in what is now Illinois, for $31,000 from Chief Tabac acting for
the Piankeshaw tribe.
1776: The Revolutionary War prevented the grantees, who were mostly British
citizens, from taking possession of the parcels.
1781-1816: Murray, Viviat and their co-grantees repeatedly petitioned Congress
unsuccessfully for acknowledgement and confirmation of their ownership of Parcels
1 and 2.
1784: Virginia ceded to the United States its claim to the Northwest Territory, which
included Parcels 1 and 2.
20 July 1818: The U.S. government conveyed Parcels 1 and 2 to William MIntosh,
and MIntosh subsequently took possession of the parcels.
1 October 1819: Thomas Johnson, Jr. died testate, with a will that
devised his interest in Parcels 1 and 2 to his son, Joshua Johnson,
and his grandson, Thomas Graham, as tenants in common.
Sometime after 1819: Joshua Johnson and Thomas Graham leased
their interest in Parcels 1 and 2 to a tenant.
The tenant of Joshua Johnson and Thomas Graham (citizens of
Maryland) brought a diversity action in the federal District Court for
Illinois seeking ejectment against MIntosh (a citizen of Illinois).
The trial court (District Court) rendered judgment for MIntosh.
The U.S. Supreme Court, in an opinion written by Chief Justice John
Marshall, affirmed the decision of the District Court.
Acquisition by Discovery
Property I Slides
Acquisition by Discovery
Property I Slides
Damage Awards
If the final product is awarded to the accessioner or the owner elects to
sue in conversion rather than in replevin,
The owner of the principal item may receive damages in the amount
of the principal item that was transformed.
If the accessioner acted willfully, the value of the item is generally
determined at the time of the conversion, thus including any
increase in value caused by the accession.
If the accessioner acted innocently, most courts set damages by
deducting from the increased value at least the cost of improvement
incurred by the accessioner.
If the final product is awarded to the owner of the principal item,
generally, the accessioner may not recover damages for the labor
contributed.
Amount of Award
In some jurisdictions, the true owner may recover in conversion
from the purchaser based on the value of the item at the time of
the purchase, even if the value of the item increased through
accession after the item was taken from the true owner, and
even if both the accessioner and the purchaser acted innocently.
Trespass
Trespass lay for injury to person or property,
When the injury was committed with force, actual or implied.
When the injury was immediate and not merely
consequential.
In the case of injury to property, when the property was in the
actual or constructive possession of the plaintiff at the time of
the injury.
Property I Slides
13
Property I Slides
14
Property I Slides
15
Property I Slides
16
Ratione Soli
Under the traditional English rule of ratione soli, the owner of land
was considered to be in constructive possession of wild animals
on his land, with rights superior to a trespasser on the land.
The landowners ownership of the animal was accomplished
through the capture of the animal, whether by the landowner or
the trespasser.
American courts have, for the most part, rejected ratione soli.
Release or Escape After Capture (Animus Revertendi)
Ownership rights in a wild animal terminate when the animal is
released or escapes back to its natural liberty.
However, ownership rights in a wild animal continue after escape
or release if the animal has animus revertendi.
Property I Slides
17
Natural Resources
The wild animal capture rules were initially applied to cases
involving nautral resources such as gas and oil.
However, serious depletion of natural resources has caused the
capture rule to be replaced by extensive federal and state
resource legislation.
Property I Slides
18
FINDERS
Property I Slides
20
Property I Slides
21
Property I Slides
22
Property I Slides
23
Property I Slides
24
Mislaid Property
Personal property is mislaid if the owner voluntarily puts it in a certain
place with the intent to reclaim it but then fails to reclaim or forgets
where the property was left.
When property is mislaid, the owner of the locus in quo generally has
rights superior over the finder and all but the true owner.
Treasure Trove
Treasure trove encompasses gold, silver, currency or the like that, in
the distant past, was intentionally concealed by an unknown person
for safekeeping in a secret location.
In England, treasure trove belongs to the Crown.
In the United States, treasure trove belongs to the finder (or possibly
to the owner of the locus in quo if the finder is a trespasser).
Property I Slides
25
Property I Slides
26
Replevin
27
Detinue sur bailment and detinue sur trover were the antecedents of the
action for conversion.
In a writ of detinue (whether sur bailment or sur trover), the plaintiff sought
damages (measured by the value of the property) for the wrongful
conversion of personal property.
Traditional Elements of Detinue
The plaintiff had possession, or the immediate right to possession, of
personal property.
The plaintiff bailed that property to the defendant (detinue sur bailment),
or the plaintiff casually lost the property and the defendant found the
property.
Despite the plaintiffs request for return of the property, and despite the
defendants knowledge that the property belonged to the plaintiff, the
defendant wrongfully converted the property to his own use.
Property I Slides
28
ADVERSE POSSESSION
Adverse Possession
Property I Slides
30
Adverse Possession
Actual
Property I Slides
31
Adverse Possession
Actual
Property I Slides
32
Adverse Possession
Hostile and Under a Claim of Title or Right
Property I Slides
33
Adverse Possession
Hostile and Under a Claim of Title or Right
Mistaken Boundaries
Objective Standard: Under the objective majority view for
mistaken boundaries, possession is hostile so long as the
possessor intends to claim the land as her own, even if the
possessor is unsure as to the location of the boundary.
Subjective Standard: Under the subjective minority view for
mistaken boundaries, the possessor must actually know that she
has crossed over the boundary.
Property I Slides
34
Adverse Possession
Hostile and Under a Claim of Title or Right
Property I Slides
35
Adverse Possession
Continuous for the Statutory Period
Property I Slides
36
Property I Slides
37
Basic Requirements
The claim must be based on a properly filed written conveyance
of the property (or on a decree or judgment).
The claimant must show that for seven years he has been in
continued adverse possession of the property included in the
instrument, decree, or judgment.
If the property is divided into lots, the possession of one lot shall
not be deemed a possession of any other lot of the same tract.
Property I Slides
38
Property I Slides
39
Although it has not been enclosed, it has been used for the
supply of fuel or fencing timber for husbandry or for the ordinary
use of the occupant.
A known lot or single farm has been partly improved, with the
part that has not been cleared or enclosed according to the
usual custom of the county to be considered as occupied for the
same length of time as the part improved or cultivated.
Property I Slides
40
Basic Requirements
The claimant must show that for seven years he has been in
continued adverse possession of the property.
The claimant must file a tax return within one year of entering
and must subsequently pay taxes on the subject property
throughout the adverse possession period.
Possession Defined: Under this section, property is deemed to be
possessed when
Property I Slides
41
Facts
O owns a 100-acre farm, which he has possessed since 1975.
In 1990, A entered the back 40 acres under color of an invalid
deed for the entire 100 acres, which was executed by Z (who
had no claim to the farm).
Since 1990, A has occupied and improved the back 40 acres.
A has occupied the back 40 acres for the period required by the
relevant statute of limitations.
A, claiming adverse possession, now sues to evict O from the
farm.
Property I Slides
42
Analysis
O has record title to the farm.
O has prior actual possession of part of the farm.
Os record title to the whole farm, coupled with his actual
possession of part of the farm, gives O prior constructive
possession of the whole farm.
Because O has prior constructive possession of the whole farm, A
may claim adverse possession of only the 40 acres that A has
actually possessed for the statutory period.
Conclusion
The court will award A title to the 40 acres that A actually
possesses.
O will retain title to the remaining 60 acres, which O actually or
constructively possesses.
Property I Slides
43
Facts
In 1975, O took title to the 100-acre farm by an invalid deed.
O has possessed the farm since 1975, which is sufficient to
satisfy the relevant statute of limitations.
In 1990, A entered the back 40 acres under color of an invalid
deed for the entire 100 acres, which was executed by Z (who
had no claim to the farm).
Since 1990, A occupied and improved the back 40 acres of the
farm.
A has occupied the back 40 acres for the period required by the
relevant statute of limitations.
A, claiming adverse possession, now sues to evict O from the
farm.
Property I Slides
44
Analysis
Because O took title to the entire farm by an invalid deed, O has
color of title to the whole farm.
O also has prior actual possession of part of the farm.
Os color of title to the whole farm, coupled with his actual
possession of part of the farm, gives O prior constructive possession
of the whole farm.
Because O has prior constructive possession of the whole farm, A
may claim only the 40 acres that A has actually possessed for the
statutory period.
Conclusion
The court will award A title to the 40 acres that A actually possesses.
O will retain title to the remaining 60 acres, which O actually or
constructively possesses.
Property I Slides
45
Facts
X and Y are the record owners of Lots 1 and 2, which are
contiguous.
Neither X nor Y is in possession of his lot.
By an invalid deed, Z conveyed Lots 1 and 2 to A.
A entered Lot 1 and has occupied that lot for the period required
by the relevant statute of limitations.
A now sues X and Y to quiet title to Lots 1 and 2.
Property I Slides
46
Analysis
Through the invalid deed that she received from Z, A has color of
title to both lots.
A also has actual possession of Lot 1.
However, A has neither actual nor constructive possession of Lot
2.
Therefore, A may claim adverse possession of Lot 1 but not Lot
2.
Conclusion
The court will award A title to Lot 1.
Y will retain title to Lot 2.
Property I Slides
47
Facts
X and Y are the record owners of Lots 1 and 2, which are
contiguous.
Neither X nor Y is in possession of his lot.
X conveyed Lots 1 and 2 to A.
A entered Lot 1 and has occupied that lot for the period required
by the relevant statute of limitations.
A now sues X and Y to quiet title to Lots 1 and 2.
Property I Slides
48
Analysis
Through the valid deed to Lot 1 executed by X, A has record title to
Lot 1.
(A also has actual possession of Lot 1.)
Through the defective deed to Lot 2 executed by X, A has color of
title to Lot 2.
However, A has neither actual nor constructive possession of Lot 2.
Therefore, A may claim title to Lot 1 but not to Lot 2.
Conclusion
The court will award A title to Lot 1.
Y will retain title to Lot 2.
Property I Slides
49
Facts
X and Y are the record owners of Lots 1 and 2, which are
contiguous.
Neither X nor Y is in possession of his lot.
X conveyed Lots 1 and 2 to A.
A entered both lots and occupied the lots for the period required
by the relevant statute of limitations.
A now sues X and Y to quiet title to Lots 1 and 2.
Property I Slides
50
Analysis
Through the deed to Lot 1 executed by X, A has record title to
Lot 1.
(A also has possession of Lot 1.)
Through the defective deed to Lot 2 executed by X, A has color
of title to Lot 2.
A also has actual possession of Lot 2.
Because A has record title to Lot 1 and has adversely possessed
Lot 2 for the statutory period, A may claim title to both lots.
Conclusion: The court will award A title to Lots 1 and 2.
Property I Slides
51
Adverse Possession
Tolling of the Statute of Limitations for Disabilities
Property I Slides
52
Tolling in Florida
95.051. When Limitations Tolled
The running of the time under the statute of limitations is tolled by:
Incapacity
In any event, the action must be begun within 7 years after the act, event,
or occurrence giving rise to the cause of action.
Minority
The minority of the person entitled to sue during any period of time in which
a parent, guardian, or guardian ad litem does not exist, has an interest
adverse to the minor or incapacitated person, or is adjudicated to be
incapacitated to sue.
In any event, the action must be begun within 7 years after the act, event,
or occurrence giving rise to the cause of action.
Property I Slides
53
Tolling in Florida
95.051. When Limitations Tolled
Property I Slides
54
Tolling Problems
Problem 1(a) (Text p. 143)
Facts
In 1980, A entered adversely on land owned by O.
O was insane in 1980.
O died insane and intestate in 2003, and
O's heir H was under no disability in 2003.
Issue: When will A gain title by adverse possession?
Property I Slides
55
Tolling Problems
Problem 1(a) (continued)
Analysis
Under the statute quoted, if the owner is under a disability at the
time the adverse possessor enters,
The Statute of Limitations is tolled, and
The owner must bring suit
Within the limitation period (21 years) or
Within ten years after the disability is removed,
Whichever is longer.
Property I Slides
56
Tolling Problems
Problem 1(a) (continued)
Case at Bar
Limitation Period
Under the governing statute, the limitation period is twenty-one
years.
Thus, in the absence of tolling, the statute would run out in 2001
(1980 plus 21 years = 2001).
Tolling Period
Under the governing statute, the owner is given ten years after the
removal of his disability.
O's disability was removed in 2003.
Thus, under the tolling provision, O must bring suit by 2013 (1999
plus ten years = 2013).
Whichever is Longer: Os heir must bring suit by 2013, which is the
later of the two dates discussed above.
Conclusion: If Os heir does not sue by 2013, A will gain title by adverse
possession in 2013.
Property I Slides
57
Tolling Problems
Problem 1(b) (Text p. 143)
Facts
O was insane in 1980.
O died insane and intestate in 2003.
O's heir H was six years old in 2003.
Issue: When will A gain title by adverse possession?
Property I Slides
58
Tolling Problems
Problem 1(b) (continued)
Analysis
Under the statute quoted, if the owner is under a disability at the
time the adverse possessor enters,
The Statute of Limitations is tolled, and
The owner must bring suit
Within the limitation period (21 years) or
Within ten years after the disability is removed,
Whichever is longer.
Case at Bar: As discussed above, Os estate would have been
required to bring suit by 2013, which is ten years after Os
disability was removed by his death in 2003.
Property I Slides
59
Tolling Problems
Problem 1(b) (continued)
Disability of Os Heir
Disabilities may not be tacked.
Hence, the nonage of Os heir must be disregarded.
Therefore, Os heir must bring suit by 2013, which is 10 years
after the removal of Os disability.
Conclusion: If Os heir does not sue by 2013, A will gain title by
adverse possession in 2013.
Property I Slides
60
Tacking Problems
Problem
2
(text
p.
142)
Facts
Property I Slides
61
Tacking Problems
Problem 2 (continued)
Analysis
If an adverse possessor enters against a fee owner, the
Statute of Limitations continues to run against third persons
who subsequently take by inter vivos or post mortem transfer
from the owner (because the third persons have taken the
land already subject to the adverse possession).
A entered against O before O devised to B for life, remainder
to C.
Therefore, the statute of limitations continued to run against
both B and C.
Conclusion
A wins.
(C's only hope is to force B to oust A).
Property I Slides
62
Tacking Problems
Problem
3 (text p. 142)
Facts
Property I Slides
63
Tacking Problems
Problem 3 (continued)
Instant Case
The Statute of Limitations started to run against B in
1992, when A entered the premises.
However, it did not start to run against C until B died in
2006.
Therefore, the Statute of limitations has not yet run out
against C.
Conclusion: C wins.
Property I Slides
64
GIFTS
Actual or
Constructive, and
Acceptance (which is presumed).
Property I Slides
66
Property I Slides
67
Gift Problem #1
Text p. 158
Facts
O owns a pearl ring.
While visiting her daughter A, O leaves the ring on the
bathroom sink.
After O leaves, A discovers the ring.
When A telephones O to tell her of the discovery, O tells A
to keep the ring as a gift.
Property I Slides
68
Property I Slides
69
Delivery
Property I Slides
70
Acceptance
Property I Slides
71
Property I Slides
72
ESTATES
FEUDAL CHAIN
King
Military
Tenant*
Tenant
In Chief*
Tenant In Chief
Tenant
Tenant
(Civil -Grand
In Chief* In Chief*
(Military)
(Military)
Socage
Tenant*
Military
Tenant*
(Military)
Church
(Frankalmoign)
Serjeantry)
Socage
Tenant*
Tenant
In Chief
(Civil - Petty
Serjeantry)
Property I Slides
74
Substitution
(authorized in 1290 by
the statute Quia Emptores)
Lord
Lord
Tenant
(Mesne Lord)
Tenant #1
Tenant #2
Sub-Tenant
Property I Slides
75
Habendum
clause
76
Warranties of
title
The grantor, for himself and his heirs and assigns, covenants (1)
that the grantor is lawfully seized in fee simple of the premises, (2)
that he has a good right to convey the fee simple, (3) that the
premises are free from all encumbrances, (4) that the grantor and
his heirs and assigns will forever warrant and defend the grantee
and her heirs and assigns against every person lawfully claiming
the premises or any part thereof, (5) that the grantor and his heirs
and assigns will guarantee the quiet enjoyment of the premises to
the grantee and her heirs and assigns, and (6) that the grantor
and his heirs and assigns will, on demand of the grantee or her
heirs or assigns, execute any instrument necessary for the further
assurance of the title to the premises that may be reasonably
required.
Dated this day of , 20 _.
John Doe [signature of grantor]
Execution
Property I Slides
77
Acknowledgement
Property I Slides
78
Parents
Aunts
Uncles
Deceased
Brothers
Sisters
First
Cousins
Children
Nephews
Nieces
First Cousins
Once Removed
Grandchildre
n
Grand
Nephews
Nieces
First Cousins
Twice Removed
GreatGrandchildren
Great-Grand
Nephews
Nieces
First Cousins
Thrice Removed
Property I Slides
79
FREEHOLD ESTATES
Fee Simple Absolute
Property I Slides
80
Property I Slides
81
Property I Slides
82
Property I Slides
83
FREEHOLD ESTATES
Fee Tail
A has a fee tail general (or fee tail male or fee tail female,
or fee tail special, if limited to heirs of a specific spouse),
which may descend only to As lineal descendants.
O has a reversion, which falls in if and when A's lineal line
fails.
Modern Statutory Rules
In some states, A has a life estate, with a remainder per
stirpes in As lineal descendants in being at the time of
the life tenants death. See , e . g., F.S.A. 689.14.
In other states, A has a fee simple conditional.
In other states A gets a fee simple absolute.
Property I Slides
84
FREEHOLD ESTATES
Fee Tail Problem #3 (text p. 220)
Facts
Property I Slides
85
FREEHOLD ESTATES
Fee Tail Problem #3 (text p. 220)
Analysis in Florida
Os conveyance creates a life estate in A, with a remainder (in fee simple
absolute) in B, who is As lineal descendant being at the time of As
death.
Because B has a remainder in fee simple absolute, when B dies, C takes
a fee simple absolute through the devise in Bs will.
Property I Slides
86
FREEHOLD ESTATES
Life Estate
Property I Slides
87
FREEHOLD ESTATES
Life Estate - Waste
Property I Slides
88
FREEHOLD ESTATES
Life Estate - Waste
Property I Slides
89
FREEHOLD ESTATES
Life Estate - Waste (continued)
It is permissive,
The market value of the remaindermans interest is not impaired,
or
A substantial and permanent change in the neighborhood has
deprived the property of a reasonable current value.
Property I Slides
90
Economic Waste
as defined in Restatement (2d) of Contracts 348 comment c
Sometimes such a large part of the cost to remedy the defects [in
construction] consists of the cost to undo what has been improperly
done that the cost to remedy the defects will be clearly
disproportionate to the probable loss in value to the injured party.
Damages based on the cost to remedy the defects would then give
the injured party a recovery greatly in excess of the loss in value to
him and result in a substantial windfall. Such an award will not be
made.
Property I Slides
91
FREEHOLD ESTATES
Defeasible Fees and Other Defeasible
Estates
Property I Slides
92
FREEHOLD ESTATES
Defeasible Estates
Rules of Construction/Preference
Property I Slides
93
NONFREEHOLD ESTATES
Term of Years
(and Other Leasehold Interests)
Property I Slides
94
Restraints on Alienation
Disabling
Under a disabling restraint, A may not convey.
Disabling restraints are always void.
Forfeiture
Under a forfeiture restraint, A loses her estate if she attempts
to convey.
Forfeiture restraints are valid for life estates and future
interests, but they are not enforceable for fee simple estates.
Promissory
Under a promissory restraint, A promises not to convey.
Promissory restraints are valid for life estates and future
interests, but they are not enforceable for fee simple estates.
Property I Slides
95
Restraints on Alienation
Property I Slides
96
FUTURE INTERESTS
REVERSIONARY INTERESTS
Reversions
Property I Slides
98
REVERSIONARY INTERESTS
Reversions
Property I Slides
99
REVERSIONARY INTERESTS
Reversions
Property I Slides
100
REVERSIONARY INTERESTS
Reversions
Property I Slides
101
REVERSIONARY INTERESTS
Possibilities of Reverter
Property I Slides
102
REVERSIONARY INTERESTS
Possibilities of Reverter
Property I Slides
103
REVERSIONARY INTERESTS
Rights of Reentry (Powers of
Termination)
Definition: A right of reentry is a future interest in the grantor that follows a fee
simple (or a life estate) subject to a condition subsequent.
Transferability
Strict Common Law: A right of reentry could descend through intestacy but
could not be devised or transferred inter vivos (the rule in Mahrenholz v.
County Board of School Trustees).
Florida Rule: A right of reentry is transferable, devisable, and descendible.
Majority Rule: Rights of reentry are descendible, devisable in some states,
but not transferable inter vivos.
Statute of Limitations
Theoretically, the Statute of Limitations does not begin to run against a
right of reentry until the grantor attempts to exercise the right.
However, in some states, the Statute of Limitations begins to run against a
right of reentry when the condition occurs.
Rule Against Perpetuities: A right of reentry is not subject to RAP.
Property I Slides
104
REVERSIONARY INTERESTS
Rights of Reentry (Powers of
Termination)
Property I Slides
105
REVERSIONARY INTERESTS
Right of Reentry (Power of Termination)
O conveys to A; provided, however, that liquor may not be
served on the premises.
No right of re-entry has been reserved.
Therefore, O cannot take the property back if liquor is served on
the premises.
The condition subsequent language will be stricken.
Property I Slides
106
REMAINDERS
Vested Remainders
Property I Slides
107
REMAINDERS
Vested Remainders
Property I Slides
108
REMAINDERS
Vested Remainders
109
REMAINDERS
Vested Remainders
Property I Slides
110
REMAINDERS
Contingent Remainders
Property I Slides
111
REMAINDERS
Contingent Remainders
Unascertained Takers: T to A for life, remainder to As widow
and her heirs.
If, at the time of creation, A is living, whether married or
unmarried, A has a life estate and As widow has a
contingent remainder in fee simple, because the taker is not
yet ascertained or ascertainable.
Therefore, Ts estate retains a reversion.
Property I Slides
112
REMAINDERS
Contingent Remainders
Property I Slides
113
Property I Slides
114
Property I Slides
115
Property I Slides
116
Property I Slides
117
Property I Slides
118
Property I Slides
119
Assume that Ts will creates this devise but does not expressly dispose
of the reversion; however Ts will leaves the residue of Ts estate to A.
Assume further that, at the time the will takes effect (when T dies), B is
alive and married.
Assume that, one year after T dies, A conveys her life estate and the
reversion to C.
Property I Slides
120
EXECUTORY INTERESTS
Property I Slides
121
EXECUTORY INTERESTS
Shifting Executory Interests
Property I Slides
122
EXECUTORY INTERESTS
Springing Executory Interest
O retains a reversion.
Property I Slides
123
TRUSTS
Property I Slides
124
Property I Slides
125
Property I Slides
126
Property I Slides
127
Property I Slides
128
Rule of Convenience
Property I Slides
129
Rule of Convenience
Property I Slides
130
Rule of Convenience
T the children of A
131
Rule of Convenience
T the children of A
Property I Slides
132
Rule of Convenience
Property I Slides
133
Rule of Convenience
T A for life, remainder to the children of B
Property I Slides
134
Rule of Convenience
T A for life, remainder to the children of B
Property I Slides
135
Rule of Convenience
T A for life, remainder to the children of B
Property I Slides
136
Rule of Convenience
O to Bs children who reach 21
Property I Slides
137
Rule of Convenience
O to Bs children who reach 21
Property I Slides
138
Rule of Convenience
O to Bs children who reach 21
Property I Slides
139
Rule of Convenience
O to Bs children who reach 21
Property I Slides
140
Rule of Convenience
Property I Slides
141
Rule of Convenience
O A for life, remainder to Bs children who reach 21
Property I Slides
142
Rule of Convenience
O A for life, remainder to Bs children who reach 21
Property I Slides
143
Rule of Convenience
O A for life, remainder to Bs children who reach 21
Property I Slides
144
Rule of Convenience
O A for life, remainder to Bs children who reach 21
Property I Slides
145
Property I Slides
146
Analysis Steps
Property I Slides
147
Analysis Steps
Property I Slides
148
Analysis Steps
Fourth, Treat the Part of the Gift That Violated RAP As Void, Leaving the
Remainder of the Gift in Tact:
O conveys to A for so long as liquor is not served on the premises, but if
liquor is served, to B.
The shifting executory interest in B is void.
A is left with a fee simple determinable.
O has a possibility of reverter.
Property I Slides
149
Property I Slides
150
Property I Slides
151
Property I Slides
152
Property I Slides
153
Property I Slides
154
Assume A is living at the time of this grant and has two children, B,
age 31, and C, age 25.
Because she is 31, B is entitled to immediate distribution.
As a result, the Rule of Convenience will operate to close the
class of As children immediately.
All children born as of the date the class closes (B and C) will be
allowed to take upon reaching the age of 30.
But no child born after the date the class closes may take, even
if he should eventually reach the age of 30.
Property I Slides
155
Assume that A is alive at the testator's death and has three children,
B, age 25, C, age 23, and D, age 19.
Interests Subject to RAP: Because no child of A has reached 30, As
children have a springing executory interest, which is subject to RAP.
Life or Lives in Being:
O and A are express lives in being.
The class of As children cannot be measuring lives, because the
class remains open:
A is alive, and
No child of A is entitled to immediate distribution, because no
child of A has reached the age of 30.
Property I Slides
156
A's children
as shall
reach
age
Vesting
or Failing Within
21 Years
of the the
Life or
LivesofIn 30.
Being:
It is possible that a child of A could reach 30 more than twentyone years after the deaths of O and A.
Therefore, the springing executory interest in the children of A
violates RAP.
Eliminating Void Gifts: O is left with a fee simple absolute.
Property I Slides
157
158
Property I Slides
159
Property I Slides
160
CO-TENANCIES
Tenancy in Common
Property I Slides
162
Joint Tenancy
Property I Slides
163
Problem 1
O conveys Blackacre to A and B as joint tenants and not as
tenants in common, with full right of survivorship.
Subsequently, A dies, leaving C as her sole heir.
Bs right of survivorship takes over, and B becomes the sole
owner of Blackacre.
Property I Slides
164
Problem 2
O conveys Blackacre to A and B as joint tenants and not as
tenants in common, with full right of survivorship.
Subsequently, A conveys her interest in Blackacre to C.
The conveyance to C breaks the unity of time and title
(because C took by a different instrument from B, and C took at
a different time from B).
Therefore, B and C hold Blackacre as tenants in common.
Property I Slides
165
Problem 3
O conveys Blackacre to A, B, and C as joint tenants and not as
tenants in common, with full right of survivorship.
Subsequently, A conveys her interest in Blackacre to D.
The conveyance to D breaks the unity of time and title as to Ds
interest
Therefore, D holds his one-third interest as a tenant in common with
B and C.
However, the unities have not been destroyed in respect to B and C.
Therefore, B and C continue to hold their respective one-third
interests as joint tenants in respect to each other.
Property I Slides
166
Joint Tenancy
Mortgages
Title Theory:
167
Joint Tenancy
Leases
The jurisdictions are split on whether a lease severs a joint tenancy.
Some courts hold that a lease does sever the joint tenancy, because
the unity of possession is destroyed by the lease.
Other courts hold that severance does not occur and permit the
surviving, non-leasing joint tenant to elect to declare the lease invalid
and evict the tenant.
Some courts find a temporary severance:
But there is no severance if the lease ends before the lessor dies.
Another alternative is to find no severance but to require the surviving
joint tenant to take subject to the lease.
Property I Slides
168
Property I Slides
169
Property I Slides
170
Accounting
An accounting is not allowed for personal use (unless there
has been ouster or exploitation resulting in permanent
depreciation
An accounting may be had for rents from third parties (less
operating expenses, such as taxes, mortgages, interest,
and management fees).
Repairs
The common law approach (still followed in some states)
does not allow such contribution.
Under the modern trend, contribution may be compelled for
necessary repairs, if they were requested and refused.
In a partition suit or an accounting, the costs of repairs may
be credited in favor of a co-tenant who repairs.
Property I Slides
171
Improvements
There is no right to contribution or set-off, unless the
improvements generate increased rents or profits.
Costs of improvements are recoverable only in a suit to
partition.
Taxes and Mortgages
A co-tenant who pays a mortgage or taxes may recover in
an accounting or partition suit (but there is no separate
action to compel contribution.
However, the co-tenant in sole possession will receive
reimbursement only to the extent that his payment exceeds
the market value of the property.
Property I Slides
172
Partition
Property I Slides
173
Property I Slides
174
Property I Slides
175
Property I Slides
176
Group III (majority view for states that still recognize the
tenancy by the entirety) (Delaware, District of Columbia,
Florida, Indiana, Maryland, Missouri, Pennsylvania, Rhode
Island, Vermont, Virginia, and Wyoming at the time of Sawada
v. Endo and now also Hawaii, Illinois, Michigan, and North
Carolina):
Property I Slides
177
Property I Slides
178
EQUITABLE DISTRIBUTION
IN FLORIDA: Marital Assets
179
EQUITABLE DISTRIBUTION
IN FLORIDA: Marital Assets
180
EQUITABLE DISTRIBUTION
IN FLORIDA: Nonmarital Assets
181
Nonmarital Assets
Assets acquired prior to marriage or acquired in exchange for
such assets or liabilities.
Assets acquired separately by either person by non-interspousal
gift, bequest, devise or descent and assets acquired in
exchange for such assets.
All income derived from nonmarital assets during marriage
unless the income is treated or relied on by the parties as marital
assets.
Assets and liabilities excluded from marital assets by agreement
between the parties.
EQUITABLE DISTRIBUTION
IN FLORIDA: Distribution Factors
182
EQUITABLE DISTRIBUTION
IN FLORIDA: Distribution Factors
183
The desirability of and feasibility of retaining the marital home: The court
may award exclusive possession of the home for a period of time by
considering
The best interests of dependent children to remain in the home.
The equities served by giving a particular party exclusive use and
possession of the home.
And any physical or mental disability suffered by a spouse that would
make staying in the home more appropriate.
Or any other factors necessary to do equity and justice between the
parties.
Any other factors necessary to do equity and justice between the parties.
Equitable distribution must be made without regard to alimony.
ALIMONY IN FLORIDA
Statutory Factors
184
Rationale
Because the innocent tenant by
the entirety has the right to
possess the whole, no interest was
subject to forfeiture. In
Pennsylvania, neither tenant by the
entirety may convey his or her
interest voluntarily or involuntarily.
Party Advocating
Mrs. Bernstein
Judicial Adoption
Trial court (with
the caveat that the
government may
file a lis pendens
against the
property)
Third Circuit
Court of Appeals
Garner v. Gerrish
Language Used: for and during the term of quiet enjoyment from the first
day of May, 1977 which term will end Lou Gerrish has the privilege of
termination [sic] this agreement at a date of his own choice.
County Court: The trial court granted summary judgment to lessor
Donovans executor on the ground that
the lease was for a month to month term because, while it specified a
specific date of commencement, it failed to set forth the duration of
continuance and the date or event of termination, and
The lessors executor could terminate the lease at the end of the next
month of occupancy because a lease that is expressly terminable at the
will of the lessee is also impliedly terminable at the will of the lessor.
(This rule, which dates back to Coke, is questioned by a number of
courts. )
Garner v. Gerrish
Coke also stated that a lease that is expressly terminable at the
will of the lessor is also impliedly terminable at the will of the
lessee.
This rule is still the majority rule.
However, according to the Second Restatement, if the lease
is terminable at the will of the lessor only, the lessee gets a
fee simple determinable. Restatement (2d) of Property
(Landlord & Tenant) See 1.7, illus. 7.
Some authorities question the Restatement rule.
Appellate Division: The Appellate Division affirmed for the same
reasons.
Garner v. Gerrish
Types of Tenancies
190
Creation
Express: A lease may be made orally or by a writing.
Implied
An implied lease may be created by the conduct of the
parties when the written lease is invalid writing, resulting in a
periodic tenancy.
An implied lease may also be created when a holdover
tenant pays rent and the lessor accepts the rent.
Types of Tenancies
Term of Years: A writing generally is required by the Statute of
Frauds for a term of years over one year.
Property Slides
191
Property Slides
192
Property Slides
193
Property Slides
All citizens of the United States shall have the same right, in every State
and Territory, as is enjoyed by white citizens thereof to inherit, purchase,
lease, sell, hold, and convey real and personal property.
Facts
Mrs. Murphy placed the following advertisement in a local newspaper:
For rent: Furnished basement apartment in private white home. Call
376-7410.
A black couple applied and was rejected by Mrs. Murphy on the basis
of race.
Analysis
Section 1982
Refusal to Rent: Mrs. Murphy violated the Civil Rights Act of 1866
because her rejection of the couple was based on race.
Advertisement: However, the advertisement did not violate the Civil
Rights Act because the provisions of the Act do not extend to ads.
FHA
Refusal to Rent
Because she owns and lives in a home with an apartment
for rent, Mrs. Murphy falls within the exemption provided
under 3603(b)(2) for the owner of a four-family or less
dwelling who lives in one of the units.
Therefore, Mrs. Murphys refusal to rent to the black
couple did not violate the FHA.
Advertisement
The exemption of 3603(b)(2) does not apply to
3604(c).
The ad suggests discrimination based on race.
Therefore, the ad does violate the FHA.
Facts
Mrs. Murphy placed the following advertisement in a local newspaper:
For rent: Furnished basement apartment in private home. Call 3767410.
A black couple applied and was rejected by Mrs. Murphy on the basis of
race.
Analysis
Section 1982
Refusal to Rent: Mrs. Murphy violated the Civil Rights Act of 1866
because her rejection of the couple was based on race.
Advertisement: However, the advertisement could not violate the Civil
Rights Act because the provisions of the Act do not extend to ads.
Refusal to Rent
Because she owns and lives in a home with an apartment
for rent, Mrs. Murphy falls within the exemption provided
under 3603(b)(2) for the owner of a four-family or less
dwelling who lives in one of the units.
Therefore, Mrs. Murphys refusal to rent to the black couple
did not violate the FHA.
Advertisement
The exemption of 3603(b)(2) does not apply to 3604(c).
However, the advertisement does not suggest
discrimination based on race.
Therefore, the ad does not violate the FHA.
Facts
Mrs. Murphy placed the following advertisement in a local
newspaper: For rent: Furnished basement apartment rented
only to persons speaking Polish, German or Swedish. Call 3767410.
A black couple applied and was rejected by Mrs. Murphy
because they did not speak Polish, German or Swedish.
Analysis
Section 1982
Refusal to Rent
By refusing to rent to anyone who did not speak Polish, German,
or Swedish, Mrs. Murphy may have violated the Civil Rights Act of
1866:
The Supreme Court has held that, for the purposes of the Civil
Rights Act of 1866, race means what race meant at the
time the Act became law.
According to the Court, in 1866, people commonly talked, for
example, of the German race.
Therefore, by refusing to sell to anyone not speaking, e.g.,
German, Mrs. Murphy may have refused to sell based on
race.
Advertisement
The exemption of 3603(b)(2) does not apply to
3604(c).
By restricting tenants to persons speaking Polish,
German, or Swedish, the ad may suggest a
preference based on national origin.
Therefore, the ad may violate the FHA.
Facts
Mrs. Murphy placed the following advertisement in a local
newspaper: For rent: Furnished basement apartment. Germans
need not apply. Call 376-7410.
A German couple applied and was rejected by Mrs. Murphy.
Analysis
Section 1982
Refusal to Rent
By refusing to rent to Germans, Mrs. Murphy may have
violated the Civil Rights Act of 1866:
The Supreme Court has held that, for the purposes of the
Civil Rights Act of 1866, race means what race meant
at the time the Act became law.
According to the Court, in 1866, people commonly talked,
for example, of the German race.
Advertisement: However, the advertisement did not violate the Civil
Rights Act because the provisions of the Act do not extend to ads.
FHA
Refusal to Rent
Because she owns and lives in a home with an
apartment for rent, Mrs. Murphy falls within the
exemption provided under 3603(b)(2) for the owner
of a four-family or less dwelling who lives in one of
the units.
Therefore, Mrs. Murphys refusal to rent to Germans
did not violate the FHA.
Advertisement
The exemption of 3603(b)(2) does not apply to
3604(c).
By excluding Germans from potential applicants, the
ad discriminates on the basis of national origin.
Therefore, the ad violates the FHA.
Lessees Duties
Property I Slides
215
Property I Slides
216
Assignment:
An assignment occurs when the lessee transfers to a third person all of her
right, title and interest in the leased premises.
Therefore, if the rent is not paid, the lessor may sue the assignee, so long as
the assignee remains on the premises.
However, the lessor may not sue the assignee after the assignee has
transferred the premises to another third person, unless the assignee had
assumed the duty to pay rent.
Sublease:
A sublease occurs when the lessee transfers to a third person less than all of
her right, title and interest in the leased premises.
A sublessee does not come into privity of estate with the lessor.
Therefore, absent an express assumption of the duty to pay rent, the lessor
may not sue the sublessee directly for rent due.
Property I Slides
217
Ernst v. Conditt
(If Conditt Was a Sublessee)
Ernsts
(Plaintiffs)
(Landlords)
Tract of land
for race track
Rent
(Privity of Contract)
(Privity of Estate)
Rogers
(Tenant #1)
(Lease)
(Privity of Contract)
(Privity of Estate)
(No Privity
of Contract)
(No Privity
of Estate)
Tract of land
for race track
Rent
Conditt
(Tenant #2)
(Sublease)
Property I Slides
(Defendant)
218
Ernst v. Conditt
(If Conditt was an Assignee)
Ernsts
(Landlords)
(Plaintiffs)
Tract of land
for race track
Rent
(Privity of Contract)
(Privity of Estate)
(Privity of Estate)
Rent
Rogers
(Tenant #1)
(Lease)
Tract of land
for race track
Conditt
(Defendant)
(Tenant #2)
(Assignment)
(Privity of Contract)
(Privity of Estate)
Property I Slides
219
Ernst v. Conditt
Third Party Beneficiary Analysis
(If Conditt as Sublessee Assumed the Duty to Pay Rent to the
Ernsts)
Ernsts
Beneficiaries
Plaintiffs
Intent
Pay rent
Lease
Rogers
Promisee
Sublease
Assumption
Property I Slides
of rent
Conditt
Promisor
Defendant
220
(Privity of Contract)
(Privity of Estate)
(Privity of Estate)
XT
(Lease)
T
X
(Assignment)
(Assume Duty
To Pay Rent)
(Assignment)
T2
T3
(Assignment)
221
(Privity of Contract)
(Privity of Estate)
(Privity of Estate)
T
X
(Lease)
T1
T2
(Assignment)
(Assumption)
(Assignment)
(Privity of Contract)
(Privity of Estate)
T3
(Sublease)
222
Kendall v. Pestana
City of San Jose
(Landlord)
Hangar space
1
Rent
Perlitches
(Tenants)
(Lease)
Reversion in hangar
3
Pestana
(Assignee) (Defendant)
(Assignment)
$$$
Hangar space
Hangar space
for 25 years
for 25 years
Rent
Kendall and Gradies (Plaintiffs)
Bixler
(Assignees)
(Sub-Tenant)
(Assignment)
(Sublease)
$$$
Property I Slides
223
Facts
L leases to T for a term of five years at a monthly rent of $900.
T covenants to pay rent and not to sublet or assign without L's
permission.
T then with L's permission assigns to T1, who does not
expressly assume the obligations of the lease.
T1 then assigns to T2 without obtaining L's permission.
T2 defaults in rent payment and L sues T1 for the amount due.
Property I Slides
224
Analysis
The rule in Dumpor's Case terminates the prohibition against
assignment when the landlord consents unless the landlord
specifically reserves the right to prohibit future assignments.
Although it is disapproved by the Restatement, Dumpor's Case
still survives in some jurisdictions.
If Dumpor's Case applies here, T1 wins:
T1's assignment is good even without L's permission.
T1 did not assume the covenants of lease, so he is no longer
liable once he transfers.
If Dumpor's Case does not apply, L wins, because L and T1 still
are in privity of estate.
Dumpor's Case does not apply to subleases.
Property I Slides
225
Property I Slides
226
Property I Slides
227
Property I Slides
228
Property I Slides
229
Lessors Duties
Delivery of Possession
Property I Slides
230
Lessors Duties
Delivery of Possession
The majority (English) rule (which Florida follows) requires
delivery of actual possession.
The minority (American) rule requires the legal right to
possession only.
Statutory Duties: Typically, state law creates certain duties for the
lessor, such as the provision of running water and heat.
Covenant of Quiet Enjoyment: The lessor must not engage in any
activity the causes the lessee to be evicted constructively from the
premises.
Implied Warranty of Habitability: Under the modern trend, the lessor is
deemed to have warranted impliedly that residential premises are fit
for habitation.
Property I Slides
231
Property I Slides
232
Property I Slides
233
Independent Covenants
Traditionally, the covenants in a lease were viewed as
independent.
If the lessor breached a lease covenant, the lessee could
sue for damages but could not treat the lease as terminated
and withhold rent.
Property I Slides
234
Property I Slides
235
Actual Eviction:
A lessee may treat the lease as terminated and withhold
rent if the lessor (or someone claiming through him)
breaches the covenant of quiet enjoyment by actually
evicting the lessee.
Partial Actual Eviction: If a lessee is actually evicted from
part of the premises, under the majority rule, the lessee
is relieved of all liability for rent, even if the lessee
continues to occupy the rest of the premises. (The
Second Restatement of Property rejects the majority rule
and calls for a rent abatement only.)
Property I Slides
236
Constructive Eviction
A lessee may treat the lease as terminated and withhold
rent if the lessor breaches the covenant of quiet enjoyment
by constructively evicting the lessee.
To assert a claim of constructive eviction, the lessee must
move out of the premises.
To constitute constructive eviction, the lessors act must
substantially and permanently interfere with the lessees
use and enjoyment of the premises.
Property I Slides
237
Property I Slides
238
Property I Slides
239
Property I Slides
240
Property I Slides
241
Constructive
Eviction
(Breach of
Covenant of
Quiet Enjoyment)
Breach of
Implied Warranty
of Habitability
Basis for
Cause of Action
Effect of Breach
on the Lease
Remedies
Available
Property I Slides
Property I Slides
243
Property I Slides
244
Property I Slides
245
Warranty Standard
Housing Codes
In some jurisdictions, a housing code violation automatically
breaches the implied warranty of habitability.
In other jurisdictions, the housing code provides the standard;
however, substantial compliance with the code is sufficient so long
as habitability is not affected.
Common Law
Property I Slides
246
Property I Slides
247
Remedies Available
The tenant may treat the lease as cancelled, and rent is abated.
The tenant may also seek money damages.
Hilder
The Hilder court used the contract measure of damages
for breach of warranty, which is the value of the premises
as warranted less the value of the premises as received.
Agreed rent is evidence of the rental as warranted.
Other jurisdictions use the following measure of damages: the
agreed rent minus the fair rental value of the of the premises
received.
In addition, the tenant may seek reformation or other traditional
contract or tort remedies.
Property I Slides
248
Premises Liability
Liability of Lessors
A lessor is not liable to the lessee, or others on the premises with the
consent of the lessee, for injuries caused by a condition of the premises,
except in the following situations:
A undisclosed dangerous condition exists that is known or should
have been known to the lessor but is unknown to the lessee.
A condition exists that is dangerous to persons outside of the
premises.
The premises are leased for admission to the public.
Parts of land are retained in the lessors control but are available for
use by the lessee.
The lessor has contracted to repair.
The lessor has been negligent in making repairs.
Property I Slides
249
250
Property Slides
251
Property Slides
252
Property Slides
253
Property Slides
254
Statutory Duties: In most states, the lessee also has duties assigned
by statute, such as the duty to keep the premises clean.
Florida Statutory Duties (F.S.A. 83.52): In Florida, the tenant has
the following statutory duties:
Comply with the health code.
Keep the premises clean.
Remove garbage.
Keep plumbing in good repair.
Use plumbing and electrical equipment in a sage manner.
Not destroy the premises.
Not disturb neighbors.
Property Slides
255
Property Slides