1. Dividing real and personal property
    1. Creation of personal property:
      1. Ferae naturae -- capture of wild animals creates possession
    2. Types of real property
      1. Chattels (tangibles)
        1. Choses in possession (tangibles) v. Choses in action (intangibles)
          1. Tangibles
            1. Land: Idea of scooping up dirt
            2. Chattels: Everything one sees
      2. Intangibles (intangible): Something that is that is representative of value
        1. Check, deposit slip – what the slip represents – a debt that one owes another
        2. E.g. – not the piece of paper, but the exclusivity that it gives
        3. In older societies, land was the most important economic asset
    3. Theories to be used to sustain joint ownership of personal property --- (non fits exactly) -- often the problem emerges with bank accounts
      1. Gift theory
        1. Need to have present donative intent
          1. In civil law do not look inside a person’s head
          2. Determining donative intent in reality
            1. Look at transactions to tell if they were indicative of giving a fit
            2. Look at state of mind of giver
        2. delivery
          1. Need to have manual transfer of an item from one person to another
          2. Delivery means an intention, and it is an objective manifestation of intention
        3. Acceptance.
          1. No one need have property foisted on them without their consent
            1. These elements need to be present in a donative situation.
          2. All of the objective elements were there, but this wasn’t enough
        4. Class gifts: whenever we have a gift, not to, but to B C and D, we have a gift to a class – whether it b at children, grandchildren, NIECES, nephews, etc.
      2. Contract theory
        1. One could take all under the terms of a contract created
      3. Joint tenancy theory (is some of the four unities)
        1. time: A joint bank account can't be a real joint tenancy because the unity of time is lacking
        2. title: court mention that unity of title is lacking. There was no "straw-man" -- there is no equality as far as ownership and interest. Court says that there is no problem with there not being a unity of conveyance.
        3. Interest: could be at risk
        4. Possession: The agreement, and she retained all of the dividends. She retained all the possession, and the revenues. – Court says that joint tenants can agreement between themselves not to make use of the property.. E.g. on brother can be a farmer, and the other can be a banker.
    4. Creation of real property (Land and everything attached to land)
      1. Real property derives from the sovereign
      2. State can take back in terms of eminent domain
      3. not possible to relinquish real property
        1. Fixtures – at one point things that are attached to land would have been personal property (something that has lost its identity as personal property)
          1. Accession: the total loss of personal proper personal property it is "accession" when it became permanently integrated
            1. Close case: What about a clock?
            1. If the lease doesn't authorize removal of things annexed to the premises by the tenant, the law of fixtures may preclude removal
            2. Old view: removal must occur before the end of the term, even though those tenant remain in possession under a new lease
            3. Modern view: does not protect the tenant who seeks to remove within a reasonable time after possession
            4. ALI view: allow removal of fixtures during a reasonable time after surrender
            5. Another view: to prevent significant damage by the removal, the tenant could provided security deposit
    5. New divisions of property
      1. Body rights
        1. Body parts
        2. Can can sell blood, but you do not have to be able to sell your body parts
      2. Intellectual property
        1. Patents
        2. Copyrights
        3. Trademarks
      3. New property: Government largess (all of the value that government passes out to citizens) -- the idea of various kinds of subsidies, etc. and treat them as property – they are economic values that our Government gives to individual that were not given 100 years ago
        1. At the moment – new property can be considered part of a reliance interest
        2. Economic differences
          1. public education as a right can be considered property since there are economic differences between schools
          2. Question of licenses
            1. E.g. value of the property of a license
            2. State controls the source of income that individual will have
        3. substantive v. procedural rights – rights involve procedure as well as in substance: Where there is a due process right – this creates a right of property (e.g. before the state can deprive one of a public education)
        4. The government would protect the community in that interest –
  2. States of ownership
    1. Landlord-tenant is the language of property law, whereas property characteristics are defined by the landlord-tenant terminologies
      1. Philosophy states of property
        1. Blackstone: speaks of despotic dominion and total exclusion
        2. Bentham: I can plant the crop so that one can harvest the crop at the end of the season
          1. Property and law are born together and die together. Before law there was no property, take away laws and property ceases."
        3. Cohen: that is property to which the following label can be found
          1. Keep off, unless I say so – signed by owner, and endorsed by state
      2. Modern philosophy
        1. Occupation theory
          1. Possessor will have a right to continue possessing (subject to the owners right to possess)
            1. Possession creates property rights and a legal right to have better title than all except for the true owner
            2. Possession creates a protected interest
              1. Defense would be "I do not own this property, but neither do you" -- a plea in just tertii since has been overruled
            3. bailments: creates a reversioniary interest in the bailer -- a right to take possession later
              1. bailments are a transfer of personal property but without the transfer of transfer of ownership
                1. A bailee doesn't have custody but possession
                2. The transfer ownership (the one who takes ownership must have knowledge that he is taking it)
              2. Forms of bailments
                1. Constructive
                2. Involuntary
                3. Gratuitous
                4. Hire
              3. Parties of bailment
                1. Bailor is defined as owner who gives up possession
                2. Bailee is defined as non-owner who takes possession
              4. Traditional Duties of bailment parties: If both sides benefit then the bailee would have to exercise a degree of ordinary care
              5. Modern varying duties of bailment approach
                1. Sole benefit of bailor – e.g. painting sitting: The bailee is only responsible not to commit gross negligence or to exercise slight care as opposed to ordinary care.
                2. Sole benefit of the bailee : The bailor has a responsibility of extraordinary care
                3. Note: Modern approach is to adopt the idea of ordinary care but within an ordinary context where one party or the other would be benefited
              6. Changes in procedure in proving negligence when damage to a duty occurs (after proving that the bailment existed, and the damage, the burden of proof is on the defendant)
                1. Interaction between the law of bailment and how it would be tried if the owner brought an obligation against a bailee for the law of bailment
                2. Prima facie case: Presentation of all evidence necessary for the PLAINTIFF to receive a directed verdict unless the Defendant does something
              7. Showing negligence in the case of a bailment
                1. There must be presentation of certain elements that are related to the defendant’s case: If this is going to be a kind of negligence, one will have to prove in the presentation of the evidence – on pain of one seeking a directed verdict, one would need too show
                2. Evidence of negligence
                  1. Damages
                  2. Duty
                  3. Causation
                  4. No need to show what actually happen (sort of like Res Ipsa Loquitur)
                  5. Majority: the person who has the car ought to be more aware of what happened, and would have the burden to show what had happened. Minority: bailor has the burden of proof To refute either have to prove why it happened
            4. Ways to move between possession and ownership according to occupational theory
              1. Finding
                1. Treasure trover doctrine (in England): Tended to give the property to the landowner
                2. Fixture, annexation: if something becomes attached to land, it is in the possession of the landowner (or who has rights to the surface or area on which it is found.)
                3. Finder characteristics
                  1. Trespassers v. rightfully on land (If you are a trespassers, this is pretty much the kiss of death)
                  2. Finder has possession, and a claim that is good against the whole world except the true owner.
                  3. The true owner has ownership plus the right to possess if he can locate the finder
                4. Object characteristics
                  1. Attachments v. non-attached
                  2. Abandoned
                  3. Lost: possession of which has been lost without knowing about it
                  4. Mislaid: Mislaid is defined as property is deliberately placed somewhere, where the original person isn't able to replace it (someone burying somehting in the yard, and not retrieving it). Historically, lost property tended to favor the finder. Later, it was the landowner.
              2. Adverse possession: Way that a possessor can acquire a better right than everyone else, including the original owner
                1. Two elements of adverse possession
                  1. statute of limitations: once the statute of limitations has passed, the possessor becomes the true owner of the property: Statutes do not run against co-owners unless it is made clear to the coowner that the adverse possessor is repudiating the concurrent ownership and claiming the full interest on the land) The same individual donee needs to occupy the land thought the statutory period -- the law allows the tacking of successive possessors to make up the full period so long as there is private of estate between the claimants -- there must be some privity (can be parole transfer);Transfer of the true owner's interst doesn't interrupt the runnign of the statute
                  2. Possession: Actual Within an appropriate degree of physical control given the nature of the property itself of the type that an owner would normally make of this property (E.g. if a person would normally live on a property in the summer it is actual possession), constructive possession (assumptino that if someone has the entire lot, they can possess the whole) -- If Person has entered under "color of title" (document purporting to transfer ownership of the land (but the deed or title is defective)) this can be constructive possession. Note: In some jurisdictions adverse possessors may be required to pay taxes on the property
                2. Disability of the owner
                  1. The owner has a stated period when the disability is removed in which to bring the cause of action
                  2. The owner has the longer of two periods (statute of limitations or statute of limitations after owner stopped being disabled). Either the base period or, in this case, three years after the disability is removed to protect the interest
                3. A true owner will never have less than your base period
                4. Exceptions to adverse possession
                  1. the adverse possessor takes on the characteristics of the property he has: including the future interests and he easements (and the incorporeal interests)
                  2. When a future interest becomes a present interest the statute of limitations on adverse possession begins anew
                  3. Most statutes of limitations do not run against a non-possessory interest
                  4. If someone owns a property that another has adverse possession of, then the adverse possessor can eradicate any interests in a life estate that the true owner conveys to (if adverse possession predates the conveyance)
                  5. Military personnel: Service member must show that his ability to pay for the debt is effected by his service – if he makes more in the Military, he has to pay -- under the civil relief act some people are barred from recovery
                  6. Indian tribe is simply a sovereign
                  7. Encroachments can be handled by statute
                  8. Immunity of a sovereign against the act of the individuals
                  9. One cannot acquire title to land owned by the federal or state government
                  10. A transfer by the rightful owner to another person who is also doesn’t do anything about the averse possession, restarts clock
                  11. Time exception of the "discovery rule" v. Adverse possession: In some cases the statute of limitations might start running from the time when the true owner discovers, or had he exercised reasonable diligence would have discovered it (this seems only to be true for real property in NJ)
                5. Open/notorious (wrongful possession at the time)
                  1. actual notice: is the kind of notice that one is actually apprised of (one usually has a duty to view the actual property )
                  2. constructive notice to the true owner: so as to allow the owner to vindicate their property right, if the occupier is doing what the owner would normally do
                6. the doctrine of adverse possession is looked at form the perspective of the occupier
                  1. one who does not record a deed, but IS in possession, can be said to give constructive notice to anyone who would have looked at it -- this goes for easements
                7. Hostile --- note: if it is permissive, it isn’t hostile
                  1. Subjective approach -- look at what the possessor had in mind have the state of mind of the owner: Is this person claim ownership?, Was there a claim of right being asserted, The person claims to have the right to posses the property Claim of right regardless of whether the person knows or believes they have the title, If there is a subjective state asking if one intended to possess the other’s land –then the question is whether the person in fact committed a trespass
                  2. Objective approach -- look at what actions, Have the actions of this possessor created a cause of action, in fact, a true owner , Is it in fact, a trespass, we are not going to look at the state of mind of the possessor
                8. Quiet title is defined as a request to a court to determine the status of title
                9. Exclusive
                  1. Needs to be possession which ousts the true owner
                  2. Cannot have the "general public in control"
                  3. Cannot have simply a right to an easement in the property -- see easements.
                  4. Needs to be possession that is different than any kind of activity different than the general public.
                  5. See easements
                10. Continuous
                11. Tacking provision: whereby one adverse possessor can pass it on to the next adverse possessor thereby making one continuous adverse possession: needs to be voluntary private relationship -- Needs to be relationships
                12. Method of interruption (for owner to break possession)
                  1. Actual: To physically interrupt the period of possession
                  2. Legal: Bringing a legal action to protect the landowners land, If the true own brings a cause of action
                13. owner disability tack on addition time until disability is removed
                  1. Traditional :Infancy, Minority, Insanity, Imprisonment
                  2. Timing is only relevant if it exists when the cause of action first accrues
                  3. Once the adverse possession begins, the disability doesn’t matter
                  4. A later disability that arises after day one – or a later disability doesn't effect the statute of disability
        2. Natural rights theory
          1. Possession: intent to be in control of something with an appropriate degree of physical control over it
            1. In an action for trover, the law is reluctant to force a taker to pay both the possessor, and than pay the owner for something
            2. A possessor will have superior rights than a ‘taker’
              1. But, To make the possessor give the money back, would absolve him of all right that he has
              2. Law wants (in general) to protect the rights of the person who is closest to the true owner (e.g. lost and found box)
          2. First possessor will acquire possession, but if it becomes part of the land, the landowner will be the one who possesses it
          3. Custody is to be distinguished from possession -- bailments create possession, with reversionary interest
            1. Note: reversionary interests are always the same as the underlying estate
        3. Labor theory: People who till the land ought to have something unique
        4. Legal theory
          1. Divisions of rights
          2. Property is the set of rights between a person and the world at large
            1. This is the distinction between in rem and in persona
            2. In rem rights are the rights that a person possesses vis-à-vis a person and the world at large… one has a right against everyone
        5. Social utility theory
          1. Social utility is defined as the ability of the individual to seize upon unoccupied wealth -- so one throws the mantel of law around property
          2. Could be that the universe of private property is an argument for its continued existence
          3. The paramount argument for private property is that it best protects that rights of the individual
          4. In the social utility theory there is no conflict between social rights and individual rights (as property protects the rights of the individual)
    2. Lessor-lessee: language of contract law
      1. A lessee is serving a dual aspect, a contractual relationship and transferring an estate in land
      2. Lease : a non-free hold estate in land with a number of rights
        1. Estate : a non-free hold estate in land
        2. Possession: Right of possession inherent
        3. Right to do an infinite number of uses: Governed only by zoning, and the lease will only end according to its terms
      3. interesse termini -- rights in the lease are purely contractual until there is there is the entry into possession by the lessee (until then, the lease could be held liable for breach of contract but not for rent.) -- American law institute doesn't consider this necessary for creation of the leasehold
  3. Interests
    1. Please visit
    2. Knowledge: one needs to know of rights in order to maintain control over them
      1. extreme case of body party: one might not own a right to a diseased body part that they did not want, they were not going to use, and would have been destroyed (according to statute) anyway. Dissent: says that this is a taking, is offensive, and is unjust enrichment
    3. Ownership: If we have a certain collection of rights, privileges and immunities (bundle of sticks), we would normally consider them to be the owner
      1. Roman Law: Dominion (more absolute concept of ownership)
      2. Right to transfer: Landlord (holder of seisin) usually can transfer
        1. State can modify the right to transfer (e.g. non-discrimination), state will be subject to constitutional limitations, in that it might enforce a person’s property rights if unconstitutional
          1. Discrimination: Under common law landlord are allowed to exclude person from occupancy for any or not reasons (unlike innkeepers)
          2. Non-discrimination
            1. Racial discrimination banned by acts of congress and states
              1. Civil rights act of 1866 applies to all residential and commercial leasing
              2. FHA of 1968 applies only to residential lease and exempts most single-family dwellings (also on grounds of national origin, blindness, etc.)
            2. Discrimination against tenants with children seems to only be prevalent in places where there are shortages of housing for low income housing, as people are willing to pay more the privileges of not living near kids
          3. Inadvertent discrimination: The burden of proof for showing racially discriminatory motives shifts (Things with a racially discriminatory effect might be upheld)
        2. Immunity from interference – state action can modify the immunity from interference: E.g. fire, police may enter, as may legal aid workers
      3. concurrent interests
        1. problems with multiple ownership
          1. As long as one tenant occupies the whole without object from his fellows no particular problem ensures since the law treats the possession of one coteant as the possession of all, but disputes can easily arise and joint possession can be difficult
          2. One tenant can get title to the other's by adverse possession
            1. Has to be very notorious
            2. Some states require notice
        2. There may be a need for an accounting, or a contribution at common law
          1. Cotenants may be responsible for the other's contribution as co-tenancy requires cooperation
            1. Use
            2. Revenue
            3. Cost-otherwise termination is desirable
            4. Under all circumstances a rent must be charged against one's profits -- in the case of common property:
          2. Adjustments in the profits to be distributed can be made or can be made in a suit for partition
          3. Duty to account
            1. Old: duty to the others if one of the tenants agrees to act as a manager (no normal duty to account)
              1. Older view: if one tenant entered the land, and the other's interests weren't disturbed they owed no duty to the others
            2. New: there is now a need for covenants to contribute to reasonable upkeep
              1. Can offset cost of improvements
              2. Can offset taxes, insurance
              3. Non-possessor can compel proportionate contribution
              4. There seems to a quasi-fiduciary duty amount the tenants
      4. future interests: The person who has the present right, but who may acquire is the future owner
        1. some future interests may never be possessory
        2. Leases is defined as the renter having a present interest, and the landlord has a future interest
        3. Alienability of vested remainders (Can be transferred at will or by death, At the common law contingent remainders weren't transferable – today they are, However, he only gets what was owned by the grantor Creditors: if a debtor can voluntarily transfer it, a creditor can reach it.)
    4. Physical interests
      1. Statute of uses
        1. Conveyances to a party for use of another can be looked at as directly being conveyed to the second party (possible for things to terminate)
        2. The ancient use was probably similar to a trust
      2. Fees
        1. Modern assumption is the conveyance of a Fee simple absolute: "and his heirs" (e.g. no concurrent interests)
          1. Language
            1. the quantum of the estate is "and his heirs"
              1. in the past estates could not be made
            2. today whatever extent the grantor has, the law presumes he conveys, it, unless specifically cut back
          2. characteristics
            1. the owner of the estate can leave it, by will to any person of his own choosing since the estate is not subject to control by the owner's heirs
            2. Fee simple absolute can be transferred in three modes
              1. During life
              2. By will -- this is the effect of a will
              3. Intestate succession
                1. By descent and distribution – when the state transfers the property by dissent and distribution
                2. This is what we say by that A has unlimited use rights
            3. Limitations
              1. Public law, zoning, subdivision controls
                1. Judicial controls, etc. – zoning
              2. A may not be able to do something because it may be a nuisance -- definition of nuisance: Nontrespassory invasion of another's interest in the private use and enjoyment of the land
        2. Fee tail -- Reversion interest in a 3rd party if no remaining heirs exist
          1. Now interpreted by statutes two ways
            1. Majority -- makes for a fee simple conditional
            2. Minority (New York) -- makes for a fee simple absolute
            3. Delaware: retain the fee tail but allow the tenant in tail to execute a simple disentailing conveyance
            4. Illinois: make an attempt to give some meaning to the language by giving A, the first taker a life estate followed by a remainder in A's issue
          2. Fee tail special
            1. Where the estate was limited to bodily heirs of the named spouse
            2. After the named spouse died, her husband had a fee tail with possibly of issue extinct
        3. Defeasible fees also known as Base fees (also know as qualified fees)
          1. Alternatives
            1. can be in fee simples
            2. or even in determinable life estates.. Life estates -- can be conveyed intervivos or at death, most of these are to protect parties to marriage
              1. Dower is defined as where the husband dies, the wife gets 1/3 of his estate
                1. Court have protected inchoate dower against the claims of creditors of the deceased husband -- if the claims happened after the marriage
                2. Modern social welfare policy gives the wife 1/2 of the estate if the husband dies inteste (1/3 if there is an issues), and if the husband dies and the wife is not in the will she can renounce the will
                3. To convey an estate with dower, would require the consent of the wife
                4. Homestead rights
                  1. Grants an exemption to the head of the family against creditors
                  2. Opposing -- homestead rights are the creation of a new estate: Tiffany says that it is difficult to see how the right of an owner to hold land exempt from liability for debts can be an estate and that even where a statute expressly declares it to be an estate, a new meaning must be given to that term
                  3. Homestead rights can be waived
              2. Doctrine of community property -- based on French law -- now in eight jurisdictions
                1. Husband and wife will share equally in the property that was acquired by their joint efforts during their marriage
                2. This is the exact opposite of jure uxoris
                3. A spouse can transfer any property that he acquired on his or her own
                4. At one time there was a swing toward community property because it gave the appearance of divesting income and a tax advantage
                5. This is getting larger, as government largess seems to be going along community property lines
              3. Marital property as per the Uniform Marital Property Act
                1. Equal sharing by husband and wife of all the benefits and liabilities of the marriage partnership
                2. Differentiates between marital property and individual property
                3. Property acquired during the marriage is marital property (both the husband and the wife have a 1/2 interest in all the property)
                4. Act applies prospectively only affecting interests acquired after the act's effective date by married couple in the state
                5. Title can be in the name of one or the other or both. If it is in both, than it is joint control. If it is in one, than either can control the property.
                6. If a spouse makes an unauthorized gift, it can be rescinded.
                7. 3rd person who rely on title are protected in their dealing with a spouse, but gifts to third person in excess of a certain annual amount or in excess can be set aside by the courts
                8. this act is prospective, so it doesn't really effect couple who move in after the enactment of the act
                9. courts have leeway in dividing marital property
                10. Only adopted in Wisconsin
                  1. Types of marital property
                  2. Property acquired by either party before marriage
                  3. Property acquired by either party during marriage by gift,
                11. Creation of jure exoris estate (abolished by statutes)
                  1. Under common law the husband had a right to the life of the land for as long as the wife life -- but if a child was born to the wife, it vested in the husband
                  2. Curtsey is defined as the merging of the wife's estate into the husband's when a child was born to the marriage
                  3. Also known as tenant of the curtsey of England
                  4. Curtsey initiate -- husband's right to possession before death of wife
                  5. Curtsey consummate -- husband's right to possession after death of wife
                  6. Husband had right to profits of wife's property
                  7. Right of possession of wife's freehold estate
                  8. Existed only before birth of issue
          2. Conventional life estates
            1. General characteristics
              1. Ends at death of the measuring life
              2. Transferable by deed only
              3. Nature: possession/use/enjoyment only
            2. Ordinary -- most frequent and the presumption rests with them
              1. Note: at common law if someone was conveyed something without the words "and his heirs" the presumption rests with an ordinary life estate
              2. A life tenant will be treated as the "owner" of the property subject to the law of waste
            3. Pur autre vie
              1. Uses anther's person's life as a measuring stick
              2. Creation
                1. The estate can come into existence when an ordinary life tenant conveys his interest to a third party.
                2. By deed
              3. Common law did not like this because by treating the land as being without a tenant and allowing the first person to occupy it after the death of the tenant to claim the seisen as a general occupant
                1. General occupant: First person to occupy (not necessarily an heir) after the death of the tenant to claim the seisin as a general occupant (until the death of the measuring post)
                2. Special occupant: the heirs of the person who the conveyance was made to could claim seisen not because of inheritance but because of being a special occupant -- neutrally an inheritance, special occupant
              4. This has been altered by statute so that the unexpired estate descends like other estates in land
            4. Can be an estate for years subject to condition precedent -- often by statute these are limited to being conveyed just to heirs
            5. A power of termination can allow someone to terminate a lease for non-payment of rent (especially if he sells it)
          3. Fee simple determinable (or a fee on common law limitation)– automatic conveyance upon a certain event
            1. two parts
              1. limiting the use of the proviso
              2. what happens if this proviso is breached
            2. Conveyor has a non-possessory, but a future interest
            3. If the land is used for a certain purpose – it shall automatically revert to the conveyor
              1. Fee simple subject to conditions subsequent – option of retaking
            4. Originally this limitation would last forever
              1. Many states have limited this in some ways because this can be socially undesirable
              2. Now, the general neighborhood may have changed – as a matter of policy there could be a statutory effect
                1. If it is completely transferable – it is transferable by deed – if it is inheritable.
                2. It can be conveyed whatever way
            5. One who convey a fee simple determinable retains a future interest in the property – in that he will own it automatically if the condition subsequent is fulfilled
            6. defenses
              1. Legal defenses against fee simple subject to condition subsequent
              2. Fee simple determinable is subject to equitable defenses
                1. laches
                  1. not just a delay in time, it is a delay coupled with the defendant being prejudiced
                  2. this is not just violating the restriction, but the Plaintiff know that he has spent money on the violation of the restriction
                  3. needs to be detriment to the Plaintiff that would prevent the Plaintiff from suing – there was inaction, but most of the deterioration occurred the last few years – because most of the deterioration occurred at the very end (given the advise to do nothing, one simply did nothing)
                2. estoppel: an action inconsistent with one’s later ability to claim or assert something (once A tells B that they will do something – a waiver could be viewed as a waiver or an estoppel – this is judgmental on the part of an equitable court).
                3. Waiver: A has done something affirmatively to indicate that A will not enforce something or other 0
                  1. these things are transferable, by deed and by will
            7. words
              1. "so long as" or "until" denote a determinable
                1. Minority (non-existent): Gray thinks that a fee simple determinable may be impossible after the statute of quia Emptores -- because there is a continuing relation of tenure, and seems to violate the rule against perpetuities
                2. "on the condition that" or "on condition denote a affirmative right or re-reentry of a fee simple subject to a condition subsequent
          4. fee simple subject to executory interest
            1. not permissible at common law because it was a shifting interest, but the statute of uses made it okay;
            2. Characteristics
              1. Automatically terminates in favor of the 3rd person
              2. Often used for person purposes, not as a land use control
            3. Language
              1. But if
              2. However
              3. Could use parallel language
            4. Transferable
              1. Deed
              2. Will decent/distribution
          5. Contingent remainders All future interests are transferable -- but vested ones are (under the common law -- today there bankruptcy code doesn't draw distinctions)
            1. Difference between vested and contingent remainders
              1. Vested remainders can't be destroyed
              2. Vested remainder could be freely alienated -- for purposes of the exam
              3. Contingent remainders were subject to more restive rules in case of voluntary transfer or attachment by creditors
              4. Difference between contingent remainder and future interst
              5. Note: bankruptcy can take control of a contingent remainder
            2. Vested v. non-vested (a reversionary interst can never be non-vested)
              1. In ascertained person
              2. No condition precedent to possession other than termination of previous estate – is the person in existence and ascertained.
              3. Whenever or however A’s life estate or his term of years – this will be a term of years – this will be an unfolding story.
              4. We know that O has a reversionary interst – which is totally transferable – this is transfer during life – O can convey it at death by will.
              5. If O dies by conveying it at death – it will pass by intestate succession.
              6. Succession, dissent and distribution – all future interests are transferable
              7. The situation with the reversion is not terrible difficult
            3. Types of remainders
              1. Indefeasible vested is defined as (to A for life remainder to B and his heirs)
              2. O conveys to b for life, remainder to B and his heirs -- B’s remainder will be indifeasibly vested
              3. The future interest has to be in an existing or born person or person
              4. Ready to take effect in possession whenever and however the preceding estate terminates
              5. Transferability (during life)
                1. Alienable
                2. Devisable
                3. Desendable
                4. Not dependent on survivorship
            4. Contingent remainders (aka condition precedent)
              1. Common law rule against spring and shifting interests
                1. Freehold could not be created to commence in the future
                2. A condition could not be reserved to a stranger
                3. In today's terms once someone has a freehold estate, it is absolute and can't spring
                4. Under the statute of uses allowed the creation of springing and shifting interests, this had no effect on the doctrine of destructibility and S's estate would still be lost for failure to vest in the lifetime of A
                  1. Springing: Springing executory interest is defined as were the executory interest cuts off an interest in the grantor. It is a conveyance today, but A isn't going to be married until a certaint time -- the estate springs out of a person, and into another grantee
                  2. Shifting: shifting from one person to another
              2. in order for it to be vested it has to be in a know and existing person with no condition precedent (O conveys to B for life, remainder to B’s heirs at a time when B is still alive.)
              3. Heirs are not synomous with relatives – these are things that the law says inherits a decedent's property
              4. the absence of either a known heir or a condition precedent woulld imply a contingent remainder
              5. At the common law contingent remainders weren't transferable – today they are
            5. Vested contingent remainders
              1. Vested subject to open is defined as vested subject to partial divestiture: is defined as to A for life, remainder to the children of B and their heirs, B having at the time of transfer one or more children with the possibility of future issue
              2. Vested subject to total divestiture -- also called vested subject to a condition subsequent (to A for life, then to B and his heirs, but if B fails to survive A, than to C and his heirs.)
                1. C has a shifting or executory interests, so it isn't possible until after the statute of uses
                2. To A for life, then to B and his heirs, if B survives A, but if B does not do so then to C and his heirs -- there are alternative contingent remainders
              3. Vested remainder subject to total divestment/complete defeasance – this is a vested remained subject to being divested by the condition subsequent
                1. This was not an indefeasible vested remainder, it was a remainder subject to a stated event
                2. It is alienable, divisible and descendable
                3. unlike a contingent remainder, it isn’t often in the mind of the creator, it is in the mind of the draftsman
                  1. ie: if we have O to A for life, remainder to B if B survives A – if B does not survive A to C –
                  2. this would be an example of ‘alternative contingent remainders"
                  3. this language would be viewed as language built into the condition remainder
                  4. it is really the creation of two contingent remainders (in A and B), or a vested remainder subject to being divested – what C has is not an alternative conditional remainder or a
              4. fourth kind of remainder – vested subject to partial divestment – or vested subject to open
                1. this is the subject matter of the so-called class gift
                  1. Class gifts: whenever we have a gift, not to , but to B C and D, we have a gift to a class – whether it b at children, grandchildren, NIECES, nephews, etc.
                  2. Ie O to A for life, remainder to A’s children
                2. If it is only subject to open – it means that the share of a given person, it means that the share of a person can be cut down by entry into the class
                3. As additional members of the class come into the class, the share of each is diminished.
                  1. The idea is that we close a class, when it is practically necessary to know how many shares into which to break the ownership
                4. The characteristics of a vested remainder subject to open – it is subject to a condition subsequent
                  1. The class enlarged in order to take into more members
            6. Merger of contingent interests and present interests
              1. The life estate and the contingent remainders come into the possession of the same person
              2. Merger does not automatically apply if there is a conveyance from one to another, with a remainder to his child (O to A with remainder to A's child) and if A is O's sole heir there is not automatically a merger
                1. This can be gotten around with a straw party
              3. Under the doctrine or merger, many of the contract rights are extinguished one when accepts a deed
            7. Rule in Shelley's case (not in all jurisidictions) -- a life estate conveyed to an individual, and remainder to his heirs will be automatically conveyed to the individual (hence, the remainder to his heirs), this avoids the inheritance taxes
              1. An automatic merger of estates
        4. Concurrent ownership
          1. present interests (lesser than a fee simple absolute is a tenancy)
            1. Construction of multiple ownerships:Look at the document, and if it is ambiguity on its face (a single plain meaning) – we do not allow extrinsic evidence. Under the New York law – it is clear because of the presumption (The appellate court looks at the extrinsic evidence – which is the question here of "expressly declared to be a joint tenancy)
            2. Coparcenary is defined as joint tenancy by heirs
              1. There was no right of survivorship among the parceners and the share of each would go to that parener's heir would be would in coparencary with the survivors
              2. Individuals who share an inheritance are now usually called tenancy in common
              3. When property was inherited by female descendants of the property owner (There was no right of survivorship among the parceners and the share of each would go to that partner's heir would be would in coparencary with the survivors)
                1. Primogenitor is abolished everyone in the western world, except for the British crown
            3. Joint tenancy: the tenants own by the whole interest and a share (note that common law favored the creation of a joint tenancy) when the exact nature of the estate wasn’t specified
              1. Creation can only be by deed or by will
              2. Termination
                1. Termination: Voluntary termination, or cross deeds is defined as each giving each others deeds to their title, in most cases there is a unilateral right to partition; A can file suit and seek judicial partition and force, in effect, a partition of A’s interest; A could force and acquisition and an undivided interest.
                  1. Voluntary Termination of joint tenancy -- can agree to cross deeds is defined as each giving each others deeds to their title
                2. Termination by common law: always preferred a physical separation. We could do it in kind if the property was commodifiable. We partition on the basis of value not on the basis of re acreage. To get the NET PRESENT VALUE , This would actually be based on a sale – and the sale would be based on a partition . This is a unilateral right with certain exceptions
                  1. Can be partitioned and was, in fact, severed by a voluntary or involuntary conveyance of a single party
                  2. According to property theory the survivor's share wouldn't be subject to death taxes
                  3. We partition on the basis of value not on the basis of re acreage and get the NET PRESENT VALUE , This would actually be based on a sale – and the sale would be based on a partition .
                  4. It is possible to have a termination based on voluntary conveyance, but the new owner doesn’t have the unities of time, title, interest and possession, and the new owner would have the same fractional sale – and would be a tenant in common, the tenant in common, he will not have the right of survivorship -- but it can still be exchanged by a will
              3. Transferring interests
                1. If an interest in a joint tenancy is conveyed, The new owner doesn’t have the unities of time, title, interest and possession
                  1. A new owner would have the same fractional sale – and would be a tenant in common (A tenant in common, he will not have the right of survivorship -- but it can still be exchanged by a will)
                2. Contract to sell the interests: it means that the estate is liable to convey the same titles: Death doesn’t intervene because the joint tenancy terminates at the time of the contract, and then the obligations based on a tenancy in common. --- hence one would be conveying land by
                  1. Right of survivorship is inherent in it: When one dies the right of survivorship passes to the others equally (In the past, there was no right of survivorship unless the of survivorship is provided for)
                3. Predominant view is that mortgage or lease doesn’t sever the joint tenancy
                4. because this interest is alienable, it can be the subject of an involuntary conveyance, such as a concurrent owner: creditors can only touch non-exempt rights; where the debtors only have the creditors – and there are exempt property outside of the marriage situation as well.
                5. Presumption: it used to be that if there was a conveyance to A, B, and C it was assumed to be a joint tenancy – but today the presumption is a tenancy in common
                6. For instance, in farming situations there may be economies of scale
            4. Tenancy by the entirety also known as joint tenancy modified by common law doctrine that the husband and if are one person (the husband would control) -- still exists in Massachusetts
              1. Function: "poor couples" will which creates a right of survivorship between husband and wife
              2. Need the four unities -- time, title, interest, possession
              3. In some states a Tenancy in the entirety this can only exist in real property
              4. Signification distinctions between Tenancy by the entirety and Joint tenancy with right of survivorship and joint tenancy
                1. Termination: there was no unilateral right of the husband or the wife to partition until divorce (In the common law and in England there were no divorces, Could only be transferred at death, There was no unilateral voluntary conveyance),
                2. No involuntary conveyance by the husband or the wife (Creditor of the husband or the wife couldn’t attach a debtors interest, No so, if the property were held in Tenancy by the entirety)
                3. Some jurisdictions today have made tenancy by the entirety property subject to attachment by creditors just like any other property)
              5. Tenancy by the entirety is where the tenets own the whole interst, but not any individual share
              6. Termination: Can only be terminated by voluntary act of both parties or by divorce,
                1. Could only be defeated by act of both parties or a divorce
                2. Other states have given both properties equal rights to enjoy the property
              7. Maried Women's property acts, destroy the spousal unity
              8. Creditors couldn't take the land of a debtor, if the debtor couldn’t control it, either.
              9. If one party died, their interest disappeared and it couldn't be reached by creditors
                1. Some states have taken the position that no creditors could reach the land at all, because it would be too great a in imposition on the other's enjoyment
                2. In some states if a house held in the entirety is destroyed, each party might be entitled to 1/2 of the insurance proceeds
                3. This would seem to be involuntary conversion
                  1. In most jurisdiction, a divorce ends tenancy in the entirety, and husband and wife become tenants in common
                  2. There was a statute in DC which allowed the tenancy in Common to continue after divorce
                4. Hence, if there was a valid prenup, then, since the Tenancy in entirety would continue, then the Tenancy in entirety continued, and a tax lien could not be successfully placed on it
              10. Some states have said that the co-tenants owe the highest degree of confidentiality in the other
            5. Tenancy in common -- most common and must be rebutted (by statute): Function: to create a situation where there is ownership in common – but there is no right to survivorship
              1. Interest: Each individual has an undivided interest, that undivided interest will not be effect by the death of any of the parties
              2. Types: All kinds of property can be placed in tenancy in common
              3. Transferability: In terms of being transferable, it is a property interst that is transferable voluntarily or involuntarily
              4. Creation: It can be created by deed or will or descent (Joint tenancy property can’t be created by intestate succession)
              5. Termination: a tenancy in common is terminated – that is when you end unity in possession., This is how you can have new configuration of ownership and not have tenancy in common or a Sale by all co-tenants
                1. They are just like sole estates but have two people possessing.
                2. The interst are several, except that they can't lay claim to a specific part
                3. If a marriage bond were severed by absolute diverse it severed the estate as well, since the unity was gone, a tenancy in common would result
              6. Function: to create a situation where there is ownership in common – but there is no right to survivorship
                1. Each individual has an undivided interest, that undivided interest will not be effect by the death of any of the parties
              7. Tenancy in common includes a right of survivorship unlike coparcenary
              8. Tenancy in common is not assignable
              9. In a tenancy in common, spouces could convey it together, and one could convey it to the other
            6. Tenancy in partnership: There are elements of corporate law, partnership, etc. etc.
            7. Toten trust (real property only): Deposit of one's own money to himself for anther's use -- this can be considered a joint tenancy bank account
      3. Severability of physical interests
        1. Medieval law is that one’s rights extended from heaven to hell .
        2. the statute of limitations may run against the surface but not against the subsurface if the latter estate has not been subject to adverse possession
        3. Types of rights -- can be severed from ownership by exception or grant
          1. Mining rights: But In Kentucky, court held that the owner of the coal deposit was the person who could access them – rather than the person who might have had them directly under his land
          2. Water rights -- the riparian land is attached to the water rights, and can't be severed (easements possible)
            1. Statutory theories
              1. West: Prior appropriation is the question of rights vis-à-vis the prior appropriation rights theory -- one can appropriate a portion of the flow and use it wherever
                1. Colorado view: no riparian rights concepts -- just based on prior application
                2. California: pre-existing rights will take precedence
                3. Has also been applied to sunlight -- and it could be an activity off the property (most jurisdictions do not recognize because it seems like a prescriptive easement)
              2. East: Reasonable use theory is defined as One has the right to the flow of the stream, for reasonable uses on the property
                1. Reasonable use: drinking, small farms, etc.
            2. Common law views of water rights
              1. Old English common law view was that you had a right (ownership in place) of all water under your property
                1. A rule of capture -- how does one acquire ownership of animals
                2. You could apply ownership of animals though capture
              2. American rule -- you did not have an absolute right,
                1. You had the right to take the water for any reasonable use
                2. Rights were connected now with the impact on other landowners, but whether your use was a reasonable use
              3. California (or Correlative rights view) : landowners over the aquifer, and we distribute the rights to the acquirer to all of the landowners -- but we divide out the water rights among a number of landowners
              4. Nebraska: modified reasonable use view
                1. Nebraska gives preference to certain kinds of uses
                  1. Idea is that sometimes various kind of uses will be graded by the states
                  2. Certain kinds of uses will be given an higher grade than others
                  3. prior appropriate for upstream domestic use gets priority
                2. The defendants action were wrongful -- by definition the defendant's use was not a reasonable use
              5. Navigational servitude
                1. If commerce can be carried, there is an inherent right in the federal government that supersedes all these rights
          3. Airspace rights
            1. Medevial view: from heaven to hell
            2. Modern view: owners own as much airspace as they can occupy or use
              1. Above a certain point, the government owns because of airways
              2. As long as the state's use of it eminant domain power is rationally related to a conveiveable purpse, the public use requirement is satisfied
                1. Not necessary that the government actually possess the property
            3. Sunlight
              1. Ancient Lights: An adverse possession view that if one had a house that was was receiving light from across a field, and that access wasn't blocked, after a while they received an easement to always be entitled to that land
                1. This is a prescriptive easement in the land of another
              2. American view:Societal interest in development
              3. Wisconsin View
                1. old view was that sunlight did not matter, and development was good
                2. Note: kiss of death of using governemnt police power is if it is used for a private good
                3. Nuisance law can be flexible and can be used to forster policies, and keep people's enjoyment, rather than deciding what is a right and what is not a right
              4. Minority view: (New Mexico) takes a prior appropriation view
              5. ZZZZZ
        4. Present Tenancies
          1. Tenancy for years:
            1. Duration: term of fixed duration, This doesn’t need to be a regular fraction of a year
              1. note: so long as a gross period is stated, it will be an estate for years, even though it is subject to earlier termination
            2. Creation
              1. Statute of Frauds says that there can be no valid conveyance unless it is writing
                1. The English Statute of Frauds allows a lease of up to three years to be in writing
                2. The New York Statute of Frauds allows an oral lease of up to one year to be in writing
              2. Instruments of conveyance of property interests
                1. Assignments
                  1. Assignments of land are usually permitted, and although in contract they require consent, it is almost impossible to forbid, as this would be a forfeiture.
                  2. The covenant to return a security deposit has not been held to be assignable
                  3. Since on cannot unilaterally rid himself of contract obligations, assignees are liable by virtue of privity of estate for rent that accrues during the period of ownership of the leasehold estate
                  4. Consent by the landlord to an assignment by the tenant is not an implied release of the tenant obligations in the lease
                  5. The landlord can sue the original tenet, or the assignee or both
                  6. If the tenant is required to recover against the landlord, the tenant is entitle to recover over the assignee
                2. Effects of assignment
                  1. The assignment – transfer of the entire remaining term of the tenant
                  2. Question of looking at this geographically, rather than chronologically
                  3. Transferring a part of the land for the rest of the remaining term – this is another question
                  4. The law took the idea of assignment to have a chronological concept to it
                  5. Can a promisor unilaterally step out of the obligations of the contract
                  6. The mere fact of transfer doesn’t remove the privity of estate relationship between the landlord and t
        5. EFFECTS
                1. This is an assumption: tenant is still liable for all the covenant of the lease
                  1. This can also include the mortgages – can transfer it subject to a mortgage
                  2. T is still liable on the covenants to the landlord based on privity to the contract
                  3. The first tenant can promise the first landlord that he will meet the terms
                  4. This is a third-party beneficiary – e.g. landlord can enforce
                2. He can go against either party – and either party is responsible to the landlord
                  1. In this situation, we can say that once T1 promises T to pay the rent – the idea is that you can have a principle obligor and a secondary obligor
                3. If the first tenant doesn’t expressly assume the obligations of the lease – to the landlord (he has privity of estate with the landlord) – t1 will be liable on certain covenants based simply on privity of estate
                  1. Only certain kinds of responsibilities where t1 will be responsible to the landlord
                  2. This is the idea of covenants running with the land – or covenant running with the estate
                  3. This premises the obligation based on who every has the estate in land
                  4. E.g. the first tenant will be responsible for the real covenants
                  5. A real covenant is something that effects someone as a landowner
                  6. When there is an assignment, the impact of those two promises n t1 – the key here is to determine what a real covenant and a person covenant is
                  7. Most covenants in leases are interpreted as real covenants.
                  8. The landlord has obligations to t1 – the obligations of the landlord now flow to T1 – the landlord can go both against t –
                  9. Any covenant that is based on person is based on the obligation is the covenant to pay rent.
                  10. Restrictions on transfer: There is no common law requirement that assignments be made to responsible parties, lessors must protect themselves by reserving the right to pass upon prospective assignees
                4. Subleases -- in this case the transferor remains the tenant and the transferee is a subtenant, obligated in most respects only to the tenant.
                  1. There is no privity with the original landlord
                  2. Exceptions: some provisions which prohibit certain activities bind the subleases
                  3. There is a duality of relationships between a landlord and a tenant. – privity of estate
                  4. When a landlord transfers something to the landlord, a non-freehold estate has been transferred – two people have an interest at the same time
                  5. This transfer has all sorts of promises associated with the lease
                  6. The landlord will be promising the tenant either expressly things
                  7. There will be cross promises (covenants)
                  8. This simply means that there is privity of contracts – this means that there is privity of estate which effects this area of transfer
                  9. Subleases are not bound by all the provisions of the original lease
                  10. Differing constructions of provisions requiring landlord consent
                  11. Some construe narrowly in line with the policy opposed to restrains on alienation
                  12. Old English rule (followed in American courts) -- that consent to one assignment is consent to all assignments --This can be contractually obviated
                  13. In New York the statue is that a tenant can't assign the lease unless the lease gives the tenant the right to transfer
                  14. there is the ability of the tenant to sublease, but only for some justifiable reasons – could be insolvency or the
                  15. Common law presumption is whether it is this right by statue – or there is a lease prohibition.
                  16. Common law would say that if you give someone a fee, you are giving someone the right to transfer – so any prohibitions on transfer are void
                  17. Later there were restrictions on transfer put on lease – restraints on alienation
                  18. This is the idea of alienation of fees – and on leasehold estates – this is why you can’t have a lease prohibition in addition to a statutory prohibition
                  19. If there is a transfer, however, the formalities of the Statute of Frauds apply
                  20. Most courts have refused to find in restriction requiring lessor's consent to be transferors to tenant an implied limitation that consent not be unreasonably withheld
                  21. There is growing concern for the idea that implying in consent clauses that consent must be reasonable -- this consent can be obviated by a freely negotiated contract
                  22. Problems: Reasonableness standards create uncertainty/Trent will create invalidation of lease clauses expressly allowing arbitrary withholding of consent
                  23. Courts are split as to whether a right of entry in the even of default by the transferee is to be treated as a reversion Traditional: right of entry is not a reversion (it is a chose in action). Minority: reservation of a right of entry as a reversion at least for the purpose of resolving the issue of classifying a transfer as an assignment or sublease. Other: court adopted an approach of relying primarily upon the intent of the parties in determine whether a transferor by a tenant receiving a right of entry is an assignment or a sublease
              1. Instruments of conveyance of interest
                1. Wills
                  1. Document which is representative of an intention to transfer only at some point in the future
                  2. The day one exercises a will there is no legal significance – only a legal significance if he dies when it
                2. Deeds
                  1. Difference between law and equity
                  2. Technical rules of the common law courts that were not held in equity -- that the statute of uses got around -- the statute of uses did way with these things
                  3. No freehold could be limited to begin in futoro
                  4. This can be gotten around by the creation of a strawman
                  5. Thus, it was possible, after the statute, to limit a freehold to begin in futuro of uses
                  6. No remainder can be limited after a grant of the simple -- there couldn't be a way for land in fee simple to fall out of someone's possession given a certain condition
                  7. No remainder can be limited so as to end and vest in another so that it would end
                  8. There was no means of creating trusts -- equity needed a way to create trusts
                  9. No remaindered could be limited after the grant of a fee simple -- this allowed for alternative remainders
                  10. No remainder could be limited so as to vest in possession prior to the normal ending of the preceding estate
                3. Modern equitable remedies
                  1. Recession of the contract
                  2. Specific performance
                  3. May not always be available if the real property is similar to chattels (remedy at law)
                  4. This raises questions of mutuality of remedy -- but if there is nothing unique about money or apartment, than there is no reason that there must be specific performance
                  5. Uniform Land Transactions Act : vendor has the right to specific performance and the purchase price only if he can't resell
                  6. Liquidated Damages Clause can go so far as to create an option of payment -- and mean that there is no need for equity
                  7. Courts won't force purchase to accept something he did not bargain for on the theory that it is just as good as what he expected to receive
                  8. E.g. if there is a minor easement
                  9. Legal (contract) damages will be awarded if the land has been sold to a 3rd party BFP -- in use in about 1/2 of the American courts
                  10. Even if there was careful stipulation in the contract of the remedies available -- the court of appeals granted specific performance where the title was defective, but the defects were resolved
                  11. Differences in opinion about non-willful breaches in title (e.g. personal property it is easy to tell what the state of the title is)
                4. English Rule (about 1/2 the states)
                  1. Lited the purchaser, except where the vendor had acted in bad faith to money paid down by the purchaser, plus interst and expenses connected with examination of the title
                  2. Hard to determine bad faith on the part of the vendor
                  3. Purchaser can still seek to rescind the contract -- but in order to warrant recession the breach has to be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement
                5. American Rule
                  1. Damages
              2. Equitable conversion is defined as if title remains with someone, but another is in possession, than if it is destroyed, it is converted
                1. Equitable conversion treaties the parities as having changed places -- the original estate was converted
                2. Creditor's rights
                  1. Creditor can usually reach the assets of either
                3. Devolution of property interests on the death of either the vendor or purchaser
              3. Question o which party bears the risk of loss when transferring land

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