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1. Acquisition by Discovery
2. Acquisition by Capture
3. Acquisition by Creation
4. Property in One’s Person
B. Adverse possession
1. One can't adversely possess against a future interest holder.
2. Color of title – when a person has a document that they believe should give
them the right to the land, but there’s something wrong with the document (seller
didn’t have the right, etc)
a) Three possibilities
(1) possessor of color of title meets the hostility requirement
(2) the SOL is shortened (varies by state, in GA goes from 20 to 7 years)
(3) adverse possessor acquires only property described in the deed (land not
occupied is constructively possessed)
3. CHOATE –
b) Hostile – Fork!
(1) Subjective state of mind –I thought it was mine
(2) aggressive trespasser – I knew it wasn’t mine & decided to take it. (Maine
(3) objective test – did the adverse possessor behave as a good O would?
c) Open & Notorious
A. Possessory Estates
1. Fee Simple
2. Present Possessory Defeasible Estates
a) Fee Simple Determinable
(1) O to A so long as…
(a) Transferor retains Possibility of Reverter
(b) If someone is adversely possessing the property, and the transferor has
PoR, SOL starts to run as soon as the condition has been breached.
b) Fee Simple subject to Condition Subsequent
(1) O to A, but if …
(a) Transferor retains Power of Termination
(b) Here if someone is adversely possessing, SOL starts only after transferor
asserts her PoT
c) Fee Simple subject to Executory Interest
d) Life Estate
e) Estate for years
f) Restraints on sale aren’t valid.
g) A table:
Present Estate F I Retained FI to Grantee
FSA “O to A” X X Terminate
FSDeterminable “O to A Possibility of X Terminate
so long as” Reverter
FSsCS “O to A, but if…” Power of Term X Terminate
FSsEI “O to A, [so long X EI Expire
as][but if], then to B”
FT “O to A and heirs of Expire
LE “O to A for life” Reversion Remainder (V or C) Expire
EY “O to A for years” Reversion Remainder (V or C) Expire
B. Future Interests
1. Future Interests in the transferor
a) Reversion – grantor has given away something less than FS
b) Possibility of Reverter – if the grantor has given away a FSD
c) Power of Termination (Right of Entry) – if grantor has given away a FSsCS
(1) Must be created expressly.
2. Future Interests in Transferees
a) remainders – Any future interest which, according to the terms of its creation,
will become possessory, if at all, upon the natural expiration of prior interests
created simultaneously with it. never cuts off a prior interest, just waits for that
interest to expire.
(2) vested – a rdr is vested if taker is ascertained and it is subject to no
condition precedent other than the natural expiration of prior interests.
(a) subject to open – other potential takers aren’t ascertained.
b) Executory interests – Any future interest in a transferee that is not a remainder.
divests (or cuts off) a prior interest.
c) Life Estate
a) Doctrine of Destructibility – a contingent remainder is destroyed unless it vests
at or before the termination of the preceding freehold estates.
(1) So if it’s O to A for life, then to A’s son when he turns 21, and A dies
before A’s son is 21, A’s son’s cont rdr is destroyed.
b) Doctrine of Merger – whenever successive vested estates are owned by the
same person, the smaller is absorbed (normally makes a FSA)
(1) This can destroy contingent remainders. If A has a LE, and B has a
contingent remainder, if O conveys her reversion to A, then A has a LE and a
reversion. This merges into a FS, and B’s contingent rdr is destroyed.
c) The Rule in Shelley’s Case – if a will or conveyance creates a freehold in A (most
often a LE), and purports to create a remainder in A’s heirs, the remainder becomes
a remainder in A.
d) Doctrine of Worthier Title – A rule of construction, so only applied when
grantor seemed to have intended to keep a reversion. When an owner of a FSA
conveys a LE, with a remainder to grantor’s heirs, the rdr is void and grantor has
his reversion. So essentially the heirs get the reversion when grantor dies instead
of the rdr.
e) Rule Against Perpetuities – no interest is good unless it must vest, if at all, not
later than 21 years after some life in being at the creation of the interest.
(1) Common Law
(2) Wait and see
(3) 90 years
C. Co-Ownership and Marital interests
III. Leaseholds: The Law of Landlord and Tenant
A. Joint Tenancy
1. Joint tenants share the right of survivorship, meaning last one alive gets it.
2. To form a joint tenancy at common law, tenants must share:
B. unity of interest – identical shares of property (100% for survivorship purposes)
1. identical % of interest [100% for survivorship & tenure, equal pro rata share of
all others] and
2. identical types of estates
C. unity of time – tenants received their right to possess at the same time (so if O
to A and B, and when B dies, to C, A & C do not have unity of time)
D. unity of title – tenants received their interest from the same deed/will
E. unity of possession – tenants share the right to use any and all of the property
F. destroy one of these to terminate a joint tenancy
IV. To form a joint tenancy, transferor must transfer to ABC as a
group, not as individuals. Meaning, he doesn’t give equal shares of
the property to A, B, and C. Instead, he gives the whole property to
V. Under Common Law
A. Tenure & Survivorship
(1) each joint tenant holds the entire estate.
2. Right to transfer title or alienate
(1) each tenant holds a fraction of the interest
VI. example: So, if we have joint tenants ABC, and B dies, but
transfers his interest to B2, what do we have? B2 has nothing and A &
C have their 100% of the property
VII. **A Note about Modern Property Law & Joint Tenants: most
modern statutes create a rebuttable presumption that a transferor
transferring to 2+ people is creating a tenancy in common, rather than
a joint tenancy, because they don’t want the last survivor to have all
a) So, when a transferor (1)transfers to 2+ people, the right to own, possess and
use the property at the same time (2) does not identify separate interests in the
cotenants and (3) doesn’t show intent to create a tenancy in common, the ct will
make a rebuttable presumption that the transferor intended to transfer a tenancy
in common…here comes a jurisdictional split!!
(1) some abolish all forms of joint tenancy and tenancy by the entirety
(2) others raise the presumption of tenancy in common, which the transferor
(3) some abolish joint tenancies but allow tenancies by the entirety. Here the
tenancy in common presumption can be rebutted by transferring jointly to
spouses and explicitly stating the intent that they take as a unit.
A. Other than survivorship and tenure, each joint tenant has an undivided pro rata
interest. A joint tenant, while alive, can transfer this pro rata interest to a third
party or to one of the other joint tenants, without consent from joint tenants. (ABC
= joint tenants, C transfers to D her undivided interest)
1. this transfer, though, severs the shared interests (unity of time, title, etc). So,
the tenant then owning the severed (transferred) interest is a tenant in common, and
the right of survivorship may cease. The joint tenant who did the transfer is no longer
a cotenant of any sort. (So now A, B, and D are tenants in common)
(1) What happens to the remaining joint tenants that didn’t transfer
(i) If there was only one other joint tenant, that tenant is now the
owner in severalty. (so if it was originally just A&B, and B transferred to
A, A would own in severalty, and the joint tenancy is terminated).
(ii) If there’s more than one other cotenant, the non-transferring
cotenants are still joint tenants, and are tenants in common with the
owner of the transferred interest. (so…A & B = joint tenants, and A,B, & D
= tenants in common). This works even if the joint tenant transfers to
another joint tenant. (So A B C are joint tenants. C transfers to B, and A
and B become tenants in common)
(i) If a joint tenant tries to lease his interest…jurisdictional split!!
(i) in England (and some American cts) this is equal to a complete
severance. So if the leasing cotenant dies during the lease, other cotenants
have no right of survivorship. Need to understand this better
(ii) In other American cts, the leasing doesn’t constitute a severance. So if
the transferring joint tenant dies during the lease, the lease terminates.
Surviving joint tenants have immediate right to entry.
(i) When a joint tenant mortgages her interest in the property, she is
transferring less than the entire estate, but may sever her interest.
(i) Title theory states (transfer of title) jurisdictions: the transferring joint
tenant (the mortgagor) can remain in possession so long as there’s no default
on payment. When mortgage is paid, mortgagor regains title, but not joint
(ii) Lien theory states:
(iii) some say there is no severance. This means if the mortgagor passes
away while paying off the mortgage, the lienor’s rights terminate. Remaining
joint tenants interests are free of the lien. (basically the bank is sol)
(iv) other jurisdictions recognize a severance to protect the mortgagee’s
equity (partial severance). So if the mortgagor dies while the mortgage is being
paid, that mortgage remains (and the mortgagor’s interest is severed from the
joint tenants’? They lose their right of survivorship?)
IX. Tenancy by the entirety
X. meets the four unities of a joint tenancy PLUS the transferor
1. to transfer to two married people
2. for the H & W to take only as H & W (transferor, ideally, would say he intends
for H&W to take as a unit) …in other words, transferor may intend to give it to H&W
as joint tenants so the last living will have a right of survivorship
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XI. Tenancy in common
XII. tenants in common have a concurrent right to possess and use
the entire property at the same time, but don’t hold a right of
survivorship as to each other’s interest in the party.
1. From Cali: Another way of asking the prior question might be "For a tenancy in
common, what must each cotenant receive"? With a tenancy in common each title
transferee receives 1) an equal right 2) to possess and use 3) the entire 4) same
property 5) at the same time, but where there usually is no right of survivorship
between the cotenants.
2. Because there is no right of survivorship, a cotenant in a tenants in common
relationship can convey, lease, or mortgage her interest in the property without
consent of other tenants. The transferee of such an act becomes a tenant in common
with the other cotenants.
3. Cotenants can have unequal interests in an estate. They can have different:
(1) types of estates
(2) shares of the estate
(3) times that they received their interest
(4) deeds granting interest
4. Under traditional common law, there was a presumption of joint tenancy, so
unless the deed/grant explicitly said it was not a joint tenancy, it was assumed to be
so. To avoid joint tenancy, the transferor could also just give unequal shares, as this
would avoid the cotenants having unity of interest. Or she could clearly state she’s
giving the interests to the individuals, not a group. Or she could use more than 1 deed.
Or two or more grantors giving interest to two or more grantees for the same
property (No unity of title!) (we got complete diversity here, people)
(1) So, for example, O 50% to A and after B hits 21, 50% to B (and O dies
when A is 6, or whatever). Under traditional common law, this would be a
tenancy in common.
5. Modern common law favors tenancy in common, so this is presumed unless
explicitly stated otherwise. This is because cotenants don’t expect their interest to go
to the other cotenants when they die. So a rebuttable presumption of tenancy in
common presides in the modern common law. Requires:
(1) 1 instrument, 2+ transferees
(2) no separate interest or different quality
(3) no intent to create something other than a tenancy in common
(4) This again, is because people don’t expect cotenants to receive their
6. The FORKS
7. **Some state legislation doesn’t allow anything but a tenancy in common. So
no matter what, that’s what it is, yo.**
8. In other states, the presumption of a tenancy in common is raised, which the
transferor can rebut by explicitly demonstrating the intent to create something else
and not a tenancy in common. (so other stuff is allowed if expressed)
9. Some states don’t allow joint tenancies, but they allow tenancies by the
entirety. To rebut a presumption of a tenancy in common, the grantor must transfer
jointly to the husband and wife, as the husband and wife. Without this, no dice
tenancy in common. [they hafta really be married, too]
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(1) Tenancies by the entirety have a right of survivorship
(2) creditors can’t attack a property held in tenancy by the entirety.
(i) no liens in some jurisdictions
(3) Must share (just like joint tenancy):
(i) unity of possession (right to possess)
(ii) unity of interest (100% survivorship and tenure, and equal pro rata
shares of the rest)
(iii) unity of time (received @ same time)
(iv) unity of title (same document)
(v) +unity of marriage!
(4) another FORK
(i) If this were a jurisdiction that stated husband and wife are one,
and the husband is the one, that is, that he controls the interest… (I think
here, maybe if H dies w/a mortgage, the mortgage goes away)
(ii) Married Women’s Property Act (and another FORK]
(i) H & W are 2! So hubby’s not in charge any more. We share now. Or we
(ii) If this is a jurisdiction where the husband or the wife can act without
the other…(each has an undivided 50%)
(iii) Here creditors can attach that 50%
(iv) But when the debtor spouse dies, other spouse is free and clear
(v) If this is a jurisdiction where the husband and wife must act together
(vi) joint mortgages or debts can be applied to this interest
(vii) individual debts can’t attach the interest though
(viii) In some jurisdictions, H or W can create a limited interest in a third
party, but only so long as the transferee is alive (or if they survive their W or H)
(5) To destroy tenancies by the entirety
(i) in most jurisdictions, H&W must act together to destroy a tenancy
by the entirety
(i) in a ct ordered divorce or dissolution of the marriage, the tenants
become tenants in common, making their interest (50%) open to creditors.