Wiseman Fall Property.docx by fanzhongqing


									                                                                        10/27/2008 12:47:00 PM

I.       Fundamentals
         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 –
            a) Continuous
            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?
                   (Connecticut Doctrine)
              c)   Open & Notorious
              d)   Actual
              e)   Time
              f)   Exclusive
         4.    SOL
            a) Tacking
         5.    Disabilities

II.      Estates
      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.
          (1)     contingent
          (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
   3.     Doctrines:
      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

the property.
        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
            can rebut
            (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.

VIII. Severance

  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)
           (2)   Leasing
                 (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.
           (3)   Mortgages
                 (i)   When a joint tenant mortgages her interest in the property, she is
                 transferring less than the entire estate, but may sever her interest.
                 Jurisdictional Split!
                        (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
                                                                   10/27/2008 12:47:00 PM

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]
                                                              10/27/2008 12:47:00 PM

(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
             act individually…FORK
             (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
             (more common)…
             (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.

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