Property IO utline by wenY1J0


									                                                           Property I Outline
                                                     Professor Hernandez Fall 1998

I.       Theories of Property
Property – Refers not to things, material or otherwise, but to rights or relationships among people with respect to things. It consists
of a bundle of rights: the right to possess, the right to use, the right to exclude, the right to transfer.

A.       First Occupancy Theory – “First in time, first in right”
B.       Labor Desert Theory – One is entitled to the fruits of his/her labor
C.       Personality Theory – Property right helps fulfill one’s idea of self/personhood.
D.       Utilitarian Theory – Men adhere to laws of property b/c it is in their common interest to do so.
E.       Critical Legal Studies – Skeptical of law b/c humans inevitably inject their own opinions.

II.      Acquisition of Property

Brotherton looks at property rights through 14th Amendment
Due process is the deprivation of property under color of state law.
Ct. gives property interest in dead body for family members for limited circumstances. Ct states that Uniform Anatomiical Gift Act
expressly grants to control disposal of dead body although these rights form a substantial interest in a dead body.
Ct. refers to property as legal bundle of rights recognized in an object, which include rights to possess, use, exclude, profit & dispose.
Moore v. Regents – Moore attempt to establish an invasion of his possessory and ownership interests in his body parts. Ct. holds that
P does not own cells and a conversion cause of action cannot be maintained and there is adequate remedy based on doctor’s breach of
fiduciary duty.
Both Cts focus on scientific advances, increasing market place for human tissue, and human body is valuable resource
Body parts argument of Slavery & Prostitution

A.       By Discovery
         Johnson v. MacIntosh - Indians and discoverers had different views of possession. Indians were viewed merely as occupants
         and not prior possessors (possession & use v. ownership). In the eyes of discoverers, occupancy does not give rise to rights
         of possession. Discoverer’s claim preempts the claims of all subsequent discoverers as to avoid disputes. “First in time, first
         in right.”
         Absolute title – two people cannot own exclusively the same thing at the same time . Title excludes all others not compatible with it.
         Discovery gave preemptive right to extinguish Indian right of occupancy by (1) purchase, or; (2) conquest.

B.       By Capture                                                                      TO ESTABLISH VESTED PROPERTY
         Capture - If wild animals are captured, they belong to their captor.
         The captor must exercise dominion and control over the animal.                  PIERSON – pursuit + occupancy
         Mere pursuit is not enough. Mortal wounding and continued pursuit can           Dissent (Livingston) – fresh pursuit, reasonable
                                                                                         prospect of capture, intent to convert to own use
         Provide the requisite amount of dominion and control.                           are enough to establish possession. Actual
                                                                                         corporeal taking is not necessary.
         Constructive Possession – Everything on the land belongs to the
                                                                                         LIESNER – pursuit + mortal wounding +
         Landowner, whether he is aware of them or not.                                  continued pursuit
         Ratione Soli – Ownership of an animal by virtue of the fact that you
         Own the land. Animal must be stationary. (Mussels)                              MULLETT (“Ugly”) – a qualified property
         Custom – The law will uphold a local custom of trapping and capture             interest is established that can be divested
                                                                                         upon escape. No first in time, first in right –
         Even if the custom does not strictly following the rules of capture and         upon escape start counting again at 1.
         Possession. This exception exists to promote trade in the capture of            Animus revertendi can only be known by
         Animals. (Whaling and Mickey D.)                                                the animal’s usual custom of returning.
         Loss of title – possession of a wild animal is a qualified title, not an
         absolute title, because the title is defeasible upon escape.                    Stevens v. Albers (“Mickey D”) – Ct. uses
                                                                                         general principles of justice, fairness, and
                   Escape – An animal may be said to have regained his natural           business sense. Falls in gray area, fact
                   liberty when by its own instinct, it has escaped from all             intensive case, “semi-domesticated” animal.
                   artificial restraint and is free to follow the bent of its own        Ct. looks to labor/desert theory – owner had
                   natural inclination.                                                  expended considerable time, labor and
                   Abandonment – A conscious decision to give up property
                   rights. Failure to search, when the search is reasonable, is a        Ghen v. Rich – Whaling custom
                   form of abandonment.
         Exceptions to the Escape Rule                                                   Conti v. ASPCA (Chester) – trained and
                                                                                         domesticated animals can never again
         Animus Revertendi – An animal’s custom of returning to its owner                regain their natural liberty and ownership
         must be a known and usual custom. If an animal shows this tendency,             cannot be divested upon escape.
         the owner does not lose his property interest in the animal when the
         animal leaves his physical possession.
         Is the animal wild? Has it regained its natural liberty? Does it fail to
         display animus revertendi? If yes to all, #2 gets it.
        Domesticated Animals – The escape rule does not apply to non-wild, domesticated animals. The owner does not lose his
        possessory interest in a domesticated animal when it escapes. (Chester the parrot)
        Reasonable Expectations – Second captor has, or should have, a reasonable expectation that the animal does not belong to
        someone (Elephant on Union Tpke. must belong to someone. Silver fox where they are not common, but breeding them is)
        Rule of Increase – Babies belong to owner of mother animal absent agreement by owners. Creates certainty, rewards
        breeding, cheap and easy to administer.
                                                  BREAKDOWN OF WILD ANIMALS
                                               Does X have a property interest in the animal?

                                                             Is the animal wild?

                                                   YES                                    NO
                                   Did X obtain control or occupancy?                     Then it is domesticated and X cannot lose

                         YES                                            NO
                 Did X lose occupancy?

           YES                         NO
Is there an instinct for return?
(animus revertendi)

 YES                NO
                 Was there pursuit?

             YES                    NO
                                    X has no property interest

C.      By Creation
        In the absence of some recognized right at common law, or under statute, a man’s property is limited to the chattels which
        embody his invention. Others may imitate at their pleasure. Public policy argument. (Scarves)
                  Patent, Copyrights and Trade marks grant a monopoly in order to encourage productive incentives, but a limited
                      one in order to promote competition.
                  Persona as Property – “ a celebrity’s right of publicity” is widely recognized as a kind of property interest,
                      assignable during life and descendible during death; includes name, likeness and other aspects of one’s identity.
                  (AP News Service – information protected from unfair competition and misappropriation)
        The court has recognized every person’s right to exclusive enjoyment of his own property for any purpose, which does not
        invade the rights of another person. Necessity, public or private, may justify entry upon the land of another.
                  (State v. Shack - esq. enters private property to aid migrant farm workers employed & housed on land).

D.      By Find
        The title of the finder is good against the whole world, but the true owner and prior possessors (kid with jewel).
        Relativity of title – Rights that a person has to property compared to others.
        Trespassers – Has no right in a found article against the owner of the locus.
        Employees – Must turn over found property to the employer if the property is found during the course of his employment
        (agency theory)
        Public Locus – The owner of a public locus does not have constructive possession of all that is found in that place b/c he
        cannot restrict access to the locus. Therefore, finders of articles in public places have greater rights in the article than the
        owner of the locus. (Bag of $ on floor in public shop)
        Private Locus – The owner of a private locus, with a manifest intention to exercise control over it and things upon or in it,
        has constructive possession of all that is found on his property b/c he can restrict access to the locus. Therefore, articles
        found in private places belong to the owner of the locus.
        Unconscious, Constructive Possession – A landowner has constructive possession of all that is beneath his land even if he is
        ignorant of its existence previous to finding. He conveys this possession on the sale of land. (boat found embedded in
     Lost - An item is lost when the owner accidentally and involuntarily parts with it.
              Public locus = Finder
              Private Locus = Owner of locus
     Misplaced - An item is misplaced when it is deliberately placed with intention of return.
              Public locus = Owner of locus
              Private locus = Owner of locus
     Reason – Owner of mislaid property is likely to return to the locus to regain their property. Owner of locus is best position to
     return mislaid property.

     Treasure Trove – Treasure trove is found gold, silver and currency intentionally buried or concealed with the intent of
     returning to claim it. It belongs to the finder regardless of locus, and is the exception to the common law rule that the owner
     of a private locus has superior title to all thing found on his/her property. The concept of treasure trove has largely been
     abolished by statutes that treat treasure trove as lost property (NY Article 7-B).

              Treasure trove, abandoned, mislaid and lost distinctions have been eliminated. All such articles are presumed
                  lost unless otherwise proven.
              The distinction between public and private locus have been eliminated. Finders keep all lost property regardless
                  of where found.
     On Finding (objects worth more than $20)
     The finder within 10 days must turn the property over to either:
              The police
              The person in possession of the locus where the item was found (if the finder reasonably believes that the owner
                  of the locus will obey the statute).
              The employer of the finder if found in the course of employment. Employer is obligated to turn it over to the
     Duties of the Police
              Give receipt to finder.
              Give notice to owner of locus where property was found.
              Hold for statutory period (3months to 3 years)
              Three months prior to the end of the holding period, notice is given to the finder and that item is handed over to
                  finder at which time true owner loses title and all rights to the property. Finder assumes full rights of

E.   By Bailments
     Bailment is rightful possession by someone other than the true owner. Bailee must assume actual physical control with intent
     to possess. The type of bailment will determine liability if the property is lost, damaged or destroyed.
     There are three types of bailments:
     (1) Sole Benefit to Bailee – A baillment that exclusively          Owner = Bailor
                                                                        Person in Possession=Bailee
           benefits the bailee demands a high standard of care
           and the bailee is responsible for even slight
           negligence (he borrows you lawnmower).
     (2) Mutual Benefit Bailment – There is mutual benefit to both bailor and bailee. Bailee has a duty to exercise reasonable
          care in their handling of the bailment (Valet parking, watch repair shop).
     (3) Gratuitous Bailment – A bailment for the sole benefit of the bailor. The bailee has the lowest standard of duty for this
          type of bailment. Bailee is only lliable for gross negligence (Person picks up lost item -- Finder = Bailee).
     Misdelivery – Bailment goes to someone who has no right to it. Bailee is held to a strict liability standard for misdelivery.

     If parking garage has, by its operation, created a reasonable expectation in the owner of the car that the garage has accepted a
     duty of reasonable care. Takes keys, parks vehicle, directs person, provides security – it has the same duty and liability as
     other bailees. Nature of the bailment is a legal approximation of the expectations of the parties (Ellish v. Airport Parking).
             Unwilling Bailee / Involuntary Bailment
             A person cannot be made a bailee against his will. A finder has no obligation to take an object found into his possession,
             however, once you do take possession and exert dominion, you become a bailee and accept duty of care. No written or verbal
             acceptance is necessary. Exception – owner of premises has duty to care for an item left.

F.           Hotels
             Common Law – Hotel owner was responsible for all thefts and losses except those resulting from:
             (1) guest negligence; (2) acts of God; (3) acts by the public enemy.
                                                                                                                   Sec. 200
                                                                                                                   Negligence of a hotel arises in two ways:
             New York Statute Sec. 200 GBL was designed to promote business by                                     (1) fail to satisfy conditions of statute, or;
             limiting liability.                                                                                   (2) fulfills statute conditions, but some other negligent
                                                                                                                         act causes loss of property.
             If the hotel:       (1) Provides a safe.
                                 (2) Posts availability of safe to guests in a conspicuous place.                  Gonclaves v. Regent Htls – flimsy safe
                                                                                                                   Zaldin v. Concord Hotel – can’t claim statutory protection
             Then: the hotel is not liable for anything stolen from a guest’s room. If a guest                     during times when safe is not available.
             does deposit valuables in the safe, the hotel is liable for a maximum of $1,500.

                                                                                     New York Statute Sec. 201 GBL – separate limits of liability for
  Sec. 201                                                                          clothing and items left in checkroom. Receipt or check given and no
  Honig v. Riley – Only when value is stated and receipt given is an exception to
  $100 limit permitted                                                              fee or charge exacted. Owner is always liable if loss or damage was
  Conboy v. Studio 54 – Disco not included. Charged for taking coat. Disclaimer     through their fault or negligence.
  not posted conspicuously.

III. Adverse Possession
A.        Theory and Elements
Open and hostile possession of land, under a claim of title to the exclusion of the true owner, which if continued for statutory period,
ripens to actual title. Exception to the first in time rule. Not the preferred method of taking title, but it is legally accepted. Someone
other than owner may obtain title based on statutory time limitations. Rewards those who use property productively.
Sword (by true Owner) – Can bring action of ejectment based on adverse possession.
Shield (by AP)– Defense against an action of ejectment

Open – such that there will be notice to owner that someone is one their land.
Continuous – does not require actual continuous occupation, only as customarily used/as owner would use it. (Ray Capt. - summer home)
Exclusive – not sharing with actual owner - occupation that would trigger a cause of action in ejectment/trespass.
Adverse – occupant not in possession subordinate to owner, but is claiming title for self.
                                                                                                               Burden of proof lay on the person asserting
Notorious – evident to others of possession                                                                    adverse possession. Once OCEANA is
Actual – possession must be physical and actual. Actual entry triggers a cause of action for trespass.         proved, burden is shifted to true owner to
NEED TO TAKE A SNAPSHOT OF TIME POSSESSION TAKES PLACE!!!                                                      disprove.

Mistake - The necessary element of hostile possession may be met even if the possession was taken by mistake.

                                                               OBJECTIVE v. SUBJECTIVE STANDARDS
Majority (CT)                                                                     Minority (Maine)
Objective Standard – entry and possession is the assertion of one’s own title Subjective Standard – Intention of the occupant to claim title is a necessary element
and the denial of the title of all others. It matters not that the possession was of adverse possession. If a party through ignorance, inadvertence, or mistake
mistaken and had he been better informed would not have entered the land. Occupies land that is beyond his boundary, without intent to claim title, an
Court does not look at the state of adverse possessor’s mind, presence and        indispensable element of adverse possession is lacking.
coniuous use is enough.

                                                                                                     Claim of title:
B.         Claim of title v. Color of title                                                          You are only entitled
Claim of title – to be an Adverse possessor, a person must hold adversely                            to the part of the land
to the owner and under a claim of right Possession is w/o the owners consent,                        which you actually
it is not suborninate to owner. (Claiming title) Ct determines if one is an AP by                    occupy.
appling the Objective or Subjective test.
Color of title – A claim founded on a written instrument (deed or will) which
is defective, however the defect is unknown to the adverse possessor.                                                                       Color of title:
Constructive Adverse Possession                                                                                                             You are entitled to the
Actual possession under color of title (in writing) of only a part of the land                                                              entire land described in
covered by the defective writing (deed) is constructive possession of all                                                                   the defective writing even
that the writing describes. Activities relied upon to establish adverse                                                                     if you only occupy part.
possession reach not only to the part of the premises actually occupied, but the
entire premises described in the deed to the claimant.
Sec. 39 – Premises must be shown to have been actually occupied under a claim of title through clear and convincing evidence in
order to be possessed adversely.
Sec. 40 – Proof of actual occupancy consists of (1) Protection by substantial enclosure;
                                                (2) Usually cultivated or improved.

Tacking – An adverse possessor may transfer his rights as adverse possessor to a subsequent adverse possessor who may tack the
years accrued in the running of the statute of limitations to his own period of adverse possession. Sucessive Adverse Possesionss of
property omitted from deed description, especially contiguous property, may be taked if it appears then AP intended to & actually
turned over possession of the undescribed part w/ that described in the deed.
AND as long as they are in privity. (Brand v. Prince)

Encroachment – may be open, but not notorious or visible to the naked eye. No presumption of knowledge of a minor encroachment
on land. (Mannillo v. Gorski – steps and walk on neighbor’s property a few inches)
Howard v. Kunto – everyone owns tract to left of tract occupied. Evidence of tacking, constructive possession under color of title, continuous ownership of summer home.

Quiet Title Actions – The statute of limitations has run and adverse possessor asks court to correct the record so that it reflects
adverse possessor’s title.
Disabilities – In every state the statute of limitations is extended if specified disabilities are present. A disability is immaterial unless
it is named in the statute and unless it existed at the time when the cause of action accrued (at the time adverse possession begins).
Typical disabilities include infancy, insanity, imprisonment (NY no longer recognizes imprisionment as a disability).

C.          Adverse Possession of Personal Property (HAVEC)
Common Law – Statute of limitations accrues at the time of theft, absent fraud or concealment (SoL begins to run as soonas
possession is open, i.e. display, on loan to exhibit, etc.)
Discovery Rule – A cause of action will not accrue until the injured party discovers, or by the exercise of reasonable diligence and
intelligence, should have discovered facts, which form the basis for a cause of action. If true owner seeks, but can’t find or discover
identity of possessor the SoL doesn’t begin to run. The rule is a principle of equity, to mitigate unjust results that otherwise might
result from strict adherence to the common law. Burden of proof on owner to show that they used due diligence to regain possession.
 Demand & Refusal Rule (NY Rule - minority) : discovery rule is rejected in NY.                                               1.    Shifts burden from wronged owner & places
The rule in NY is a cause of Action for replevin against a good Faith Purchaser of                                                  burden of investigating origin of chattel on
Stolen property accures when the true owner makes demand for return of chattel and                                                  potential purchaser.
 the person in possession refuses to return it NY protects right of true owner whose                                          2.    Difficult to specify conduct required to show due
                                                                                                                                    diligence – Art Community can’t even agree
 property has been stolen to recover that property, even if in possession of a good faith                                     3.    Any reasonable due diligence requirement would
 purchaser for value. Once having discovered location, owner cannot reasonably delay                                                unreasonably burden the owner.
in making demand.
(Guggenheim v. Lubell – Acts of owner can be used in Latches defense.)

Latches – defense for good faith purchaser. If you sit on your rights for an unexcused period of time and cause injury to a bona fide
purchaser, you can no longer exercise those rights. Similar to statute of limitations, but there is no specific time period. Justifiable
reliance by a bona fide purchaser in the fact that a suit has not been brought.

Damages (menzel v. List) – Menzel is true owner, he gets art from List a BFP, who purchased from the Perls. Perls upon their purchase didn’t inquire into title or
previous history. Perls liable to List for value of painting at time of return to true O. Measure of damages must put BFP in as good as a position as he would have
occupied had title been good.
This measure of damages reflects what the buyer has actually lost and it awards to him only the loss which has directly and naturally resulted, in the ordinary course of
events, from the seller’s breach of warranty.
IV.        .Bona Fide Purchasers

                                                             UCC 2-403 - Statutory Estoppel
                                              Power to transfer; Good faith purchase of goods; Entrusting
                                       A person with voidable title has power to transfer a good title to a BFP for value.
                                                          Purchaser has such power even though:
                                               (1) transferor was deceived as to the identity of the purchaser;
                                                                      (2) rubber check;
                                                    (3) agreed that the transaction was to be cash sale;
                                          (4) delivery was procured through fraud punishable under criminal law.

                 An entrusting of goods to a merchant who deals in goods of that kind then entrusted has the power to transfer title to a BFP.
                                                             The elements must be fulfilled:
                                               (1) must be an entrustment from the owner to the merchant;
                                                  (2) owner must sell in the ordinary course of business;
                                                            (3) BFP must buy in good faith;
                                            (4) no knowledge that it is a violation of another’s ownership rights.

Equitable Estoppel - If an owner has invested another with the usual evidence of title, or an apparent authority to dispose of it, he
will not be allowed to make claims against an innocent purchaser dealing on the faith of such apparent ownership.
Voidable v. Void Title

V.        Gifts
Voluntary transfer of property without consideration or compensation. A gift is a present transfer of property. If transfer is to take
place in the future then it is unenforceable without consideration. There may be a present transfer of a future interest (Gruen case –
father gives son painting but retains possession until death). There is no requirement that the gift be of the entire interest in the
Requirements for a gift:
          Intent – Must look at language of the donor. When words are unclear, court considers surrounding circumstances, such as,
          relationship of the parties, value/size of the gift, and conduct of the donor to the property.
          Delivery – Delivery is ESSENTIAL. Delivery must divest donor of dominion and control and vest it in the hands of donee.
          If gift is already in hands of donee, then delivery isn’t necessary. The requirement of delivery is to be applied in light of its
          purpose to avoid mistake by donors and prevent fraudulent claims by donees.
          There are three types of delivery:
                                Manual Delivery - A gift must be given manually, if not, the court may allow constructive or
                                   symbolic delivery.
                                Constructive Delivery – Transfer of means of obtaining possession and control of an object (keys or
                                   title to a car)
                                Symbolic Delivery – Something transferred to donee in place of gift (picture of car).
          Acceptance – Donee must accept the gift. Donee may refuse gift. Acceptance is presumed if beneficial to donee.
Inter Vivos Gift – Irrevocable. Transfer of property made to donee during donor’s lifetime. It can be conditional, but it cannot be
revoked unless that condition is not met.

Gift Causa Mortis – A gift given in anticipation of immediately approaching death.
A gift causa mortis is:
(1) Revocable by donor anytime prior to death;
(2) Automatically revoked if donor does not die of the imminent peril;
(3) Is revoked if donee dies before donor.

                                                              Gifts Given on the Condition of Marriage
                         Heart Balm Statutes – abolished all courses of action to recover sums of $ as damages for breach of contract to marry.
                                   Prohibited suits to recover specific real or personal property given in contemplation of marriage.
                                                                New York Civil Rights Law Sec. 80(b)
                                              Was enacted to change the courts interpretation of the heart balm statutes.
      A person, not under any impediment to marry, will not longer be denied the right to recover property given in contemplation of marriage that has not occurred.
                                                                   (Gaden v. Gaden – joint property)

Sweeney v. Sweeney – Gift of real property must be in writing and oral conditions cannot be attached to deeds. Reason is for
protection of title and prevention of fraud. A conditional delivery can only be made by placing the deed in the hands of a third party
until the happening of the event upon which delivery is made to the grantee by the third party. Saftey of real estate is deemed more
important than the unfortunate results that may occur on occasion from strict interpretation.
Rosengrant – Uncle retains dominion and control (right of retrieval). Continued to farm, use, control, pay taxes and claim as
homestead. Legal delivery carriers all the force and consequence of absolute outright ownership, or it is not delivery at all. In this
case, uncle retained a power to revoke.
A settlor transfers property to a trustee who cares for it, and protects its condition for the beneficiary.
Settlor - Sets up trust, rights and perameters.
Trustee - Manages trust. Holds legal title and legal fee simple. Fiduciary – held to a high standard of conduct and administers trusts
solely for the interest of the beneficiary. Make profitable dispense of income. Powers are spelled out in the trust instrument.
Beneficiary – benefits from trust. Can be settlor. Equitable ownership of property.

Trusts can be created expressly or by operation of law:
(1) Resulting Trust – A trust imposed by law when someone transfers property under circumstances suggesting that he/she did not
    intend the transferee to have the beneficial interest in the property.
(2) Constructive Trust – A trust imposed by a court on equitable grounds against one who has obtained property by wrongdoing,
    thereby preventing the wrongful holder from being unjustly enriched; such a trust creates no fiduciary relationship.

Spendthrift Trust – A trust that prohibits the beneficiary from assigning his equitable interest and also prevents a creditor from
attaching that interest. Trustee takes full legal title, but the beneficiary takes full interest only when paid. Means of protecting
inherited wealth. (Broadway Bank v. Adams)

Totten Trust – A revocable trust created by ones deposit money in one’s own name as a trustee for another; such a trust is commonly
used to indicate a successor to the account without having to create a will.
          Settlor has the right to withdraw all of the money at any time. It is a revocable trust.
          It can be made irrevocable by transferring the passbook. In this case, the gift has been completed.
          The trust becomes irrevocable upon death. It becomes a completed gift.
          A will written after the establishment of a Totten trust revokes the trust if the specific funds held in the trust are willed to
              another party. A Totten trust can revoke a will if it is established after the writing of a will.
          Poor man’s will.

New York Estates, Powers and Trust Law 7-5.2
With regard to trust accounts:
 A trust can be revoked, terminated or modified by the depositor anytime during lifetime through withdrawals and deposits.
 A trust can be revoked terminated or modified by specific reference to the trust (bank, acct. #, etc.) in a will.
 If the depositor survives the beneficiary, the gift fails and the depositor takes the money.
 If the beneficiary survives depositor and it is not contrary to the will, the beneficiary takes the money.

Joint Bank Accounts – A joint tenant withdrawing more than her moiety from a joint account during the life of the decedent is
obligated to return to the estate the amount which exceeds their moiety unless they can prove the withdrawal was with decedent’s
permission or for their benefit. From the moment of creation of a joint account, a present unconditional interest in ½ of money
deposited devolves on both tenants regardless who makes deposits. Either party can withdraw any amount from the account, however,
will be liable to the other tenant for any withdrawal in excess of his moiety.

New York Banking Law
Sec. 675 – In general, the bank is protected from claim of joint tenants. No liability for withdrawals in excess of the moiety by either

VI.      Estates in Land

A.       Introduction                                           ESTATE

                                              FREEHOLD                          NONFREEHOLD

                           FEE SIMPLE            LIFE        FEE TAIL

                                     (1)   ABSOLUTE
                                     (2)   SUBJECT TO EXECUTORY LIMITATION
                                     (3)   SUBJECT CONDITION SUBSEQUENT
                                     (4)   DETERMINABLE
An estate is a bundle of rights and we must look at snapshot:
(1) type of estate created
         Estates denote a relationship of person to land, the nature and extent of ownership. Estate is an interest in land that entitles
         owner to possession or may in the future.
(2) type of interest
         Interest on the other hand, denotes the relationship of that ownership with other ownerships of land.

Two types of estates:
(1) Non-freehold – only have a right to possession or occupancy (renter)
(2) Freehold – ownership or seisin (owner)

A.       Fee Simple
A fee simple is an estate that has potential of enduring forever by virtue of its transferability, alienability and general inheritability.
Can be a present or future interest and regardless of which form it is held in, it may be transferred by valid deed, will, or intestate
succession. It is created by O granting land to “A and his heirs.” Combines words of purchase which designates who takes the estate
and words of limitation which denote duration of estate. This estate resembles absolute ownership and the owner of a fee simple is
commonly called the owner of the land.

B.        Fee Tail
Is an estate that has the potential of enduring forever, but which will necessarily cease if the first fee tail tenant has no lineal
descendant to succeed him in possession. A fee tail is created by O granting property to “A and the heirs of his body.”
When the lineal descendents expire, it reverts back to the donor or goes, by express grant, over to someone else that is the remainder.
Fee tail special – limits tail to male/female or to heirs of body of a particular spouse. (Only Del, Mass, Maine & RI – NY converts tail to simple)

C.        Life Estate
Is an estate that will end necessarily at the death of a person. It is created by granting the property to “A for life.” EVERY LIFE
In common law a life estate is not inheritable.

D.       Defeasible
Is one that may last forever or may come to an end upon the happening of an event in the future.

                   DETERMINABLE                                               in favor of grantor

(i)      Fee simple determinable – vests in the grantor the future interest of a possibility of reverter.
         Certain key words trigger (duration)         during so long as      while
         and it results in the automatic termination  until    as long as
         of estate in favor of grantor.

(ii)     Fee simple subject to condition subsequent – vests in the grantor the future interest of right of reentry.
                                                   Certain words trigger (condition),
                                                   but when the condition occurs there is no auto termination, but the grantor has
               provided that if but if
                       provided however            the power to retake the estate.
                              on condition that

(iii)    Fee simple subject to executory limitation – vests in the grantee the future interest of executory interest.
         Upon the happening of a stated event the estate is automatically terminated in favor of the grantee.
         No specific language needed.

E.      Future Interests
Present interest – right to immediate ownership at the moment the conveyance takes effect.
Future interest – gives legal rights to its owner at the time of conveyance although rights to enjoyment are at a future time.
        1. Retained by Transferor
             (a) Reversion – an interest left in the grantor when the lesser estate created in grantee expires without providing a
                  subsequent grantee. Fee simple > fee tail > life estate > leasehold estate.
              (b) Possibility of Reverter – a future interest remaining in the transferor or his heirs when a fee simple determinable is
                  created. (automatic)
              (c) Right of Reentry – interest remaining in the transferor when a fee simple subject to condition subsequent is created.
                  The transferor retains the power to cut short or terminate an estate upon the happening of a stated event. (must take

         2.   Created in Transferee
                 (a) Vested remainder – is given to an ascertained person and it is not subject to a condition precedent.
                          Indefeasibility vested – means that the remainder is certain of becoming possessory in the future and
                          cannot be divested.
                          Subject to open – remainder created in a class of persons if one member of the class is ascertained and
                          there is the potential for other persons to become entitled to the estate. (I.e. children reach age of majority).
                          Subject to complete divestment – a shifting interest in the transferee that can divest a vested remainder
                          before it becomes possessory.
                 (b) Contingent remainder – a remainder whose takers are unascertained or it is made contingent upon some event
                     ccurring other than the natural termination of the preceding estate (something has to happen before B can get it).

                  (c) Executory interest – interest that must (1) divest or cut short some interest in another transferee (shifting) or
                      divest the transferor in the future (springing) (gap in time).

                                              FUTURE INTEREST IN TRANSFEREE

                            No to both                                                       Yes to either
                                                            Divests other title
                                                              Gap in time

                            REMAINDER                                                          EXECUTORY INTEREST

                    F     Identifiable   T                                              Divests                           Gap
                   F    No Condition Precedent        T
                                                                                            Shifting                Springing

         F to either                          T to both

         CONTINGENT                           VESTED

                                     Group or class                 Yes             Subject to Open


                                     Condition Subsequent           Yes             Subject to Complete Divestment


                                               Indefeasibly Vested

Review P 259 &263
F.      Co-ownership and Marital Interests
Two or more persons have concurrent rights in a present or future possession.
        1. C/L Concurrent Interests
        (a) Types, Creation & Severance
        There are three types of common law concurrent interests:
        (i)      tenancy in common - separate, but undivided interests, each is descendible and may be converted by deed or will.
                                       - no survivorship rights
                                       - each tenant in common owns an undivided share of the whole
        (ii)     joint tenancy - survivorship rights
                               - tenants are regarded as a single owner
                               - each tenant is seised by the moiety and by the whole
                 (1) Possession – Each has a right to possession of the whole. After creation of j/t then one j/t can voluntarily give
                      the other exclusive right of possession.
                         (2) Interest – Each tenant has equal undivided shares and identical interests measured by duration
                         (3) Time – The interest of each j/t must be acquired or vested at the same time.
                         (4) Title – All j/t must acquire title by same instrument or joint adverse possession.

                                    ***must have all four unites or a tenancy in common is created (either in creation or subsequently)***
                             A j/t may unilaterally convert a j/t into a tenancy in common by conveying an interest in a third party – severs unites
                                                                                  of time and title
                               Judicial Partition – when differences b/t j/t cannot be resolved then either party can bring an action for judicial
                                                  (1) In-Kind Partition - physical partition tract into separately owned parts
                                            (2) Partition by Sale – order the property sold and divide the proceeds b/t the tenants.
                                         Courts prefer a partition in kind over partition in sale & sale should only be ordered:
                                                       (a) when physical partition is impractical or inequitable , or
                                                                 (b) sale better promotes interests of owners.

                                                         Severance of Joint Tenancies
  Riddle v. Harmon – wife dissolved j/t and created t/c so she could destroy right of survivorship and dispose of property by will.
  A joint tenant has the right to unilaterally terminate a j/t by conveying her interest from herself as a joint tenant to herself as a tenant in
  common without the use of a straw.
  Harms v. Sprague – brother mortgages his inetrest i n j/t in support of friends promissory note in purchase of property.
  A lien on a joint tenant’s interest in property will not effectuate a severance of joint tenancy and the mortgage does not survive the death of the
  of the mortgagor. Right of survivorship ends j/t interest upon death and surviving joint tenant is the sole owner of the estate

(iii)      Tenancy by the entirety – created only by husband and wife
                                        - need all four unites necessary for j/t and add a fifth requirement…marriage
                                        - right of survivorship
                                        - husband an wife considered to hold as one person
                                        - no moiety, both seised of entirety
                                        - neither can defeat right of survivorship by conveyance to third party, only a conveyance by
                                             both husband and wife.
                                        - upon divorce tenancy in entirety becomes tenants in common (Maj. – NY)
                                                                                                       NY has a
              Dispossession of real property to H&W creates a T/E unless                               statutory               T/E to T/C preferred over J/T b/c it protects
              expressly state that it is a J/T or T/C.                                                 presumption             the free alienability of property in divorced
              If granting real property to H&W, but they are not legally married,                      against J/T             tenants.
              then it creates a J/T unless it expressly provides for a T/C.

                 Each spouse can convey his/her interest - in NY, the interest of a debtor spouse in a T/E may be levied by his creditors to
                 settle his/her debts. The right of survivorship is then in the creditor…crapshoot. H dies first, survivorship rights in W.
                 W dies first, survivorship in creditor. Non-debtor spouse has a right to the entirety unreachable by creditors until his/her

                 (b) Benefits & Burdens
                 Concurrent owners might enter into an agreement concerning their rights and duties with respect to use, maintenance and
                 improvement of the property. If conflicts arise b/c the problem was not addressed in the agreement or the rights of 3rd
                 parties are in question there are several remedies:
                 (i)       Partition                                                                              Benefits & Burdens
                                                                                                           (1) Rents & Profits – Co-tenant
                 (ii)      Ouster – For there to be an ouster one co-tenant must physically bar the            who collects rents or royalties
                           other co-tenant from entry.                                                         from 3rd parties must account to
                           Majority Rule - As a general rule, a co-tenant has the full right to use a          co-tenants for amounts
                           property and cannot be liable to a co-tenant for rents.                             received.
                                                                                                           (2) Taxes, Mortgages & other
                           Cannot collect rent from occupying co-tenant (Spiller – t/c, renter leaves, one     charges – Co-tenant paying
                              co-tenant takes possession and uses as warehouse).
                                                                                                                                              more than his share of these
                              Can collect from an occupying 3rd party paying rent to other co-tenants                                         carrying charges has a right to
                              (Swartzburg – boxing pavilion, walnut trees)                                                                    contribution from other co-
                              NY Rule (Minority) – Liability for rent for continued occupancy after                                           tenants to the amount of the
                              demand for rent or to vacate puts burden on co-tenant in occupancy.                                             value of their share in the
                 (iii)        Accounting – can sue for an accounting of rents received by other co-tenants. (3)                               Repairs & Improvement – need
                                                                                                                                              an agreement in order to collect
                                                                                                                                              contributions from other co-
                                                                                                                                              tenants for repairs.
         2.   Marital Interests
              (a) Common Law
              At common law W was to be supported and maintained for her entire life, could not exercise ownership, dependent on H.
              Married Women’s Property Acts removed the disabilities of women and allowed them to control their property.
                  (i)     Dower – At H’s death W has dower in all freehold land of which H is seised during marriage and is
                          inheritable by issue born of the marriage. Dower is a life estate in 1/3 of each parcel of qualifying land.
                          Dower attaches at the moment of marriage (inchoate) and any subsequent purchaser/creditor takes the
                          property subject to Ws dower.
                  (ii)    Curtsey – a H’s right to a life estate in the land that W owned during marriage assuming that a child was
                          born to the couple.
              Dower and curtsey have largely been abolished and in their place is the modern law concept of an elective share.

                   (iii)      Elective Share – Gives surviving spouse an elective share in the deceased spouse’s property owned at
                              death. Share is usually ½ or 1/3 and applies to both real and personal property. The surviving spouse takes
                              an interest in fee simple. It is only for property owned at the time of death and during life the owner could
                              transfer or creditors could attach to property and eliminate surviving spouses interest. Surviving spouse has
                              choice of elective share or what decedent left by will, cannot have both.

              (b) Community Property, Contract
              Rests on the notion that H&W are a marital partnership, a “community”, and should share their acquests equally.
                  Earnings of each spouse during marriage should be owned equally in undivided shares. H&W contribute equally to material
                   success of marriage and each should own an equal share of property acquired during the marriage by their joint efforts.
                  Separate property is property acquired before marriage and property acquired during marriage by gift, device or descent.
                  Property acquired or possessed during marriage is presumed to be community property. H&W can freely change the character of
                   their property by written agreement.
                  Neither spouse acting alone can covey his undivided one-half share in community property, except to the other spouse.
                  Each spouse has the power to dispossess by will of one-half of community property at death.
                  No survivorship feature.

Domestic Relations Law §236 –                         1                                           2
Broadly defines marital property as       GRAHAM                      ELKUS
property acquired during marriage         An MBA does not             Things of value acquired during marriage are marital
regardless of the form in which title     constitute marital          property even though they may fall outside the scope of
is held.                                  property subject to         traditional property concepts. Property may be
                                          division b/c it does not    tangible or intangible.
                                          fall within the concepts    An interest in a profession is marital property which
                   3                      of property b/c it does     may be represented by direct or indirect contributions
 MARVIN                                   not have an                 of the non-title holding spouse including financial and
 An express or implied contract by        exchangeable value.         non-financial contributions made by caring for the
 non-marital inhabitants to divide                                    home and family.
 household duties and accumulate
 property is enforceable as long as it
 is not based on sex.

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