best property outline for fisher by B233X9


  67System of Estates (Leaseholds Aside)
  The System of Estates – the basis on which modern American property law is built.

  1066: William victorious at Hastings.
  To organize an empire, you control land—among other ways, William accomplished this by:
      1. Feudalism. William apportions land to his principals. In exchange for the land, the principals gave
         services (“the rent”) to the king (primarily, military service). Among other things, the principal also gave
         the king his oath—an incident. Because these principals were given more land then they could use, they in
         turn subinfeuded and substituted to lesser. The process would then repeat itself. Feudalism was born.

  Seisin: Possession of the land + a common law dignity; the glue that provides the logic behind the freehold
      Seisin was the key to the entire freeholder system of land; Someone must always be responsible for the
       services (the rent); someone must always be seized of the land.
     Livery of Seisin: the ritual whereby the property was transferred  Because of the livery of seisin, manual
       delivery was the only way that present estates could be passed. Therefore, there could never be delivery of
       future estates.

  Feudalism was divided into Freehold (could keep it as long as wanted, controlled it, ?sell it) & Nonfreehold
        Freeholders: Military, Clergy, Nobility; Seisin
        Non-Freeholders: Villeins; peasants; No Seisin: Peasants did not have ownership rights to the land.

  Stages of Land:
     1. Land was a source of power in control – services and incidents
     2. Land was the source of wealth (those who had land had wealth and those who had wealth had
     3. Land became a commodity of commerce (this is where we are today)

Services – think “rent”                        Incidents – think “taxes”

3 Types of Services:                           When military service began to lose its value, knight service was not as crucial.
    Free Tenures [Services]                    Additionally, services were diminished by inflation.
    a. Military Tenures – especially knight
        service, which was followed with       Not so with incidents—the real money maker for the king. In an economic system
        money payment (scutage, or shield      built on land (instead of cash), the incidents better reflected the real value of the
        money). Knights became country         property. Some incidents were money, some were ceremonial. e.g.:
        gentlemen. Some positions in grand          a. Homage and fealty – tenant’s oath sworn to physically protect lords
        sergeantry still available.                 b. Aids – financial backing, say, when the lord’s daughter marries and needs
    b. Economic Tenure (Socage) –                        $. As time went on, aids were only available during three times: (1) the
        Money payments or services (e.g.,                knighting of the oldest son; (2) the marriage of the eldest daughter; (3) the
        bring mushrooms, keep bridge in                  capture and ransoming of the king.
        good repair)                                c. Forfeiture – Forfeiture = loss of your lands if you committed a crime; a
    c. Religious Tenure – Sing mass, pray,               deterrent device used by lords. E.g., if you do not pay your rent, you will
        etc.                                             be evicted by king/lord. Or, if you commit treason, you’ve forfeited your
                                                         land to king.
         Those who were on the bottom of           d. Liabilities at Death of Tenant
          the hierarchy, these people were             (i.) Wardship and Marriage: A tax, of sorts. When a tenant died, and left
          called “villeins” peasants                        an heir under 21 years, the tenant’s lord was the heir’s guardian—a
          (majority of the population –                     wardship. This later became a windfall to the landlord—the landlord
          manual labor for the lord).                       would get the benefits of the land until the youth reached the age of
         Had no possessory rights to the                   majority. Lord could sell the heir in marriage.
          land itself (copyholders – written                  Fiduciary relationship/obligation – an obligation to have a special
          evidence of the agreement                              relationship (person who is providing the services must act in their
          between the lord and the                               best interest of the ward)
           individual: legally enforceable                  These were viewed as an opportunity to make money as the
           right)                                             guardian (these were windfalls) – they must provide safety and
**Most of these services over the hundred of                  substance and that is it… there was an economic benefit to be
years became payable in dollar form**                         gained by the guardian.
                                                            Marriage - if the women was the owner of the land, then the
                                                              husband would gain all the rights of the land bound by marriage.
                                                              The lord would sell the woman’s right to marriage (to gain a
                                                              monetary benefit – he would be payed this amount of money to
                                                              arrange this marriage).
                                                                Eldest son gained land if the parents died.
                                                                2nd son could marry into the lordship of the owner of the land if
                                                                  you arrange to marry a woman who owns her own land.
                                                                Daughter would own property if there were NO sons; or the father
                                                                  would convey property to their daughters
                                                  (ii.)    Relief: A tax (the equivalent modern estate tax). When a tenant died,
                                                           to “relieve” the land from the lord’s grasp, and to come into his
                                                           inheritance, the heir (of decedent?) had to pay the lord an appropriate
                                                   Original agreement between the King and the tenant was for a life estate 
                                                  this began to change with paying a tax.
                                                  (iii.)   Escheat: If a tenant died without heirs, the land returned (fell, was
                                                           forteited) to the lord from whom it was held. Not terribly common
                                                           today because its easier to find living relatives and people don’t die as
                                                           young as they did during years of plagues and low hygiene/life

   In a system where land is power and wealth, owners wanted to minimize taxes and to continue land in their name.
   So we start to see loopholes to get around it.

   Statute Quia Emptores – began the decline of the feudal system because prohibited the “layering system” and was
   the beginning of the modern concept of the free alienability of land, gave tenants (persons who held in tenure from
   another) the right to convey/transfer his/her interest in the property to another tenant withouth the lord’s permission
   and without penalty. The statute forbade subinfeudation because the tentant could no longer grant the land to other
   tentants and become a Lord himself.
   Subinfeudation = (the process of tenures within tenures that created the layering system essential to feudalism) 
   each lord had the right to give possession of a parcel to an underling, in return for either production of a certain
   number of soldiers or for other services, and become a Lord to that new tenant.

   The Fee Simple
   Fee Simple Absolute = most unrestricted estate, of longest duration (infinite duration), and is inheritable by issues
   and collaterals. “To A and His heirs”
       o Alienable, Inheritable by anyone, and devisable, after the Statute of Quia Emportes
   Fee Simple defeasible = although one who holds a fee simple defeasible may use and hold the property forever, or
   convey it, or have it be inherited by his heirs, he must use it subject to restriction. There are 3 types of fee simple
       1) Fee simple determinable (“SO LONG AS”) which lapses automatically if an impermissible event occurs
           (forfeiture) – “so long as” creates a fee simple determinable
                a. Used to prevent the property from being put to a certain use which the grantor opposes.
                b. Interest that follows the fee simple determinable is the possibility of reverter. This interest will be
                     come possessory interest when A ceases to use the property for the condition specified.
                c. The estate ends automatically… no affirmative act is necessary.
                d. The possibility of reverter is ONLY in the grantor or his heirs. Mahrenholz v Co. Bd of School
                     Trustee.(so long as used as a school)
                e. Example: “O sells land to A and his heirs so long as the premises are not used for the sale of
                     alcoholic beverages, and if they are so used, then the premises shall revert to O.” – A takes a fee
                     simple determinable.
    2) Fee simple subject to a condition subsequent (“BUT IF”) which gives the grantor a right to reenter the
       property and terminate the estate if the impermissible event occurs
           a. The creation of an interest in someone else, “but if”, “words creating a right of entry”
           b. unlike fee simple determinable, this fee simple does not automatically end when the event occurs;
               instead the grantor has the right to take back the property, but nothing happens until he
               affirmatively exercises that right. (grantor must take action when condition ends in order to retake
               the property)
           c. cannot create the right of entry in a 3rd person
           d. Example: “O conveys land to A in fee simple, but if condition is that no alcohol is ever served
               upon the premises. If alcohol is served, grantor or his heirs may re-enter the property and
               terminate the estate.”
    3) Fee simple subject to an executory limitation, which provides for the transfer of the property to a 3rd
       person (one other that the grantor) if the impermissible event occurs.
           a. Unlike in (1) and (2) where the estate will return to the grantor (or his heirs) when the stated event
               occurs, this fee simple provides for the estate to pass to a 3rd person upon the happening of the
               stated event.
           b. Example: “O conveys land to A and his heirs, but if the property is used for other than residential
               purposes, then to B and his heirs.” A holds a fee simple subject to an executory limitation in favor
               of B. If A or one who receives the land from A uses the property for commercial purposes, then
               title automatically passes to B (or Bs heirs).

**Courts don’t like automatic forfeitures and will therefore interpret a will as #2 as often as possible. Courts
many times use the words interchangeably and combine the words and it makes it difficult to determine
between FSD(1) and FSSCS (2).

 “To A”: WORDS OF PURCHASE, A is the grantee.
“And his heirs”: WORDS OF LIMITATION, part of the magic formula that describes the quality of the property
conveyed. (duration of the estate)

The magic words, however, are no longer necessary in WV. See W.Va. Code § 36-1-1 (2000). No need for the
magic words (“And his heirs”) now. When you convey, it is presumed that you convey a FS/everything.

 Heirs – those who will take a person’s real property according to the rules of intestate success of the jurisdiction
  if the person dies intestate. (only have heirs when you die.. you don’t have heirs when you are living)
 Issue – Synonymous with the word “descendants.” Issues include but are not limited to “children.” Lineal
  descendents. If the decedent leaves issue, they take to the exclusion of all other kindred.
 Ancestors – By statute, parents usually take as heirs if the decedent leaves no issues.
 Collaterals – All persons related by blood to the decedent who are neither descendants nor ancestors. Brothers
  and sisters. Laterally.
 Escheat – If a person dies intestate without any heirs, the person’s property is escheated to the lord, or in the
  modern time, to the state.

The Fee Tail
Fee Tail = desire to keep property in the family (blood line); this is a fee simple with the limitation to ensure the
property would remain in the family indefinitely and the land could never be conveyed to anyone outside the
family. “To A and the heirs of his body.”
    o Not freely alienable, inheritable only to direct lineal descendants, and not devisable
         Example: O bequeaths land “to A and his children”, thus A would take a fee tail. That is, the words “and
          his children” are treated as words of limitation (describing the estate given to A) rather than as words of
          purchase (giving the children an estate of their own).
                 This rule no longer exists today! The general rule is not that A takes a life estate, and any children
                  ultimately born receive a remainder in fee simple.
                       o Remainder = a future interest which can become possessory only upon the expiration of a
                           prior possessory interest, created by the same instrument. For a remainder to exist:
                               1) A grantor must convey a present possessory estate to one transferee
                               2) He must create a non-possessory estate in another transferee, by the same
                                   instrument; and
                               3) The 2nd, non-possessory estate (the remainder) must be capable of becoming
                                   possessory only on the “natural” expiration of the prior estate. (why 2nd estate is a
                                   future estate)
                       o If A has children alive prior to the testator’s death, then this does not apply. However, A
                           and his children would take concurrent interest as joint tenants for life.
          Today the fee tail is completely dead, but the US still treats similar conveyances:
                 1) Fee simple conditional: this means that A, once he has a child, may convey property in fee
                      simple to a 3rd person. If he does die with issue and has not conveyed the property, the
                      survivors who take the property probably also take a fee simple conditional.
                 2) Disentailable fee tail: disentailing conveyeyance to a 3rd party so that the latter may receive a
                      fee simple.
                 3) Fee simple absolute: a grant or a bequest that would be a fee tail at common law (in history) is
                      simply converted by statute (b/c FT no longer accepted) to a fee simple absolute; thus a grant
                      “to A and the heirs of his body” gives A a fee simple absolute.
**A Fee tail can be sold or given away, but upon the death of the seller, the property must be given back to
the seller’s issues (must come back into the lineal succession v. A fee simple can be sold at anytime to anyone
and it will no longer be in the lineal succession (no limits on who ends up with the property =

W. Va. Code §36-1-12: if you use language that would have created a fee tail, it will instead be a fee simple.

The Life Estate
Life Estate = unlike a fee tail, retains tremendous practical significance today; the estate is one which lasts for the
lifetime of a person.
     o Alienable, not inheritable (for life estate pur autre vie), and not devisable (except by life estate pur autre
             Ordinarily, the lifetime by which the life estate is measured is that of the holder of the life estate (i.e.
               O grants a life estate “to A for his lifetime, then to B in fee simple.”) Occasionlly, however, the
               measuring life is that of someone other than the holder of the life estate (i.e. O grants “to A for the life
               of B, then to C in fee simple.”) This latter type of life estate is called an estate “pur autre vie”.
                       Usually, a life estate is measured in terms of the life of the grantee. However, it is possible
                           to create a life estate that is measured by the life of someone other than the grantee.
                                Pur autre vie  upon the death of the life tenant, the estate can continue, since
                                    the measuring life may still exist (whereas in a life estate, the estate automatically
                                    comes to an end at the death of the grantee and possession passes to the grantor or
                                    3rd person.
                                         o Today, upon a life tenant’s death, the balance of a life estate is treated as
                                             personal property, which passes by will or by intestacy until the measuring
                                             life dies. If B dies before A then A losses the LE when B dies.
             Life estates are defeasible  A devises land “to B, for so long as she shall remain my widow, then
               to my son C.” = life estate determinable. B keeps until remarries, if doesn’t remarry keep til her
             Estate of now limited utility: A leaves Blackacre to his widow, B, for life, then to their surviving
               children. As long as B is willing to live on the property for the rest of her life, the arrangement works
               out. But suppose that she finds the property too large and expensive to keep up, and wants to move.
               She cannot convey a fee simple interest (sell) in the property unless she gets the written consent of the
             remaindermen (the children of her marriage with A). If even one of the children objects, she must not
             sell. (White v. Brown)
                      if the possessor may not be able to obtain consent from those issues who are unknown (i.e.
                         an unborn child) who could take interest in the property as a surviving issue, then the
                         property is unsalable. Fertile Octogenarian
            Since a life tenancy is to be followed by another interest (either a reversion to the grantor or a
             remainder to a 3rd person), a life tenant does not have the same freedom in his use of the land as a free
             holder of land. Therefore, the life tenant has many duties toward/vis a vis the future interest:
                      NO waste: an unreasonable impairment of the value which the property will have when the
                         holder of the future interest takes possession.
                      Must make repairs
                      Must pay all property taxes which come due while he holds possession.
                      A life tenant cannot convey a fee simple, but he can convey the interest which he does
                         hold.(if LT tried to convey more than a LT at common law, would lose the LT to the
                              Example: If A holds a life estate, A may convey to B either for the life of A, or for
                                  a term of years. If A conveys his full interest to B, he has created an estate pur
                                  autre vie.

The concept of pur autre vie also introduces the concept of waste.
Waste: given the competing interests of A and B, to protect the rights of each, courts use the concept of
waste. W.V. Code §§ 37-7-1 through 37-7-4.
        Affirmative waste—an action taken that constitutes waste.
        Permissive waste—actions not taken that constitute waste. Essentially, a negligence concept.

WV: If A’s life estate is given to B, and B dies first, A will NOT take it: W. Va. Code § 44-1-21 treats land as
personal property, not real estate property. 44-1-21: Any estate for the life of another shall go to the personal
representative of the party entitled to the estate, and be assets/per. prop. In his hands, and be applied and
distributed as the pers. estate of such party.

Rules of Construction—rules that the court will follow in order to discover the person’s intent.  in a will, the
court tries to find the person’s intent
    Courts will construe the entire will (four corners test) to determine what one section means
    A person will convey away what they own; so the court will interpret the will to be a fee simple unless stated
      otherwise in the will.
    If a person has a will, we are going to make the assumption that they wanted to dispose of their entire
      property (FS) and NOT leave partial property without conveyance.
Rule of Law—a rule that operates mechanically, regardless of the testator’s intent. (must follow this regardless of
the intent)  this is the result even if the tenant meant something else.
 Certain phrases give certain rise to certain legal effects so when a person’s statements (don’t sell the house) are
  contrary to the person’s legal intent (I wish P to have my house), the court will rely on the rules of construction
  (intent to convey a FS and not a LE) over the rules of law when they haven’t use the legal terms implying a
  specific interest (White v. Brown) Decedent attempted to pass a FS and also attempted to restrain alienation on
  the prop. Since restraint on alienation is void as a public policy, P is left with a FS; since FS is alienable-P can
  sell house. Ask: What type of estate did decedent wish to convey? Did decedent use legal v. lay terms? If legal,
  follow legal interps. If lay, follow lay interps gathered from whole doc/will, conversations with others, etc. If lay
  terms use and restraint on alienation is void on that type of estate, deem prop as alienable.

Life Estate Cases:
White v. Brown
Facts: The testatrix died with a holographic will and no children. The will stated “I wish Ellen White to have my
home to live in and not to be sold.” The ambiguity that gives the courts problems is that the language seems to
convey a fee simple, but also use terms to convey a life estate.
Discussion: Holographic will case (will entirely in a person’s handwriting and done by a lay person). The cardinal
point of all will interpretation is to uncover the party’s intent. The problem with holographic wills is that without
training, laymen have a problem communicating their intent clearly, unambiguously, and univocally. Therefore,
the court must use rules of construction and rules of law to determine intent.
          A rule of construction: court will construe it as a fee simple unless it is conveyed otherwise (court
            will keep it in the family unless stated they wanted it to go to waste)
    Common law rule  life estate is default under common law (old English);
    Public acts of 1851  default is fee simple (strike word of limitation) unless there is an expressed intent to
      limit it to something less
    The courts prefer construction of the entire estate, not just part of the estate.
    Restatement 2  all restraints are similar when imposed as a fee simple; absolute restraints on fee simples

      are void and partial restraints on fee simple are valid if reasonable in purpose, effect, and duration.

W. Va. Code NOT Correct!§ 43-2-1: the statutory provisions to use to assign the interest that we’re going to
apply to represent an individual’s interest in the property.
Possessory estates (those user is seized of): FS, FT, LE, term of years, etc.
Baker v. Weedon
Facts: Will stated: “I give and bequeath to Anna Weedon, all my property both real, personal and mixed during her
natural life and upon her death to her children, if she has any, and in the event she dies without issue then at the
death of my wife Anna I give, and devise all my property to my grandchildren, each grandchild sharing equally
with the other.” City wanted to put a bypass near the land but Anna only had a possessory interest (LE) as opposed
to the fee simple and therefore needed the ok from the grandchildren. Once the bypass is completed, the land will
be worth a lot more money and will be much more valuable and therefore, the grandchildren did not want to sell the
land. Anna wanted to force a judicial sale of the land because she needed money.
Discussion: Under property law, does a stake in the land in question give rise to the ability to use that stake to force
a judicial sale of the land without consultation of the other party who has a future interest in the land? No. In
equity, the court looks at what is potentially at stake to both sides in the transaction. Here, sale without the
consultation of the other party which has an interest in the property is not equitable to the appellant.
          A sale of property should NOT be ordered no matter how much it would benefit the present
            tenant, if it would cause substantial loss of value to the holders of the future interest
            (grandchildren) even if future interests want it-courts balances.
          Rules to Sell Property when there is a life tenant and future interests:
               The life tenant cannot sell a fee simple unless all other persons who have interest in the property
                    consent, OR
               Unless the court of equity orders sale and reinvestment of the proceeds.
               In both ways the court is looking out for the future interest.
               Life tenant can lease property, extending beyond the life tenants death and the life tenant may cut
                    timber, take down a building, drill oil, etc, so long as these activities were occurring when the land
                    was conveyed to her  this is the “Open Mines” doctrine (if mines were open by the grantor,
                    then the life tenant had permission to continue activity)
          Should also not sell land for little, just because in need of money… this is considered economic
         Law of Waste:
                  Affirmative Waste. Its waste because the freehold would be different when compared to the future
                   interest. (cutting the timber, tearing down a structure that is sound)
                  Permissive Waste is waste via negligence. Not doing repairs. Letting the property deteriorate.
                   (when you just don’t take care of the property and maintain it to make it livable)
                  Ameilioriative Waste (exception to waste theories) is when the court will not hold a life tenant
                   accountable for changing the land to increase its value, such as leveling a down a burned building
                   (Mill case – only case in history where the life tenant could tear a building down to increase the
                   land and have the court allow it)
          The law of waste helps us to define the permissible use of the land because the life tenant has to
            turn the property over to the remainderman in the same way they inherited it subject to normal
            wear and tear.
                 Fact that you increased its value doesn’t in and itself make change/waste permissible.

Learning of Life Estates: The problem in the Weedon case is the conflict between 2 interests. The case helps to
understand why the life estates to land are not that common. The life estate is not common today because there is
no duty to ensure a life tenant on the property, but if the life tenant is insured, the life tenant receives the proceeds
and has an obligation to pay taxes on it. (a trust is better because it allows individuals to make the land more
accessible and to do things without blockage, such as splitting title between legal and equitable interests). Land
today is a commodity of commerce and needs to be alienable as an asset. The life estate tends to make the land less
marketable because you have more than 1 set of interests to deal with unlike in a fee simple. (banks will not lend
money if the security is a life estate rather than a fee simple, because with a life estate there is no equitable interest
and the bank has risk of losing money).

Thus, the common law types of interest were:

Freehold:                                            Nonfreehold:
1. fee simple,                                         (1) term of years: aka “term”; ends on the calendar date
2. fee tail, and                                           without any further notification;
3. a life estate.                                      (2) periodic tenancy: fixed term by month to month, will
                                                           continue to renew itself until someone takes the
                                                           necessary action to terminate; e.g: must give notice in
                                                           order to end tenancy, Ex.) at the end of february
                                                       (3) tenancy at will: recognized that there is a tenancy, but
                                                           that it is at one person’s option—very scarce today.

Fee Simple Defeasible Estates Cases:
Mahrenholz v. County Board of School Trustees (p. 242)
Facts: The will gave land to the school which was to be “used for school purposes only; otherwise it was reverted
to the grantors” Does this create a fee simple determinable or condition subsequent? The language in the will
creates a fee simple determinable because they looked at the intent of the grantor. The Court reasoned that the word
“only” was intended for the school use only and intended that the land be given back when no longer used for
school purposes.
Discussion: In COMMON law reversionary interest may not be transferred by will or by conveyance when the land
is still being used for school purposes. But because the court found the conveyance to be a fee simple determinable,
there was the reversionary interest that instead was allowed to be transferred by the heir of the grantor. Fee simple
               Determinable = “so long as,” possibility of reverter.
               Fee simple subject to condition Subsequent = “but if,” “right to re-enter”
Rule: Because the rights of re-entry for condition broken, or possibility of reverter are inheritable only, not
alienable or devisable, only the grantors or the heirs may act to retake the property after the condition is broken, and
then become the owner.
               The right of re-entry and the possibility of reverter can only be transferred through
                 inheritance and once there is an automatic reversion or the right to re-enter has been taken,
                 then the land becomes alienable (the grantor or heir become the owner and then can give their
                 portion of land away). The heir can not transfer the reversionary interest to a 3rd party.
               The difference between a fee simple determinable and a fee simple subject to a condition, is solely a
                 matter of judicial interpretation of the words of a grant."

**Formula to get a fee simple determinable: if there is a grant of exclusive use or a limited grant followed by
mandatory reversion (words “whenever” or “only”) then it is a fee simple determinable.
**If a condition is breached, the land is or may be forfeited to the holder of the future interest. v. A covenant is a
promise by the grantee that a specified act will or will not be performed. A covenant does not create a defeasable
interest. If a covenant is breached, the promisee may sue for an injunction or damages. ***

In ambiguous situations, the court should tilt towards the creation of a fee simple subject to a condition

In West Virginia, W.V. § 36-1-9. For present purposes, any interest in real estate may be transferred. Therefore,
for rights of reverter and rentrty, therefore, the question is—are these things/rights interests in real estate. See also
Wheeling v. Zane. In Zane, the court sites this code section, but does not reach the question. Probably, these rights
are transferable. Essentially, “we don’t know” if it is not transferable (it is inheritable though). v. Mahrenholz
would have been decided differently in WV because Rt of Entry or Poss of
Reverter is transferable or conveyable to 3rd parties. (Which is right?)

Mountain Lodge v. Toscano
Notes: The grantor cannot place a restraint on alienation (WHO can use the land) because it is an essential stick in
the bundle, however a restriction on the use of the land is NOT a restraint on alienation even if that is its effect.
             The object in construing a deed is to ascertain the intention of the grantor from the words which have
              been employed and from surrounding circumstances.
             Habendum clause  “to have and to hold”: part of the deed or will that defines the extent of the
              interest being granted and any conditions effecting the grant of the property. If the deed is
              comprehensive, it is not needed; but if the deed is only descriptive, then you need this clause.
                     i. The clause here said that it was both fee simple determinable and fee simple subject
                         to condition subsequent
             This transfer is different from the vast majority of transfers because if this is in fact a gift, it is fair to
              put a specific restraint on the land because the person doesn’t pay for it.
             People can only make restrictions on HOW to use the land, so long as the land is given as a gift,
              but not WHO uses it. The court weighs the two policy goals to determine the more equitable
              result: whether it’s more important to allow the holder of a FS use the land as desired or
              whether the person who granted the FS has any right to still say how to sue the land.

False City Nevada v. Missouri Pacific Railway  Conveyed for railroad headquarters and so few people (the
WHO) fit the condition, that the court ruled the condition void. Most restrictions are valid and enforceable unless
the condition 1. expressly limits alienation (or is 2. so unreasonable) of the property to such a small number of
people that it practically becomes void. 3. If it materially effects marketability adversely. (Makes it almost
unalienable because it limits the class of people you can sell to. Also, if the condition is because of 4. spite or
malice, the condition becomes void).

“Chose in action”  right to sue; the chancellery would be considered to stir up litigation if the client was trying
to transfer the right of entry to 3rd parties because it’s not allowed (-so no right to sue?). At common law in UK,
attorneys could not advertise because they had the financial incentive to stir up litigation.

Ink v. City of Canton
Notes: the grantee controls the destiny of the land and therefore, the property’s possibility of reverter is valued very
low because it is being used as a park and there is a slim chance the city will stop using land as a park (because they
did not want to give up their right to the land). However, the state comes in and takes the land by eminent domain
(when the state takes the land for public purposes). Who gets the money?
         Since the land was given as a gift and the city didn’t pay any money for the land, then the grantee should
          get the $ since the land was to be used only for park purposes (but since the grantee only normally has a
          remote chance of ever getting the land back, it is almost unfair to give him the money. However, this
          isn’t fair because it is not the park’s fault that the land was taken and the city would have continued to
          use it as a park had it not been taken. Either party would be better off if they got the money!!
              Previous case law suggested that a grantee who receives something for nothing with the proviso that
               what they are getting must be used for something specific should hold fast to that clause (Mtn. Lodge).
               There is a blatant attempt to make money here by the City of Canton on a gift, in essence.
              Therefore, the court decides to split the fair market value (what an average person would pay for the land
               at that time) of the land. But what is the market value?
                   Difficult to determine because the land has restrictions on it (can only be used as a park), but then
                       without restrictions, the land would be worth more, so the case is remanded to trial court to figure
                       out how to split the money. Court wanted to be fair and did not want to create a windfall for one

    Where property is conveyed free of fee from conveyor with a proviso that it be used only for a specified use with
    penalty the property reverts back to the heirs of the original purchaser of the land, those heirs may receive
    whatever the full value of the land is minus any costs the grantee incurred while in possession of the tract of

                         SECTION 2: FUTURE INTERESTS BEFORE 1536
                  (contingent and future remainders only take at expiration of estate)
    Future interests refers to possessory rights  B has a present right that the law will enforce, but B does not have
    the current possessory interest. They are future interests because they will become possessory at some time in the
    Two general categories:
        (1) Future Interests retained by the transferor; (Reversions)
        (2) Future Interests given to a transferee

5 Kinds of future estates:
Future Interests Retained by the Transferor/Grantor:
    (1) Reversion – retained by the grantor when he gives something less than a fee simple away; reversion is created when O
        conveys an expirable estate (i.e. a fee tail or life estate). This reversion is alienable and inheritable.
             1. Example: A holds a fee simple absolute in Blackacre. He conveys “to B for life.” A has retained a reversion, which
                 will become possessory in A (or his heirs) upon Bs death.
                         Even when A holds a less-than fee-simple interest, he can create a reversion in himself by transferring a
                           still smaller estate. Thus if A held a fee tail, and conveyed “to B for life”, A would have a reversion in fee
                           tail. When B died, prop return to A until lineal descendents die, then prop returns to O.
    (2) Possibility of Reverter (so long as, only, when)– that which follows a fee simple determinable; executes automatically;
        vested. Able to be transferred freely now, but not back in the day; possibility of reverter is created when O conveys a fee
        simple determinable. This possibility of reverter is inheritable and is not alienable if given by gift or sale.
             1. Example: O owns a fee simple absolute and conveys “to A and his heirs, so long as no liquor is sold on the premises,
                 and if so, title to revert to O and his heirs”. After the transfer, O has a possibility of reverter; he will automatically
                 regain possession if A or anyone holding under him sells liquor.
                         Distinguish from reversion – if Os conveyance had been “to A for life,” with nothing more, O would have a
                           reversion, not a possibility of reverter, since As life is sure to come to an end.
    (3) Right of Entry (but if, on condition)– that which follows a fee simple subject to a condition subsequent; vested. Cannot be
        transferred by conveyance; can be devised; Right of entry is created when O conveys a fee simple on condition subsequent.
        The right of entry is not alienable but is inheritable.
             1. Example: O owns a fee simple and conveys “to A and his heirs, on condition that liquor never be sold on the
                 premises; if liquor is sold, O or his heirs may re-enter the premises.” The conveyance to A has been made subject to
                 a condition subsequent, and O therefore reserves the right of entry.

Fee simple absolute  O retains nothing
Fee tail or Life estate  O has a reversion (at expiration of prior estate); also can convey interest to a 3 rd party (grantee) who gets a
Remainder (must take effect immediately).
           Example of remainder: To A for life, then to B and his heirs.
           Example of remainder: To A for life, then if B survives A, to B and his heirs.
Fee simple determinable  O has a possibility of reverter (when breaks condition)
Fee simple on condition subsequent  O has right of re-entry (when condition not met)

Rules relative to creating future interests in a grantee before 1536 were:
 Rule 1: Only expirable estates could be followed by a future interest in a grantee.
        hence only a fee tail or a life estate may be followed by such an interest. This is not hard to remember
            since it is in those 2 cases that O has a reversion if the deed or will contains nothing extra. After
            creating a determinable fee or a fee simple on condition subsequent, on the other hand, O retains a
            future interest that may not alienate and may not create in a 3rd party. In other words, the common law
            permitted, reasonably enough, the “replacement” of an alienable reversion by a future interest in a 3rd
            party. The interest that follows these rules is called a “remainder.” The person in whom the interest is
            created traditionally has been called a “remainderman.”
 Rule 2: The future interest created in B must be capable of taking effect immediately upon expiration of the
   preceding estate.
        O to A for life, then to B and his heirs  A has a life estate and B has a remainder.
        O to A for life, then if B survives A, to B and his heirs  Bs interest is ready to take effect (condition
            is ready to be tested) on As death.
        NOT VALID: O to A for life, then if B has married C either before or after As death, to B and his heirs
             the future interest is not valid because the condition is not verifiable at the expiration of As life
            estate. Therefore, A has a life estate, B has nothing and O has a reversion.
 Rule 3: The future interest created in B must not take effect before the expiration of the preceding estate.
        O to A for life, then if B marries C, to B and his heirs  B has a remainder; however, if it said: “O to A
            for life, then if B marries C while A is living, immediately to B and his heirs” the B would no longer
            have a remainder because the condition construed would take effect before As death and prior to 1536,
            it was impermissible to cut short As life estate.
 O to A and his heirs as long as A farms the land, then to B and his heirs  Bs interest follows a fee simple
   determinable, which does not expire. Thus Bs interest is not a remainder and is void before 1536. B has
   nothing, A has a fee simple determinable, and O has a possibility of reverter.
 O to A for life, then if B has married W, to B and his heirs  Bs interest is ready to take effect; the condition is
   ready to be tested at As death. B has a remainder.
 O to A for life, BUT if B marries W, then to B and his heirs  Here Bs interest does not take effect at
   expiration of As life estate; therefore, no remainder. This wording would “cut off” As life estate before it’s over
   and this is impermissible before 1536.
 O to A for life, then if B has reached the age of 21, to B and his heirs  Bs interest follows an expirable estate,
   doesn’t cut it short, and the grant with the condition is ready to be applied at the expiration of As life estate.
   Therefore, B has a remainder.

How to determine a future estate: After deciding whether a conveyance creates a remainder, two tasks must be
done to complete the analysis of the future interest. (1) you must decide what present estate the remainder will
become if it ever becomes possessory. (remainder if life estate, fee simple, etc) AND (2) you must classify the
remainder by type, vested or contingent remainders.

Vested Remainders: X is said to have a vested remainder if X has a remainder and: (a) X is a person born
and ascertainable, AND (b) there is NO condition other than expiration of the preceding estate that must be
met before Xs interest may come into possession.
    Example: O to A for life, but if A should ever use liquor on the premises to B for life; then to C  Cs
      remainder is vested, since he will take either on the death of A or on the death of B, events that are certain to
      occur. The “liquor” contingency is a “red herring” when it comes to Cs interest. A has current possession
      and a L/E StoSC and B has what? a possible future int subject to A’s violation and O’s entry onto premises?
    Example: O to A for life, then to B and his heirs as long as the land is farmed  the condition is understood
      to be on Bs possession, not on his taking. There is no condition that must be satisfied in order for B to come
      into possession, only for B to continue having the prop. Therefore, Bs remainder is vested; it is a vested
      remainder in fee simple determinable.
     NOT AN EXAMPLE: O to A for life, then to As youngest child living at the time of As death and that child’s
       heirs  it is impossible to determine, until A dies, who will be his youngest child then living. Therefore,
       although there may be a very likely candidate (suppose A is 92 at the time of the grant), the actual taker
       cannot yet be ascertained; hence the remainder is not vested. Fertile Octogenarian Rule
Vested remainders at common law were alienable inter vivos (who can sell them and when?), it was inheritable,
and it was devisable.

Contingent Remainders: Remainders that are not vested are contingent. X has a contingent remainder if X has
a remainder and: (a) X is unborn or unascertainable, OR (b) there is a condition that must be satisfied
before X may come into possession. Such a condition is called a “condition precedent.” Since X has a
remainder, we know that the condition precedent must be able to be tested at the expiration of the preceding
     Example: M has a son, A. A has one child, B, who has no children. M conveys realty to A for life, with the
        remainder to B’s children  At the time of the conveyance, Bs children, because they are not yet born, have
        a contingent remainder.
     Example: O to A for life, then if B survives A, to B and his heirs  B has a contingent remainder in fee
        simple. However, if the condition is not met (B does NOT survive A) then O regains the land. O has
     Example: O to A for life, then to Bs oldest child living at the time of As death and that child’s heirs  there
        is a contingent remainder (b/c not yet ascertainable b/c old child could die b/f A died) in fee simple of Bs
        oldest child living at As death.
     NOT AN EXAMPLE: O to A for life, but if As firstborn is male, then to that child and his heirs  As
        firstborn doesn’t have a remainder, since the “but if” language seeks to cut short As life estate in certain
        circumstances. There is NO REMAINDER at all: no vested, no contingent. Before 1536, the interest in As
        firstborn is void and O has a reversion. Correct?: Since estate isn’t guaranteed to pass at a future date, A’s
        firstborn is not a vested rem; since A’s firstborn is unborn AND there’s a condition that the child be male,
        A’s firstborn is not a/has no contingent rem.
An alternative Contingent Remainder: X and Y had alternative contingent remainders if: (a) X has a contingent
remainder, and (b) Xs remainder is followed immediately by Ys future interest, which is a remaineder and which
takes effect in exactly those circumstances in which Xs remainder will not.
           Example: O to A for life, then if B marries C, to B and his heirs, but if B does not marry C, then to D
              and his heirs  A has a life estate, Bs contingent remainder in fee simple (can I say: StoSC of
              marrying C?), Ds alterative contingent remainder in fee simple and Os has a reversion. Why does O
              have a reversion because either of the 2 alt rem’s take a FS?
                   Note: “But if” means non-remainder (and void before 1536) unless it introduces a condition
                       precedent that is the opposite of the earlier condition precedent. Then you have alternative
                       contingent remainders.
           Example: O to A for life, then to Bs oldest child living at As death and that child’s heirs, but if none of Bs
              children are living at As death, then to C and his heirs  Contingent remainder in fee simple of Bs oldest
              child living at As death, Cs alternative contingent remainder in fee simple and Os reversion (why?).
                   Note: It may seem impossible that O will ever get land back, since either one condition or the
                       other must be met. This is not strictly true because it is possible for As life estate to end before
                       it expires (i.e. if A refuses the life estate). So if A refuses the LE and O takes it back, then
                       neither B nor C will ever take? Does O hold until A dies and then the conveyance continues?
Contingent remainder was not alienable inter vivos. It was however, inheritable and it might be devised.

The golden rule: If there’s a contingent remainder, there’s always a reversion.

Gifts to a Class and Vested Remainders, Subject to Open: a conveyance to a class which at least one member is
in existence or has met the condition precedent imposed on the class. This species of vested remainder is, like other
vested remainders, indestructible; it is alienable inter vivos, devisable and inheritable. It is “subject to open”
because for some period of time, the class is open, can increase in number, and Xs share might diminish in size.
          Example: O for life, then to As children and their heirs (A has no children). A has a life estate, Bs
             contingent remainder in fee in favor of As unborn children, Os reversion.
                   The gift to the class of children of A is a contingent remainder because there is no person who
                    meets the description of the beneficiary to whom the remainder belongs. There is as yet no
                    member of the class of children. So when there’s no member of the class yet, call it contingent
           Example: O to A for life, then to the children of A who reach 21 and their heirs. Suppose A has 2
            children, aged 6 and 10. A has a life estate, contingent remainder in fee in favor of As children who
            reach 21, Os reversion (in case no child of A reaches 21).
                 The gift of the remainder in this example is a gift of a contingent remainder interest. It is
                    contingent because it is given to a group of unascertained persons. No one yet fits the
                    description so as to become an identifiable member of the class.
                 If however, one of the children does reach 21, then the entire remainder is classified as vested;
                    so A has a life estate, Xs vested remainder, subject to open (because the other child could reach
                    21 and when and if he does, then the interest is split).

                                Present and Future Interests after 1536
Executory Interests  Before 1536, O could not “almost” convey land to A. For example, O to A and his heirs,
but if B returns from Rome, then to B and his heirs. This was not allowed prior to 1536 because Bs interest does not
satisfy the definition of a remainder (b/c B’s interest would cut A’s interest short instead of vesting at the expiration
of an estate). However, in response to the gaps and disadvantages of the CL legal process, an alternative channel of
justice widened.
          O could have created a “use” and could have conveyed a fee simple to T. T has legal title to the land
             and would be required to honor any promise that O made. T managed the land for O. Therefore, to “T
             and his heirs” would have the legal title, and “for the use of A and his heirs, but if B ever returns from
             Rome, then for the use of B and his heirs” would be equitable title.
          This led to the passing of the Statute of Uses which gave legal status to interests that, before then, were
             only enforceable in equity through the use. The Statute of Uses, did not make illegal or change the
             treatment of any of the present or future interests. This statute created the executory interest.
                   “Use” – the right which a person has to enjoy the property of another according to the 1st
                      person’s necessities.
          Executory interest: An interest that follows an estate which may, but will not necessarily terminate, is
             an executory interest. The most commonly tested is the shifting executory interest, a subsequent estate
             which can possibly cut off a prior estate. (Interest that gives a 3rd person interest comparable to a
             possibility of reverter or to a right of entry).
                   Example: O to A and his heirs, but if B returns from Rome, then to B and his heirs. A has a fee
                      simple determinable (or a fee simple on executory limitation) (but I thought “but if” means
                      StoSC-not determinable), Bs executory interest in fee.
                           o The fee simple on executory limitation was alienable, inheritable, and devisable
                           o The executory interest was inheritable and devisable, but was originally inalienable by
                               gift or sale at the CL (today exec. int. in FS is not alienable?).
                           o Since the possession of property is changing between A and B, this is called a
                               “shifting interest”
                   Example: O to A for life, then one year after As death, to B and his heirs. A has a life estate
                      and B has an executory interest in fee. O has a reversion and takes the property during the one-
                      year hiatus and when the reversion becomes possessory, the present estate will be a fee simple
                      determinable (or on executory limitation).
                   Example: O to B and his heirs upon his marriage. Bs interest is entirely in the future and with
                      the Statute of Uses, B now has an executory interest in fee. O retains the present estate and it is
                      called a fee simple on executory limitation.
                           o The change in possession here from O to B is called a “springing interest”
          Shifting Executory Interest: cuts short some interest in another transferee (think “but if”) and to take
             effect before the expiration of the preceding life estate or fee tail.
            Springing Executory Interest: divests the transferor in the future and to take effect at a time
             after/subsequent to the expiration of the preceding estate.
                  Example: T bargains and sells realty: “to my children, but if my friend F is still alive 30 years
                      after this conveyance, to F.” The children’s estate may be cut off if F lives another 30 years.
                      Therefore, the children have a fee simple determinable/FS on exec limitations), and F has a
                      shifting executory interest. (we assume both estates are FS b/c “to heirs” no longer needed after
                  Example: O to A for life, then to B and his heirs, but if B ever farms the land, then to C and his
                      heirs. A has a life estate, Bs vested remainder in fee simple on executory limitation/FS StoCS
                      of ever farming the land b/c of the “but if”, and C has a shifting executory interest.

 Modern Law:
  Statute of Uses makes legal what was formally equitable and then the SOF abolished the livery of seisn to require
   a written deed or document for passing title to real property.
  Today executive interests and remainders would probably have the same legal remedies because both springing
   and shifting executory interest are not guaranteed interests, just like contingent remainders; so now that you no
   longer need to use the exact language for an executory interest, both contingent remainders and executory
   interest are practically the same. Contingent remainder and Executory interest are interchangeable Today.
       Example: O conveys to A for life, then to As children and their heirs, but if at As death he is not survived
          by any children, then to B and her heirs. At time of conveyance, A has no children.
               o A has a life estate, As children have nothing, B has an executory interest (or a contingent
                   remainder) that becomes divested when A dies with children that are alive.
  Today Springing and shifting, future interest can be created by: deed, trust, or will. There is no special form of
   conveyance that needs to be used.
  Before Statute of uses springing and shifting interests were illegal, but now they are valid.
  Today’s executory interest are treated as contingent interest because they are 1) subject to a condition
   precedent, 2) they don’t vest until they become possessory, and 3) they are not destroyed by a gap in
   seisen. (same in WV?)

Statute of Uses: Creating Executory Interests by Way of Magic Words:

1. Or O would “bargain and sell” the land for a written instrument: although this was ineffective in a court of
law, because there would be no ceremony (livery) of seisin, a court of equity would recognize that the person had
the possession of the property. In effect, A becomes the equitable owner of the property. (A similar thing
happens today in equitable conversion.) This made it possible to have a transfer of ownership of property

2. A “covenant to stand seised”: if you were related to a person by blood, or by marriage, you could enter into
an agreement to stand seised of a property for the other person’s benefit—very much like today’s trust.

     W.V. Code § 36-1-9: Springing and Shifting Executory Interests No Longer Need Be Created by Magic
     Words, but can be conveyed inter vivos or devised by will.

     In 1660, as a part of reforms, the Statute of Frauds was created: the W.V. Statute of Frauds as it relates
     to property are:
     1. W.V. Code §§ 36-1-1 To avoid fraud, any 1.interest in the estate of more than 5 years, 2.part of the
     estate, 3.whole estate, 4.inheritance of estate can ONLY be taken, destroyed, or consumed if created by
     deed or will. You can convey part or whole estate for 4 years without a deed or will in WV.
     2. W.V. Code §§ 36-1-3 Contracts for the sale of land and leases for more than 1 year are only
     enforceable if the contract, or some note or memorandum, is in writing and signed by the party to be
     charged or his/her agent. Consideration doesn’t need to be in writing and consideration can be proved by
     other evidence.
The Trust
   Because a trust settler can’t foresee in the future, she can use the following methods to deal with changing
    circumstances: 1) create an indefeasibly vested remainder, 2) create a power of appointment in the life tenant
    (Swanson), and 3) make the remainder contingent upon surviving the life tenant, but giving the remaindermen a
    special power of appointment (power to appoint the property among a limited class of people either outright or
    in further trust as the donee of the power chooses) exercisable if the remaindermen predeceases the life tenant.
   Our courts supervise the conduct of a trustee. It is an office—the court may appoint someone to take over the
    trust. The obligations of a trustee include the following:
        o a high standard of conduct; a fiduciary relationship
        o no self-dealing - Trustee obligation to use his or her best judgment for the benefit of the equitable
        o trustee cannot commingle with the trust assets in any way: he or she can only manage it
        o the trustee must prudently invest the trust’s assets (diversify: if you invest in these….then do this and
        o spend the income as you are told by the trust instrument – follow the directions of the trust
        o keep the trust separate from your own funds: no commingling of funds
        o keep accurate records so each penny is accounted for – provide an accountant
        o act impartially as you act towards the beneficiaries of the trust: gets at the principle of waste – need to
            be fair to both individuals who have an interest… don’t invest in a detriment to an interest

Swanson v. Swanson
Facts: Swanson died leaving his wife a life estate with a remainder to his 9 children. The nine children had vested
remainders because they were all living. One of the children died leaving all of his interest to his wife. Two
conditions subsequent that were part of the will and neither were met: power of appointment and any child dying
before the life estate, but leaving kids, could pass it to the kids.
Issue: Does the law create a preference for vested remainders over contingent remainders? Yes.
Analysis: Does the wife of a sibling have rights which vest in a remainder of her father-in-law's estate when her
husband dies testate prior to his mother, who was the original beneficiary of the will in question? Yes. The
deceased son’s remainder was vested on his passing; no condition subsequent occurred prior to the termination of
the life estate (mom did nothing to change the will); there is no language in the will that plainly manifests a
contrary intent.
         Two rules of construction: (1) law favors construing conditions to be subsequent and (2) law favors
           construing the remainders to be vested when there is any doubt about the nature of the remainder (early
           vesting of remainders).
         Some states prefer to not construe the adjective “surviving” as a condition precedent, but to construe it in
           favor the testator’s intent.
         Modern courts will overturn Common Law rules with rules of construction if there is confusion and doubt.

You can do 4 things to destruct contingent future interests and make the land marketable: Destructability of
contingent remainder (above), RAP, Rule of Shelley’s Case, and Worthier title:

If an interest can be construed as a remainder, it will be construed like a remainder. Future interests will be
construed as a contingent remainder rather than an executory interest, if the future interest was capable was of
taking effect as a contingent remainder. (Purefoy v. Rogers)
    Example: O conveys to A for life, remainder to B and her heirs if B reaches 21. B is 19, and A is living.
             o A has a life estate, contingent remainder in B because it is possible that B will reach 21 before A
                  dies. O has a reversion.

Doctrine of Destructibility of Contingent Remainders  A contingent remainder is destroyed unless it vests at
or before the termination of the preceding estate. If a remainder is destroyed, then, at the expiration of the preceding
estate, the next vested estate comes into possession. This is usually the reversion.
                   Example: O to A for life, then to B and his heirs if B marries C. A has a life estate, Bs contingent
                    remainder in fee simple and Os reversion;
            But if B dies unmarried, he can no longer satisfy the condition. Therefore, the state of title
             would be: A has a life estate and O has a reversion. Bs interest has been destroyed by failing to
             satisfy the contingency upon which it was dependent. Today, O holds land until B marries C?
          Now suppose that A dies and B is still living and unmarried. Bs interest disappeared at CL
             because it was said to be destroyed by its “failure to vest” before the expiration of the prior
             estate. A contingent remainder required the continuation of a preceding expirable estate, such
             as a life estate or a fee tail; it the preceding estate ended, the contingent remainderman had to
             have satisfied the condition that made the estate contingent, or the interest was destroyed. Os
             reversion will thus replace Bs interest and will become possessory into a fee simple!
          If however, B does marry C while A is living, then A has a life estate and Bs now has a vested
             remainder in fee simple. (vested remainders are indestructible)
   A contingent remainder, because it is destructible and has a deadline, it must become a vested
    remainder on or before the expiration of the prior supporting estate.
   The estate that precedes and supports a contingent remainder will be a life estate or a fee tail. It can end
    in three ways: expiration, merger, or forfeiture.
          Destruction of a Contingent Remainder at the Expiration of the Prior Estate:
                  o Example: O to A for life, then to the first son of A who reaches 21 and his heirs. A dies
                       leaving a 16 yr old son. The contingent remainder is destroyed. Os reversion becomes
                       possessory (after As death, O has a fee simple absolute).
                  o Example: O to S for life, then to A and his heirs if A marries S and, if A fails to marry
                       S, then to B and his heirs. If all are living, then S has a life estate, As contingent
                       remainder in fee simple, Bs alternative contingent remainder in fee simple, Os
                             But if B dies without a will, leaving D as his heir, D is substituted for B (the
                                condition does not require B to do anything, so there is no implied condition of
                                survivorship). Everything else is the same, but now D has the alternative
                                contingent remainder in fee simple.
                             Assume now that A marries S. Then S has a life estate and A now has a vested
                                remainder in fee simple (D nor B have any interest).
                             Now if S dies, A has a fee simple.
          Destruction of a Contingent Remainder at the Termination of the Prior, Supporting
             Estate by Merger:
                  o Example: O to A for life, then to B and his heirs. A has a life estate, and B has a vested
                       remainder in fee simple. But if A and B each sells his interest to X, then X holds a life
                       estate for the life of A and a vested remainder in fee simple today? In WV?.
                             The CL employed the concept known as a merger to explain that X has a fee
                                simple. The principle of merger was applied in order to reclassify the two
                                lesser interests X purchased into the greater interest of a fee simple absolute.
                  o Example: O to the Church, its successors and assigns as long as the land is used as a
                       church. Church has a fee simple determinable with Os possibility of reverter.
                             If O/church? releases its interest to O, then O would have a fee simple. The
                                Church’s released interest and Os retained interest “merged” to give O a fee
                                simple absolute. (Is this correct or misworded?)
                  o Example: O to A for life, then to B and his heirs if B marries C. A has life estate, Bs
                       contingent remainder in fee simple, Os reversion.
                             Suppose O conveys the reversion to A. Now A has a life estate and the
                                reversion. Now, interest COULD be merged into a fee simple absolute, which
                                would thus destroy Bs contingent remainder. (B now has nothing).
                                     However, if B marries C before A dies, B has a vested remainder until
                                          A dies at which time Bs remainder vests and may not be destroyed by
                                          any action of A or O. The state of title would now be: As life estate
                                          with vested remainder in B. Os reversion is destroyed.
                  o Exception: if they were created simultaneously (LE and reversion), in the same
                       person, they did not destroy the contingent remainder at that stage. WHY? If that
                            individual conveys the land to a 3 party, then that would destroy the contingent
                                 Example: O to A for life, then upon A’s death, contingent remainder to A’s
                                    child who turns 21. The exception would be if O dies, and O’s sole heir is A,
                                    then O’s reversion goes to A. The interest would not merge because A is the
                                    sole heir and would get Os reversion and thus cut off the remainders interest
                                    which would be against and violate the grantor’s wish and intent in creating
                                    separate estates.
                   Destruction of a Contingent Remainder at the Termination of the Prior, Supporting
                    Estate by Forfeiture:
                       o Example: O to A for life, remainder to B and his heirs if B marries C, and if B does not
                            marry C, then to D and his heirs. Here A has a life estate, Bs contingent remainder in
                            fee simple, Ds alternative contingent remainder in fee simple, and Os reversion.
                                 However, at CL, some offenses (i.e. felonies), carried a penalty of forfeiture of
                                 Assume A commits a felony and thereby forfeits the life estate before B
                                    marries C. In that case, As life estate has ended prematurely and the contingent
                                    remainders are destroyed. The state of the title after As forfeiture: O has a fee
                                    simple absolute.
                                 If B marries C before A commits a felony, then the state of title after Bs
                                    marriage would be: A has a life estate, B has a vested remainder in fee simple,
                                    D/O has nothing. Then A commits a felony and B now has a fee simple
                                    absolute, O has ? (nothing because the vested rem vests at A’s felony and B’s
                       o Example: O to A for life, then to B and his heirs if B reaches 21. A has a life estate and
                            Bs contingent remainder in fee simple, Os reversion.
                                 However, if A decides to decline or renounce her life interest (perhaps for tax
                                    reasons, A does not want the extra income the life estate would generate), then
                                    Bs interest, if B is not 21 yet, is jeopardized. If As interest ends prematurely by
                                    renunciation, then Bs interest will be treated as destroyed by failing to vest in
                                    time (failed to vest at expiration of A’s LF). O’s interest will become
                                    possessory in a fee simple. (When does O hold for a cont rem?, In WV?)

    W.V. Code 36-1-15: law of destruction of contingent remainders is itself destroyed in W.V. and WV
    follows executive interests. Even if a preceding estate ends by forfeiture, merger, etc. before a contingent
    remainder has vested, the contingent remainder shall still remain contingent (as O holds it and waits to
    see if interest vests) and not be destroyed.

The Rule in Shelley’s Case  if an instrument creates a life estate in A and purports to create a remainder in the
heirs of A, the future interest becomes a remainder in fee simple in A. If a will or conveyance creates a freehold in
A, and purports to create a remainder in A’s heirs (or in the heirs of As body) and the estates are both legal or both
equitable, the remainder becomes a fee simple (or a fee tail) in A.
 Rule requirements: Shelley’s Case applied where there:
         1. is one instrument,
         2. creates life estate in land in A,
         3. creates a remainder in As heirs or the heirs of As body,
         4. life estate remainder of both legal or both equitable.
Shelly’s case says: If A is listed twice, drop “the heirs”; Merger says : If no intervening interest-->merge, if yes
intervening int., int. before the interv int. got what her heirs would have gotten after the intervening int..
 This creates a remainder in fee simple in A. If there is no intervening vested life estate, As life estate and
    remainder in fee simple will merge, leaving A with a fee simple in possession and the land becomes
    immediately alienable by A and not tied up for As lifetime
          Example: O conveys “to A for life, remainder to As heirs.” If there were no Rule in Shelley’s Case (so
             today in WV), the state of the title would be: life estate in A, contingent remainder in As heirs,
            reversion by O. But by operation of the Rule in Shelley’s Case, the state of title is this: life estate in A,
            remainder in A (not As heirs). Then by the doctrine of merger, As life estate will merge into his
            remainder in fee simple, and A simply holds a present fee simple. (FS absolute? W/ no reversion in O?)
                o This example is NOT the same as “O to A and his heirs” because A may sell all of Blackacre,
                    leaving his heirs-to-be with nothing. In “O to A for life, then to A’s heirs” except for the Rule
                    in Shelley’s Case, A may sell only his life estate.
           Example: O to A for life, then to B for life, remainder to As heirs. A has life estate, Bs vested
            remainder for life, As heirs’ contingent remainder in fee simple, Os reversion. Rule in Shelley’s case
            makes it: As life estate, Bs vested remainder for life, As vested remainder in fee simple.
                o No merger, since A does not own the vested interest next after his possessive estate.
           Example: O to A for life, and one day after As death, to As heirs. As life estate, Os reversion, As heirs’
            springing executory interest in fee simple. The Rule in Shelley’s case does NOT apply, since the Rule
            applies only to remainders, not to executory interests.
           Example: O to A for life, then to As heirs if A survives B. As life estate, As heirs’ contingent
            remainder in fee simple, Os reversion. The Rule in Shelley’s case makes the state of title: As life estate,
            As contingent remainder in fee simple, Os reversion. Merger does not apply since As future interest is
            not vested. (So merger only applies when the estate is vested?)
           Typical Conveyances:
                o "To A for life, remainder to the heirs of A" (According to Shelly’s, A gets a FS absolute?)
                o "To A for life, remainder to the heirs of the body of A" (A gets a FT.)
                o "To A for life, then to B for life, then to the heirs of A" (A gets LE, B gets vested LE, A gets
                    vested FS, but no merger because of an intervening interest.)

The rule in shelley’s case means that A’s heirs becomes A’s, instead. Then, after merger, it’s a fee simple in
A. It is used and applied to:
       Applicable to grantee and grantee’s heirs.
       Applies only to remainders and not to executory interest. This was before executory interests.
       Shelley’s case is a rule of law: applies regardless of the intent of the transferor’s.
       Shelley’s case applies in West Virginia.
       Rule may still apply when there’s a condition precedent.
       There’s a split among the application of Shelley’s case:
       Some jurisdictions say that you must use the term “heirs”. Others don’t.

Rule of Shelley’s Case Abolished: The Rule of Shelley’s Case serves no useful purpose today. It is often a trap for
the unwary, and virtually always thwarts the will of the grantor (policy reason). For these reasons, at least 37 states
have enacted statutes to abolish the Rule. It is sometimes abolished in “common situation.”

Carter v. Reserve Gas Company (WV CASE)
Facts: O A and B for life, remainder in survivor of A or B for life, then remainder to A and Bs heirs. O
conveyed to A and B both for their lives. Then when the 1st (A or B) dies, then a remainder in the surviving party
(A or B) has a life estate. After the last party (A or B) dies, then remainder to the heirs of A and B.
Issue: Did grantors convey a life estate or fee simple? Does Rule in Shelley’s Case apply so as the remainder in A
and Bs heirs become a remainder in A and B? If Rule does apply, then remainders in the heirs of A and B, would
become remainder of A and B. Merger does NOT apply because there is more than one instrument.
Discussion: Ct saw the conveyance as Life estate to A and B, then to the survivor, then to the A and Bs heirs. Ct
said this would exceed the WV statute that was intended to abolish rule in Shelley’s Case. However the court found
that this conveyance exceeded what the statute had covered because the statute left out the possibility of an
intervening cause. Therefore, because of the intervening estate, A’s heirs would not immediately take the property
upon the death of A, the Rule in Shelley’s Case does not apply.

ON THE FINAL: WV reading of the RULE IN SHELLEY’S CASE FINAL – must be immediately upon
death; Intervening estate cuts off Shelley’s Rule, so A and B’s heirs (not A and B) do get the FS after the
intervening interest?

Example: O to A for life, then to B for life, then to As heirs.  O to A for life, then to B for life, then back to A.
(no merger applies because you have an intermediate interest)
        Pre 1931 only abolished the Rule in Shelley’s case: A to life, then to As heirs.
        If you see on the final: O to A for life, then to B for life, then to As heirs  look at the date of the deed
          and if it is before 1931, then rule of Shelley’s case would apply and it would read: O to A for life, B for
          life, remainder to A in a fee simple. But after 1931, you would leave it alone because Rule is completely
          abolished…. It would read: O to A for life, B to life, then to As heirs in fee simple.

WV 36-1-14: Rule in Shelley’s Case abolished  this is not the statute in Carter; the statute changed in 1931. The
Rule of Shelley’s case was not fully abolished until Jan. 1st, 1931; prior to 1931, it was partially abolish as it relates
and is illustrated by the Carter case. The only scenario in which the Rule in Shelley’s case still applied was when O
to A and B life estates, remainder in survivor of A or B for life, remainder to heirs of A and B (one instrument
creates a life estate in A (and B) and creates a remainder in As heirs (which is A and Bs heirs). Before Carter,
everyone thought that the Rule in Shelley’s case was completely abolished. Then the Carter court said no, it still
applies to the above scenario. But then in 1931, the statute completely abolished it, by adding the words

ON THE FINAL: Rule in Shelley’s Case was partially abolished in WV until Jan. 1st, 1931 when it then
became entirely abolished.

Today Shelley’s case does not apply, but merger still applies:
Under Shelley’s case, As life estate would become a fee simple even if there are other interests. But today, A only
has a life estate if there are other interests. But As life estate can become more only if the other interests are
conveyed or devised back to A.
Example: O to A for life, contingent remainder in Bs heirs. B dies devising all his interest to A, As vested
remainder in life estate merged giving A a fee simple. (A fee simple= L/E + vested remainder)

The Doctrine of Worthier Title  (either way heirs had to pay tax; applies only to land, not to personal property)
is invoked by a grant of a future interest to the heirs of someone and applies to the grant of a remainder to the heirs
of the grantor. Compare this to the Rule in Shelley’s Case, which applies to a grant of a remainder to the heirs of
the life tenant. The Doctrine of Worthier Title converts the future interest into an interest in the grantor. Just
like Shelley, property passes by descent rather than by purchase. The doctrine provides that one cannot, either by
conveyance or will, give a remainder to his own heirs.
           o Example: O to A for life, remainder to the heirs of O. A has a life estate, Os heirs’ contingent
               reminder in fee simple, Os reversion. Without the Doctrine of Worthier title, A has a life estate and O
               has a reversion.
                    The fact that the reversion existed in the grant before the Doctrine operated helps explain the
                        name of the Doctrine: Os heirs would take, either directly through the remainder or indirectly
                        through the reversion. The latter was considered “worthier.”
           o Typical Conveyances:
                    "To A for life, remainder to the heirs of the grantor"
                    "To A for life, remainder to my heirs"
           o Provides where there is an inter vivos conveyance of land by a grantor to a person, with a limitation
               over to the grantor's own heirs either by way of remainder or executory interest, no future interest in
               the heirs is created but a reversion is retained by the grantor.
                    Example: O conveys Blackacre "to A for life, then to O's heirs." The remainder to O's heirs is
                        void; O has a reversion.
                              The rule is applied as a construction, not as a rule of law
           o Policy: to A for life, then to O's heirs." The doctrine of worthier title makes Os heirs void, so O has a
               reversion. So now for Os heirs to get the land through intestacy, they have to pay inheritance tax. If O
               leaves the land through the will, the heirs have to pay the death tax to get the land, and if O doesn’t
               leave a will, Os heirs will get the land anyway, but have to pay the intestacy tax; thus either way the
               monarchy got their taxes.
       W.V. Code § 36-1-14A: Abolishes the Doctrine of Worthier Title (from May 15, 1969 on). So, does land
       before 1969 follow the Doctrine of Worthier Title?
                Example: O to A for life, remainder in Os heirs.
                    Before 1969, it would be O to A for life, reversion in O.
                    After 1969, it would be O to A for life, with a remainder in Os heirs (it stays the same as the
                        original conveyance)

                                                Rule Against Perpetuities (RAP)
       The Rule against Perpetuities  The impetus of the RAP was to keep original grantor, O, from controlling the
       disposition of the property through the use of this new, flexible and indestructible executory interest for too long a
       period after the original conveyance. The rule as it eventually evolved is stated as: “No interest is good unless it
       must vest, if at all, within 21 years following a life or lives in being at the creation of the interest.” The rule
       destroys future interests that do not become vested “soon enough.” The rule limits the impact of future interests by
       restricting their enforceability. The Rule represents a belief that property is best utilized when the living rather than
       the dead control its disposition.
                 The Rule requires 2 things: that an interest “vest” and that it vest “soon enough.” The rule permits
                     interests to be “unvested” for a limited period of time after certain individuals living on the date of
                     conveyance have died.
                 The 3 kinds of future interests in a grantor – possibility of reverter, rights of entry, and reversions,
                     all satisfy the RAP because they also are considered “vested” from the moment of creation. Future
                     interests in the grantee, involve a little more subtle analysis
                        o Grantor  possibility of reverter and right of entry are exceptions to RAP because they’re
                             interests in the grantor instead of the grantee and subject to the grantor doing something
                        o Grantee  remainders; being ascertained or fulfilling an event are applicable to RAP because
                             they’re interests in the grantee and are subject to the grantee doing something.
                 Purpose of the Rule was to keep the newly recognized, very flexible and otherwise indestructible
                     executory interest manageable.
       FINAL EXAM The classic definition: “No interest is good unless it must vest, if at all, no later than 21
       years after some life in being at the time of creation of the interest.”

       If we think RAP applies, we must ask:
           When does the time begin to run?
                  If it is a will, the clock begins to run at the time of the testators death. (devise)
                  If it is a conveyance, the clock begins to run at the time of delivery. (conveyed)
           How much sand is in the top chamber?
                  How much time is given for the interest to vest or to fail?
                       o Who was alive at the time the interest was created (life in being),
                       o Who fits the class, and
                       o 21 years.

Three steps for applying RAP:
   1. When does a conveyance become effective?
             a. When the deed has been “delivered.” If it’s a will, the will becomes effective at the time of death. So, if we’re dealing with
                 a revocable trust, its when the trust becomes irrevocable—usually at the time of the [trustees] death.
                       i. Or if the conveyance, then it is at the time of delivery
                      ii. It is a will, it is at the death of testator
                     iii. If it’s a trust it’s at
   2. Is it possible that the interest will vest after a life in being + 21 years? (21 years after the death of the last life in being)
             a. If yes, we strike down the interest that would be constructed as void.
             b. We deal with possibilities, not probabilities. What actually happens is not relevant under common law, it’s what might
             c. If you are alive you are considered capable of having children  Fertile Octogenarian Rule
                       i. If there is a child, will it vest within the time given (it doesn’t require it to vest)
   3. The most vexing problem is figuring out if there is a life in being. We must figure it out by a process of elimination. When we find a
        person in whose life the interest will vest, it’s OK.
             a. Determined by a process of elimination. If it is a possibility that a person can’t be a validating life, then can’t use them as the
                 validating persons. When we find someone who will DEFENITELY vest, then the RAP can apply. But if there is no
                 validating person, then the interest is VOID.

An interest is invalid unless it can be said, with absolute certainty that it will either vest or fail to vest, before
the end of the period equal to: (1) a life in existence at the time the interest is created, plus (2) an additional
21 years.
       The interest must vest, if it’s going to vest, within this time period. We must know within the requisite
           time period.
       Validating life  the last person that was alive at the time of conveyance or death of the testator
       Life in being  the last person living at the time of conveyance (some life in beings are also validating
       Example of executory interest that violates RAP: O to A and his heirs, but if the land is ever used for
           commercial purposes, then to B and his heirs. A has a fee simple on executory limitation, Bs shifting
           executory interest may not vest within 21 yrs of a life in being so B’s interest becomes void (cut it out of
           the conveyance), A gets a fee simple absolute via merger right from the start.
                o Violation of RAP because Bs executory interest will not vest until Bs interest becomes
                     possessory; that is, not until if and when the land is used for commercial purposes. There is no
                     guarantee that that event will occur within 21 years of the death of any of the persons alive at the
                     time of the grant. The Rule says “must” and requires just such a guarantee. Hence, Bs interest is
                     void and remove it and As left with a fee simple (based on merger principle).
       Example where future interest does NOT violate RAP: O to A and his heirs, but if the land is used for
           commercial purposes, then to B for life. A has a fee simple on executory limitation, Bs executory interest
           for life (contingent remainder of L/E subject to condition subsequent), Os reversion. RAP does NOT
           destroy the future interest because Bs interest will vest, if ever, during his life; his interest is in a life
           estate. That is “soon enough” for the Rule: B is alive at the time of the grant. Bs interest is good.
       Example: O conveys his fee simple interest in Blackacre “to A for life, remainder to the 1st son of A
           whenever born who becomes a clergyman.” At the date of the conveyance, A has no son who is
           presently a clergyman. Viewing the matter from the date of the conveyance, it is possible to imagine a
           situation in which the remainder to the son could vest later than lives in being plus 21 years. Thus As son
           could be born to A after the date of the conveyance, and this son could become a clergyman more than
           21 years after the death of A and of any sons born before the conveyance. Since this remote vesting is
           possible (even though somewhat unlikely), the contingent remainder is invalid. This is so even though it
           actually turns out that A has a son alive before the date of conveyance who ultimately becomes a
           clergyman. So in the end, A has a LE, remainder in O.
    o The rule is a RULE OF LOGICAL PROOF  must prove that a contingent interest is certain to vest or
       terminate no later than 21 years after the death of some person alive at the creation of the interest.
                        If you can’t prove that, then the contingent is void.

 Worst Case Scenario:
    1. life in being dies
    2. people not born at the time of the conveyance or the death of the testator take over the roles of the
        dead people (heirs keep producing heirs in a chain)
    3. 100 years after the last person alive at the time of conveyance or death of the testator, the
        remainder vests because the condition is fulfilled.
 **Therefore, this violates the RAP, so strike out the violating remainder and there is a reversion in O.
             Example: O to A for life, remainder to 1st son of A who becomes a doctor
                       i. A doesn’t have son at time of conveyance
                      ii. After conveyance, A has a son. O and A die
                     iii. 100 years later, As son becomes a doctor and violates the RAP

Ex: A to B for life, remainder to such children of B living at B’s death
         Life estate in B, contingent remainder to B’s surviving children.
         Freeze facts: B is still living, we are not sure which children will be living at B’s death
         Validating life: B; we will only know B’s surviving children at B’s death, which is definitely within 21
          years of B’s death.
         DOES NOT VIOLATE RAP (Why not if there’s the possibility that all B’s children could die before B?)

Ex: A to B for life, then to the first child of C who attains the age of 21 after or before Bs death. C is living with no
children at time of creation of interest.
         Life estate in B, contingent remainder to first child of C to reach 21. C is validating life—any child who
           can satisfy this interest will be born in C’s lifetime—and the interest will vest when C’s first child
           reaches 21.
               “before or after Bs death,” if it is before Bs death, it can take effect before Bs remainder, if it can
                   take effect after Bs death, then it can only be taken as an executory interest where O holds it and
                   waits until vesting?
         If we change to say C’s first child to reach 25, then it would be invalid, b/c there is no certainty that the
           first child of C will reach 25 within 21 years OF THE EXPIRATION OF validating life—DOES
           VIOLATE RAP (Hint: Assume that C dies right after B dies and right after having a child)

Ex: A devises “to my grandchildren who arrive at age of 21.” A dies, leaving X, Y, Z as children and no
        The grandchildren are the lives in being (those who take)
        X, Y, Z are validating lives (alive at conveyance) b/c they are capable of producing grandchildren. The
          interest is created at the death of A because this is a devisable will. Therefore, those who can produce
          those who ultimately take, must be born living at As death.
        This is a springing executory interest b/c title will spring out of A when grandchildren reach a certain
        Seisin will go to children until grandchild reaches 21. When the 1st one reaches 21, then the state of title
          will be: Fee simple subject to open. Death of X,Y, Z will close the chance of anyone else adding to the
          class of grandchildren.
        If we change the word “devise” to “convey”, it changes the time the interest is created. (look to next
        Children will turn 21 within 21 years of X Y or Z’s death.

Ex: A conveys to trustee in trust for grandchildren who reach 21. A dies 2 years later.
        This is difference b/c the interest (time) starts at time of conveyance, not death of A as in previous
        There is a possibility that Little Mary is born and in 30 years, she has a child. That child would not meet
         the definition of taking the required 21 years. The Interest is thus INVALID because the interest will not
         vest quick enough.
        A could have a child (Little Mary) in the two years between the conveyance and her death. Then we
         would not have a validating life b/c Little Mary was not alive at time of conveyance and cannot be
         validating life, yet she can still produce a grandchild. So does this grandchild not take or do no grandkids
         take because 1 is disqualified? If no grandkids take, does the land pass via law of intestancy?
        If she wanted to make sure they got it… she should have said “to those born of X, Y, Z.”
        “Fertile Octogenarian Rule” = Normally, if you are alive, you are presumed to be able to bear children
         (majority of jurisdictions). But there is a presumption that a woman is incapable of bearing children after
         55 years and by the extrinsic evidence of infertility (some jurisdictions adopt this rule).

Ex: A owner in fee simple devises Blackacre “to children of my son B who reach age 25.” At A’s death, B has four
sons aged 14 to 21. B dies 10 days after A’s death, leaving no additional children.
         Devise to the children is INVALID because the interest is created when A dies (because it is a will). At
          As death, there are 4 children and B is alive which means that he can still have more children. What
          actually happens is not relevant. Since he can have more children, it violates RAP because it is possible
          B could have another child, then B dies and the 4 existing children die (all lives in B are gone) and now
          it will take that newborn 25 years to reach 25 and this is not within the required 21 years.
         If B were to die before A, then this interest would be VALID because B could not have anymore
          children. All 4 children would be the measuring life and A would be the validating life. But all 4 of Bs
          children could die before reaching 25, so why isn’t it invalid?
         All that matters is what COULD happen at time of devisement. At that point, it was still possible for B to
          have more children.
         VIOLATES RAP b/c B could have been able to have Little Mikey, who should be a validating life but
          cannot b/c he was not alive at time of conveyance.

 Ex: A devises to the children of B for their lives and then to the life of the survivor of them (remainder to the
  survivor). Upon death of survivor, then to B’s grandchildren in fee simple. When A dies, B is a woman of 85
  years with three children, x y z.
         Little Mary can be born to B after A’s death. If x y and z die before Little Mary has been born, there could
           still be another grandchild born of Little Mary, but this is not certain to happen in 21 years of x y or z’s
         Are all interests created valid under the CL rule of RAP? NO
               Because another child could be born after As death, and that other child is not a life in being at As
                   death, and there is a possibility that the other child may still have a child (making another
               A dies, and B has little Mary. XYZ die and B dies. 25 years later, Mary has a child. 60 years later
                   Mary has died and the grandchild is still living. (has not vested within 21 years of life and being
                   because Mary is not a life in being because Mary was not alive at the time of the conveyance). So
                   Mary gets nothing and no grandkids get anything?

FINAL EXAM: TRICK QUESTION: “Unborn Widows” Problem
Ex: O conveys to A for life and remainder to As widow for life with remainder to As children living at widows
death. A dies at 45 years old, married with 3 children (13-18years old).
         A has a life estate, widow has a contingent remainder in life estate (do not know who widow will be until
          A diescontingent remainder).
         This violates RAP because the interest in As children living at the Widow’s death (who may be the 2nd
          wife) may not vest within 21 years of As creation.
         Tend to think the Widow is the person who A is currently married too… but it is possible for 65 year
          olds to marry 19 year olds and then the 65 year old dies and 19yr old may have additional children and
          those children’s interest may not vest within 21 years.
         “Children of A, living at widows death” means ANY children that A has. If you would have named “w”
          as widow, then the widow would be known. You can’t find someone who it must vest within 21 years.
          (measuring life is the one who validates).
         Interest is created when O conveys it to A.
         State of title, after RAP is applied: A has a life estate, A’s widow has a contingent remainder in life
          estate upon surviving A, reversion in O. Children’s interest is struck down.
         If we “devise” and not “convey” then this would be valid.
         Devise = will; convey = conveyance
GIVE ME THE STATE OF TITLE AND EXPLAIN YOUR ANSWER? This is the question on the final.

Jee v. Audley
Facts: Edward Jee devised “to W (wife) for life, then to Mary Hall and her issue, and if she has no issue, to the
daughters of John and Elizabeth Audley, the daughters ‘then living’.”  O conveys personal property to W for life,
then remainder in Mary and the heirs of her body, remainder in Ds then living. (Does Mary have to have issue to
Discussion: The third remainder violates RAP b/c Mary Hall could have a child until she dies. If she does, then that
child could have a child, then John and Elizabeth have a child, this child becomes part of the class that takes as
well. Mary is the life in being for the 2nd conveyance because she is alive at the time of the devise and the
contingent remainder might not vest within 21 years of her death (because her kids could keep having kids 21 years
after she died), but there is no life in being for the 3rd conveyance, and thus violates RAP. The Court determined
that Mary’s blood line has to run out before title goes to daughters of John and Elizabeth (she was given a fee
simple subject to divestment if her blood line runs out = fee tail). Only important factor is the possibility at the time
of the creation of the interest that another member of the class can be born.
     o Violation occurs because it is possible that Mary could have a child after the testator’s death. That
         daughter would then get Mary’s interest at the end of Mary’s death. Then when Mary’s bloodline runs out,
         the property is supposed to go to the Audley daughters. At the writing of the will, the Audleys had 4
         children, but it is possible that they also have an after born child who is born after testator’s death. Then
         when Mary’s bloodline runs out, the one person left in the conveyance may be the Audleys last born child
         (who WAS NOT living at the time of the will). The Audley last child’s interest would NOT HAVE
         VESTED within 21 years after the testator’s death. (look at the situation as it is at the time of the will). If
         the Audleys were dead at the time of conveyance, then the 4 daughters would have been able to take the
     o If the Court would have construed “then living” to mean “daughters living at the time of the devise of
         will” then the class would have been closed and it wouldn’t have violated the RAP. However, the
         court found that “then living” was intended to be “all the daughters,” including unborn daughters of
         the Audleys, thus constituting a violation of RAP. (So none of Audley’s daughters get anything
         because 1 daughter disqualifies the class/rest?)
Rules: (1) RAP is applicable to both real and personal property. (2) When words in a conveyance are confusing, the
court will default to intent and use the rules of construction to determine the meaning of the conveyance.

The Wait and See Doctrine  a doctrine in property law that postpones determining the question of validity of a
future interest that has not yet vested (as a contingent remainder) until circumstances make clear whether or not the
interest will vest within a time limit (Note: a minority of states have adopted the wait and see doctrine)
    1. wait and see for the common law perpetuities period: some provide that a contingent interest is valid if
         it actually vests within the common law perpetuities, which means as the common law does, that an interest
         is void b/c it will not necessarily vest or fail within the lives of persons who can affect vesting of the
         particular interest plus 21 years thereafter. Each contingent interest thus has an inherent perpetuities period
         applicable to it alone, measured by the persons who can affect vesting of the interest. (preceding life tenant,
         taker(s) of contingent interest, anyone who can affect the identity of the takers of the contingent interest,
         and anyone who some way or another can govern the time when the gift is to vest.
    2. wait and see for 90 years: Uniform Statutory RAP, supersedes the common law rule with a statutory rule
         that provides for wait and see: 90 years; making it easier to create trusts and to control possible future heirs

Problems p. 312
  o O conveys “to A for life, then to A’s children who reach 25.” A has a child, B, age 26 living at time of
            Violates RAP b/c A is still living and may have a child a day before she dies. If she does, that child
               will not reach 25 within 21 years. Because it is invalid to one, it is invalid to the whole class.
  o O conveys, “to A for life, then to A’s widow, if any, for life, then to A’s issue still living.” Is the gift to A’s
      issue valid?
            UNBORN WIDOW—Violates RAP; A could have a potential widow that isn’t even born yet. And
               if they have a child, the after born child will not get the land. So a member of the class is invalid,
               which makes the entire class invalid. Because it says “conveys”
  o T devises property “to A for life, and on A’s death to A’s children for their lives, and upon the death of A
      and A’s children, to ______.” A and B survive T. Is the devise of the remainder in fee simple valid or void
      in the following cases?
            B if A dies childless
                    Does not violate RAP b/c we will know if final contingent remainder is met when A dies. We
                       will know at As death (+10 mo.s in WV?) whether A has children.
                    Validating life: A
            B if A has no grandchildren then living
                     A has a life estate, As children have a life estate, B has contingent remainder in fee simple.
                     Violates RAP b/c there is a possibility of after-born child of A, which can produce future
                      grandchild. After born grandchildren are not lives in being. Vesting will be in B or Bs heirs.
                      “then living” refers to Bs taking.
              B’s children
                  Does not violate RAP b/c if B has a child, it will be in B’s lifetime
                  Validating life: B is a life in being at the time of creation and will vest within 21 years if it is
                      going to vest.
              B’s children then living
                  Violates RAP b/c “then living” refers to when A and A’s children die. This is a determination
                      at a future time. A has a child that is born after Ts death, then B has an after born child after
                      Ts death and when As after born child dies, the Bs after born child vests.
              A’s grandchildren
                  Violates RAP b/c A could have after-born child, who would produce a grandchild. Could be
                      invalid as to one member of the class
              T’s grandchildren
                  Does not violate RAP b/c we know who T’s children will be at T’s death. T will not have
                      anymore children after Ts death. Any grandchildren of T will be born within the validating
                      life of Ts children.
                  Validating life: T and Ts children.

The Symphony Space v. Pergola Properties (p.313)
Facts: Company A and non-for profit B sold land for an option to buy back for certain years, with the last year
longer than 21 years (corporations only get 21 years, not 21 years + life in being). The lease agreement contained
an option clause so that the original owners could buy the place back within 25 years, counting on real estate value
to go up. The way the lease was written, the owners could exercise their option at any time within the 24-year
Discussion: RAP applies to commercial property, companies, options to purchase commercial real-estate, and non
for profits as well. Therefore the option violated RAP b/c the action maybe would not take place within 21 years of
the signing of the lease.
    Under common law, options to purchase land are subject to the rule against remote vesting. This creates a
      disincentive for the landowner to develop the property and hinders its alienability
               DF's argue:
         the statutory prohibition against remote vesting doesn't apply to commercial options;
         that the option here cannot be exercised beyond the statutory period;
         and this Court should adopt the "Wait and See" approach to RAP.
    The statutory RAP measures exclusively by the passage of time, while the common law rule evaluates the
      reasonableness of the restraint based on its duration, purpose and designated method for fixing the purchase
      price (latter method is used to consider the option agreement).
    Pre-emptive right: where a right of 1 refusal doesn’t give company 1 (option-holder) the power to compel an

      unwilling company 2 (owner) to sell. The pre-emptive right only requires company 2 if and when company 2
      wants to sell to offer the property 1st to company 1 so that it may meet a 3rd party offer or a previously
      stipulated price.
    Option: Company 1 (option-holder) with the option can compel company 2 (the owner of the property) to sell
      it whether company 2 is willing to part with ownership or not.

Validity of the Option Agreement  An option to purchase land will often be subject to RAP.
         Options as part of lease: If an option to purchase property is part of a lease of that property and is
          exercisable only during the lease term, then the option is (at least in the US) not treated as being subject
          to the Rule. The theory behind this exclusion is that the option gives the lessee an incentive to improve
          the property, and does not really restrict alienability very much.
         Guarantee to hold the offer open… a contract in effect to create another contract of purchase by
          accepting the offer. OPTIONS ARE SUBJECT TO THE RAP.
                 Example: Tenant leases land from landlord. The lease runs for 50 years. The lease provides that at
                  any time until the end of the lease, tenant may purchase the property for $200,000. Since the
                  purchase option is part of the lease, it need not satisfy the RAP. Therefore, even though no
                  measuring life is listed and the option is exercisable more than 21 years after its creation (so that
                  the option would be a violation of the Rule if the Rule applied), the option is valid.
         Options “in gross”: But if the option is not part of the lease or other property interest, most states hold
         that the Rule does apply. (such unattached options are called “in gross”). Thus under the majority rule an
         option in gross will be unenforceable if by its terms it could be exercised beyond the end of the
         Perpetuities period, even though the optionee paid real money for it in the belief that it would be
         exercisable. And that’s true even if the optionee attempts to exercise before the end of the Perpetuities
               Example: Symphony  Court held for Symphony Space because the option is subject to RAP and
                  void under it. The court declines to recognize any “commercial transactions” exception to the
                  general rule that options fall within the RAP, as that rule has been codified by the NY state
                  legislature. Nor does the “option as part of a lease” exception apply, because although the
                  transaction here included small lease (of commercial space), the lease exception applies only
                  where the entire property subject to open is being leased, which is not the case here.
                      o Since the option here was between 2 corporations, and no human measuring lives were
                           mentioned, the option would be void it could be exercised more than 21 years after the
                           option was created.

   1. Step 1: state the contingencies (what must happen to cause the interest to vest)
   2. Step 2: find tentative measuring life (all persons whose death will resolve one or more contingencies
      either immediately or within 21 years)
          Keep in mind:
     contingency that person must do something is resolved by the death of that person
     contingency that person must be born is resolved by death of his/her possible parents
     contingency that a person must reach x years will be resolved within x years of death of all of his/her
       possible parents
   3. Step 3: Determine whether all persons found in Step 2 were “in being” when interest came into existence
   4. Step 4: If you are unable to complete Steps 1-3, confirm that no measuring life exists by constructing a

Berry v. Union National Bank (WV, 1980):
Facts: Woman devised estate for educational purpose to endure “25 years after testatrix’s death or until the
principal was reduced to less than $5K.”
    Ct said this provision violated RAP but it applied equitable modification. The court looked to the intent of the
     devisee and rewrote the will to fit within the time limit of RAP.
    When the will of the testator + RAP collide  then the court can use doctrine of “equitable modification”
     that will find a will valid that would otherwise violate RAP (same as cy-pres, but applies to people)
    Problems with Berry:
             o RAP is a rule of law, one in which no intent is considered, but Ct uses it as a rule of construction,
                 which does take intent into account
             o Cy pres: as near as possible (we may not be able to carry out the exact intent, but we will do the
                 next closest thing; Ex: giving $ to local Heart Association, rather than “X’s Heart Project”)

FINAL EXAM: W. Va. Code 36-1A- (1 thru 8) = WV adopted USRAP in 1992 (Uniform Statutory RAP)
RAP was too complex and it was violated too frequently, so USRAP was an effort to reform RAP and to carry out
the intent of the parties. Under USRAP, there are 3 approaches:
  1. If a transaction (gift) satisfies RAP at common law, it is relevant under USRAP
            o If it does comply with CL RAP, then you don’t need USRAP
  2. If a provision does not satisfy common law RAP, then there is a 90-year “wait and see.” If it vests, then the
     USRAP is satisfied
  3. If not within 90 years then possibility of revocation/modification to bring in permissible time period.
            o Modify whatever is in violation to agree with the intent of the grantor
            o Example: Cy Pres  next closest thing; suppose a person left a will for a charitable association
                that didn’t exist, but under this term, then the court will give the will to the next best association
                that the testator probably intended to give it to (does not apply to private trusts – people or
                      Donating money to a charity is good thing and courts will do what they can to find the

Common law rule continues to have relevance in WV:
   It is one way in which the uniform act can be satisfied
   Common law RAP until 1992 (when USRAP took over)
   Rule in Shelley’s Case has effect until 1931
                    Doctrine of Worthier Title until 1969

Effect of USRAP: probably little RAP litigation
Does Berry case have relevance after USRAP  The uncertainty of the Berry is case is that it is a will case and that
in post-Berry and post-statute, we don’t know if Berry rule would apply to a deed or inter vivos trust; May still be
able to have equitable modification after the Berry case b/c it may not be advantageous to wait and see and nothing
in the statute re-appeals that right for carrying out the intent.
     o Possible exam question: It is 1993 in WV and you have a deed or an inter vivos trust, what would you use
         to get around a violation of a the RAP?

W. Va. Code 35-2-2: Cy pres in WV, applicable to charitable organizations
  In Berry, this was not a charitable organization so the Ct created a private cy pres and called in
       equitable modification.
  This leaves open the question as to whether this is only applicable to a will or to other conveyances.
  Further reading: 11 Real Estate Law Journal Vol. 2 (1982)

Dynasty trust  In the states that have abandoned RAP, trusts deal with the policy issue of having land tied up for
a long period of time by someone in the trust having the ability to transfer ownership. SO dynasty trusts last longer
than normal trusts because they don’t have to worry about the life in being in 21 years (never have to sell it).

Tax laws  until 2000, there was an unlimited passage of wealth without tax implications. In 2000, one
will have to pay an estate tax.

Concurrent Ownership  Term used to describe when more than one person has an interest at the same time.
There are 3 of these: Tenancy in common, joint tenancy, tenancy by entirety.
   Three interests to focus on:
        1. tenancy-in-common (common law “coparcency”): two or more individuals; each has an undivided
            interest in the whole with no survivorship; each has a right to use the whole land, not just part of it.
                  o Example: I have brothers and sisters; our parents die without will. I will own that property in
                       conjunction with my siblings. If it is a house, it is viewed that each of us has a right to use the
                       house in conjunction with a similar right to the siblings. If 4 kids: We each have a ¼
                    UNDIVIDED interest in the house. You cannot claim one part of the house or a particular
                    room. If this doesn’t work out, then you have an option of “partition”.
                o Partition  divide everything equally, but if it is a house, then a court may sell it and then
                    you each get ¼ of the money.
       2. joint tenancy: joint tenants with right of survivorship and each has undivided interest in the whole
          subject to the other joint tenant, with no right to oust each other. When first tenant dies, he is no longer
          in possession of JT title—interest passes to survivor; deceased is no longer a participant.
                o If the tenants are married and are contemplating a divorce, they should get rid of their right of
                    survivorship which they can do unilaterally by eliminating 1 of the unitiesten. in common.
                o Here’s a T.T.I.P.: Four unities must be present for a Jt. Ten.:
                          Time - the interest of each joint tenant must be acquired or vest at the same time.
                          Title - all joint tenants must acquire title by the same instrument or by a joint adverse
                             possession. A joint tenancy can never arise by intestate succession or other acts of
                          Interest - all must have equal undivided shares and identical interests measured by
                          Possession - each must have a right of possession of the whole. After a joint tenancy
                             is created, however, one joint tenant can voluntarily give exclusive possession to the
                             other joint tenant.
                o If one of the unities is eliminated by:
                o Joint tenant has ability to “sever” survivorship (If sever a unity of your joint tenancy, then it
                    becomes a tenancy in Common)
                          Ex: O to E and F; F conveys his interest to x. E and x become tenants in common. If
                             x transfers back to F, E and F are now tenants in common b/c four unities are no
                             longer present (no time, title)
       3. Tenancy by the entirety (does not exist in WV): joint tenants with additional unity of marriage
          required. Husband and wife were seen as one at CL and therefore, could NOT sever the tenancy. A
          divorce would sever tenancy by the entirety and makes it a tenancy in common.
                o Divorce does not destroy the survivorship because they don’t want the ex to become the sole
                    owner of the property.
                o Ex: O conveys to H & W, common law sees as one person.
                o This interest cannot be unilaterally destroyed as JT can.

     Note: There was a Common law presumption of joint tenancy where A and B were seen as one unit. If joint
     tenants wanted it to be something other than survivorship, they must state it. NOTHING WAS
     CONSIDERED TO HAVE PASSED from one to the other at the other’s death. It is as if the survivor
     owned the property from the very beginning.
     Today, though, states have reversed and now see the conveyance as tenancy in common.
         o If you make a transfer of A and B today we assume tenancy in common. If you want survivorship,
             you must specify.
         o **Must use “with right of survivorship” today to denote joint tenancy.
         o Should any of the unities be destroyed, the joint tenancy is destroyed. That is, any one joint tenant
             can convert a joint tenancy into a tenancy in common by unilaterally conveying his interest to a
             third party, thus severing the joint tenancy (sever the time unity), and creating a tenancy in
         o Again, when one of the parties to a joint tenancy dies, the other owns the property entirely. This is
             so even if one of the parties attempts to devise his interest via will.
         o Several jurisdictions are moving away from the four unities requirement.

West Virginia and Tenancy by the Entirety
W.Va. does not recognize tenancy by the entirety because of the Married Women’s Act.

West Virginia and Joint Tenancy
The traditional way to make or destroy joint tenancy is to use a “straw man.” In 1974, W. Va. passed § 48-3-7A,
which said that husbands and wives no longer needed to use straw men. In 1984, this code section was later repealed
and replaced by § 34-1-20(a), which extended this right to everyone to convey away interests without a strawman?

W. Va. Code 36-1-19: abolishes preference of Joint tenancy  If you make a conveyance to 2 individuals and don’t
express what you want, then it is going to be treated as a tenancy in common. Tenancy in common is assumed unless
you express intent otherwise.

The Modern Presumption of “tenancy in common”
West Virginia diverged from common law (abolished Jt Ten completely even if expressed?), see W. Va. Code § 36-1-
19, but recently returned to the common law—stating that when a conveying party uses the term “or” when referring to
the two buyers, then the conveyance creates a joint tenancy, unless expressly stated otherwise. W. Va. Code § 36-1-

        On another note, if you want survivorship, you can create it. See W. Va. Code § 36-1-20.
              It is the intention of this conveyance to vest title to said property
              in the Grantees jointly and equally and to the survivor of either
              of them so that upon the death of either the entire interest in said
              property will immediately vest in the survivor.

Legislative screw-up: 36-1-20(a) and (b)—part (b) added that if one uses “A or B” then there is survivorship
unless you say Ten in Comon. Use of “or” will now mean survivorship unless you expressly state otherwise.

W. Va. Code 48-3-7(a)—passed in 1974, in effect until 1981: O could convey to A and then A could convey back to
A and B as JTs. (Removed need for straw man) BUT ONLY IF A and B were husband and wife. Can create
survivorship if H conveys to H and W and expressing survivorship. It is not restricted to have survivorship between
husband and wife, but this statute ONLY refers to survivorship of H and W.
         Pre-1974: In WV, at least till ‘74, if a person was sole owner and wanted to create ownership, A could
            convey to straw man and x could convey back to A and B as JTs.

W. Va. Code 36-1-20(a)—in effect from 1981-present: takes away fact that A and B have to be husband and wife.
This overruled 48-3-7  preferable statute. (-Why preferable?) Broader statute did not become law until 1981 and
between 1974 and 1981 that permitted a direct conveyance without a strawman was a survivorship in H and W only.
         36-1-20(b) if you use the conjunctive “or” then we are going to assume you wanted survivorship created.
         36-1-20(c) deals with the Miller decision where a husband who kills his wife cannot take sole ownership of
            land (1999).
         BUT WV case law still recognizes 4 unities in solving JT problems. If you are a lawyer in WV, Dean
            Fisher recommends to be safe and use a straw party.

W. Va. Code 42-5-1—If A and B as JTs are killed simultaneously, you treat A as survived as to ½ and B as to ½
          Miller v. Sencindiver (275 S.E.2d 10, 1981: W kills H charged with 1st degree murder. Could she still be
             the sole owner of the property? WV SC said that despite the WV Code 42-4-2, wife takes by survivorship
             and legislature should change the law. SEEMS LIKE A SCREW-UP. This decision was overruled in 1998
             by the Lakatos.
          Lakatos v. Villotti : H kills W. Owned property as joint tenancy. Does Miller mean that H takes all?
             Statute was applicable and murderer cannot profit from the wrongdoing of his acts. Therefore, H could not
             be the sole owner of the joint tenancy when his wife was killed. Ct looked to:
W. Va. Code 42-4-2: Permits creation of survivorship. Ct says this does apply to cases like this, even though Miller
said it didn’t. (For 17 years the court had it wrong); statute designed to provide how proceeds can be divided after such
an event as if beneficiary kills owner, statute decided who could receive trust money, etc. Court likened this to the H/W
relationship in Lakatos.
    Simultaneous Death Provision—killed at the same time; legislature has adopted in terms of car wreck, plane
        wreck, etc. ½ is distributed as if one survived, ½ as if the other died.
                                                     st
       Common Disaster Provision—tell who dies 1 , but die close together; designed to keep property from going
       from one estate to the other, losing money as property goes through 2 probates/death taxes. EX: “If W does not
       survive me for 30 days, then life estate to x.”
      Further reading: 91 W. Va. L. Rev. 294.
      Herring v. Carroll (300 SE2d 629): W thought she would predecease husband, so she conveyed her interest to
       her son. Then H died first and she wanted her interest back. W wanted her interest back from her son because
       then she would have full ownership; but court said that her conveyance to her son is effective because she made a
       conveyance to another party and that destroyed the 4 unities and survivorship. Her son has a tenancy in common
       and so did her husband, so now that the husband is dead, the son owns his tenancy in common and will be passed
       to his heirs upon his death. W no longer has anything. Ct applied a unities analysis. So H and Son each had a ½
       interest. So when H died, Son received the property by his right of survivorship. -by isn’t it being as heir?
       Whereas, if H had designated W as heir in will, wife would have ½, too.

No cases in WV that talk about the severance of a joint tenancy… but the best way to avoid conflict is to use a
“strawman.” Hesitant to convey H to H in intent to destroy survivorship and joint tenancy.

Riddle v. Harmon:
Facts: H & W own as Joint tenants; Wife is doing the will and wants to destroy Joint tenancy. She conveyed the
prop. to herself so as to sever the right of survivorship. The will was executed, 20 days later she died.
Discussion: The purpose of the grant was to sever the joint tenancy prior to her death. Court did not uphold
severance. If the severance was from W to a 3rd person and not back to herself, then it would have been valid. It
would have destroyed the 4 unities and each H and W would each own a tenancy of common. The troubling aspects
of giving away a conveyance to the “straw” party is that there a certain unfairness because a party of this joint
tenancy survivorship can unilaterally destroy this survivorship. W puts her in the place where she could possibly
commit fraud if she was the survivor because she could destroy the documents that she had severed and then take
her husbands tenancy in common which would then revive the survivorship. Conveyance to a straw party is NOT
necessary, but a conveyance to one of himself is basically valid. But to be completely sure, it is better to use a
“straw man,” i.e. attorney’s (convey the property to a disinterested 3rd person, a “strawman”, who then conveys the
title to the ultimate grantees as joint tenants)
     o Old rule - at common law, delivery of seisin required 2 people and a person couldn’t create joint tenancy
          in herself so a strawman was used, so (1) the 2 joint tenants could take at the same time (go from tenancy in
          Common to Joint Tenancy) or (2) if one of the joint tenants wanted to dissolve the joint tenancy and create
          a tenancy in common (go from joint tenancy to tenancy in common.
     o New rule – by amendment, CA abolished the need of “strawmen” to create a valid joint tenancy so a joint
          tenancy could be made by a sole owner to herself or from joint owners to themselves.
              o What should lawyers argue?
                     **She has advantage b/c if he died before her, she could rip up the deed and get the whole
                         estate. (With straw party, it means that at least one other person knows about the
                     You cannot convey to yourself
                     Unilateral act of conveying through a straw party is wrong
                     Unfair for one party to be able to terminate
                     Construe as Ten. by Entirety
                     Was deed recorded?

Uniform Simultaneous Death provision – if you cannot determine which party survives, then you must treat it as
½ survived and treat them as tenancy in common.
Common disaster provision  (ex. car accident) if W survives me for 30 days, then I want my property to go to
W… but if W does not survive me in that period of time, then H will determine where the property will go via
expressing other people in the will. Purpose: In order to have the property not going to Ws estate and then
transferred out again to a 3rd party.

Harms v. Sprague (p. 350)
Facts: Harms and John owned house by Joint Tenancy. John then mortgaged his interest in the house to Simmons.
Was Joint Tenancy severed by creation of a mortgage? Does the mortgage survive the death of the mortgager as a
lien of the property?
     Mortgage: a loan where you use your land as collateral. When you have a mortgage, you have (1) a note
         (personal promise that you will pay the loan with interest and in a certain time period – promissory note),
         and (2) deed of trust/ mortgage (which says that the bank owns your property until you pay them what you
         owe… a conveyance from the borrower to the lender that looks like a deed)
     WV definition of mortgage/deed of trust: recorded instrument that puts a lien on someone’s house (Lien:
         security interest that says, If I don’t pay this note, then you have a claim against this ppty and you may sell it
         to pay on my personal debt.)
Discussion: Harms Ct uses lien theory and says survivorship is still intact. (Mortgagor should learn to have a
security interest next time.) Both parties would be obligated to the mortgage, however. There was not a transfer of
title, there was a lien created (right against a claim for their property) and the lien does NOT sever the survivorship.
     This is fair b/c the secured party has ability to determine limited interest in ppty. To say otherwise would
         cause harm to future transactions of this kind.
                Title theory: If it does, then Joint tenant has transferred his interest in the property. (Title =
                    property transfer subject to defeasance, historically; e.g., when you pay the debt, the title returns)
                    When title is severed Jt Ten is severed, so under Title Theory of Morgages the Jt Ten is destroyed?
                Lien theory: If it doesn’t, then there is just a lien on the property, just a claim against it, not an
                    interest. (Lien = only an actual sale of property severs Joint Tenancy.) Jt Ten. remains in tact.
     o When real estate is subject to an encumbrance and is specifically conveyed or passes by join tenancy with
           right of survivorship or by terms of a trust, the surviving tenant or beneficiary to whom the property is
           given or passes takes the property subject to the encumbrance and can’t have the debt paid for by the
           decedents other real or personal property. (debt travels)
Entry of a lien does not sever survivorship. It is not until the sale is oked by the court that the land is
severed. Mere fact that you get a judgment and a mere lien does not actually sever the land.

Examples of survivorship:
  1. A and B own Blackacre in Joint Tenancy. A conveys 10 year term-of-years (does term always=lease, not
     conveyance?) in Blackacre to C. After five years, A dies, devising all of his ppty to D. What are B’s rights?
         o The 10 year lease only lasted until As death because the death does not sever the survivorship.
         o Ct decided B would have right of survivorship b/c there was no severance by a lease. If you take a
             lease from one of the joint tenants, it doesn’t sever the joint tenancy. D takes nothing either?
  2. FINAL EXAM: H & W own Blackacre in Joint Tenancy and are getting a divorce. They sign divorce
     agreement providing that Blackacre will be sold and proceeds divided equally. Before it is sold, W dies.
     Does H have survivorship rights in Blackacre?
         o Yes b/c survivorship rights not severed. H & W are still married at time of W’s death. Plus, signing
             documents to sell does not terminate title to ppty.
         o **Divorce does not sever survivorship or change ownership.
         o This is a real trap  there is NO requirement to have a marriage for a JOINT TENANCY; so the
             mere fact that the marriage may end, that does not sever the survivorship, so the ex-husband or ex-
             wife ends up owning the property when the ex dies. (parties can unilaterally sever and some courts
             may leave one party with the property)
         o 2 steps to sever survivorship: (1) one party has to sign documents (fulfilling SOF), and (2) carrying
             out the actual transfer (selling the property or transferring your interest to a straw person and then to
             a 3rd party)

Joint tenancy bank accounts
W. Va. Code 31A-4-33: If the parties have a joint tenancy account that authorizes either to write checks on it, the
bank can authorize the check without being liable if one of the parties signed a check without the confirmation of
their joint tenant. (code put in to protect the bank)
          Courts have struggled trying to figure out how to deal with these types of accounts
   People enter into these for various reasons
        Parent/child so child can take care when parent cannot pay bills anymore
        A and B but A can only use upon B’s death
        A and B together but only one earning $ but both can use
 Statutes say that bank can honor anyone on a signature card as practical necessity
 WV cases to illustrate:
        Dorsey v. Short (1974): Mother deposited money into account and daughter withdrew money.
            Up until 1974, either could withdraw money. Account was in name of mother and daughter;
            daughter withdrew all money; Sup Ct said depositor can control right of ownership in certain
            situations. (Until 1974, the bank would be liable for giving the daughter money because the bank
            didn’t check with both parties. So did the bank have to pay out doubly and the daughter keep the
               1975: Using W. Va. Code 31A-4-33, which says the bank can honor whose name is on
                  signature card, Ct said this statute creates a mistake b/c it contains a conclusive
                  presumption that depositor intended “causa mortus” (unusual gift) gift of proceeds. Post-
                  1975, conflict will be resolved by individuals, not by the bank.
               Poor Mans Will: A and B have a joint tenancy. As the elderly parent who deposits all the
                  money in the account (wage earner) and B is adult child who cares for A. B can withdrawl
                  the full amount even though he did not deposit any of it. So when A dies, B is the survivor
                  and will get all the money.
               Conditions may be placed on a joint bank account.
        Wilkes v. Summerfield, 212 S.E.2d 316 (1975): In the absence of fraud or mistake, West
            Virginia law conclusively presumes that money left in a joint account goes to the survivor. A
            gift between living people is irrevocable and once you give the gift, you can not get it back.
               gifts inter vivos – unusual, between living people, and irrevocable
               causa mortus – unusual because given in anticipation of death, revocable by the donor, and
                  if the person survives the illness, she gets everything back.
        Kanawha Valley Bank v. Friend (253 SE2d 528—1979): A person was given the power of
            attorney. The person with power of attorney claimed that the money was a gift upon the death of
            his giver. The court said the presumption of constructive fraud may arise in connection with
            joint account if there is a fiduciary or confidential relationship. A power of attorney (one in a
            fiduciary relationship) may not move $ into his own account and use it all, unless it was given as
            a gift. When in a fiduciary relationship, you must prove that the person intended to give the
            money to you as a gift under the power of attorney.
                       o “Power of attorney” = authority for someone else to take legal action for you
                       o Example: When A and B open a joint account, with B as power of attorney, B has
                           fiduciary duty to A. When B has fiduciary duty to A, a presumption of fraud
                           attaches if B fiduciary tries to obtain money for himself from account.
                           Burden of proof is on B to prove that A gifted the money to him.
        Smith v. Smith (285 SE2d 145—1981): did account have both names in it?, survivor not entitled
            to fund; neighbor took A to store, etc. Ct said this was not fiduciary relationship and so applied
            Dorsey v. Short.
               The friendship did not create the special relationship and therefore the joint tenant did not
                  intend for the money to be a gift.
               When different parties open a joint account, and, say, B does not have a fiduciary duty to
                  A, then KVB does not apply.
               Finally, when an elderly person is involved, courts typically treat the account as if it is
                  a convenience account. (was a special relationship and had to prove that the gift was in
                  fact intended)
NOTE: Special Relationships that are protected are: power of attorney, and elderly people cared for by
their children or spouses, but NOT neighbors. These line of cases show that today WV courts are
struggling to create a body of law regarding joint bank accounts, so they are going through the cases on
a case by case basis.

91 W. Va. L. Rev 277  traces the history behind the legislative developments and have gone through 3 different
stages. (1) whether it is a K, a will, a trust, or joint tenancy, and then the court will use the law to determine what to
do when one of the 2 people on the account dies;  (2) the account doesn’t fit into any of the above;  (3) court
says that we have to find practical answers; determine the decedents’ intent. (creating law as they go).
    o Determining intent of decedent: (1) particular circumstances of people in case, (2) actions and statements
         of decedent (i.e. the son can get testimony from neighbors that the parent said she is adding son to account
         so he can pay bill when she gets ill), and (3) what a reasonable person would have done in this situation (it
         would be reasonable for a parent to leave their kid money)
W. Va. Code 31A-4-33(a): Since 1992, WV has recognized the ability to pay a Jt. ten. in bank account via a
payable on death account (will substitute).

Partition: A and B are joint tenants with an undivided interest in the whole (equal owners). Partition is the division
of this whole. If A and B no longer want to share a property together, then either of them may sue in partition. The
court then appoints a commission to divide the land according to proportion, and to then sell it according to value.
          Partition in Kind: dividing the property between A and B. If a discrepancy arises, then A may pay B
             owelty. If we can divide the property in kind, we should do so. (CL DEFAULT)
          Partition by Sale: Sale of the property by the commission, with the proceeds divided between A and
             B. NB: that the sale goes according to value, not acreage or use.

Delfino v. Vealencis: (p. 359)
Facts: D and V owned parcel of land as tenants in common. D owned garbage removal business on part of the ppty,
but V wanted to sell entire ppty to a developer. D moved for physical (in kind) partition. Trial court thought that
partition by sale would not best suit the interests of parties. D want 1/3 of the land to be used as garbage rubbish,
but the person who owned 2/3 wanted the land for residency.
     The following is a cause of action for partition of a tenancy in common into separate lots. PL's seek
         declaratory judgment of in-kind partition, which, under CT statute is a committee which is formed to
         decide whether a property should be dismantled and sold off or split up for the benefit of the tenants.
Discussion: Ct agrees—partition in kind is better (general statute says partition in kind preferred unless partition by
sale is better suited to the parties) There is no evidence to support the findings of fact. There was an issue of zoning
where the land and the garbage wasn’t within the proper zoning, but the court said that the land had been used for
so long as a garbage disposal, then the person is grandfathered into continuing to use it for those purposes, so she
can keep the land as a garbage disposal. The court also used the policy that ex post facto laws are unconstitutional
and if otherwise, the government would have to pay for the taking of the land (imminent domain). The court also
wanted to look at what would be best for both parties and not just one, and economics is not always a driving
    o Partition by sale only if:
            o partition in kind is impracticable
            o interests of the owners better promoted by partition by sale.

Can a party by unilateral act elect a portion of undivided land they had as theirs and “claim” it?
        No, one cannot unilaterally make the decision as to which part is theirs. Ct will not divide in a way that
           prejudices the other party

W. Va. Code 37-4-1 thru 8: Legal way in which property can be partitioned. If you can not partition it entirely,
then the court orders a sale of property and divides the proceeds.
         Voluntary partition: if both parties agree, no problem
         Problems if ppty cannot be divided in kind or if parties disagree
Ark Land Co. v. Harper (599 SE2d 754, 2004): Family owned land used for family gatherings before 2001. Ark
Land acquired interest and sought to purchase ppty for coal extraction (wanted more surface). 1/3 family refused to
sell and sought partition by sale; 2/3 family showed it could be partitioned in kind.
          Ct held that economic factor was not the deciding factor, but also emotional interest can be considered
            (WV used to join majority of the states in saying that the economic value of property was the sole
            factor, but today they will look at longstanding ties, sentimental value, environmental concerns, and
            ownership of adjacent property (Laurita))
          **this opens the door: what else will courts start to consider? May suggest other factors the court will
            take into consideration
          **Represents slight change in how the court interprets “burden” on the other party

Laurita v. Moran (607 SE2d 506, 2004): Coal underlying property. Piece of land could be partitioned vertically or
horizontally. To do so vertically would give Laurita his land beside his other piece of land. Moran did not want this
b/c it wanted to inconvenience Laurita.
          Court found that a partition in kind was necessary. The court in WV is starting to rethink what is
             fairness, what is prejudice, what should be partition by kind or by sale.
          Ct found for Laurita b/c a co-tentent is entitled to have land next to his own ppty unless it injures the
             other party. Because there was no burden to Moran, it is ok that the adjacent tract of land goes to
             Laurita. The mere fact that a tract of land was more convenient (adjacent) to the mining company’s
             land, is not a reason to deprive the mining company of the coal.
          **This case indicates that the court is looking at redefining the law of partition in WV (less importance
             on economic value; more on interest of parties)
NOTE: A person cannot pick out the part of the land that they want and then ask for the partition. In partitioning in
kind, the court should partition the land in a way that the person is not at a substantial loss, so long as the partition
is not prejudice (i.e. if one of the children built a house on part of the land, then that child should get that part of the
land because they paid for the house).

Spiller v. Mackreth (1976): Of the four unities of concurrent ownership, possession is at issue here.
Facts: A and B own a warehouse and only one of them actually uses the warehouse. B has never asked for the keys
nor has been denied access to the warehouse.
Discussion: Under AL property law is one tenant in common liable to another tenant in common for back rent
when one cotenant uses the whole building for storage and the other cotenant writes a letter demanding he leave or
pay back rent?
         No. In AL, a demand letter is not enough for a cotenant to be liable for half the rent as a result of
            "dispossessing" the other cotenant, so as to require ouster, and thus liability for violating the understood
            covenant between cotenants in a tenancy in common.
         Court says that is makes sense to keep the property locked and therefore B should have asked for the
            key, for this to be an ouster. As use of the property doesn’t deny B the use of the property until As use
            hurts Bs right to use (B MUST assert this right, i.e. ask for the key), so A doesn’t need to pay rent.
         Since there was no agreement to pay rent, there must be evidence which establishes an ouster before
            Spiller is required to pay rent to Makereth. The court has trouble defining the word "ouster," as they
            see it as a conclusory word to describe one of two factual situations: (1) the beginning of the running of
            the statute of limitations for adverse possession, and (2) the liability of an occupying cotenant for rent
            to other cotenants. So the court looks to proof on either element.
         When A and B have rights to use property in conjunction with itself, As use of property in itself
            doesn’t constitute an ouster unless B tried to get on property and A denied him.

**This case represents the common law view in majority of jurisdictions: Absent ouster or agreement, one cotenant
is not able to collect rent from the other.

West Virginia changed this with W. Va. Code § 55-8-13, which allows a tenant to collect rent, before
improvements, from occupying cotenant for exclusive use of ppty. The rent shall be the fair market value of the
property, before any improvements made by the renter. WV does not require an ouster for a tenant out of
possession to collect rent for the improvements made by the tenant in possession.(-this contradicts the preceding

Fiduciary Duty
        Generally, cotenants do not have a fiduciary relationship with each other
        Time this relationship can exist:
            A & B own land, borrow money, and each agree to pay back ½; land increases in value, and A says
               “I’m going to cause ppty to default and then I will buy back to freeze out B” B does not have
               resources to do this. A buys and gets ½ price and then turns around and sells for full amount.
               Courts would impose a fiduciary duty here.
            Reed v. Backman 61 W. Va. 452: recognizes fiduciary obligation that prevents one cotenant from
               freezing out the other. Although A is the sole user of the property, A is not holding adversely
               against B. In order for that to occur, A must unequivocally put B on notice that this is what he is

Leasing in Joint Tenancy
Swartzburg v. Sampson
Facts: H & W owned land in joint tenancy with right of survivorship of 60 acres used for bearing walnuts. H let
Sampson use part of the property for a boxing ring and Swartzburg (W) was not interested in using the land for
these purposes. W wanted to invalidate lease to Sampson b/c did not have signatures of both her and her husband.
(injunctive relief)
Discussion: Ct held for husband and upheld the lease b/c the lease conveyed only H’s ½ interest so Sampson gets
same interest as H = can use ppty subject to W’s interest. Court says that he has conveyed no more than what he
owns and the leasee has an interest for what he does lease (right to use the property in conjunction with his wife).
She did not exercise any rights to take possession of the land, so there was not an ouster. She could not have the
lease set aside because H had a right to lease and he did not attempt to convey more than what he owned.
          If a JT executes a lease, the courts are also in dispute about whether the joint tenancy is severed. Most
             courts probably hold that such a lease (which applies only to the lessor’s interest in the property) is not
             a severance. The court held that where the lessee was in sole possession of the premises, the non-
             lessor joint tenant could not have the lease judicially rescinded.
          If a JT conveys his interest, as long as the interest is not greater than what he has, it is legit. But
             conveying half or less is against undivided nature of the Jt Ten and treats the estate like a ten in
             common during their lives, so I disagree! Moreover, W was on the premises!

Accounting for Benefits, Recovering Costs
       Asking for someone to account for money received on their ppty
       Rents and Profits
           If you were to collect the rent for both of us and I don’t receive the correct share of my interest,
               then I have a right to an accountant. If it is clearly stated by the leasor that I am only paying for my
               ½ of my interest, then the rent paid will be for that ½ only and the other person (other jt. ten?) does
               not get a part of it.
           Common law: If rent is received from 3rd person, then tenant receiving has obligation to give other
               tenant(s) their fair share.
           W. Va. 55-8-13 & annotations: COMMON LAW RULE CHANGED: If you can sell ½ ppty, you
               should also be able to lease it.
       Taxes/Mortgages
           If there is a mortgage, and don’t make the payments, then the property will be foreclosed and sold.
               If it is one of the 2 parties not making the payments, then he is entitled to a contribution to the
               payments. If A is paying the taxes to keep it from being sold, A is entitled to a contribution from B
               who is not using it, beyond the value for the exclusive use of the property.(-means?) Since A is
               getting the exclusive benefit of the property, A has the obligation to pay for those taxes until
               her exclusive possession is over, then B will make contribution payments.
           Certain obligations: if you do not pay, you will get your ppty taken away & it will be sold for taxes
           JT entitled to collect taxes, carrying charges of cotenants for their share
              But if person is in sole possession of JT or T in C, then obligations are more than one who is not in
           Repairs
             Generally, JT not entitled to collect proportionate share of necessary repairs, but entitled to keep
               log of repairs and in the event of a partition, etc., use the log to show entitlement to your share.
             Court can’t decide what is necessary and what is the “best” business judgments, therefore JT not
               entitled to collect.
           Improvements
             B has no obligation to share the cost of improvements made by A. But if there is a sale of the
               property, then A will be given the portion of the land that has the improvements on it.
             Not entitled to other cotenants’ shares
             In partition, usually the improved portion is given to the improver
             It is the value, not the cost, of the improvement that matters (So, with Partition in kind: figure out
               the total FMV of the prop as it stands, the FMV of prop as stood before the improvements, minus
               the improvements and give this money to the improver, and divide the remaining money in half.)

W. Va. 11A-1-9: Allows person who pays taxes to take certain steps to put a lien on ppty for improvements.

Marital Interest
 Two different approaches to reflect marital interest approach:
     Common law: early feudal roots; advantages to keeping land in blocks; imposed upon males; developed on
       concept that marriage produced ownership in one person. In a marriage, the husband was the dominant
       individual to the extent that the wife’s property (although she owned it) was controlled by her H. H
       controlled Ws property, could alienate it, and his creditors could reach it. Obligation of the male was to
       protect and provide to wife.
     Continental rule of community ppty: marriage is an economic partnership so what is owned is ½ interest
       by each partner; land passes as a single unit; in we will skip. (-means?)
 “Married Woman’s Acts”: wife should be given rights that her H has. (1839) – after this movement, this act
  was passed in states to legislative give to Ws the same right Ws would have had had Ws not been married (the
  control of their own property). B/c of unfairness to wife at common law, states created these. The W still
  needed to provide domestic care to the H.
     Started as W. Va. 48-3-1, now is 48-29-101 to 303 (change came in 2001): Now women have same right
       to ppty as men.
     Impact of this act was in combination of WV-36-1-19 was to abolish tenancy by entirety. 97 WVLaw
       Review p.345, 99 WVlaw review pg. 645.
     In 1957 (Wartenburg v. Wartenburg) – look below (Clearly in 1957, tenancy by entirety in WV is
       abolished and used the “married women’s act” as the basis of their decision.
 Curtesy: husband’s rights on death of spouse (abolished in WV in early 1900s)
 Dower: wife’s rights on death of spouse (abolished in WV in 1992)

FINAL EXAM: Sawada v. Endo p. 385:
Facts: H & W own land by tenancy by entirety. H who lacks insurance causes an accident is expecting to be sued.
H and W convey land to their sons and W dies. The creditors come after both the H and Ws land.
Discussion: What rights does a creditor have in ppty held as JT in entirety where only one owner is the debtor?
Creditors couldn’t reach the land because the land was conveyed away secretly to the sons, but even if the land
hadn’t been secretly conveyed away, the creditors still couldn’t have reached the decedent Ws property because she
was not involved in the accident (Married Women’s act – her property can’t be touched by creditors in tenancy in
the entirety when she was not the cause of the accident and the H is no longer the sole owner of the Ws property; as
opposed to CL, the creditors could reach the Ws property to pay off the Hs debts)
     This Ct (HI) says neither spouse can create an obligation without the consent of the other; shows that family
       values are protected by Tenancy in entirety.
     This court says that they are going to make it equal. Different states view this in different ways
Tenancy by the entirety  characteristics: owned by H and W, each spouse owns a whole while alive, neither can
sell any interest unless they have the other’s consent and unless it is by a joint act, and at death of either the H or W,
the other continues to own the whole (100% of the property).
      This is different from joint tenancy because JT can be severed without consent and therefore, at one’s death,
       the joint owner may not gain the 100% interest in the land.

US v. 1500 Lincoln Ave,
Facts: H & W owned bldg as Tenancy in Entirety. H was selling drugs illegally and was convicted, but W didn’t
know about it. It is in the government’s interest to prosecute cases which involve possible forfeiture because the
gov’t gets the land. The government wanted to take control of the property because H was using it illegally. There
was a forfeiture statute that said gov’t could take property when used in commission of a crime.
Discussion: How do you apply a forfeiture statute to ppty owned by Tenancy by the entirety? A land owner can use
as a defense, the “innocent owner” doctrine and the owner must show that she did not use or know about the drugs.
(exception to the forfeiture statute)
    o 2 possible outcomes:
              If W dies first, then the H takes all by tenancy by entirety and government can forfeit all of the land
                 (government gets the right of survivorship). //Supposing the Endo parents hadn’t conveyed to kids,
                 after W’s death in Endo, and H got all the land via jt/ten/ten by entirety, would creditors get H’s
              If H dies first, then the W takes all and the government can’t access any of the land. W now has a
                 fee simple absolute.
              If there was a divorce, then tenancy by entirety would be severed and the government could take
                 the Hs ½ interest, but could not touch the Ws interest.
       COURT decided to force the forfeiture of the DEF husband’s interest in the tenancy by the entireties but
        that the DEF wife may retain full and exclusive use of the property during her life, protection against any
        alienation w/out her consent or any attempt to levy upon her husband’s former interest, and the right to
        obtain title in fee simple absolute if her husband predeceases her. And if W predeceases H, since H would
        have gotten all, the gov’t gets all?

WV forfeiture statute  WV 60A-7-701 thru 707
  o WV CASE: Herring v. Carroll (300 SE2d 629, 1983): recognized 4 unities and when a JT can be severed
      (by law suit)
  o WV CASE: Harris v. Crowder (322 SE2d 854, 1984): H and W owned property as joint tenants with right
      of survivorship. Creditor brings suit to have H’s interest sold, causing survivorship to be destroyed, then
      bring partition suit in kind or sale and have enforcement of judgment. ONLY APPLIES TO MARITAL
          o If X buys H’s interest in ppty, X & W are T in C and then partition b/c X wants his share given in
          o Sup Ct holds:
                    When H & W have Joint Tenancy, creditors of one may bring a suit to partition and such a
                        partition destroys survivorship interest.
                  But if jointly-held marital home is at stake in partition, survivorship is only destroyed if
                     it will not prejudice the other party.
     WV CASE: Vincent v. Gustie (336 SE2d 33, 1985): Court faced with similar situation, but partition was
      not discussed, only sale of H’s interest. Ct undoes the misleading analysis in Harris:
           When a family residence owned in Jt. Ten., creditor may sell interest in one party but
               purchaser takes ppty subject to other spouse’s right to live there.
           Interest of spouse can be sold and after the sale, purchaser and non-debtor spouse become Tenancy
               in common. 97 WV law review 339
           Purchaser can possess prop. when it ceases to be a “marital home,” until then does non-debtor
               spouse live in and purchaser can’t use?
           Converted to tenancy in common when purchaser takes the interest of H
           Herring says that since H could sever survivorship anyway, they can allow purchaser to purchase
               and sever.
            Also, in previous example, can X charge rent b/c W is occupying the prop.?
                      W. Va. 55-8-13: Does not require ouster, so W could be occupying X’s ½ and X could
                       charge rent.
                      If W refused to pay rent & X brings lawsuit, this is rejection of ouster.
                      WV Case (divorce is different): H & W divorce. Exclusive possession of the home to W.
                       W sues H for rent when he continues to live there. Sup Ct says when spouse without
                       possession continues to live in marital home with spouse in possession after a divorce,
                       spouse in possession can’t collect rent from other spouse living there.
      WV’s abolition of Tenancy by Entirety
         McNeely v. Southpenn (1903): Ct says our statute was patterned after NY’s statute and the Marriage
            Women’s Act, so no longer tenancy by entirety.
         54 years later, Wartenburg v. Wartenburg (1957): Ct says changes in the code revision in 1931
            make McNeely right.
               Ct relied on W. Va. 36-1-19 and Married Women’s Act (explained in 97 WV LRev 345)

Marriage Ending By Divorce
     Move from fault-based divorce to “no fault” divorce in mid-1900s.
     Then, courts and some legislatures started to say marriage is “economic partnership” and ppty should be
      divided in a more equitable manner; whose name the title was in was not as important.
          A marriage was an economic partnership among other things, and even if one stayed home with the
             children and the other worked outside home, then there was an economic contribution on both sides.
             So the court started moving toward what was an equitable distribution  who has title to the
             property doesn’t matter anymore, but rather who has the assets and the equitable amount put in the
     Equitable Distribution
          WV first adoption of this: LaRoux v. LaRoux (304 SE2d 312)  the legislature passed a statute a
             year after this case setting forth equitable distribution.
          Codified in W. Va. 48-2-1 et seq – equitable distribution (renacted in WV 48-7 in 2001)
          Still recognized concepts of separate ppty (48-2-19) and marital ppty (48-2-11)
          Two cases today defining certain types of non-tangible things; do they constitute marital asset?
          WV 48-1-233, 48-1-237  definitional sections of equitable distribution. (Find and read these)

In Re Marriage of Graham p. 401:
Facts: During their six-year marriage, wife worked full-time. Husband was part-time employed while pursuing and
obtaining a BS and a MBA for 3 1/2 years of the marriage. No marital assets were accumulated during the
marriage. Cause of action/remedy sought is an equitable division of marital property in a divorce proceeding. She
wanted the degree to be viewed as a martial asset (You put a value on this based on future earnings). She was a
working spouse (flight attendant) and invested in her husband’s education.
Discussion: Under Colorado property law, does an MBA constitute marital property which is subject to equitable
division by the court when there is a divorce proceeding?
     No. Under CO property law, the term "property," as applied to the facts based on the Uniform Dissolution
        of Marriage Act is outside of the limits which the court places. Education is not viewed as a marital asset
        because it does not have the characteristics of property.
     Ct holds that it must be ppty that can be transferred, assigned, etc., and an MBA does not count b/c can’t be
     This has traditionally been followed except an additional aspect has been reimbursement alimony.
              Court may use concept of reimbursement alimony to give W money to go to school.
              Goal: to give other spouse the opportunity the W gave H during marriage.
NOTE: NO court except NY (Elkus case) has held anything different than this case (THIS IS MAJORITY).

WV CASE: Hoak v. Hoak (370 SE2d 473, 1983?): professional degree or license is not marital ppty subject to
equitable distribution, BUT court said a trial judge may award reimbursement alimony to working spouse when
his/her contribution was made with the expectation of better living. (WV follows majority) So W in In Re Marriage
of Graham would get reimbursement alimony after Hoak?
           Professional Goodwill is a divisible marital asset in most jurisdictions.
                 Build-up of expectations of future customers based on prior history

Elkus v. Elkus p. 408: Exception (in NY) to the rule that degree is not prop.
Facts: Parties getting divorced after 17 years. Joint custody of both children, but at dispute is the split of assets.
PL became famous during their marriage. DF claims he was PL's voice coach for 10 years of the marriage, and
sacrificed himself for the marriage, in addition to other duties which he believes made him a contributory factor in
her development into an international celebrity. H put his career on hold for her to become this famous opera
Discussion: Is the celebrity status and the wealth which comes from this status a divisible item on an economic
basis in divorce proceedings, when the celebrity status came during the marriage?
          Yes. In NY, to the extent DF's contributions and efforts led to an increase in the value of PL's career,
             this appreciation was a product of the marital relationship, and, therefore, marital property subject to
             equitable division. Here “goodwill” is a marital asset (difference between what someone works for and
             what someone pays for). Future earnings you can assess to a dollar value.
          Domestic Relations Law defines marital property as property acquired during the marriage "regardless
             of the form in which title is held."  contributions and services as a spouse.

        Prenuptial agreement  an agreement as to what is going to happen when we get married or when we get
        divorced. Has to be fair to both parties and in order for it to be fair, each party HAS to know all the assets.
        Was there a disclosure and was there an opportunity for the person to think about it and to get advice from
        a lawyer? If the parties are on equal footing as it relates to entering into the agreement, and then they sign
        it, the courts will sustain the prenuptial agreement.

(Natalie stop inserting notes here)
Marriage Ending by Death
Dower: compensation for widow
            Good for landed gentry when land was a huge asset
            Provided widow with 1/3 life estate in freehold ppty that husband was seised (fee simple, fee tail,
               life estate) of anytime during the marriage
            It must also be inheritable
            In larger estates, there was a dower house. When H died, the eldest male heir moved into the manor
               house and his mother moved into the dower house.
            Had advantages of providing proximity to family, but as the nature of wealth changed from real
               property to personal property, then the security dower provided diminished real quickly.
        DOWER in WV:
            Goff v. Goff 1906: WV SC had recognized that an attempt to convey an asset away to keep it
               away from his spouse in the event of a divorce or death, would be void in 1906. The spouse would
               thus have the rights to the land.
            Wallace v. Wallace  1982: H and W were married and one of the assets the H owned, shares in
               stock in family-owned corporation. H gave stock to son when H and W separated. H and W got back
               together. Then the H gives the shares of stock back to his parents and H and W get legally divorced.
               Court held that the W was protected from acts before, during, and after the marriage that are
               intended to deprive them of their marital assets. If you are disposing of an asset to the detriment of
               the spouse with the intent to deprive spouse of asset, then we are not going to let you get by with it;
               W is entitled to that asset.
            Davis v. KBT  1983: H got an inter vivos trust arrangement that he transferred his assets to. The
               majority of H assets were in the trust. The W brought a lawsuit saying that the assets in the trust,
               should be brought back in to his estate, so she would be able to have the elective share of those
               assets upon his death. (no CL elective share). Hs trust provided that it could be used for his wife if
               needed, but if she didn’t need it, then it should go to his family. Court said that we will make this
               decision on a case-by case method (looking at individual circumstances). In this case b/c: 1. W had
               many assets, too, and 2. there was NO intent to defraud or remove assets from Ws assets, H’s
    separating of assets in trust from estate was ok. (Ct saw that both were wealthy and had a small
    probate, so the court saw that this transfer and “if needed” clause were agreed upon before the death
    – this is a COMMON practice.)
           If one of the spouses is incapacitated, a committee is appointed to act on his/her best
                  interest, rather than family members who may be greedy and may fail to act on
                  incapacitated person’s best interest.
   Johnson v. Farmers Bank (379 SE.2d 752): 1989  H and W were married in 1986 and H died in
    1983. They both had children from earlier marriages. H created a trust for $1.3 million; substantial
    portion of his wealth was in his trust. As stated in H’s will, part of the trust had $250,000 income for
    his W. W renounces the will and wants to say that her intestate share included the $1.3 million.
    Court held that trust assets should be brought back to the probate determination to determine the
    elective share. We will take these cases and look at them on an individual basis and we will
    determine whether those assets should be brought back to determine the intestate share.
           Leaving most of your money in a trust instead of a will minimizes the tax burden on both
              parties because you don’t have to pay tax on a trust and you get the interest on the trust, but
              you have to pay death tax on the will.
           Problem with “case by case” analysis  These cases have NO predictability in the
              outcome!! You can’t advise the spouses or clients how this will come out. Hard to predict,
              but it is also hard to draft. Each case must also go before the court (no precedent).
           In 1992, when laws of intestate were revised, the intestate shares and intestate succession
              has then in some ways dealt with the elective share. The courts were saying in effect, a
              person who suffers in an unhappy marriage to the very end, should not be placed at a
              disadvantage. The division of property, whether by divorce (right before death) or death,
              should not significantly differ because marriage is now an economic partnership. So when
              laws of intestate succession passed in 1992, the elective share was also passed.
        WV Uniform Probate Act (1992) this is supposed to give some uniformity in the
            outcome of intestate succession (spouses are treated equally now). Fully vested in your rights
            at the marriage; regardless of how long the marriage lasts. Deal with a serious of fairness. The
            longer the marriage last, the greater contribution up to 50%.
                   Incremental vesting  if the marriage ended within the 1st year, there was a
                      minimum amount that W could get. If it was longer, there was an incremental
                      increase from the 2nd-15th year of marriage, and 16 years and above you get 50% of
                      the decedents estate;
                   augmented estate  if you have transferred assets and have some control over them,
                      then how should you treat them? You bring back in some of the assets and then you
                      have them as part of the probate estate. (How Johnson and future cases can get more
                      is don’t like the amount left in the will, right?)
                   Estate planning is based on the assets of both parties (if the surviving spouse is
                      wealthier, the court won’t take away from the dead spouse to make the surviving
                      spouse wealthier.) The longer the marriage lasts, the greater the collective wealth was
                      in the partnership.
     ***Statute is designed to tract state law.
          o This act reappealed the old statute of intestate succession and abolished dower in
                WV. Men did not like the abolishment of the dower because this gave them leverage in
                divorce situation. If the H could convey the property without the Ws signature, then it
                would be much easier.
          o W.Va. 43-1-2  1992 : InCoet Dower - solution to abolishment of dower: the
                conveying spouse must give the other spouse notice within 30 days (consent is NOT
                needed, just notification by registered mail, process server, or by having the 1st spouse
                sign). This protects the 3rd person from the claim. H and W get married and H sells land for
                $100 that W doesn’t know about. Then they get divorced and W gets half of Hs assets
                which includes $50 from the sale of land (Uniform Probate Act). And if H fails to give W
                notice in 30 days of this sale, then W can come back in 15 years and can claim another
                        $50. The fact that Ws proceeds of the land can be discounted is an incentive for H to
                        disclose within 30 days, so H only gives away half the proceeds of the sale.
                             o Example: If H and W were married and H was going to convey property right
                                  before the divorce, he would have to give his wife 30 days notice so she could file
                                  for injunction to stop H from selling the asset.
                             o The date which you look is the date the person died and only attaches before you
                                  die in 1992.
Curtesy: compensation for widower
           Rights the husband had during the marriage; husband continued to have the benefit of his wife’s
             property if they had children during their marriage.
           As for personal property, the wife would take a percentage share.
           If a person would leave a will, then a surviving spouse had the right to elect what was in the will
             (whether he wants what is said in statute of intestacy or in the will). This was to protect a spouse
             from losing inheritance (can’t write out a spouse in your will).
           After W’s death, if child was born to the marriage, H gets the prop.
           NO child, NO curtesy.
           For some personal prop., outright portion was given to surviving spouse.
           WV ABOLISHED CURTESY IN 1931; gave equal rights to H & W (statutory dower still in place;
             1/3 life estate to W or H?); H and W were given the same thing that was called Dower.
           W. Va. 42-3-1: H or W can renounce the will, but kids cannot renounce the will. Initial elective
             share statute in WV. If person left his will leaving the spouse with nothing, OR if surviving spouse
             was not satisfied, she/he can elect against the will 1. within 8 months of will’s probate or within 2
             months of final decision of a contested will, 2. by renouncing will before the person at country court
             who admitted the will to probate or by writing recorded to the office of the clerk of such court, 3.
             bringing acknowledgement or proof that would authorize a deed to be admitted to record, 4. spouse
             can receive the real and person property she/he would have taken had decedent died intestate leaving
             surviving children. (what if didn’t have kids?) (the elective share that W in Johnson received is now
             law in 42-3-1).
           Intestate succession rights children take 2/3 and surviving spouse had 1/3 in personal property in
             WV. For real property, the property would descend to the children and then the spouse would get a
             life estate. As of 1992, the following statutes have been revised to include:
                 W.Va. 42-1-1  without regard to M or F: real property goes to the children and their
                     descendants, if no children then to W or H, if no children and no descendent of child, and no
                     spouse then if BOTH alive: half to mother and half to father of descendent and if 1 alive the
                     whole, if none of the above then to intestate’s brothers and sisters and their descendents, and
                     if none of the above then half to the maternal kindred and half to the paternal kindred in the
                     following order: grandparents, aunts and uncles, great-grand parents, brothers and sisters of
                     grandparents, (whole of the half or equal shares to)great-grandparents as living or to their
                     survivor, and so on passing to “the nearest lineal ancestors”… “of the degree next nearer the
                 W. Va. 43-1-1  subject to a dower estate (1/2? life estate); surviving spouse gets 1/3 of all
                     real estate decedent whether decdent had the estate in possession, reversion, remainder, etc.-
                 W. Va. 42-2-1  children gets 2/3 of personal property, surviving spouse 1/3; when person
                     dies intestate, 1. estate must pay funeral charges, admin costs, and debt; then 2. if intestate is a
                     a married woman leaving issue surviving her H gets 1/3; if she leave no issue her H gets
                     whole; OR 3. if the intestate leave a widow and issue from same or former marriage, W gets
                     1/3; if intestate has no issue then W gets whole. How to treat former marriages for females?
                     Or is this law not used because of the Married Women’s Act?
           This spoke to at property that was spoken at death.

97 WV. L.Rev 339          99 WV. L.Rev 637             96 W.V L.Rev 85 (dower)

Domestic Partners (p.426)
    Common law marriage: marriage which the court recognizes for legal purposes; couple lives together for
      certain amount of time and holds themselves out to be H & W; different states have different requirements
    What rights does someone have who has a common law marriage (not legally married) but have
      accumulated many assets?
    Marvin (CA): Man gave his girlfriend damages based on contract law and unjust enrichment. Although you
      don’t have marital rights, you may have some other right that may get you to the same form (same assets).
      Courts have looked to some sort of contractual relationship and unjust enrichment… even if you aren’t
      married, you have a contractual relationship to be fair. States took different approaches to Marvin:
    WV CASE: Goode v. Goode (1990): A and B lived together and people thought they were married;
      children used his name. Q: Did B have ppty rights? Court reaffirmed that common law marriages are NOT
      recognized in WV. Pursuant to the state statute in WV, must have a state license as ordered in marriage
      statute. To be married in WV, courts recognize that you need: (1) marriage license at county clerk, (2)
      judges that perform ceremony, and (3) witnesses. If you don’t get legally married in WV, then you are still
      entitled to halimony (not the same as marital assets, but something). (In PA, if you live together for 7 years
      and hold yourself out as being married, state recognizes you as married.)
            Ct could order division of prop. on contract principles or theory of constructive trust. Court would
                consider the following for a contractual relationship:
                  Purpose
                  Duration
                  Stability of relationship
                  Expectation of parties
          WV did in effect recognize that property rights could be created without marriage and those people
              have property rights. However, the property rights are taken away if you are living with someone
              who is married to someone else.
          If you are going to cohabitate and you want your rights to pass, you can (1) marry in WV, (2) move
              to PA for 7 years, (3) apply for halimony, and (4) sign a contract (probably best option).
    WV CASE: Thomas v. LaRosa: LaRosa was married and in a relationship with Thomas. She brought law
      suit seeking prop. rights. Proviso from Goode case was applicable but not enforceable b/c this would be
      accepting of bigamy: one party was married and one was not married. When the relationship ended, the
      person who was not married tried to get his property rights. However, the court rejected and the Goode
      decision (relief to unmarried party via K law) is not applicable (so in Thomas: no relief to unmarried party).
      No marital rights, but if kids are involved they may get some rights.
    Goode and Thomas together: If one person is married, courts will not enforce prop. rights in terms of
      another person they may be living with, etc.

Baker v. State p. 428:
Facts: Gay common law marriage
Discussion: Is there constitutional fairness in a statute that denies prop. rights to marriages between same-sex
couples? Ct based decision on state constitutional provision called “Common Benefits Clause” so it’s unique to
Vermont. The court did not require the state to issue marriage licenses to same sex couples; but it did conclude that
the Common Benefits clause required state to give such couples the same “benefits and protections” that opposite-
sex couples have. Therefore, the court required the legislature to craft an “appropriate means” of extending to
same-sex couples “all or most of the same rights and obligations provided by the law to married partners.” The
legislature could do this by passing a “domestic partnership” act, which would give same-sex couples an
“alternative legal status to marriage,” a status which would have similar formal requirements for being entered into
as marriage does.
          Ct declared the statute unconstitutional, but then the Vermont legislature created “civil unions.”
          Defense of Marriage Act: states do not have to honor same-sex marriages done in other states.

Adverse Possession: a way title is acquired in which Statute of Limitations is involved (usually as an affirmative
       o SOL that eventually bars the owner of property from suing to recover possession from one who has
           wrongfully entered the property. A property owner’s cause of action against a wrongful possessor of it is
           known as the action of ejectment.
       o But the SOL on actions to recover real property has an additional major effect: once the limitations
           period has passed, the wrongful possessor now in reality has title to the land, since the original owner
           can no longer recover it from him. This land is gained by adverse possession.
       o In real prop., rule is after passage of time, there is a change of title and cause of action goes to the merits;
           title acquired relates back to when entry takes place.
       o Title is retroactive and the adverse possessor can’t be sued for what you did on the land for what s/he
           was doing on the land while building up the years for adverse possession.
       o Blend of case law and statute; underlying theme: the law will not reward wrongful facts
       o Assumption that owner of prop. knows what is happening on that prop.  helps to quiet longstanding
           questions of title… quieting issues as it relates to ownerships of property (mainly on the boundaries).
       o Three ways to acquire title
              ii.   Conveyance from owner (deed)
             iii.   Devisement (will) or by intestate succession (law)
             iv.    Adverse possession (affirmative defense)
       o WV Statute of Limitations: 10 YEARS
NOTE: Even though adverse possession seems contrary to notions of property law, the public policies of adverse
possession are: (1) the economic benefits of using property instead of laying it to waste, (2) punishing a non-
attentive owner/owner who lazily fails to respond when put on notice that someone else is using her/his prop., (3)
providing incentives for someone to take care of something they own, and (4) helps to quiet longstanding questions
regarding title and boundary disputes.

Van Valkenberg v. Lutz p. 129:
Facts: Lutzes bought prop. in NY and were using the adjacent prop. as a right-of-way to their prop. Vs then moved
onto the adjacent prop. assumed part of it was the Lutzes b/c they had a garden and cleared and cut the trees. 1st
suit: Lutzes sued Vs and said Ls wanted right-of-way but did not have ownership of the land. L won on
“prescriptive easement” (satisfying a specific period of time in which Ls used the land) Then, 2nd lawsuit, Lutz
claimed adverse possession and full title to land. His earlier concession of “having a right to use the land and not
owning the land” became a problem. The Vs got the land from a tax sale where the land was auctioned off by the
Discussion: Does the adversely possessed party have right to a traveled right of way to provide access to their
properties on either side of the possessed land by interposing the claim they had used the right of way for almost 30
years prior to the possession?
No. Under New York law, Lutzes never actually owned the land they claim was adversely possessed, so there was
no adverse possession. To acquire real property by adverse possession, (1) the land must be shown by clear and
convincing proof that it satisfied the number of years for that States’ SOL, (2) possessing the actual land and not the
land next to it, (3) enclosing the area, or (4) cultivating or improving the land. (1 is not satisfied, 2 maybe, but 3 or
4 couldn’t be found). Garage a few inches over onto the land is not possession, rubbish and small shack are not
considered improvements, a small garden didn’t constitute cultivation (maj) while it did to dissent.
Note: The case says that not only is passage of time required, but other elements are necessary to show adverse
       o Statute of Frauds also invoked—no written document in Lutz’s case.

Permissive entry of someone else’s property i.e.’s: (1) easement, (2) rent/landlord tenant, (3) where possessor is
paying monthly installments in order to purchase the land via contract, and (4) joint tenancy because concurrent
owners have the right to be on property.
       To turn a permissive entry into an adverse possessor, you must make it very clear to the owner that they
          are no longer there temporarily, but that you are intending to stay as an adverse possessor. i.e. begin
          building or tearing down walls, inform the owners of my intention to remain permanently, etc.
To claim adversely in NY: possession must be actual, land must be possessed under a claim of title (either a
belief that the prop was her/his (Lutz maj) or that s/he intended to acquire and use the prop as her own
(Lutz dissent), one must put owner on notice, claim openly for 10 years, and where a claim of title is not
founded upon a written instrument, the adverse possessor must either protect land by a substantial enclosure
or cultivate or improve the land.

FINAL EXAM: WV Law on Adverse Possession of Personal Prop.
WV CASE: Core v. Faupel (1884): Lists elements and helpful descriptions needed to establish adverse possession:
            1. Hostile adverse occupation of part of someone’s land (not a lease, executory contract or co-
               tenancy)  you are on someone’s land which enables them to bring correctional action and
               bring a trespass suit against them… you are a trespasser. Permissive entry that is adverse to
               others(-means?): rent, joint tenancy, easement. If the entry is permissive, then it is not adverse,
               so the clock will not be running. It is possible to have a permissive entry that becomes hostile or
               adverse (but the showing of no longer acting in interest of the ownership of title, is necessary).
                     Objective vs. subjective test  does hostile mean that you have to have the intent to
                        take someone else’s property or can you mistakenly use the land? Either.
            2. Actual (as opposed to constructive) occupation: Entry needs to constitute trespass; must be
               a physical entry on the property. You must have an actual trespass.
            3. Visible, notorious and exclusive: If you have owner who is watching over prop., you would
               be able to see that someone is there; troubling area—when someone laid a pipe, etc.; the owner
               of the property, if they are paying attention to the prop., they would be aware of you being on
               the property, does not permit you to trespass at times when the visible owner is not around i.e. at
               midnight. (visible and notorious  cave)
            4. Continuous: Must be using the land for a statutory period as a reasonable owner would use it;
               there must be continuous use of the land. (i.e. summer homes sometimes are sufficient because
               show seasonable use (-a pattern of yearly use even if less than full year)). But if you leave it
               without the intention to return, then the clock goes back to 0 years.
                     Tacking: When an adverse possessor add the time s/he has possessed the prop. To the
                        time her/his predecessor has possessed.
            5. Claim of right or color of title: Claim—only get what you physically hold or use; Color—
               you get all that is in the deed, even if you’re not using it all. If you have a color of title (a written
               document) and you are using any portion of what is described in that deed, then you are holding
               the entire tract. But if there is no written document, then you hold the portion in which you
               actually possess. Not the entire tract. A claim of right is when someone says, I am here, I am

WV CASE: Somon v. Murphy Fabrication & Erection Co.
    o Question answered for the first time in WV: Mistake does not defeat adverse possession (fits under
       hostile and adverse element).
    o Addresses the issue of what is the role of the intent of the adverse possessor.
    o Ct decides that intent is not important. If what you are doing is trespass, then it satisfies the “hostile”
    o Hostile means adverse, it doesn’t mean that people have to show ill-will. If you are a (mistaken or not)
       trespasser, it is hostile; if you are (mistakenly or not) on the property, it is adverse.
    o The mere fact that had they known it was not the true property line doesn’t keep it from being adverse or
       to claim adverse possession.
    o It makes no difference that the person built the fence thinking they were building on their own property.
       Mental state does NOT matter
    o Favor the objective test  hostile means that you occupied someone else’s property, not intended.
    o Deals with “Squatter” problem: could they acquire title? Could owner evict them?

WV CASE: Brown v. Gobble (474 SE2d 489, 1996): We learn two things: (tacking issue)
  o 2 questions: 1) what is the standard of proof to get to adverse possession?; 2) when will tacking apply
                        1. Burden is on party who claims adverse possession to prove by “clear and convincing”
                           evidence (standard of proof is higher than just a preponderance)
                        2. In order to prevent tacking of successive adverse possession claims, the ultimate fact to
                           be established is the intended and actual transfer. Privity means privity of possession
                           (privity between successive possessors as described in the deed – transfer of
                           possession), not privity of title.

FINAL EXAM: W. Va. 55-2-1 thru 4:
   o 55-2-1 Establishes 10-year SOL for real property and that tacking is OK in WV.
   o 55-2-1(a) If you have severed minerals on the surface, the minerals are like a different estate. Ownership or
      possession of the surface after severance shall not be adverse to interests of the person holding title to the
      minerals. (So clock never starts to run against holder of mineral rights-so adverse possession of land but not
      of mineral rights?)
   o 55-2-2 What means?
   o 55-2-3 WV Disabilities  minor (lose minor when turn 18) or someone who has a mental incapacity.
      If disability at time of possession, then the grace period for disabilities is 5 years after time the disability is
      removed; but it will never be shortened to the less than 10 years?. Possessor can sue to take after 5 years is
      up or after the disabled owner’s death (whichever comes first).
   o 55-2-4 Maximum time period of 20 years for disability, even if disability has not been removed  this is
      true whether or not the disability is ever removed (person is incompetent) or the 5 year grace period hasn’t
   o 55-2-5 Liens created by trust deeds or mortgage on real estate are valid and binding as a lien on such real
      estate for 20 years from the date on which subsequent debt or obligation secured by such lien becomes due.
      No extension unless one files an extension of an affidavit for another 20 years and the clerk of court records
      and indexes the affidavit. These laws holds true for all deeds of trust and notes enetered into before and
      after 1921 or 1972? After 1921 SOL (for what, i.e. payment of lien?) on a Deed of Trust is 20 years.
   o 55-2-5 Unless someone sues to enforce the lien prior to expiration of the time period or lien is extended,
               -The lien expires 5 years after the final maturity date if the date is ascertainable from the lien
               -The lien expires 35 years after the date of the lien instrument if the final maturity date is
               unascertainable. If before the 35 years is up the lien holder records the lien instrument and
               includes a copy of the obligation secured by the lien so that the final maturity date is
               ascertainable the lien expires 5 years after that maturity date.
               -Any liens in effect or created after July 1, 1998 is valid for 20 years after its stated final maturity
               date, or 35 years after the date on the lien instrument if no maturity date is stated on the lien
               instrument. (This 1998 Ammendment changed the above 1997 Ammendment that got it wrong.) So
               all liens created in 1997 are for 5 and 35 years?
   o Interesting aspects of adverse possession: the color of title can be recognized by the possessor as having a
   o State v. King, 77 W. Va. L. Rev. 37: Color of title still good even if you know it is invalid
                       1. You cannot fraudulently start your own title or take title from someone else if you know
                           it’s not going to be good. “Fraud denies virtue of fortune and effect”

Manillo v. Gorski, p. 147 (1969):
Facts: Def encroachment on P’s land of 15 inches in an addition to a house. D did not intend to take P’s land.
Discussion: Under NJ property law, does an entry and continuance of possession under the mistaken belief that the
possessor has title to the lands involved exhibit the requisite hostile possession to sustain the obtaining of title by
adverse possession? YES, intent is not required for the “hostile” element of adverse possession; however in this
case, the encroachment was not adversely possessed because the 15 inches was not open and notorious as required
under the 5 elements of adverse possession.

WV Case: Sommerville (1969): WV departs from CL that says that a person who mistakenly improves a plot of
land that is not theirs, suffers and looses everything. If the person who mistakenly tells the party to build is a
surveyor, the court can deal with the situation in 2 ways: (1) the owner of the improved lot can pay for and thus
keep the improvement so there is not unjust enrichment, and (2) if there is a good faith mistake and the mistaken
builder tries unsuccessfully to get the owner to sell the builder the land, the court can force the owner of the
improved plot to sell the land. OR if both parties agree, they can just switch lots.

Howard v. Kunto (Mechanics of Adverse Possession), p. 153
Facts: Here the land is completely different from the land described in the deed, but yet the land is still turned over.
In this case, an entire series of beachfront property owners each occupied a 50 foot lot directly west of that
described in his deed for 10 years.
Discussion: 2 questions:
     1. Can you establish adverse possession if possession isn’t continuous (such as a summer home)? Yes,
         because they intended to return to their summer home every summer and all the surrounding property was
         also using it for these purposes. Seasonal use/possession can be considered continuous if expected to
         happen at the same time every year and does happen continuously throughout the years.
      Does tacking apply to this situation where there is non-continual use or seasonal use? Yes, there are 2
         requirements (1) time and (2) relationship with people  need privity (physical contact of the land)
         between all of the prior possessors of that land. All of that tacked time fulfills the SOL times period.
     Holding: For the claim of right dispute, DF/appellees intended to "tack" on the previous deeds of other
     conveyances in order to show a good faith belief they were in fact on the right tract of land. In fact, each
     conveyance previous to the Kuntos’s conveyance involved the same mistake of conveying the adjacent land
     and not the proper land according to city records. Thus, since the same good faith mistake was made prior to
     the current conveyance in question, and since it was uninterrupted there was adverse possession, and thus the
     tacking process may be used by DF seasonal possessor. PL's argument that since there was no privity b/c there
     was no contract b/c there was a material fact significant to the K made the deed void was turned away, as the
     mistake of fact was mutual, the court could construct a new one, or at least define the parameters of the old one,
     which they did.

Problems p. 160
1. In 1991, A enters adversely upon Blackacre, owned by O. In 1998 B tells A, “Get out, I’m taking over.” A
   leaves b/c he feels threatened. B enters into possession. In 2001 who owns Blackacre?
     o O is the owner because there isn’t any privity between A and B; B threw A off as opposed to taking under
        A and therefore there is no privity and no tacking.
     o Law protects a peaceful protected and a person could only be ejected or ousted due to superior title, not by
     o O b/c there is no privity b/w A and B.
     o Suppose that in 1998 A leaves under threat of force, but six months later A recovers possession from B. If
        O does nothing, will A own Blackacre in 2001 or 2008?
                          Majority of the courts hold 10 years, that the interruption of being ousted does not break
                             the continuity; but the American law of property takes the position that it is 10 years and
                             6 months.
                          You can make two arguments:
                          2008 b/c it was not continuous
                          2001 b/c A may have gone to Ct to regain possession and was lawfully in possession of
                             the land the whole time, or “tolling” could work.
     o Suppose that in 1998 A abandons the land and B takes into possession. B will not own land in 2001
        because there is no privity or conveyance between A and B.

2. In 1985 A enters adversely upon Blackacre, owned by O. In 1998 O dies, leaving a will that devises Blackacre to
   B for life, remainder to C. In 2001 B dies without having entered upon Blackacre. Who owns Blackacre?
                      a. A b/c A took in fee simple, and B only had a life estate.
                      b. A owns a fee simple because the ownership at the time A entered, O owned in a fee
                           simple. So whatever is done with the land after As enterance does NOT change the nature
                           of what A is holding. Since A entered when O owned a fee simple, A now owns a fee
                           simple. (A doesn’t need to go to ct. to get title? If B had entered in 2001, could A still
                          take 1. at that time or 2. after B’s LE because A had fuffilled the requirements of Adverse
                     c. LOOK AT THE INTEREST WHEN THE PERSON ENTERS. The adverse
                        possessor gets the interest that the owner had when the possessor entered, be it FS,
                        LE, etc.
3. O dies in 1986, leaving a will that devises Blackacre to B for life, remainder to C. In 1987 A enters
adversely upon the land. In 2001 B dies. Who owns Blackacre?
                     d. C b/c A was only holding adverse possession to a life estate of B, not a fee simple. When
                        B dies, A no longer has rights.
                     e. At the time of the entry, land was owned by a life estate, so when the adverse possessor
                        (A) entered the land, A gained a life estate for Bs life.
                     f. **IMPORTANT: Look to circumstances when adverse possessor enters; that is when S of
                        L starts to run.

                     g. ** S of L starts over with each estate depending on when adverse possessor enters.

                     h. Each state will recognize some disabilities to protect the owner of the property. Some
                        states include: being a minor, having an unsound mind, and being in prison.
                     i. There is a grace period following the S of L after the disability is removed, normally 5
                        years (Each state is different)
                     j. A disability is immaterial unless it existed at the time when the cause of action accrued.
                        So w/ disabilities that occur after entry?
                     k. In most states or common law, the SOL for disabilities accrues in 21 years (you can’t tack
                        disabilities together)
Problems p. 161:
       o O is insane in 1976 and dies insane intestate in 1999.
                      o Os heirs, H, is under no disability in 1999. What year will the person acquire adverse
                          possession? 2009 (1976 + 21= 1997 (but he was still insane), so then 1999 +10 = 2009.
                          Why 10 yrs. and why from 1999 and not 1997 at expiration of 21 years of disability?
                      o Os heir, H, is 6 years old in 1999. The new owner is a minor. Because you cannot tack
                          disabilities, and because it is the disability at the time possession?/converyance? took
                          place, possessor would get possession in 2009. Why 10 and not 20 yrs? Is it 10 years
                          from the date when the first disability is removed (insane person’s death)?
                      o O has no disability in 1976, but Os heirs, H, is two years old in 1994. There is no
                          disability when he takes place, so 21 years takes it to 1997.
                      o O is 5 years old in 1976. In 1986 O becomes mentally ill, and O dies intestate in 2001.
                          Os heir, H, is under no disability. Adverse possessor acquires land in 1999 (because
                          1986 (time of entrance + 13 (number of years until he becomes an adult). Don’t tack
                      o O disappears in 1989 and is not heard of again. B wants to buy from A. What advice to
                          you give B? You can basically determine however long the person has held. You must
                          have held for 21 years under the SOL.

Adverse Possession Against the Government  If the gov’t is holding the property in a propriety title, then you
can adversely possess, but if it is held in a governmental capacity, then you CANNOT take title (WV agrees). How
do you define propriety and governmental? Gov’t : i.e. state parks and roads.

Adverse Possession of Personal Property
O’Keeffe v. Snyder, p. 163:
Facts: O'Keeffe, the painter of original works of art, alleges her paintings were stolen in 1946. Snyder asserted he
was a good faith purchaser of the paintings, had title by adverse possession, and O'Keeffe's action was barred by the
expiration of the SOL. O'Keeffe, upon finding out that the paintings had been taken, did not report the theft to her
husband, who put the paintings up for auction, or to the authorities, nor did she register the paintings.
Issue: When does the SOL being to run for adverse possession of personal property? Discovery rule
     o Problems with personal property and adverse possession is: that it is movable, concealable, many times not
         displayed publicly so the true owner is not on notice that the personal property is being possessed and by
         who the property is being possessed by (i.e. a small painting or jewelry)
Holding: To establish adverse possession to chattels, the rule of law has been that the possession must be hostile,
actual, visible, exclusive, and continuous. Open and visible in this context will now be upon the discovery of the
missing chattel. The court will ask 3 questions:
     1. did the owner use due diligence to recover the chattel at the time of the alleged dispossession/theft?
     2. whether at the time of the alleged dispossession/theft there was an effective method to put others on notice?
     3. whether registering the chattel or reporting the chattel with an authoritative institution would put
         prospective buyers on notice of the possibility that they could be purchasing in stolen goods?
If these things are done, the SOL does not begin to run. However, as in this case, when the owner becomes aware or
should have been aware of the missing chattel, the SOL begins to run at the discovery of that dispossession. In this
case, the court remanded because the parties disagreed on the year of theft (when she should have known) and her
efforts made to get the painting back (needed more facts). The court then settled this case. So if proof of the above
had been shown, then even if an artist didn’t find the paintings for 50 years, she could get them back?
NOTE: 1. The court recommended that the art community create an art database which would register stolen
property. NY has since. 2. The court also sent out a message that good faith purchasers must always learn whether
the property is stolen or not. In practice, however, buyers may not be able to learn this. 3. The Discovery Rule’s
policy: balance the hardship of chattel owner who may not know of theft unless there’s a public display of the prop
(harsh to GFPs) and GFPs who want to display the chattel in privavcy of their homes (burdening owners who’ll
never know of the theft).


What would WV say about adverse possession of personal prop.?
                    l. Rees v. Rees (82 W. Va. 598, 1918): Title to pocket watch through adverse possession
                    m. 1918-1949: Court recognized you could acquire title by adverse possession of personal
                         property after 5 years.
                    n. 1949 - Today, under WV 55-2-12, only 2 year SOL (abolished catch-all provision)
         i. 2 years damage to personal prop.
        ii. 2 years personal injury
       iii. 1 year would not have survived at CL
  o So WV probably would apply WV 55-2-12 to personal property adverse possession cases with a 2
      years SOL and also apply the discovery rule. ASSUME A 2 YEAR SOL FOR PERSONAL
  o But adverse possession does not fit nicely with any of these
  o Based on previous cases, WV would adopt discovery rule in cases like O’Keeffe’s: a chattel owner would
      need to prove due diligence in trying to get back the chattel and whever in the future the chattel was
      discovered,, within 2 years of discovering its whereabouts the owner would need to request the chattel
      back. If owner did request within 2 years and the possessor refused, owner could get it back via replevin or
      suit. If owner did discover chattel and did not try to get chattel back within 2 years, then the SOL accrued
      and the adverse possessor because the new owner.

    Rees + W.Va. 55-2-12 = discovery rule would probably apply to personal property and the discovery of
    who has possession of the property.
       o As opposed to NY, the SOL begins to run when the possessor refuses to give over and return the
           personal property.

The $1 dollar lease is a recognizing that the tenant has received permission from the landlord to be on the property.

The WV Law Institute of 1988 created a series of studies in order to see if WV intestate succession and elective
share law need to be revised. The major findings of the study include the following:
            o   Majority of people did NOT leave a will (die intestate), so the impact of intestate succession is upon a
                big portion of the population.
            o   The wealthier you are, the more likely you will have a will
            o   Increasingly, we have a society that has multiple marriages and so planning of disposition of property is
                an influence in the way people want to give their property away.
            o   If the decedent was survived by a spouse and children, there was a strong tendency to leave everything
                to the surviving spouse if the estate was small, and for large estates, only 25% to the spouse. If the
                decedent was survived by minor children, the amount given to the surviving spouse would increase.
            o   Prior to 1992, the intestate succession of real estate was governed by W.Va. 42-1-1 and 43-1-1. The
                order of descent is the following:
                      To issue and descendents (subject to 1/3 dower interest in surviving spouse)
                      No issue or descendents, then everything to the spouse
                      No issue, no descendents, no spouse, so goes to the parents.
                      If none of the above, to brothers and sisters or to descendents of brothers or sisters.
                      If none of the above, to the grandparents
                      If none of the above, to the descendents of grandparents
                      If none of the above, to great-grandparents and their descendents
                      If none of the above, then to the nearest living descendent.
                                  (What’s the diff between real and pers?-they seem the same to me)
            o   Prior to 1992, the intestate succession of personal property was governed by W.Va. 42-2-1.
                      After payment of funeral expenses, cost of administration and debt, the order of distribution is as
                             If the descendent is survived by spouse and issue, then the spouse gets 1/3 and issue 2/3 (it
                              makes no difference if the issue are from a prior marriage)
                             If no issue, then everything goes to the surviving spouse
                             If no surviving spouse or issue, then follow the same pattern for real estate distribution.

     WV only? The 1992 Revised Uniform Probate Code (RUPC) does NOT distinguish between real and personal
     property… they are both treated in the same manner. It also helps to bring about a result that is closer to the
     testator’s wish/ intent, than the old law did (most descendants wanted to leave their property to their surviving

          EXAMPLES                      Before to 1992          Between 1992 and 1993                    After 1993
1. A dies and survived only by B,   B receives the entire     Same as old law                  Same as old law
As surviving spouse                estate (the length of
                                    the marriage is not
                                    relevant to determine
                                    the share of the
                                    surviving spouse)
2. A dies and survives by B, As     B receive 1/3 and the     B receives the entire estate     Same as in 1992
surviving spouse, and C and D       children get 2/3          and C and D take nothing
(children of A and Bs marriage)
3. A dies and is survived by B      B received 1/3 of         B receives the entire estate     Same as in 1992
(As surviving spouse), P (As        personal property and     and P and D take nothing
parents), and D (the child of A     a dower interest in
and B)                             real property (i.e. 1/3
                                    LE) with D taking 2/3
                                    of personal property
                                    and real estate subject
                                    to dower (1/3 life
                                    estate above); A’s
4. A dies and is survived by B      B receives everything     B receives ¾ of estate and P1    B receives the entire intestate
(surviving spouse) and As            because there are no      and P2 share the remaining ¼             estate and parents receive
parents, P1 and P2. A has no         issue                     of estate                                nothing
children 
5. A dies and is survived by B       B receives everything     If over $200,000: B receives             B receives the entire estate,
(surviving spouse), P (As parent),   because there are no      ¾, P receives the remaining ¼            parent takes nothing, and X
and X (Bs child from a previous      direct issue              and X takes nothing (step                takes nothing X. X didn’t receive
marriage)                           (illegitimate children    parents don’t have equal                 anything because it is assumed that B
                                     or children of A don’t    affection towards biological             will take care of X with B’s share.
                                     take)                     children)                                (even though a step child, would
                                                               RUPC recognized that decedents           have received land if no
                                                               who had parents in financial need        surviving spouse). If A wanted
                                                               would want their parents to have         step child to have something
                                                               something, so under RUPC this            with the spouse, then A must
                                                               year, the surviving spouse would
                                                               take the 1st $200,000 and the excess     have it put in A’s will. (adopted
                                                               would be divided ¾ to the surviving      children will be treated as biological
                                                               spouse and ¼ to surviving parent. If     children if in a will)
                                                               less than $200,000, surviving spouse
                                                               got everything – ensures that there is
                                                               something left for surviving spouse
                                                               regardless of size of estate.
6. A dies and survived by B (As      B would receive 1/3       B receives 3/5 and C, D, and             same as in 1992
surviving spouse). A and B have      and C, D, and E           E get the remaining 2/5. X
children, C, D and E. And A is       would split the           gets nothing because he is the
also survived by X (child of B       additional 2/3. X gets    child of B and will be cared
only)                                nothing unless in the     for by B (B’s biological
                                     will.                     child).
7. A and B and have 2 kids, C        B gets 1/3 life estate    B receives ½ and C, D, and E             Same as in 1992
and D. A has a kid from previous     and E, C and D get        would receive the remaining
marriage E. B has a kid from         the remaining 2/3 and     ½ of the estate because A
previous marriage, X. A dies         X gets nothing, unless    would be afraid that B would
with B (surviving spouse)           X is in the will.         not take care of E the same
                                                               way A would have.
8. A dies and is survived by B       B would get 1/3 and       B will receive ½ of estate and           Same as in 1992
(spouse), P (As parent), E (As       D and E would take        E and D will share the
child from previous marriage), D     the additional 2/3. X     remaining ½. P and X take
(child of both A and B), and X       and P get nothing         nothing.
(child of B from previous            unless in the will.
marriage) 
9. A, who is unmarried, dies         As brothers and           As brothers and sisters take             NOTE: If A dies intestate, the
without surviving descendants or     sisters take equally.     nothing. The $300, 000 is                estate goes to brothers and
parents, but is survived by                                    distributed to As nieces and             sisters under both new and old
brothers B and C, and sister D,                                nephews (B,C,Ds children)                law. So negative will was only
and their children. A leaves                                                                            recognized in 1992?
$300, 000 probate estate. A                                    WV recognizes the “negative
leaves a valid negative will: “I                               will”.
do not want my brothers and
sisters to receive any of my
10. A dies with a will that says:    A marriage or divorce     Unless the will expressly                This new rule applies to ALL
“land to my wife” and is survived    revokes the existing      provides otherwise, the will             marriages, and divorces that
by an ex-spouse, B and a current     will and it will not be   remains in effect and only               became effective after June 5th,
spouse C. Ex-spouse is               effective.                those provisions concerning B            1992.
designated as a joint tenant in       A change in marital     become ineffective. However,
will.                                   status before 1992     a provision concerning the               RULE: when there is a divorce,
                                        revoked ANY will       ex-spouse’s relatives is NOT             you must re-look at the will and
                                      in existence at the    revoked. (marital status           decide who gets what at your
                                      time of the change.    change rule)                       death.
                                      So all of As ppty       The only part of the will        -If the spouse dies first and
                                      would pass through        that would be revoked was       cannot take the will, then the
                                      intestate                 the part that goes to the ex-   court will look at and grant the
                                      succession.               spouse.                         “alternative taker” clause.
                                                              The current wife then does       However, if there is no
                                                                not get anything unless she     alternative taker, then the court
                                                                files for an elective share.    will look at the residual clause
                                                              If the will said, “I leave to
                                                                my wife” and the wife is
                                                                now the ex, then that
                                                                provision is void. However,
                                                                if the grantor said “I leave
                                                                all to the person who I am
                                                                married to at my death”
                                                                then this provision would
                                                                apply to new wife.
11. G has 3 children, A, B, and     a) A, B and C take 1/3   a) same                            a) same
C. Child A has 3 children, U, V,    interest                 b) same                            b) same
and W. B has one child, X. Child    b) B and C take 1/3      c) same                            c) same
C has 2 children, Y and Z.          each; U, V, W take       d) C takes 1/3 and the other 2     d) same as 1992
a) all three children survive G;    1/9 each                 1/3 shares are combined into
b) one child, A, predeceases G;     c) U, V, W, X, Y and     a single share )amounting to a
the other 2 survive G;              Z each take 1/6          2/3 estate) and distributed as
c) all three children predecease    interest                 if C, Y, and Z had
G;                                  d) C takes 1/3, X        predeceased G. Therefore, U,
d) A and B predecease G; C          takes 1/3 and U, V,      V, W, and X would each take
survives G                          and W take 1/9 each.     1/6

           Elective share  if the current wife does not receive any property because the grantor died with an
            “old” will created before his marriage to his new wife, then the wife can file for an elective share.
            W.Va. Code § 42-3-1. She can get an elective share if she feels she has been unfairly treated and in
            which case she would receive a portion of the land which may affect the interests of those people who
            do take legally by the will.
                 The only person who is unable to be “disinherited” is a spouse!!
           As the wealth increased, the possibilities of intestate succession diminished. So the legislatures drew a
            new line which is between grandparents and parents. TO be recognized as an heir, you had to be a
            grandparent or a descendant of the grandparents. This would eliminate money going to a distant
            unknown relative.
           Residual clause = clause that the person will likely have in his will that specifies that “anything else I
            didn’t mention will go to X,Y,Z.” Then if you do NOT provide in the will, then it will go by intestate
           Time of survival  if H and W are in an accident, (not 30 days?) then you have to survive for 120
            hours (5days) in order to take. This is to prevent property from going to 2 estates in a freak accident.
            120 hours does not apply if it would result in disseat.
           Half blood  the half blood siblings could take a whole.
           Illegitimate children - Neutral extension  the statue will say that the illegitimate child can inherit
            from either parent regardless of biology. (Adkins case)
                 WV was one of the early states to come up with the concept of equitable adoption  having
                     the child adopted into the home is in the best interest of the child, so if the court finds that the
                     release of the parents rights for the child is valid, then the child is legally adopted and has the
                     same rights as the rights of the biological children.
           Advancement  in old law, if you are a possible heir and are given gifts in your lifetime, this is
            considered an advance portion of the parent’s estate. It is something that you would have inherited if
            you didn’t take it now, so it will be subtracted at our death (money for college). NEW statute says = if
            you are given something during your lifetime it is seen as a gift and not as an advancement of your life,
            so it will not be subtracted from your inheritance.

                                   SECTION 6: LAND TRANSFERS
Selling/Buying Property (p. 559)
Frequently a person will try to sell their property on their own to avoid paying real estate commission: 6% for
personal property, 10% commercial property, and 10% for property in a remote part of town.
Advantages to having agents:
     Multiple Listing System: have many opportunities and avenues to get exactly what you want.
     Agent takes care of everything that you want as a buyer: explains advantages of community, schools, etc
     Agent will try to take out a blank form contract and have buyer sign it, but prudent purchaser will see a
        lawyer before signing (unfortunately most people don’t).
     Broker Agent licensing W.Va. 47-12-1 thru 23 (in WV you don’t have to take the course but do have
        to take the test).

               Agent: works for a broker
               Broker: represents the seller, not the buyer - higher license/has the firm and lots of experience
               Listing: agreement b/w seller and agent

  Seller for preparation of the deed and the documentary trsnfer tax. W.V. 59-1-10

  Buyer pays for the protection of their title…which means the recording. Pays for the credit examination,
  survey, and appraisal if necessary to get the loan. W.V. 11-21-1, 2

  Process for Buying/Selling property with an agent (creating a real estate listing contract):
     1. Agreement provides for a right to show the property for a fixed period of time
     2. agent negotiates between buyer and seller to arrive at a set price
     3. buyer signs a K and the K binds them until closing; buyer pays earnest money (deposit)
     4. Buyer seeks financial backing  banks will look to acquire 2 things:
              a. credit history – banks want to know that the person they are dealing with will pay their debts
              b. assurance on good title –
                        i. title search: banks go through chain of title for 60 years (most transactions involving oil,
                           gas and minerals were put into deeds that were over 60 years old, so the bank will have
                           to go back further in the chain of title) - if it is valuable property (commercial) it is very
                           expensive to do this title search, but should go back further than 60 years (even to the
                           original colonies) because of the value; OR
                       ii. title insurance: If you do not want to go back through 60 years and/or need quick
                           assurance, then you can purchase title insurance from a local insurance company that
                           will cover the title, if the title turns out to be defective.
              c. banks may do a physical inspection of the land to make sure it is good land
              **historically banks have been the lending institutions, but today people obtain loans from
              secondary markets (companies that buy loans from banks)
     5. Upon approval of financial institution, there is a closing (parties must sign again)– the real estate listing
         contract is VOID and becomes a deed or a title
              a. At closing, the papers exchange hands; signed and seller delivers deed to purchaser who pays the
                  rest of the purchase price.
              b. All other expenses are taken out of purchase price (i.e. commission to broker, transfer taxes)
               c. When does a real estate agent earn their commission? Earn commission when produce a
                    buyer that is willing, able, and signs a contract to buy (even if the buyer backs out later). The
                    fact that the contract is NOT consummated does not relieve the seller the obligation to pay the
      6.   Buyer must look up restrictive covenants – even if the restrictive covenants and/or zoning ordinances
           are not stated in the contract, these covenants are implied. If they find them, they can either get out of the
           K or they can negotiate for a lower price.
      7.   At the closing, the documents (deed and deed of trust) will be recorded/filed at the county clerks
               a. Note goes to the lender – obligation to be enforced.
      8.   After closing and after deed and deed of trust has been recorded, the attorney must give a certification
           which is the final step that shows that the transaction has taken place, documents have been recorded,
           and that the lien against the property is the 1st lien against the property.
      9.   When the closing is done, the seller moves out, there is equitable conversion (see notes below); buyer
           takes possession

              WEST VIRGINA TITLE WORK: In WV, attorneys do most of the title work. If not, then title
               insurance companies will be involved, but there is a constant struggle in whether a title insurance
               company can take over real estate for the purpose of law?

A contract for sale of house SHOULD include (p.565):
   1. All parties
   2. Description of the property or land including the specific location
   3. Price of property
   4. Improvements on the property, fixtures, exclusions
   5. Amount of Earnest Money – if the buyer defaults, the earnest money defaults as liquidated damages
   6. Closing Date (when title will transfer)
   7. When possession is granted (usually at closing)
   8. Deed
   9. Financing Condition—to be satisfactory to the buyer, must clearly state the monthly payments:
           How much was borrowed
           How much interest
           How long to pay it back (amortization not less than a certain # of years)
   10. Prorations (prop. taxes prorated from time of closing; K should set this out)
   11. Disclosure: Residential Prop. Disclosure Act
   12. Other Terms and Conditions (K should say that this is a legally binding K and that parties should seek legal
           a. Real estate transfers are ok without an attorney if:
      1. buyer knows of conflict of interest of real estate broker
      2. the parties know the risks of not having an attorney
    13. Modifications of contract – must be in writing
    14. Performance: “Time is of the essence” IMPORTANT!!! If you don’t include this statement, it means the
        date is not set in stone/not binding. Must know specific date of closing and transfer of possession. ALSO
        needs to address all remedies for breach of K (not just that earnest money will be forfeited).
    15. Inspections and Warranties
    16. Signature of both parties
    17. Statement of Law (Merger of Agreements): deed becomes controlling document; other documents intended
        to supersede language of the deed should state that “this survives the transfer of the deed.”

    NOTE: Standard Form Contracts will not meet the client’s needs in most situations. If a contract says “good
    title,” this is not enough. It must say “good title of record,” b/c otherwise adverse possession will be included.
    Title acquired by adverse possession is good title and marketable title. It is good practice to include with this
    “good title of record” because it means that you can establish from the records in the courthouse that this will
    be a good title.

A contract MUST include:
   1. parties and parties’ signatures
   2. detailed description of land
   3. price of property – could be a fair market value

Statute of Frauds (p. 573)
W. Va. 36-1-1— If you’re going to take, destroy, or consume the land or any part of the estate’s corpus for a term
over 5 years you need a deed or a will.
            o “corpus” (natural resources like coal, timber that can be removed, oil and gas, limestone, not a
                  crop of hay – land such as minerals)
            o MUST BE IN WRITING in form of deed or will.
W. Va. 36-1-3- K for the sale of land or leases for 1 year or less don’t need to be in writing. K for sale or leases for
over 1 year but less than 5 years must be in writing and signed by the party to be charged. Consideration does not
need to be set forth in the writing.
W. Va. 55-1-1: (common law statute): 2 exceptions to SOF
       1. part performance: (allows for the substitution of the writing – excuses the writing of the agreement, but
           doesn’t undermine the actual agreement.)
                 Part performance is a substitute for the writing, not for the agreement; the partial performance
                   requires the buyer to go into possession and to make a partial payment to the purchase price or
                   make an improvement to the land.
       2. Estoppel: is a substitution for the agreement. In order for estoppel to be granted, the party must have:
                 Knowledge
                 Reliance
                 Suffered a detriment
NOTE: altering a lease is ok if the wrong name is on the lease and if this error happened before the conveyance of
the property, then altering the lease is. Writing out the corrected information is ok, but whiting out is not. WHAT

Hickey v. Green, p. 575: While the court wanted to use equitable estoppel to award the house to the person who
(#2)relied on the oral agreement because the other party had (#1)knowledge, the court remanded the case to see if a
change of position occurred during the passage of time (#3: was there a detriment suffered?). This demonstrates the
3 requirements for estoppel. Payment of purchase price alone is not sufficient to constitute part performance; but,
payment plus taking possession of the property is, or where both parties intended the sale to be quick then down
payment plus buyer’s selling buyer’s original house to pay for new house is (Hickey’s case). Ms. Green was also
subject to suit if she had kept the Hickey’s check while not selling them the house.
Walker v. Ireton (p.579)  Even though there was heavy reliance and heavy detriment, there was NO equitable
estoppel because the sale of the farm was not made known to the seller, so the seller did not have (knowledge)
reason to know the buyer was relying on the sale.

  WV Case—Everett v. Brown: (1994) owner entered into broker agreement to expire on April 10; gave broker
   exclusive right to show house for 30 days. Agent showed in August, and this buyer wanted it. They had to
   spend time checking on a second title, and then Seller didn’t want to sell. The listing K had expired and Seller
   would not pay commission to agent. Agent sued.
           Ct held: there was an oral extension of listing K; agent entitled to commission when he gets a buyer
              who is able, willing, and ready to purchase, even if the seller refuses this particular buyer.
           Things to remember
                   If Seller comes to you before signing a listing agreement, make sure the agent will not earn
                       commission unless consummation.
                   If Seller has brought in potential buyers (before signing with agent), you should list them by
                       name in the K with the agent and say that agent should not get commission if any of them
                       buy the property (seller doesn’t have to pay the commission if the buyer found the house
                       through other listings or seller’s personal efforts-may seller also try to bring in buyers
NOTE: Recently, some courts have held that the commission is not paid until the contract is consummated…. This
would be adopted by WV if the right facts were presented, but WV has not decided a case like this.

Marketable Title
       Title that a reasonable person, knowing the law and facts, would be willing to purchase for fair market
          value. (does not require a perfect title, just a reasonable title)
              o marketable title requires a reasonable title because it is hard to find some land that does not
                   have a problem (perfect) (practical solution in balancing between a workable system and a
                   reasonably financial system)

Lohmeyer v. Bower (p.580): A title is doubtful if it exposes a buyer to the hazards of litigation. The violation of
valid restrictions--not the existence of restrictions--renders a titled unmerchantable. A buyer may not rescind a K to
purchase land where the encumbrance on the title is the result of a municipal ordinance (don’t build w/in 3 ft of
prop. line) because buyer is expected to know the law. (C/A most citizens are unaware of the municipal ordinances
in their city, though.) A buyer may ordinarily rescind a K based on the existence of private covenants (2-story
house) (C/A one could argue that a buyer would be put on notice as to the private covenants if visual like all houses
excepts hers are 2-stories and that a buyer has the duty to inform herself), but in L v. B the buyer agreed to accept
private covenants.

Restrictive covenant  encumbrance on the deed itself (i.e. house must be 2 stories), buyer is likely to be put on
notice of a violation because house she’s about to buy differs from others.
Zoning ordinance  a restriction made by the city for certain land, not made by the developers (i.e. no students
allowed in this neighborhood); people are presumed to know what the law is and therefore it may affect the use of
property. The buyer should ensure there is no violation before entering into a contract.
**You can still have good title with restrictive covenant or a zoning ordinance, but if there is a violation of either of
these statutes, then the land may become unmarketable. Marketable title is title free from reasonable problems of
law or fact and thus avoids the hazards of litigation.

Conklin v. Davi (p.584)
Discussion: The rule in essence says that if a party takes title to property, they should know what kind of title they
are getting: perfect is the higher standard than marketable. Title acquired by adverse possession is a marketable
title. You can phrase wording in a contract to make sure the client gets good title, just add “OF RECORD” (this
excludes adverse possession).
     o FINAL EXAM: In a K, if the buyer is seeking a marketable or insurable property, then adverse possession
         is ok. However, if the K states a title “of record” then adverse possession must be obtained by quiet title
         and adequate service of process (means that adverse possession is a “title of record”).
     o When a prospective seller's title is grounded upon adverse possession, or contains some apparent flaw of
         record, they can take steps to perfect the record title (quiet title, cancel outstanding encumbrances, or
         convince the buyer that land was acquired by adverse possession), or if it is marketable but not perfect, may
         choose to sell the land on the open market. This second standard is only available where the K of sale does
         not require the vendor to give a title valid of record, but provides for a less stringent requirement, such as
         marketability or insurability.
     o Plaintiffs can sue adverse possessor 1 time each and as long as each plaintiff is different, the court will look
         at all the elements of adverse possession before they grant specific performance.

WV Case—Malone v. Shaffer (1987): Ct held that when a deed does not contain the provision “time is of the
essence,” then it is not implied. It will just be gauged by a “reasonable period of time.” If you have a K in which the
words “time of the essence” is not included, then the dates of that contract are an estimation and the court will hold
that parties must comply within a reasonable period of time (even with specific date in the K.)
      Even though a 2nd buyer comes along who would pay more, the court uses specific performance to force the
       sale of the contract to first buyer.

WV Case—Manning v. Bleifus (1980): Ct held that if a K does not express “subject to financing” clause, it is not
implied and Buyer is expected to take. If it is put in, there is a reasonable duty to make a reasonable effort for Buyer
to obtain financing. Court said that applying to only 1 lending institution was not a “reasonable effort.” If you have
this “subject to financing” clause, it must show:
                      How much was borrowed
                      How much interest
                      Time to pay back

Equitable Conversion:
Equitable conversion says that after signing a K, the buyer becomes the equitable owner and even though the buyer
does not have possession, he still bears the burden of loss or damage to the property. Between the time of closing
and the buyers possession, the seller continues to maintain insurance since he already has insurance. But because
the buyer has now assumed the risk of loss, some buyers will also get insurance to the land prior to actual
possession. (even though no possession, you are the equitable owner)
           o   WV—After K is signed, absent a provision that specifically addresses where the loss will fall,
               in equity the Buyer is owner of prop. and to her/him the risk of loss falls.
           o   Two exceptions to applying equitable conversion:
                   1. Payment of property taxes (whoever is in possession of title is obligated to pay taxes)
                   2. Payment of rent (one in possession collects rent) – rent is viewed as being due for the entire
                       time period… rent is not apportioned.
                             a. Ex: Property is rented and rent paid on quarterly basis. Jan. 1: rent period. Then K
                                  is signed before April 1 (when next payment is due). Deed is delivered after April
                                  1. New Buyer takes over on July 1. Who gets the rent for Jan – April? Seller b/c
                                  rent goes to person in possession, and no deed, no possession.
                             b. **Rent accrues on the first day of the period when it is due (in the case above, Jan
                             c. Make sure rent is prorated or Buyer may lose rent $.
                     It is very common in form Ks to shift equitable conversion to say Seller will be responsible
                       until date of closing.
                     The K for buy and sell should address these issues!!

Does an option to purchase apply to Equitable Conversion? NO
  1. WV Case—Tate v. Wood: (1982) Ct held option to purchase was not a sale exception to equitable
      conversion. The seller may not get damages for the loss occurring while the option is being held open.
  2. WV Case—Filiatreau v. AllState Insurance: (1987) Ct held that equitable title gives equitable interest
      insuring against fire loss; insurable interest when you become a party to a K. Equitable title is an insurable
      interest, so both the seller and the buyer can have insurance to protect themselves, but they both won’t be
      able to collect the entire amount of the loss.
  3. WV Case—Bryant v. Wilson Real Estate: (1986) Waterline broke in a building and P wanted the seller to
      either fix the property or to rescind the K. Seller refused and sold property to a 3rd party for cheaper. Ct held
      that language in the deed that said “owner is responsible until deed is delivered” was enough to put the
      burden on the seller; purchaser could sue for specific performance or subtract damage from purchase price
      (b/c would have to pay for the damages if seller didn’t). If the damages are substantial, the court will
      terminate the K and force the seller to return the purchase price/earnest money. (Cts trying to prevent unjust
      enrichment). Equitable conversion does not apply to this case.
             A good K will include who they want to be liable for loss during the transfer period. WV adopts
                 the majority in that the buyer is usually liable, unless stated otherwise.

Duty to Disclose
Stambovsky v. Ackley (ghost house) (p.590) — Court adheres to Caveat Emptor and imposes no duty upon the
vendor to disclose, unless there is a fiduciary relationship, or some conduct on the part of the seller which
constitutes active concealment. The home's reputation could not be ascertained upon reasonable inspection of the
premises. Where a condition which has been created by the seller materially impairs the value of the contract and is
peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due
care (such as a ghost), nondisclosure constitutes a basis for rescission as a matter of equity.
     A latent defect known to the seller (particularly one the seller created) must be disclosed to the buyer if the
       buyer could not discover it with due diligence (i.e. buyer is from out of tow and hasn’t heard of house’s
       reputation, so even after inspection buyer would not know of defect).
     4 exceptions to Caveat Emptor (don’t usually have to disclose unless):
                                 1. confidential relationship
                                 2. fiduciary relationship
                                 3. active concealment/affirmative misrepresentation
                                 4. partial disclosure

WV Case—Thacker v. Tyree: Seller also built the home and it had a foundation problem.
   Sup Ct said that where the vendor is aware of material defects for conditions which substantially affect prop.,
    and are unknown or would not be disclosed by reasonably diligent inspection, even if sold “as is” there is a
    duty to disclose.
   **Caveat emptor no longer legal relationship recognized in West Virginia.
Johnson v. Davis (p.595) - PL entered into a contract to purchase D home, and gave 10% down. D knew the roof
leaked, but affirmatively represented (misfeasance) to the P there were no problems with the roof. Usually there is
no liability for nonfeasance in tort law where the seller does not disclose, but here the court held that when a D
knows of a fact materially affecting the value of the property which was not readily observable or known to the
buyer, the seller is concealing a material fact and the P can recover.
              o Misfeasance: action
              o Nonfeasance: not doing something/misrepresenting
NOTE: Today the law is moving towards full disclosure of material facts because parties should not be able to hide
behind caveat emptor and take advantage of one’s ignorance.

What must you disclose (these are all being litigated in courts right now on whether these are material)?
   Defects in workmanship of house
   What is off of the premises, like noisy neighbors?
         California case says yes; reduction in damages if neighbor abided by injunction to keep noise down
   Someone who lived in the house had AIDS, etc.
         No stigma statutes in WV that so you do not have to disclose
   Sex offenders
         Only if the seller knows and the buyer asks is buyer informed, (when a sex offender moves into the
            neighborhood, though, neighbors are informed)
   Hazardous Waste
         A person who typically buys property is putting at risk the purchase price. The risk you expose
            yourself too can be expensive, but hazardous waste is an exception to the risk if you were a good
            faith purchaser.
         You should investigate more before you purchase land that was used as a gas station, oil field, etc.
         Most states will probably say disclose if on site
   Innocent Purchaser—Does Buyer have duty to make certain inquiries?
         Yes, if they are reasonable inquiries that a reasonable person would make.
   Broker’s Duty to Disclose
         WV Case—Lingyel v. Lint (1981): Facts were not sufficient but Sup Ct hinted that an agent may be
            held liable for withholding or misleading buyer.
         WV Case—Chamberlain v. (1987): Sup Ct held for buyer b/c agent assured buyer the roof had been
            fixed and it started leaking. A: Did buyer know about condition of the roof?
         WV Case—Teter v. Old Colony Co.. (1994): For 12 years before this, hint that there would be
            liability on the agent. Sup Ct said that vendor’s broker may be liable to purchaser if there is material
            representation with regards to habitually. If broker is aware or reasonably should be aware, must
                 o P must show that misrepresentation was substantial factor in inducing buyer to buy.
                 o Ct declines to hold that agent has a duty to do independent inspection to uncover latent
                      defects in residential prop.
                 o Real estate agents and brokers have the duty to disclose.

  o Legal principle that after the deed is delivered, provisions of K no longer have continuing contractual role
      b/w Buyer and Seller and thus the K can’t be sued on.
  o Delivery of deed is final goal; K loses importance as legal document
  o Implied Warranty of Marketable Title:
         Once deed is delivered, no longer under this benefit
         Only those warranties expressly stated in deed are in effect, as opposed to the K where warranties
            and covenants are implied
         Quit-claim deed: no warranty
  o Sometimes Ks will say “This will continue to bind after deed is delivered.” Is provision valid?

Lempke v. Dagenais (p.602): Caving in roof because of bad construction job. Court held that privity is no longer a
requirement for implied warranties of good workmanship and the implied warranty can now be extended to
subsequent purchases within a reasonable period of time, for latent defects that cause economic loss (which differs
from tort law which holds no recovery on pure economic loss). Privity is not required because:
    o Latent defects will not manifest themselves for a considerable period of time after the house has been sold
        to a subsequent unsuspecting buyer (defects injure both the 1st and the 2nd buyer in the same or worse
    o Society is changing and an ordinary buyer is not in a position to discover hidden defects (i.e. fewer people
        take on manual labor jobs, construction, etc.).
    o Subsequent purchaser has little opportunity to inspect (i.e. people buy houses from across the country) and
        little experience and knowledge about construction.
    o The builder is obliged to construct the home in a workmanlike manner and the extension to a subsequent
        purchaser will not take him by surprise.
    o Inserting a first purchaser as to bar recovery might encourage "sham first sales so as to insulate builders
        from liability" (Builder makes a fake first sale and then sells to an innocent who gets hurt.)
    o Even though the UCC applies to goods and not to real estate, the court finds that real estate should also
        have the “reasonable time” element.

Privity between subsequent purchasers: If Buyer 1 sells to Buyer 2, Buyer 2 is still protected by work Builder
did for Buyer 1.
  o     Innocent Buyer should not be out of luck for latent defects included here.
  o     Builder held responsible for “reasonable amount of time”
               FINAL EXAM: WV Case—Gambel v. Mane (1983): Slippage problem with soil. Sup Ct held
                   that even where there is an implied warranty, it is does not extend to soil conditions that builder is
                   unaware of and could not have discovered by exercise of reasonable care. There is an implied
                   warranty of fitness of marketability that the property be fit for its intended use, but this fitness of
                   habitability does not extend to soil. So buyer gets damages? Rescind K?
                      What is economic loss?
                            o The cost to repair or replace. The usual damage award would be to get the property
                                that you bought without the defect.
               WV Case—Sewell v. Gregory (1988): Someone other than the original buyer has the right to sue
                   for breach of warranty of habitability and fitness if a latent defect existed and was not discovered
                   by Buyer 2, and became manifest only after the purchase (otherwise it would have brought down
                   the purchase price).
               What is a reasonable period of time  W.Va. Code 55-2-6(a): 10 year SOL and it has been
                   determined that this is a statute of repose (subsequent purchasers have 10 years from the time the
                   latent defect was put into the prop. to sue for recovery of economic loss - discovery rule does not
                   apply to latent defects in real estate in WV).
               If Buyer is aware of the restrictions, do they waive the right to protest marketability?


   o Deed started with written records of land in feudal times, dealt with delivery of seisin (heir of effeffer)
   o Statute of Uses: could transfer with written document without delivery of seisin; bargain and sale
   o Statute of Frauds: must be in writing.
   o Deeds were relatively long
   o Legislatures began passing short form of deeds
           W.Va. Code 36-3-5: short form of deed. Sufficient requirements to transfer title, Must have:
                   Date: have 3 different dates (1. the date of the actual day of the deed, 2.?, 3.? )
                   Parties: between the grantor and the grantee
                   Consideration: consideration is not required to disclose in the deed, but there is a
                      presumption that the person is a bonified purchaser so you should put consideration in
                   Description of property: must give an exact on the ground measurement of the land.
                      Declaration of value is required in WV because this would encourage honesty.
                            o Include the phrase “being grantors herein”: beneficial to title work, but not
                            o In conflicting descriptions, the rules of construction give the priority starting with
                                what you can see (Order of importance when describing property):
                                      Natural Monuments (trees);
                                      Artificial Monuments (iron pins, bridge);
                                      reference to Adjacent Boundaries (bordered on south by Sally Smith, etc);
                                      Directions (NW, SE);
                                      Distances (feet, yard);
                                      Area (number of acres);
                                      Name (of the property which it is known to the community)
                   Covenants or other provisions
                            o There are no implied warranties in deeds.
                            o W.Va. Code 36-3-6: Necessity of Consideration in Real property
                            o W. Va. Code 36-3-10: You transfer everything (buildings, improvements, right
                                of ways, etc.) unless you say you are not transferring.
Types of Deeds
            o   Quit-claim: Grantor saying “I am not telling you that I own anything, but if I do, I am transferring
                it.” Deed which has no warranty – if I own anything, I am transferring it to you, I am not giving
                any representations for owning this. This deed can correct the descriptions of other deeds… but
                you cannot sue on the quit claim deed because there is NO warranty. If you take a deed from the
                federal government, it is a quit claim deed.
            o   Special Warranty Deed: Seller claims responsibility for time that he owned the prop. for anything
                that may have adversely affected the prop. I will take responsibility for only what happen to land
                when I was an owner.
            o   General Warranty Deed: Greatest amount of assurance. Seller accepts responsibility for anything
                that happens before and during grantor’s possession. Seller of property is taking responsibility of
                the land before they became owners.
            o   Make sure to address:
                      In WV—Declaration of Value not required. It is common to find actual selling price (most
                       time, this equals value).
                      Put in deed how prop. was assessed to reduce number of mistakes.
                      Signature line of grantor: Statute of Frauds requires this, but no requirement that grantee
                       signs, just grantor but make sure it is ALL grantors.
                      Acknowledgement: designed to minimize forgery, but not necessary for the deed to be
                       delivered. It is necessary however, for a deed to be recorded, and you must record to protect
                              a. WV CASE: Ihrig v. Ihrig: what do you do if the person has not gone through the
                                  statutory requirement to become a notary, but has created the acknowledgement?
                                        The acknowledgment is defective because it is not recordable and therefore
                                         it does not give notice.
                              b. WV CASE: Gallow v. Gallow: if the person who prepares the acknowledgment is
                                  the also the person who is interested in the deed of trust, then that
                                  acknowledgement is defective (because it doesn’t give people notice or because
                                  there’s room for fraud?). But the mere fact that the acknowledgement was invalid
                                  doesn’t mean that the conveyance is invalid.
                              c. WV CASE: Williams v. Morris: a person who was a notary in Maryland, took the
                                  acknowledgement of this trust, acted as if they were the notary of WV. Case by
                                  case determination on whether the acknowledgement was valid and created a
                                  constructive notice when there’s a problem w/ notary. (latent defect or obvious
                                        W. Va. Code 39-1-2a: Individual preparing the deed must sign it.
                              d. WV Cases—Meadow River Lumber Co together with Meade v. Stalnaker: Show
                                  that a valid deed must have sufficiently clear description; you must be able to go
                                  and see and know what is exactly conveyed. You cannot arbitrarily select a
                                  beginning point when doing a survey (surveys must have a close).

IN WV a good Property Attorney should:
 Specificity/survey:
      Identify the beginning point of survey with precise directions
               But if you say “I convey ALL the land I owe”, then this is a sufficient description of the land.
               A lot number in a particular city is a sufficient description of the land.
      Make sure the survey has a close or that it says “go back to the beginning”.
 Affix a seal or putting a signature would meet the requirement, if you had the word “seal” after the signature
   line (in the past affixing a seal was seen as the best and only way to properly convey the land).
      W.Va. 36-3-1: A seal is not necessary in a deed in WV for any estate (abolished the necessity of a seal).

Void vs. voidable (applicable to personal property as well):
     Void: transfer of title is no good - forgery makes title invalid; forgery does not transfer owner’s property,
       via deed. However, if I con you out of your property and get you to sign a deed to me, then the court will
       say it is a voidable title (I intended to sell the title to you, but I was defrauded in the reason for selling it to
                You can still gain title through adverse possession though, even if the deed is forged.
      Voidable: intend to sell/buy title, but I was defrauded - if title in the hands of someone who knows deed
       was forged: the holder has the ability to set aside title before it reaches the hand of the good faith purchaser.
                Ex: Seller tricks purchaser; Purchaser sells to someone else; purchaser is protected in sale to
                    someone else if he never knew it was forged. When a GFP sells voidable title, is title good from
                    here on?

There are no implied covenants of a deed, only those that are expressed.
Present: making a representation as to something that is true at the time the deed is delivered. If warranty will be
breached, it will be breached at the time of conveyance.
          Covenant of seisin – establishes that I am the owner of what I purport to be and I can sell this; I have a
          Right to convey – even though I am not the owner, I can still sell the property. For example, I have the
             power of the attorney.
          Encumberance - lien, mortgage, easements (right of way); restrictions on the use – each of these make
             a representation of a fact that exists at that time. A person either has the right to convey or doesn’t have
             the right to convey.
         ON the exam, ask yourself:
                 is this person the owner or not?
                 does this person have the right to convey?
                 is the property subject to encumberances or not?
            The answer to these questions are representation that something is true at the moment the deed is
               delivered, so a violated covenant is breached when the deed is handed over.
Future: May be breached at sometime in the future; assurance that you will not be disturbed in possession (ex:
general warranty, warranty of quiet enjoyment, warranty of future assurances—most common, I will cooperate if
issue of ownership comes up in the future).
             o Covenant of general warranty - you will not be disturbed of your possession by a lawful claim
             o Warranty of quiet enjoyment - a person will not disturb your enjoyment of the property by a
                  superior title who can oust you
             o Covenant of future assurances - seller will cooperate in the future by giving additional
                  documents if necessary or required. There may be a problem with the description of the land. When
                  a quit claim deed is used to correct a deed (i.e. parties name, description of land), the grantee
                  doesn’t lose the original warranties.

Brown v. Lober (exec for Bost) p. 617: Owner conveyed land to Bost, who conveyed to Brown. Brown then
entered into a K with Consolidated Coal to extract minerals. But then Browns found that the Bosts had only owned
1/3 mineral rights, so the Cons Coal K had to be re-written. The Browns sued for breach of warranty and alleged
constructive eviction.
     o Ct held that this was not constructive eviction b/c the Browns never tried to extract the minerals
          themselves. They should have had a title search done when they bought from Bosts.
     o Rule: In order for a covenant to be breached by ouster or “disturbance of quiet enjoyment,” Browns would
          have had to possess the mineral rights by trying to extract themselves.
     o General warranty: You will not be disturbed in your possession. Mere existence of a superior title is not

WV Case: Booker T Washington: City of Huntington conveys what they think is a fee simple to Urban R.
Authority, who then conveys fee simple to Booker. Booker then sees that it is only a life estate and has a problem
selling what Booker has turned into a residential prop. URA claims breach of general warranty. Within this case,
the court talks about the Brewster v. Hines case which recognized a constructive eviction. The court in Brewster
determined that there was an outstanding ownership in the property that has not been asserted (meaning a lesser
estate than they thought they had). This is like a superior claim of ownership that has not been asserted (you think
you have the entire interest, but you may only actually own 2/3 mineral estate– Brown).
             o The outstanding remainder interest here is basically a superior title in the sense that the person
                  doesn’t have a fee simple and if you don’t have a fee simple, no one will buy the land, thus
                  constituting a superior title (when the life estate expires, the remainderman would be able to come
                  in and ouster a purchaser out of possession = this is a constructive eviction and is a violation of a
                  general warranty deed).
              o Right to enjoyment is also the right to sell – Booker (who bought in good faith) could not sell that
                    property which violated its right to enjoy.
      o Ct held that the mere existence of an outstanding title is enough for constructive eviction (using
      o WV has departed from CL doctrine by expanding the scope of general warranty beyond its
          historical limits, but we are not sure how far this will go.
      o Automatic transfer used by an “estoppel by deed”  if a person gives a warranty deed in which they
          purport to transfer something that they don’t, the grantor is estopped from asserting that the deed did not
          purport to convey what they thought. If, in the future, grantor gets what she earlier purported to convey,
          the ct. will force her to give it to whom she lied to/who thought they already had it.
WV recognizes a constructive ouster in at least 2 cases (Brewster and Booker)

Frimberger v. Anzellotti (p. 620): Someone has constructed a bulkhead that is in violation of a statute b/c it
extends over a protected swampland area. Ct held that a latent defect like this one does not constitute breach of
general warranty.
            o Latent defects which are present at the time of conveyance are not considered encumberances as
                defined by a general warranty deed because you can recover for them in other areas (i.e. economic
                loss, etc)
                    o Encumberance – 3rd parties have some sort of interest in the land which decreases the value
                         of the land, but consistent with the passing of the fee by the conveyance. 3 categories:
                               Mortgages/ liens, assessments
                               Interests in property less than a fee (leases, life estates and dower rights)
                               Easements (restrictive covenants, right away for paths or electricity lines, profits)
            o This case seems at odds with Lohmeyer, which held that a violation of a public ordinance
                constituted unmarketable title.
            o Distinguish the two: Unmarketable title is not the same as encumbrance on warranty; the former
                occurs before the conveyance, and the latter occurs after the transaction. Get damages on both?
            o The party who had purchased this property was an attorney experienced with this type of law and
                was aware of this general possibility (which made it easier for the court to decide for the
                defendants). Certain types of land use regulations that are not found in the courthouse are outside
                the warranty of encumbrances. These can be dealt with contractually, so if parties wanted
                protection against these, they should put it in their contract
Damages for Breach of Warranty:
   Covenant of seisin—what Seller received in sale of prop. that Buyer did not receive when he tried to sell
     to someone else; proportion amount of purchase price.
   Covenant against encumbrances—depends on nature of encumbrance:
             o Removable (i.e., mortgage): Damages = the money necessary to remove the encumbrance
             o Not removable (i.e., right of way): Damages = value of prop. absent encumbrance different
                 between fair market value with and without the encumbrance.
             o **Damage cannot exceed that which the grantor receives when selling prop.**

Rockafellor v. Gray (p. 626): C conveys to D; D conveys to H&G. H&G sue C for breach of covenant of seisin.
Can they do this? Ct held that H&G can sue C b/c C and D had never really occupied the land or possessed it. Since
neither had seisin and therefore neither one had a good title, there was no possession in C or D. The person who
first breaches conveyance of seisin is liable to all subsequent purchasers, but those subsequent purchases can only
recover the amount up to the 1st good conveyance, even if the subsequent purchaser paid more.
   o If there is a foreclosure without notice, then the foreclosure is null and void and the subsequent conveyance
        is a breach of covenant of siesn and that person who breached seisn will end up paying the original purchase
        price to the subsequent owner (and the land goes back to the person who had it taken from them –
   o Eventhough H & G might have had the land through adverse possession, the prior owners never had
        possession of the land, so the SOL began to re-run at the beginning of each new ownership, thus not
        fulfilling the 10 year SOL period required for adverse possession. No tacking when cov of seisin is
   o Possession is not required to establish covenant of seisin in fact. Seisin runs with the land to protect against
        the deprivation of title and enjoyment of the lands conveyed. It is illogical to require possession in order to
        establish a cause of action, based on the above assignability of the chose in action rights.
   o The right to sue is assigned to future grantees and the right to sue is a chose in action.
   o H & G can sue on assignment (from D) and because they relied on the $4000, they cannot bring in parol
        evidence that another amount was paid, so they can’t receive a greater amount.
   Can a remote grantee sue for breach of present convenant by original owner, or previous owner?
        o WV Answers this question in 36-4-16: Each present covenant (as well as seisin) when used in
             conveyance, shall be considered “running with the land” unless there is a contrary intent. This applies
             whether the owner was in possession or not. WV is the same as the Rockefellor case.

Estoppel by Deed (p.632)
       o If A conveys to B, but O is the owner, and then O conveys to A, under estoppel by deed, the title A
           acquires transfers to B. (general warranties are also conveyed-who’s the grantor resp. for damage
               o BUT if A conveys quit claim to B, but does not actually own the property, and O owns
                   property and conveys to A, A can then take the property back from B because B has no
                   warranties or protection against the land.
                         NOTE: The only reason people accept quit claim deeds are because they are lay
                            people who are not informed of the law or they already have a general warranty deed
                            and they are just trying to remedy a problem with the deed.
       o WV Case: Johnson v. Terry: Ct held that a warrantor (A) is estopped from asserting any title he may
           acquire subsequent to his conveyance. In other words, he cannot convey to B and then when O conveys
           to A, A cannot take title for himself. So WV makes it clear that the estopel by deed applies ONLY if
           the deed contains a warranty or representation of the deed of title (i.e. no quit claim).
               o If you make a statement that says “you can purchase anything I have” then estoppel by deed is
        o   WV Case: Sommerville v. White: a conveyance without warranty cuts off another assertion of title that
            the grantor claims to have had. Ex: If A conveys a quitclaim deed to B, estoppel by deed is not
                o Estoppel is automatic when O conveys to A above.

Delivery of Deed
Required in order for deed to become operative: Usually associated with physical transfer, but sometimes intent
comes in.
    o What is the mental state of the grantor in transferring the document?
    o It is possible to have a legal delivery without physical handing over of the deed?
    o We can only determine intentions by actions and words. Manual handing over is important here.

Sweeney v. Sweeney (p. 633): Delivery requires the intent to pass title and for the grantor to lose possession of
title. A conditional delivery can only be made by placing the deed in the hands of a 3rd person who keeps deed
until the condition is met. Therefore conveying your land to yourself and to a 3rd person (i.e. writing both names on
envelope) does not show the intent to transfer title and possession, rather looks like a will (that has other law so
conveyance of deed will be invalid).
          o If the grantor gives a deed to a 3rd party though grantor retains the option of rescinding and taking deed
             back, or maintains prop’s full possession, then the court will construe this deed as an attempt to make a
             will and avoid probate tax. This deed will be considered to be invalid. However if the grantor gives the
             deed to a 3rd person and gives up all rights to take the deed back, then this is a valid transfer of the deed
             and then the grantee can take it at any time.
                 o For example: A and M go to an attorney. A says to attorney “upon my death, I want this deed
                      to go to M.” A hands the deed to M and then M hands the deed to the attorney. However, the
                      attorney puts the deed in an envelope and marks it with “Mr. M and Ms. A.” And since at
                      anytime A could go and request the envelope, delivery of the deed was invalid. (Rosengrant
WV Case—Heck v. Morgan: Ct held that a deed cannot be delivered in escrow (with a condition) to the
grantee. Delivery to grantee will be treated as absolute delivery. WV is in agreement with the Sweeny case.
               o 91 W. Va. L. Rev. 685: WV will presume delivery from a deed signed, recorded, and
                    acknowledged, regardless of whether the grantee had it in his/her possession.

WV Case: Gauterly v. Duess: Deed was delivered to a third party, to be delivered to grantee upon grantor’s death.
It was delivered after grantor died, and when the lawyer opened the package, the deed said property goes to
daughter, not wife. Wife claimed the deed was hers. Ct held that delivery depends upon intent.
       o Grantor can’t revoke after giving it to a 3rd party and the present interest is created when the instructions
           are to remain with the 3rd party. This is a valid delivery and creates a present interest (life estate even
           though the 3rd party is holding it until the death of the grantor) in the name which is written down (here
           the daughter)
       o Rule: If, when the delivery is made, you surrender your ability to revoke, you have made a valid
           delivery. If not, no valid delivery.

      o Mortgages – security and interest in land; even though you are passed due on the interest paid, the court
          will still admit the interest and balance to be paid and nullify a conveyance (prevent a windfall).

    1. Promissory Note (p. 168 handout)
           a. Individual will pay the promissory note  the IOU and will set forth how much money the person
               borrowed and the interest rate, period of time over which it is extended, etc.
           b. This note should also include a prepayment and the acceleration provision (if a person defaults
               on the loan, then the lender can collect amount due and interest)
                     i. Without the acceleration provision, the lender can only collect on past due installments
                        (malpractice if do not include this provision)
           c. This note is kept by the lender, not recorded
           d. If a note is prepared so it may be transferred, then it is a negotiable instrument (can be transferred
               like money)
    2. Deed of trust: security instrument
           a. statement that lender is owed money and deed of trust against prop.
           b. borrower of the money giving to the 3rd person, the power of sale just in case there is a default –
               obligations; in the event there is a default and there is an acceleration provision, then the lender
               sends notification to the borrower and demand the full amount and then the 3rd person (trustee) will
               also be notified that there was a default and the land must be sold at an auction.
                     i. Then the land is sold at a foreclosure sale (auction)
           c. Used in WV as an alternative to mortgage, a person may put more than one deed of trust on a
    3. Sign a deed of trust and promissory note; then the court has a lien and you have the equity.
    4. Equity: difference between the cost of the house and the mortgage left to pay
           a. Home Equity Loan: loan against the equity in a house; another deed of trust and another
               promissory note to secure that 2nd particular debt (this will have a higher interest rate because the
               risk is higher since you have 2 deeds of trust, and a current market value of the property).
           b. The 2nd deed of trust only has that amount as their security. No other lenders can jump ahead of the
               1st lender (deed of trust).
           c. used as collateral to a loan
    5. Financing of Property
           a. Go to bank; credit report is done
           b. Lender gives letter of commitment, saying they will have first lien on the property
           c. Appraiser comes and gives value of house
           d. Title search on house
           e. Buyer will sign a promissory note AND a deed of trust (in WV)
           f. Loan is paid over a period of time (amorization)
      g. Some may have acceleration clause: in the instance of default, lender can say he wants entire
          balance up front.
      h. Some may have a pre-payment clause: gives borrower option of paying back in advance of the due
      i. a lender can sell a loan  the transfer of a note should be recorded so the records will show who
          actually owns the debt; assignment should be filed so the borrower knows who to pay back and
          receive borrower’s release from. Recording and filing is very important because many years and
          purchasers down the line, a purchaser needs to know who to pay and how to get the release.
6. Foreclosure
      a. At CL, mortgage was a conveyance with a defeasance clause (A to B so long as B makes
          payments, but B could have paid for a period of time after the due date.
      b. Now, for equity purposes, a new drop dead date is set to give fairness to lender: “foreclosure of
          right of redemption”
7. Foreclosure by Sale
      a. Lender will get a deed from the court and the deed will go to a buyer at an auction.
      b. Deficiency Judgment: Difference between what is realized at first conveyance between A and B,
          and what is collected at the auction. Buyer is still liable for all the money that A would have
                i. Anti-deficiency statutes say to the lender: you can’t collect def judgment against borrower
8. Mortgage Theories
      a. Title Theory: Mortgage is a change in title from mortgagor to mortgagee.
      b. Lien Theory: Mortgage is a lien on the prop. conveyed until foreclosure; no title exchange (WV
          sees a mortgage as a lien theory – majority of jurisdictions)
      c. CL disadvantage: required judicial foreclosure to sell prop. (more costly procedure, much more
          harsh b/c a day-late payment is too late)
      d. Idea of deed of trust arose b/c of this; Cts took minimal involvement
      e. Buyer creates “power of attorney” relationship with lender: You are authorized to sell if I don’t

FINAL EXAM: Example of Mortgages: Fair Market Value of land: $200,000
                            Mortgage 1: $140,000
                                   o Equity 1: $60,000
                            Mortgage 2: $25,000
                                   o Equity 2: $35,000
                            Mortgage 3: $20,000
                                   o Equity 3: $15,000
                            Mortgage 4: $5,000
                                   o Equity 4: $10,000
   Questions for the example:
          1. If there was a foreclosure on M1, then the maximum amount you would want to pay is
              $200,000; the minimum to pay could be $1, but the court would probably hold this is an
              insufficient amount and a reasonable amount would be 1/5 of the FMV. If the purchaser pays
              anything under $140,000, the mortgage company will seek a deficiency judgment against the
              original owner for the difference in price.
          2. If there was a foreclosure on M2, then the maximum amount you would want to pay is $60,000
              (because you will still have to pay back the $140,000 of M1); the minimum should be more
              than a reasonable amount which does not screw the original buyer since he will already be
              paying the deficiency judgments on M2, M3, and M4 (court wants to prevent unjust
              enrichment on behalf of the buyer)
          3. If there is a foreclosure on M3, then the maximum amount you would want to pay is $35,000;
              the minimum to pay could be $1, and the court may uphold this because the buyer also will
              need to pay deficiency judgments of M1 and M2 which will already be $165,000 which may be
              seen as a reasonable amount for this land.
          4. If there is a foreclosure on M4, then the maximum amount you would want to pay is $15,000;
              the minimum to pay could also be $1 because the buyer will be taking on M1, M2, and M3
              which he will still need to pay $185,000 for this $200,000 piece of land. The court may find
              this as a reasonable purchase price.
    Mortgage Rules:
          1. If you are purchasing at a foreclosure sale at a junior mortgage, you should not be willing to
              pay more than the FMV- all the senior mortgages. You check this number by looking at the
              equity at the next senior mortgage (all the mortgages above where there is a foreclosure – i.e.
              foreclosure at M3, $200,000 - $140,000 (MI) - $25,000 (M2) = $35,000 which is the same as
              the equity 2. So you would only want to pay $35,000 for this land.
          2. A bidder can bid $1 for the land at a foreclosure sale, but they run the risk that the court will
              rule this as an unreasonable price for the land and therefore will not be valid, so as a bidder,
              you would want to bid a reasonable amount that would be reasonably fair to the original owner
              and yourself.
                      a. The lower down the mortgages the foreclosure sale takes place, the lesser amount
                          you can bid because you are taking on all the additional superior mortgages. So the
                          court may accept a $1 bid.
          3. Any purchase price or bid that wins at the foreclosure sale that is in excess of the mortgage
              being foreclosed, is returned to the original owners, minus all the deficiencies beneath (other
              mortgages not paid – deficiencies could be 100% or a portion of the actual mortgage)
          4. Courts want the bidder to pay at a reasonable % of the mortgage that is being foreclosed
              because they know the original owner is going to lose his equity in the house, have to pay back
              the junior mortgages (underneath the mortgages), and pay the additional % on the foreclosed
          5. If the bidder bids the max bid at the foreclosure, the owner will not lose his end equity (even
              after he pays on the lower mortgages).
          6. If you are an owner of the land, you want to consolidate your mortgages before foreclosure
              so you can only lose up to the equity of your land (decreases the buyer’s profit on land).
              However, if you do not consolidate your mortgages, you could end up losing your equity (here
              $10,000) and paying more than you originally owed (in deficiency judgments).
                      a. Using the example above: Foreclosure sale at M3 and purchaser buys for $5000, and
                          deficiency judgment against orginal owner for the additional $15,000 on M3 and the
                          $5000 on M4 and loses his equity (owner took out a $190,000 loan and because the
                          bid was so low, now needs to pay back $220,000).
                              i. However, if these mortgages were consolidated, then the max bid would
                                  probably be $10,000 because he would still have to pay the $190,000 in the
                                  mortgages (seller keeps her equity pf $10,000) and the minimum could be $1
                                  in which case the original owner could ONLY lose his equity, $10,000 eq-
                                  $1 bid = seller losses $9,999 in equity.

WV Case—Young v. Sedaro: Person wanted to pay off the high interest loan and refinance at a lower interest
rate. They did not have a pre-paid interest clause. Ct held that under rule of perfect tender time, that absent
statutory authority of prepayment or contractual language, there is no right to pre-pay a note in advance secured
by a deed of trust before the due date.
What if the note and the deed of trust have different statutes of limitations?
       o If SOL runs on note, it does not mean that you cannot sue on the deed of trust, unless that SOL runs out
           as well.
       o 97 W. Va. L. Rev. 83: establishes this SOL principle. Security follows the debt and recognizes that the
           fact that the SOL bars a suit on the note, does not bar a lawsuit under the deed of trust because there
           was no SOL on deed before 1921.
       o W. Va. 55-2-5: Appears twice in the code
                o W. Va. 55-2-5 (Regarding the Promissory Note): With regards to the SOL for a note, anything
                    created before the UCC was created in 1960, would have a 10 year SOL period from the due
                    date of the security interest. Anything interest created after 1960 has a 6 year SOL period from
                    the due date of the interest.
                o W. Va. 55-2-5 (Regarding a deed of trust, liens, or mortgages): 1921-legislature passed the
                    new 55-2-5: SOL on deed of trust was 20 years from the due date. Also put in provision: “The
                    provisions of this section shall apply, with like effect, to every such lien now existing, as
                    well as to every such lien hereafter reserved or created.” THIS MADE 55-2-5
                o What this means today for deeds, liens and mortgages: There is not a SOL to security
                    documents before 1921 in WV.
                          FINAL EXAM: Expected to know:
                                  1863-1921: No SOL for deeds of trust, lien or mortgage
                                  1921: creates 20-year SOL from due date of security interest on the deed, lien
                                     or mortgage.
                                  1997/98: amendment: new SOL of 5 years beyond due date, 35 years from
                                     creation of security interest if no due date is set; recognizes 20 year SOL in
                                     1921, BUT no mention of pre-1921 SOL. (previous courts have said the 1921
                                     statute CANNOT be retroactive, but the court has not addressed it under this
                                     1998 statute)
                                  The 1997 statute does not recognize that there was NO SOL in WV
                                     between 1863 and 1921, so if a deed was created in 1920, a court wouldn’t
                                     know what to do because neither the 1997 or 1998 statute can be
                                     retroactive (according to the WV courts)
                                          o Example: If you take out a mortgage in 1990 due in 2000, then the
                                              SOL would be 20 years from 2000, and therefore the interest would be
                                              due in 2020.
                                          o NOTE: Must look to the creation of the security interest to determine
                                              what SOL law applies (1921 law or 1997 law). Then you must look at
                                              the due date of the interest to determine when the interest begins.

Murphy v. Financial Development Corp. (p. 648): House valued at $54,000 was foreclosed on and sold for
$27,000. The mortgagees claimed that mortgagors did not use due diligence in selling the ppty, or else they would
have gotten some money back.
         Because the mortgagee’s duty is the same as the fiduciary duty, the mortgagee must make every
          reasonable effort to obtain a “fair and reasonable price under the circumstances,” but inadequacy of price
          alone is not sufficient to satisfy bad faith unless the price is so low as to shock the judicial conscious
         Court held: that lenders did not do this in bad faith, but they did not exercise due diligence required
          from their fiduciary duty to mortgagees. They did not advertise sale (in order for an ordinary person to
          have notice of the sale – commercial and public advertising, and real estate broker), have property
          appraised, or set minimum price.
              The test for whether there is a lack of due diligence is not that the house is sold at a FMV, but that
                 the house is sold at a “fair price” standard.
     Anytime there is a forced sale (result of court action - foreclosure), the value of the property generally
         decreases because people think that “there must be something wrong, which is why it is forced to be sold.”
         Was the disparity so great that is shocked the conscious of the court (sometimes the 40% or 50% of the
         FMV, does NOT shock the court). So 50% of the FMV sometimes may be a reasonable amount for the
         price of the property at a foreclosure sale. Since then the SC has overturned the 50%.
              THIS PERCENTAGE RULE IS NOT THE LAW IN WV…. WV still uses the “does it shock
                  the conscious” analysis.

Installment Land Contracts
    o Usually 60-90 days, and then the deed is transferred.
    o A form of financing ppty the extends over a long period of time
    o Like “rent to own” real estate

Bean v. Walker (p. 655): Vendees who are in debt to the mortgagers and have an installment K cannot be ejected
if they have paid a substantial amount of money for the land. Rather the mortgager must have a foreclosure sale and
return the value of the improvements to the vendee in order to avoid unjust enrichment. Forfeiture may be
appropriate where a vendee abandons and seeks repossession of the property or has only paid a minimal sum on the
contract and upon default seeks to retain possession while the vendor is paying taxes and up-keep for the land.
             o In an installment land contract, there is a long period of time from the signing of the K and the time
                 the deed is delivered. You still sign a note at the beginning with the K, but the deed will not be
                 delivered until you have completely paid the land off. These Ks may have a clause in there that
                 says “we will keep all the money you have paid in the event of a default.” However, the courts
                 don’t like this clause because you may have paid a great deal of the land and your equity may have
                 increased significantly and then the seller would be able to keep all the money and the property.
                 This court felt that this was unfair/unjust enrichment.
             o The trial court used K law to find that the vendee had no rights because the vendee broke the K, but
                 the appellate court said the vendee has rights under both K law and property law including
                 retaining the value of the improvements.

    o   WV Case: Stonebreaker v. Zenn: (1982) Vendor contracted with purchasers to sell $25K house with
        earnest money of $1500 in an installment K. Purchaser lived in house for a year and then moved out.
        Vendor sued to recover personal ppty missing from house. Ct discusses when a liquidated damages
        provision is okay
            o Court concluded that the liquidated damages were reasonable in the installment K, therefore, they
                were enforceable. This is because the K was for a short period of time (13 months), so the equity
                was not that great.
            o Ct held that only when liq. damages clause is not a penalty is it acceptable. When determining
                whether liquidated damages are reasonable, courts need to consider the following:
                        1. The amount of payment being made to the bank
                        2. time period
                        3. how much has been paid
                        4. keep in mind there is no strict formula and the court should try to figure out whether
                            the amount of equity the person has acquired is reasonable.

   o HYPO: O has equity in Blackacre and gives note and deed to the bank. When O sells to purchaser without
     having paid for the debt, there are 3 options regarding what to do with the debt, but the O is still bound by
     the IOU.
        1. If the purchaser buys blackacre subject to the existing debt that you have, then the purchaser is not
           assuming any personal obligation to pay the debt. The owner is still liable to the note and must pay,
           but in the event that the owner does not pay that debt, then purchaser does not have a personal
           obligation to pay any deficiencies, but they will lose the land.
        2. If the purchaser “assumes” the debt, then the purchaser is making a promise to the owner that the
           purchaser will pay the debt that the owner has made. Now the purchaser has a personal obligation to
           secure the debt and the seller is now liable (“assumption of the debt”)
        3. The 3rd possibility is a “novation.” This is a 3-way agreement: the lender agrees with the seller, the
           purchaser agrees with the lender that the seller is released of personal obligation, and the purchaser
               promises the lender that the purchaser will pay the debt. In novation, the seller drops out of being
               liable and the purchaser is liable to the lender.

Clauses in Mortgage Documents
   o Now, some banks will put “due on sale” clause in loan documents (i.e. deed of trust) b/c of interest rate
           o If the owner of the property sells the property without written permission, then the amount will be
                “due on sale;” the entire balance is immediately due This prevents people from selling the land
                without the permission of the lenders and banks.
    o   Acceleration Clause
    o   Pre-Payment Clause

Vendor’s lien
   o Security document that is created by a sentence created in the deed transfer.
   o W.Va. 38-1-1: Vendor’s lien
   o “A vendor’s lien hereby reserved on ppty, here and conveyed for payment of note.” (Like a CL mortgage)
       creates a security interest.
   o If this is not released, it constitutes a lien on the ppty.
   o Can only be discovered by reading the entire deed (not indexed)
   o Ex: A owes B money in unsecured loan. B worries about being paid and convinces A to deed Blackacre to
      B. A says, when you pay, I will deed Blackacre back to you – A says that “If you convey land to me, I will
      reconvey it back to you and I will repay the debt and we can avoid all this foreclosure stuff;” transfer of
      title to be defeated on payment of debt.
            Cts will recognize nature of this and call it “equitable mortgage”
                       If the 2 parites go to court, B who has been paying on the loan to A and who has
                          possession, but who does not currently have the deed needs to argue that B has equitable
            WV Case: Fitzman v. Jerald (1980): Recognizes Equitable Mortgage  A deed absolute on the
                face can be declared a mortgage and parol evidence can be used to show equitable mortgage. What
                may on appear to be a conveyance on its face, may be an equitable title/mortgage. Ct said to
                       o intentions of parties
                       o existence of debt to be secured
                       o circumstances under which conveyance is made
                       o whether grantor remained in possession
                       o inadequacy of price
            If the court finds that it is an equitable mortgage, then you are going to have a relief of a debtor (B)
                in an original mortgage situation.
            Substitution of trustee in deed of trust: recent cases say that the substitute must comply with the
                stipulations. Statutory requirements are very important!

Hafdr v. Skinner, 542 S.E. 2nd 853 (2000)  if during the sale of property, an oral agreement between the grantor
and grantee that involved a designated substitute for a future foreclosure, this provision (oral agreement), even if
not filed, must be adhered too. Where the vendee wants a foreclosure process to proceed in a specific way, that
paperwork or agreement needs to be filed and/or made prior to the sale, in order for the sale to be proper (sale is
ineffective if you do not adhere to provisions or if you file at the same time of the sale). Where the grantor does not
adhere to the oral agreement that requires a substitute during foreclosure, then the sale is not proper.
    o If you do too many foreclosures you may be considered a collective agency and bound by federal law.
    o Steps to releasing a deed of trust This reflects that the security interest in the deed of trust has been paid.
             1. fully pay the debt on the land
             2. fill out the release document
             3. have the lender/owner of the note sign the release
             4. deliver the release of the deed to the courthouse
                                    Section 8: Title Assurance (p.661)
Title Assurances: A deed has validity upon delivery; however, recording is done to protect the title that has been
       o Land records kept in Clerk of County Commission Office
       o Threshold Question to ask when analyzing a problem: Do the recording laws apply?
            If so, answer to Q will be determined by factual situation
            If not, go along with CL “first in time, first in right” – similar to notice jurisdiction
            CL Ex: O to A, delivers deed. Who is the owner? A is. Does O have ownership rights at all? No.
               Then, if O to B, B will not get title.
            After Recording Laws: B may be protected if A fails to record or B does not have notice
            Recording is not part of transfer of title from O to A, but recording is designed to protect A from
               prior and subsequent purchasers.
       o Recording Statutes
            W. Va. 40-1-9; 40-1-10—will tell when need to be recorded to be valid against purchaser (also
               apply 36-1-1 and 361-3 when using this statute)
                               What is normally recorded will vary from state to state, but normally the following
                                  are recorded: the deed, releases, mortgages, abstract of judgment, executions,
                                  marriages, death certificates, wills, etc.
                               These documents (which can affect the title of land) are recorded. These are
                                  indexed so they are able to be found.
            Thrust behind recording statutes: documents can be recorded in order to convey; protecting title is
               the main goal
            When a deed is taken to the courthouse, it is photocopied/stamped and indexed in grantor/grantee
               index according to the grantors name, then the date of the purchase and description of land,
               categorized in chronological order from the date it is recorded.
            Track index: one in which a party is indexed according to land reference (Assessor’s Office keeps
               these records). Start in the grantee index.
            To establish a chain of title and sufficient title examination: Start in the grantee index and then
               go down the line in the grantee index for the last 60 years. Know all of the owners for the past 60
               years. There may have been “right-aways” before the 60 years, so even though you only looked at
               last 60 years, everything before those years are a valid affect of your title today. If you are going to
               develop land greatly to the extent that the land is valuable or you are spending a significant amount
               of money, you will want to and will go back as far back as possible (to the patent – original
               conveyance of the land).
            After this chain of title, you have to do “adverse.” Was there anything that could have happened
               that could affect the land today? You want to make sure there was NO mistake in the land in the
               chain of title.
            If something is properly recorded “of record” and it is in the chain of title, it will give constructive
               notice to the world of those rights and thus you deprive a subsequent purchaser to claiming no
               notice. If it is not “of record” you are not charged for the information and you can qualify as a
               bonified purchaser without knowledge.
                     WV: Whethered v. Con law  follows Kansas which says that the delivery of the deed is
                        recorded when it is handed to the clerk and stamped, not when it is actually indexed.
                        Indexing is NOT part of making, “of record.”
                               Therefore, in WV you should certify your work (look at daily log) with saying that,
                                  if it is not indexed, I cannot be held liable to find it because it is not truly
                                  constructive notice, so the transfer is “subject to the record of the indices.”

Luthi v. Evans, (p. 668): A mother hubbard clause, “all my interest,” is a proper way to describe property in a
conveyance, however, does not constitute constructive notice to subsequent purchasers. So a person who uses this
mother hubbard clause in conveyance, must take protective steps to protect his title against subsequent purchases
(such as going back and filling in the proper description of all tracts that were not spoken of or taking possession of
the land).
            Mother hubbard doesn’t put a subsequent purchaser of a tract within a mother hubbard clause
               because when that person goes to the court, they will not find that tract of land in the index.
               Therefore, they are a bona fide purchaser and they get the land.
            If you are the 1st purchaser under the mother hubbard clause, how do you protect the interest of the
               1st purchaser, so that she doesn’t lose interest not described?
                     You describe the unspoken of interest in an affidavit or a quit claim deed and have that

Orr v. Byers, (p. 678): Name on deed was spelled 3 different ways. Ct said this misspelling did not give accurate
notice. Checking records is already time-consuming enough. Ignored the Green case, which allowed same first
letter idem sonans, because it did not take into account the burden on searchers to know all the alternative spellings
& dispensed with the formalities of record notice.
             o Idem sonans  doctrine where in a legal proceeding the similar pronunciations will work if a
                name is misspelled, but it is not applicable here because it doesn’t affectively put the subsequent
                purchaser on notice because there is no way of anticipating all possible spellings. (doctrine still
                used, but not to give constructive notice)
                      If there is a name change, then you must record under both names and the purchaser (if
                         knows of the name change) must also include “also known as.”  include ALL names in
                         which you have ever been known as.
                      By failing to list all the possible names, party may be liable for suit and the conveyance
                         may be insecure and a subsequent purchaser could easily take the land because he does not
                         have constructive notice.
             o The person completing the abstract of judgment should take the time to correctly spell the name,
                then this wouldn’t be a problem. The burden should not be shifted to the title examiner where the
                person completing the judgment was the one who didn’t use due diligence in writing the names of
                the parties the person who makes the mistake should suffer the consequences).

Types of Recording Laws (p.685)
    First we need to figure out if the particular situation is covered by the recording acts. For example, the
    recording laws do not cover oral leases that are less than a year long. So if the recording acts do not apply, we
    are to a situation to which the 1st in time/1st in right is applicable. So as we approach one of these problems (O
    to A and later O to B), we must FIRST ask if the recording acts applies.
        First time/first right (CL)– O to A would be applicable because O had nothing left to give to B, so A
          would have title. Most courts no longer use this because the courts seek to protect those who act in good
          faith and since A failed to record to prevent B from having accurate information, then B should have
          some right to this land.
        In a race jurisdiction: O to A and then O to B, it depends on who records first. Whoever records their
          deed first, then has the title of the land. However, the courts now say that this makes sense if B does not
          have knowledge of As conveyance. If B has knowledge of As conveyance then B has notice and
          therefore, B does not have title because he knew the land was conveyed before.
              Whoever records first gets good title; knowledge is irrelevant
        Notice jurisdiction: If B is without knowledge at the time B acquires title at a subsequent purchaser,
          then B prevails over A (it doesn’t matter who records first). But if B had knowledge of the earlier
          conveyance, then this is not the case.
              If B has notice of O’s transfer to A, B cannot claim good title
              B can have actual knowledge, or constructive notice if A has recorded
        Race/Notice jurisdiction: O to A and then O to B. B has no knowledge of prior conveyance. Whoever
          records 1st wins the title in this jurisdiction. If B lingers and A records first, then A has the priority over
              B is protected if B is
              Without notice and
                      o Records before A

          The Smith case recognizes that if you do not have a proper knowledge, then you don’t have the
            possibily of recording. A person who is not a notary public cannot be a valid acknowledgment. Also,
            if you take an acknowledgment after the expiration date, then the acknowledgement would be void.
            Also if you acknowledge in another state from when you were commissioned.
          Type of certification designed to assume signing and conveying of deed; reduces possibility of fraud.

Problems, p. 687:
1. O to A (not recorded), O dies and leaves H as his heir. Then H conveys to B.
          As a result of Os death, H has not inherited anything. But because A never recorded, B had no way of
           knowing whether H had inherited the land or not because there was no record of Os conveyance to
           anyone else. So it is reasonable to assume with no recording, that upon Os death, his heirs would inherit
           it. Eventhough H is not the owner, there is an appearance of ownership for an innocent person to be
2. O to A not recorded, O to B without notice and B does not record. A then records and conveys to C. Then B
          IN a notice jurisdiction, A owns land when it was 1st conveyed. B owns the land eventhough A has
           recorded. Now the land is conveyed to C and C now has title because C had NO knowledge that B had
           the ownership. Whether A, B or C recorded is not relevant in a notice jurisdiction. If A had not recorded,
           then there would not have been any link to O, so A would not have been able to convey it to C and B
           would still have ownership.
          Did the person at the time they acquired title, have notice…. If NOT then, they get the title over
           ANYONE above them!!!
O to A for 10,000 (not recorded)
O to B for 14,000 – B had knowledge of O to A (B records)
O to C for 5,000 – no notice of A (C records)
          A has priority over B because B has actual knowledge of the existence of As mortgage.
          A does not have priority over C because C does not have knowledge.
          B has priority over C because B has recorded and C has knowledge.
          C has priorty over A because C does not have knowledge
          How would we divide the money if only $20,000 is paid at a foreclosure sale under As foreclosure?
                Give 5,000 to A because it is As fault for not recording the mortgage and give 5,000 to C and
                  10,000 to B because we are penalizing A for not recording.
                B knew that 10,000 mortgage existed prior to his mortgage, so B expected whatever is left over
                  from after paying 10,000.
                Give C 5,000, and give A 10,000 and what is left over 5,000 to B because B could have recorded
                  in his record that this mortgage is 2nd in line to As unrecorded deed, thus giving notice to C that
                  there was an additional deed before B. At Cs purchase, because of As unrecorded deed, C only
                  though that Bs mortgage was in front of it.
      If you only get $5,000 for the land, then you give this 5,000 to A. This is because C couldn’t expect
          anything unless it brought more than 14,000 and B couldn’t expect anything unless it brought it more than
Messersmith v. Smith, (p. 689): Ct held that a sale was not valid b/c the acknowledgement was not in compliance
b/c a notary was not in presence of grantor. This could be a valid conveyance, but acknowledgement is required to
record. TO constitute an acknowledgment, the grantor must appear before the officer (notary) and the grantor must
view the notary giving it authenticity and admission to the officer of the fact that he executed such instrument.
    “Of record” gives constructive knowledge; “on the record” does not.
    WV Case: Ihrig v. Ihrig: Bright line test—If acknowledgement is not valid, it is not a recordable instrument
       and cannot give constructive knowledge. A document that did not have valid acknowledgement was not a
       recordable document.
    WV Case: Galloway v. Servilla: 1992- Ct departed from Ihrig and said “we will make a factual
       determination of whether the defective acknowledgement gives an unfair advantage.” (Case-by-case) Court
       departed from “bright line” and instead determined that the acknowledgement is only invalid after a factual
       mistake. The document was valid between the parties, but the question was whether it was valid between
    WV Case: Williams v. GMAC: Applied Galloway test. Problem: a case-by-case analysis has replaced a
       bright line rule. A person who was not a notrary in WV reported to take acknowledgment in WV which
       normally would not be valid. However, the court corrects the Galloway case and says that we will determine
       that as a result of the acknowledgement improperly benefited the taking party.
    LAW IN WV: TO be recordable, it must have proper acknowledgement.
    Footnote 12, p. 695: When a defect does not appear on the face of the acknowledgement, the deed can give
       constructive notice; however, if the defect is patent (obvious), the deed does not give constructive notice.

Board of Education of Minneapolis v. Hughes (p.696): Stranger to a chain of title is one that does not link up to
the chain. Any conveyance by a stranger does not give constructive notice. For Example: A conveys to B, then B
conveys to C but does not record. Then C conveys to D, while A conveys to E. E would have no reason to check
under C b/c C is a stranger to the chain of title.
        o When H conveyed to someone but left the name blank, there was no legal effect until the name was
            filled in.
        o There is an implied authority to fill in the name and the deed thus became operative as of that moment.
            Hughes becomes the subsequent purchaser when he filled in his name because D and W were the 1st
            purchasers, and thus protected under the recording acts and therefore has precedence over D and W.
            Therefore, a deed from a stranger (outside the chain of title) is not valid and you are not held
            accountable to have constructive knowledge of it.

Guillete v. Daly Dry Wall Inc., (p. 699): Ct held that contractors should not be bound by restrictions that were not
mentioned in the deed. Subdivision, early lots had restrictions but the particular lot in question did not have any
listed in deed.
        o Ct is reluctant to say that b/c one lot in a subdivision has a restriction that applies to all lots, then buyer
            of another lot (which lists no restrictions) is constructive notice.
        o Were this the case, people would have to search each deed in a subdivision, and this is too time-
        o Restriction can only be removed if each owner agrees to remove it.
WV Cases that deal with this, but not exactly on point
  o Cole v. Seimens: 87 W.Va. 19: A to B 154 of 156 acres, with covenant to use remaining 2 acres for
     residential purposes only. Then O to C 1/12 of the 2 acres without any reservation, C had no actual
     knowledge of the restriction and used it for business. Then O conveys to S (the other 2 acres).
                   Ct held that the restriction was not binding on C b/c it was a personal covenant to S.
                      Assume that you are held with the knowledge of contents of common grantor.
                   This case would suggest that we are in conformity with Guillete case
  o McIntosh v. Veil: No burden imposed upon land to bind subsequent transfers unless put directly in chain of
  o Law Review article p. 509 deals with this. No direct answer as of yet.

How could a person place restrictions in chain of title so everyone will know?
  o Put restriction in each deed
  o Convey to straw party with restrictions as to whole land, and straw pty will covey back to O with restrictions
  o O records restrictions as applicable to entire land in a affidavit, which is indexed in grantor index

Recording Problem that comes up: O owns Blackacre. A conveys Blackacre to B in 1990. O then conveys to A in
1999. B will own Blackacre (estoppel by deed). What if A to B was recorded at the time it was given? Then, 9
years later, O to A. Then, 4 years later, in 2003, A to C? When do we start looking for A’s name in grantor index?
  Estoppel by deed  O owns land. Then A conveys this land to B. After A conveys the land to B which A does
  not own, O conveys to A. B now owns the land. However, if A later conveys to C, we must ask whether C had
  constructive notice/knowledge of the A to B conveyance, in order to determine who owns the land.
        Are you held responsible for a conveyance made and recorded by a person before they acquired title to the
          property? (Above, does C have duty to look before 1999 to see if estoppel by deed occurred?)
         o W.Va. Code 40-1-15 answers this Q. There is no duty to check before the original conveyance.
         o Two general rules:
                   A person in C’s shoes is not responsible for finding a deed before the grantor acquired title.
                   C is not responsible for a deed made by a stranger (innocent 3rd person) to the chain of title.
         o BUT, estoppel by deed is still applicable. If B comes to you in 2000, what do you tell him? To re-
             record the deed and then it will be in the chain of title.
         o Reminder: It has to be a warranty deed for estoppel by deed to be invoked.
         o If O to A and O to B, then B to C, and C wants a title search, do you have to look under O’s name after
             the original conveyance?
                   No case on point in WV, but prudent lawyers need to check past the first-out conveyance. If
                      there is another one, you must make a factual determination about who had knowledge.
                   Recording before this the date of conveyance is NOT constructive notice
         o Lenders have practice of recording security interests in advance of closing b/c they believe it will be a
             higher priority.
    WV is a notice jurisdiction as to purchasers, and a race jurisdiction as to creditors.
      O to A in 1980 (not recorded), O to B in 1990 (not recorded), A records in 2000, B records in 2007. O
         acquires title in 1950, so we start looking at the chain of title to see if there are any conveyances by O to
         affect Os title. We can stop looking under Os name up until the present (2007). So we will now find a
         deed to A and a deed to B. So now we have to learn whether or not As deed or Bs deed is the “better
         title” of the property. The answer to this is whether or not B had knowledge or constructive notice? Is B
         protected under the recording acts? So under a notice jurisdiction, a person cannot stop searching at 2000
         to determine title because there may be a subsequent deed that is a better title.
      Example: O to A, O to B (B has notice and B records), then A records. You must still continue to look
         under the grantor’s index up until the present to find As record of title because As title is the “better
         title” and must be found.
      W.Va. Code 40-1-15: Must start looking when the grantor 1st acquired title (1950) and you must stop
         looking today.
      W.Va. Code 40-1-9: “as to creditors” set off by commas, so Sup Ct has interpreted this as such. Court
         has said that without notice is applicable to purchasers, but is not applicable to creditors. So we are a
         race jurisdiction as to creditors.
      A person who loans money and takes an interest in the property is a “purchaser” under the recording
      Purchasers, as used here, means those who lend money as distinct from creditors.
      Creditors are those who have secured a judgment which makes a lien against the ppty (not general
         creditors); creditor who has taken the additional steps to get a judgment against the debtor.

Determining who is a purchaser
Daniels v. Anderson, (p. 706):
Facts: Adjoining landowner contended that he was a bona fide purchase of the contiguous parcel. The 1st purchaser
had the right to 1st refusal, but before he was given that right, the grantor contracted to sell it to someone else and
before the “new” grantee finished purchasing the land, he was notified of the 1st purchasers right to refusal.
Issue: Under the same law, at what stage does one become a BFP?
Holding: 2nd purchaser was not a bonified purchaser because he was put on notice of the 1st purchasers 1st right to
purchase prior to completing his payments, and thus should be estopped from asserting any rights as a BFP over
        However, the courts are split as to whether or not a BFP is still a BFP upon receiving notice prior to paying
          the full price. Some say partial consideration is not enough, but many courts have relaxed this harsh rule.
          Instead they apply a pro tanto rule, which protects the buyer to the extent that they have paid prior to
          notice. This court recognizes this rule. There are 3 methods to apply this rule:
            1. most common method is to award the land to the holder of the outstanding interest and award the
                 buyer the payments he or she has made
            2. award the buyer a fractional interest in the land proportional to the amount paid prior to notice
            3. allow the buyer to complete the purchase, but to pay the remaining installments to the holder of the
                 outstanding interest

Lewis v. Superior Court, (p. 708): There was a lis pendens on the property, but owners did not know until they
were sued. Court said the Lewises were fully paid up, and b/c the lis pendens was not indexed, it did not provide
constructive notice. (the promissory note, with the promise to pay, is as good as full payment)
        The doctrine of lis pendens- is an application of the statute of Quia Emptores- it is a common law
         doctrine that existed long before recording statutes. The problem was applying the doctrine with the
         recording statutes. In order for a subsequent owner or purchaser to be bound by the doctrine, there had to
         be notice in the public records.

WV Case—Alexander v. Andrews (p.712):
Facts: H and W to Charles and then just H to daughter – two deeds were given in may and Charles recorded on
May 14th, and daughter recorded the deed in July. The tax receipt came 2 years after. Charles brings a lawsuit
saying that the sister’s deed is messing up his deed because he was to care for his father and pay for the funeral.
Sister counterclaims.
Discussion: Sister won – Charles was not a complete purchaser and he was on notice when his sister recorded in
July 1948, before he could take car of his dad and fulfill his consideration for the deed.
         Because Charles did NOT pay in full, he was not a complete purchaser and until he pays in full, he must
           continue to go back to the court to see for recorded deeds after his was recorded because until he pays in
           full, he does not become the complete owner and still has the chance of someone recording a deed after he
               If he paid in full and recorded, the sister is out because the Sister had knowledge of Charles’s deed
                   because Charles recorded so she had constructive notice (WV is a notice jurisdiction)!
Rule: Charles had to pay in full because he was a subsequent purchaser because the deed was given to the sister
first, but she just recorded much later. So Charles was a subsequent purchaser and therefore must pay in full not just
reasonably adequate consideration!!!
     o “Purchaser”= someone who has paid reasonably adequate consideration such that fairness requires that
          other grantee should be cut off.
                 To be protected by the recording acts, Charles would have had to pay a reasonably adequate
                     consideration that is important…. It must be a sufficient amount that would sustain the
                     conveyance where as the amount of consideration would be important.
                 If the recorded acts were not enacted, then the title would be “first in time, first in light”

    o    WV Case: Dunffy v. Childs, 59 WVa 225: One claiming land under quit-claim deed may make the defense
         that they were without notice/ does not deprive the purchaser of being a “good faith” purchaser. A
         quitclaim deed does not put you on inquiry notice – a person may be reluctant to give a quitclaim deed
         because there is a question of title.
                Does the existence of a quit-claim deed deprive the person of saying they have notice?
                               A purchaser by quit claim deed cannot claim the position of BFP without notice.

     o    WV Case—Hardesty v. Weekly: Creditors rights vs. purchasers rights. Weekly purchased 71 acres and
          take possession, then B takes a deed for all 154 acres, then a creditor who dockets their trust, then Brown
          records. Brown should have asked why Weekly was on the land. Brown is a purchaser because he loans
          money. This case illustrates that creditors are NOT affected by notice… Armstrong had no duty to go and
          view the property. So when Armstrong recorded the judgment, it is a judgment lien against all 154 acres.
          Weekly would have had to record the deed before the judgment in order to exempt the 71 acres. Brown is
          a purchaser under the WV statute and he therefore has a duty to view the land and had he done this, he
          would have found Weekly on the 71 acres and then Brown would have to inquire about why Weekly is on
          the land. Then Weekly would have said he owned the 71 acres.
                          Because B is a purchaser, he has a duty to inspect the premises. If he did, he would
                            have seen W there.
                          70 W.Va. 288: Duty of purchaser to investigate all facts an inquiry would
                            disclose/reveal and rights of those in possession.
                          88 W.Va. 102: Duty of P to find all info that would be seen from actual view of
                                   EXCEPTION: Martin v. Thomas: Purchaser is not charged with the
                                      knowledge of a record of a cotenancy. If you have a cotenant situation, it is
                                      different b/c P would expect to see a cotenant there.

WV CASE: Insurance v. Conwell (1937)  if I had a debt to you already (borrowed money and not paid back)
and without anything else, I conveyed property to you to satisfy that debt, this case says that this is not
consideration because nothing new has been given up. Since then, the UCC has been enacted and now under the
UCC a pre-existing debt is considered to be consideration, but land is not covered under the UCC. But unsure on
whether the court will accept a pre-existing debt as consideration today.

WV CASE: Pitrolo v. Community Bank (1982) this case is consistent with the UCC where a pre-existing debt
or credit is sufficient consideration… so it may be that the old case is not applicable.

Types of Notice/Knowledge
           o Actual
           o Constructive (Record)—becomes “of record” when filed, not indexed; should say “subject to
               correctness of indices”.
           o Inquiry – sufficient information about the seller that shows that something is probably wrong here.
               If you have inquiry notice, you have to investigate and if you don’t or you did, the court will say
               you then “know” what a reasonable inquiry would reveal.
                    Find a deed/reference that would show that there may be an oil or gas leak on the
                       property… something in the title examination that makes you believe that you must make
                       further investigation.

Harper v. Paradise, (p. 713): Says to title examiner, “You are responsible for making an appropriate inquiry to
ascertain facts about anything mentioned.” Because another deed is mentioned in a deed you are reading, you are
put on inquiry notice to find out about that deed or take reasonable steps to try to find it. Here they did not take any
steps to try to find it.
Rule: A deed in the chain of title, discovered by the investigator, is constructive notice of all other deeds which
were referred to in the deed discovered. Inquiry notice – when doing title work, you need to read the documents in
the chain of title very carefully because you are going to be responsible for their contents.

WV Case: Tannery (1993): For inquiry notice - A party is not entitled to the protection without notice unless he
looks to every part of the title he is purchasing. Purchaser is bound to take note of all recycles from which title
is derived and has notice of them. Rule: What a reasonable inquiry
        Purchasers, as used here, means those who lend money as distinct from creditors.
        Creditors are those who have secured a judgment which makes a lien against the ppty (not general
           creditors); creditor who has taken the additional steps to get a judgment against the debtor.

Commercial Leases
  o Statutes say you can record memorandum of leases and provide notice
  o Suppose leases are recorded but do not reveal a certain restriction—Is this notice of fall lease? (Split of
     authority, no answer in WV)

Waldorff Insurance and Bonding, Inc. v. Eglin National Bank (p. 717):
Facts: E owns several condos in a plot and some were owned individually owned to 3rd parties and some of them
were rented out. E took out a mortgage on all the condos. The bank had a duty to inquire about the residence in the
condos and whether or not they owned or rented.
Discussion: Court held that a person who wants to buy ppty should do a visual inspection of what they want to buy.
The court found E’s interest subordinate to appellant's equitable interest received upon the initial purchase
agreement, because E had constructive notice of W interest because W had actual possession of the unit that was
open, visible, and exclusive. Court found that even though W wrongfully took a bad debt tax deduction after
canceling developer's debt, developer's relief from debt constituted valuable consideration.
     o This case illustrates that if you are dealing with real property, you still have the duty to inquire. When you
          purchase property, you must find on what basis each tenant is on the property…. Look for leases and for
          how long the leases last. The purchaser may be concerned if the leases are 5 years, etc. Duty to inquire is a
          potential burden because you must find out more in terms of commercial leases in order to protect

Marketable Title Act (no such act in WV): period of time covered in title examination is designated to a limited
number of years; duty to those who have rights recorded more than x years ago to re-record.
Title Examination
  o Purpose of title examination is to make sure there are no defects in the property; you are searching for that
      which the law says you are responsible for knowing (it is included in the chain of title). You are responsible
      for finding certain things
  o You are charged with: (1) actual/constructive knowledge of what has been recorded, (2) what the land would
      physically reveal, (3) what information that appears in the record of chain of title, and (4) what a reasonable
      inquiry would reveal if facts come to your attention that would bring you to believe you should inquire (i.e.
      another name the title may be recorded under)
  o The lawyer who does title examination is not the INSURER of the title and can only be liable if they are
      negligent in their examination. A lawyer won’t be responsible for problems with the property. Therefore, a
      lawyer should say they are “subject to correctness of indices”
  o How far back are you expected to go? 60 Years back is a reasonable period of time for residential property;
      but for those who are putting in millions of dollars for large commercial purposes, should pay more and get a
      full title examination which goes back as far as possible (trace back to initial patent)
            The steps for both are the same, it is just the degree of protection that is different (client is responsible
                for the time from the original conveyance)
            If doing examination in WV counties with mineral rights, you would want to go back further because
                the mineral rights were severed in 1920 which is more than 60 years ago.

  Steps in a Title Examination
       1. Look to grantee index (grouped by last name) – index that reflects the buyers of deeds. Look for
           additional spellings or other possible names (we want to see who the current owner got the land from)
                  Find out when current owner acquired title and who the exact name of the current owner.
                  Find out the way the current owner received the land. The owner could have received the land
                    by: (1) deed, (2) will, (3) intestate succession, and (4) adverse possession.
                  Find out the page number in the deed book
       2. In the Deed Book, look for and write down:
                  Date of that deed
                  Establish chain of title: Find out who sold to current owner/grantor – do they have co-
                    ownership, tenants in common, etc. We must know ALL the previous owners and their
                    ownership period of time (look them up in the deed book to ensure there weren’t invalid
                          i. if either or both names of the grantee/grantor are missing, the deed is still valid if it
                             includes a specific detailed description to distinguish them from the rest of the world
                             so there is no uncertainty to their identity
                  If acquired by deed, look for:
                          i. names of parties,
                         ii. deed book and page number,
                        iii. dates (deed, acknowledged, recorded) – legal title acquired at date of transfer,
                        iv. consideration and/or vendors lien,
                                   Look for how much was paid for the property and/or consideration given;
                                     although if consideration is not there, extrinsic evidence can be used to prove it
                                     (a recital of consideration is sufficient for paid consideration)
                                   Make sure all consideration is paid and look for words such as “subject to any
                                     debt” (i.e. a vendor’s lien)
                                   Mere inadequacy of consideration by itself doesn’t make a court set aside a
                                     deed, but if the consideration is grossly inadequate and enough to shock the
                                     court’s conscious, the court will look past the recital in the deed. (Andrews)
                         v. Look at the granting words
                                   “do hereby grant and convey”; don’t assume these words are there.
                        vi. type of warranty (warranties are NOT implied)
                       vii. description of property – cannot be ambiguous
                      viii. Exceptions, Reservations, Restrictions (make sure all pieces of the puzzle fit together)
                  Start “adversing”: Did any individual do anything that would adversely affect
                    title? A well-drafted deed will tell where grantee got the land and if there were
                    any other transactions that would affect their interest during the time the prior
                    grantors owned the land. Look for:
                           a. Right-of-way granting
                           b. Ingress/egress
                           c. Easements
                           d. Sale of portion of land
                           e. Leases
                           f. Coal/oil/gas
                           g. K to sell ppty
                           h. Signatures of all parties and acknowledgement (is it proper?)
                  Make sure all grantors have signed the deed and the signatures are
                    acknowledged (notarized)
                  In WV—now on case-by-case basis; some deeds have 20 or more grantors and
                    you must have each signature and properly acknowledged (want it
                    acknowledged because if it is not, it is not recordable and therefore does not
                    give constructive notice)
 If acquired through a will, look for:
         i. (generally all the same things as you would look for in the deed) and:
        ii. book and page
      iii. name of deceased
       iv. Does it grant a fee simple or life estate?
        v. how property was devised
       vi. Was estate property administered? (personal representative appointed, appraisal of land
            or list of land owned, taxes paid, ad in paper seeking all debtors, estate completed by
            county commission, estate tax liens paid)
                  BE AWARE of W. Va. 44-8-1: gives an executor of a will the authority to sell
                    and convey the land (if there is significant debt) as opposed to giving it to the
                    heirs/devisees who should have taken their interest.
      vii. Yellow flag if someone other than heirs of devisees sells property from estate
 Make sure that what was purported in the deed or will is accurate!! Check:
         i. Doctrine of worthier title (1969)
        ii. Rule of Shelley’s Case (1921)
      iii. Rule Against Perpetuities (1992)
 If acquired through intestate succession, look for:
         i. Affidavit of heir: - where a person comes before the court, explains her relationship to
            decedent and writes down as many heirs as the person knows of.
                  while they are trying to do good, they don’t always know if there has been an
                    illegitimate child, children from past families, or an adoption (some people may
                    be missed – this affidavit may give us the best information we have, it is not
                    always complete information)
3. Look in the General Lien Index
          Look under all of the prior grantors/grantees (all the names in the chain title) and check to see
            if they have any liens against them. If there is a lien or suits pending, it will specify what book,
            volume, and page to look in.
                  i. Links (lawsuits that may show up) in the Chain of Title:
                          Partition lawsuit: everyone with interest must be properly served to come to
                           court for this proceeding; final record in circuit clerk’s office
                          Judgment creditor’s suit (look below)
                          Trustee’s sale (foreclosure) – must be in accordance of the statute and deed of
                           trust, if it is not, there is a defective link in the chain of title.
                          Summary proceeding (infant owns real property—guardian ad litem); if you do
                           not have “adult” status and you are an owner of real estate, then the court can
                           determine whether that can be sold in the minors best interest.
                          Settlement of the estate
                          Release of tax liens
                 ii. Then in the lien book, look for a release date of the lien to ensure that all liens have
                     been satisfied and paid off.
4. Then you go to the Land Book to make sure all the prior owners paid their property taxes.
5. Then look in the Land sales book and delinquent Land Book to make sure all taxes on the property
   were paid, there were no sheriff sales on the property for delinquent taxes, and make sure there are no
   current delinquent taxes pending
6. This is the end of the Title Examination

   1. Win a lawsuit and get a judgment in which you are entitled to money from judgment debtor. This
      judgment attaches to the property and lasts for 10 years.
   2. Get an Abstract of judgment from the court which tells us who was victorious and gives constructive
      notice by recording the judgment.
   3. Judgment becomes a lien against the property for 10 years and attaches to property you obtain in the
      future, personal or real.
   4. If not paid within the 10 years, then you can:
          a. Get a Writ of execution from the sheriff (must 1st post bond) – order to the sheriff which says
               go seize property so it can be sold.
                     i. The writ of execution will be extended for another 10 years
                    ii. If sheriff cannot find personal property, 2nd lawsuit and everyone with interest must be
                        made a party
                   iii. If person had not paid and the 10 years is running out, creditor can extend life of the
                        judgment by a new write of execution, then record and will last another 10 years.
          b. File a Judgment creditor suit – if you are unhappy with what you found, then you can file a
               judgment creditor suit which would allow the person’s personal property to be sold in order to
               pay the debts to you since the party has not followed the judgment even after the writ of
               execution. (anyone the person owes money to, must be a party to the lawsuit; anyone who has
               an interest in the property must be a part of the suit).
                     i. The creditor has to wait 2 years to get the debtor’s property to be sold or if it is less
                        than 2 years from when the debt is due, the landlord must be able to say that (1) I have
                        tried to get a writ of execution and I can’t, and (2) even if I did, the rents and profits of
                        the debtor’s land won’t pay me back within 5 years.
                    ii. What would otherwise appear to be a clear title, may not be if there is a judgment on
                        the land because judgment creditor suit attaches to the property that the debtor owns at
                        the time (valid for 10 years in the book of judgement)
          c. File a Lis pendens - lawsuit notice, outcome may have an effect on ppty; record that tells you
               that the outcome of this suit may effect your property (commonly used in eminent domain
               cases) – “if you buy this property, you may in the future have a power line run across it.”
                     i. Filed with County Commission
                    ii. Then considered “of record”
                   iii. Index does exist for lis pendens

  o Grantor index: variety of liens that influence quality of title
          Judgment/creditor lien
          Mechanic’s Lien: laborers who do the work
          Materialman Lien: provide tangible things necessary to build
          Vendor’s Lien: Not indexed, only in the deed itself
          State and Local Tax Liens: any obligation you owe to the state
          Federal Tax lien
          Judgment liens: look below
          Execution lien: look below
          Miscellaneous Liens: includes everything else that does not fit in the other books
          Policy: These people should get paid for improvements they make on the house
          W. Va. 38-1-1 thru 18; 38-1a-1 thru 12: WV put “teeth” in this by allowing mechanics and
             materialmen to get a judgment against ppty and obtain a lien until they are paid.
          W. Va. 28-2-1: The reason for this is that people want to know the contractor is responsible
             and make sure workers get paid before construction company.

When doing a title examination:
         o Entertain possibility that something may cause someone to pay again
         o You can contact the owner to see if they are having work done at the time
            o   Affidavit for waiving lien: some would not sign until they were paid.
                    1. You must find some way to protect Buyer from the possibility of a mechanic’s lien.
            o   Every party who could possibly bring a lawsuit must sign a document saying all materials have
                been supplied, etc.
            o   WV Case—Caroline Lumber: You can’t piggyback on previous deed’s liens.

Perfecting a mechanic’s lien
              Those individuals who have contributed to the value of the property, have a right to have a lien
               against that property to ensure their payment (if they do the work, it is a mechanics lien, if they
               provide the materials, it is a materials lien).
              To obtain a mechanics lien: (look at our hypos)
                        1. If you are not working directly for the owner (sub-contractor or providing
                            materials), you have to give notice to the owner within 60 days after the
                            completion of that one sub-contracting job that you have done this work and/or
                            furnished those materials
                        2. Once you start working, a mechanic’s lien attaches to the property
                        3. When all the work has been completed (not just the one job), within 100 days, you
                            must go to the county clerk and record the notice of the mechanics lien
                        4. Then within 6 months of this recording, you must file suit against the person who
                            has not paid on the lien.
                             What happens at court?
                                     a. At court you establish that the money owed is actually owed and the
                                          order in which the property is sold and the proceeds will be paid, if the
                                          owner can’t afford to pay the sub-contractor. If the owner can afford to
                                          pay the sub-contractor, then the owner pays double on that work.
                                     b. If there is a K for a certain amount and your contractor goes over that
                                          amount, the sub contractors can still go after you (in a mechanics lien)
                                          for the amount they put into the property even though there was a
                                          breach of K. You can sue your contractor for breach of contract, but
                                          the subcontractors can still have a mechanics lien against you. The
                                          only way to avoid this by posting a bond and filing K prior to work
              Mechanics liens apply to both NEW construction and repairs.
              What can you do to protect the owner from having a mechanics lien against them?
                    i. Waiver from the sub contractors
                   ii. Statements from the sub-contractors saying that they have all been paid (you have
                        copies of these before you pay the general contractor)
                  iii. Get a bond that says the contractor will pay any claim that is asserted against you (used
                        infrequently because not known by public and expensive)
                             W. Va. Code 38-2-9: Must post 2 bonds to protect the state; 1) Contractor must
                               buy insurance so if the contractor does not complete the job, then the insurance
                               will cover a new contractor to complete it, and 2) contractor must buy mechanic
                               and materials insurance to ensure that the subcontractors are paid.
                             Get an affidavit where the seller assures the buyer that no work has been done in
                               the last 100 days; this won’t bar a mechanics lien reaching you, but makes a
                               lawsuit against the seller an easier lawsuit because seller committed can be sued
                               by the buyer for the money (seller committed fraud)
              When lien is paid, a release needs to be prepared and recorded: “This debt has been paid, etc.”
               (Applies to judgment, deeds of trust, liens, etc.)

     Clearing up the title of the seller and the buyer is going through all necessary steps to obtain the loan and
      secure the title that they have so that the lending documents are public notice. (Transfer of title, purchase
      price, necessary loan documents signed (note, deed of trust))
         Seller responsibilities:
             Pay off existing debt/ clear up title (so the land transfers without any liens)
             Preparation and recording of Release of deed of trust
             Paving assessment
             Realtors commission
             Property tax – must pay the sheriff all prior tax debt and prorate the rest of the taxes for the current
               year and give the amount/ check to the buyer
         Buyer responsibilities:
             Must do what is necessary to claim title, obtain loan, and protect title and security interest
             get a credit report for the loan
             approved appraisal – how much the house you agreed to buy would sell for in the open market
             pay for title examination
             pay preparation of note or deed of trust
             pay for recording of deed or deed of trust ($5 and any additional page $1)
             buyer needs to have casually insurance in place and the insurance company will need to know how
               much the loan is for (how much the lender’s interest in the property is)
             make arrangements for utilities that serve the house and get tax ticket switched
             Pay real estate taxes (prorated for the amount the buyer is in possession)
                  The seller can only pay the sheriff the amount for the prior year. The rest of the taxes owed,
                     you give to the buyer and the buyer is then responsible for the tax ticket that comes in July of
                     that year.
                  You do the same thing for the fire service fee
                          o Example: On July 1, 2006, person paid the 1st part of taxes, but the 2nd half have not
                              been paid. How are the taxes to be prorated between the buyer and the seller? Seller
                              is responsible for the 1st 6 months and the buyer is responsible for the last 6 months
                              (July to Dec).

Tax cycle:
WV law – on July 1, 2000 there becomes a lien for the 2001 taxes (July 1, 2001 thru June 30, 2002) – will always
be a tax lien of at least 1 year on the property – first lien on the property is always taxes (before mortgage) –
when certifying title always say that the taxes are a lien “but not yet extended”
         If O sells on July 2, 2000, O will still be responsible for another year of taxes, even though he is living
         Pay on the fiscal year (July 1-June 30) and prorate on a calendar year (Jan – Dec)
         Before the tax ticket is received, it is prepared on Jan 30, 2001: assessment must be complete, books go
           to county commission – any problems or disagreements must be resolved now –books then given to
           sheriff .
         The tax ticket is sent on July 1st, 2001. You only receive 1 tax ticket a year, but that ticket is split into
                1st half: Jan 1 to June 30, 2001 – due on September 1st, 2001
                2nd half: July 1 to Dec 30, 2001 – due on March 1st of 2002
                        o If paid early you can get a discount
                        o Delinquent fee – 1st half if not paid by October 1 and 2nd half if not paid by April 1
      If taxes are not paid by May if 2002, then your name goes in the newspaper for delinquent taxes, 2nd notice
         goes out in September, and if still not paid, then the sheriff will have a public sale of the property after
         October 14 to collect the debt by delinquent taxes.
      If someone can pay taxes, interests and costs of sale they can buy it at auction – if not sold at auction then
         it is sold to the state and then later auctioned off at a lower cost so that the taxes can start to be paid again
         – former owner cannot buy at auction, he must pay the full price of all costs.
      New owner will not get tax bill so as the attorney you must tell the purchaser to tell the sheriff to send the
         bill in C/O of the new owner. (the sheriff won’t change the name, but will make sure the tax ticket is not
         forwarded onto the seller at his new address)
      Find out if taxes have been paid by going to the sheriff’s office (current year) – look for previous years in
         land sales book – look in land book to see if entered for assessment
        Examples of tax breakdown
               $240 a year = $120 a half – closing July 1, 2003 – all 2002 taxes paid
                    o Seller must pay $120 (Jan-June 2003) – Buyer pays $120 (July-Dec 2003)
             Assume taxes are $240 per year, or $20 per month.
                    o Assume closing occurs July 1, 2005. And assume all taxes for 2004 have been paid. How
                       do you prorate taxes b/w buyer and seller?
                              Seller pays for Jan – June 30, 2005; Buyer pays for July 1 – Dec 31, 2005.
                    o Assume closing occurs Oct. 1 and all 2004 taxes are paid. Seller will pay for Jan thru Sept
                       taxes ($180) and Buyer will pay for Oct thru Dec ($60)
                              Assume Seller paid entire year of taxes before Sept 1. Then Buyer owes Seller for
                                 3 months.
                    o Assume closing moves into Feb. 1, 2006. The first half of 2005 taxes were paid, but not
                       the second half.
                              Seller would pay for second half (July-Dec), and for month of January.
             If you represent the buyer, tell him or her that the tax ticket will come out in the name of the
               seller until the following July 1. Take your client right to the sheriff’s office and tell them the
               property is in the name of your client now.

Statute of Frauds does apply to easements

EASEMENTS– An easement is the right of one person to go onto the land in possession of another and make a
limited use thereof. This right is a non-possessory right to use the land, but not to occupy or posess. For example, A
has a right to enter or walk across Blackacre which is in the possession of B. ACQUIRED RIGHTS
       Easements are frequently created as part of a deed conveying property to someone else (can also use as an
        exception in a deed); must specify: the parties, words of conveyance or transfer, the description of easement,
        and must be signed by party, recorded, and acknowledged.
       WV Case—Highway Property v. Dollars Bank: Ct held that easement must be described with sufficient
        description and specific “particularity,” not general language; must be sufficiently clear and reflects the
        intentions of the property to create the easement. Needs to satisfy the SOF by the party to be charged in
        sufficient language.
 2 Types of easements are classified as follows:
     1. easements appurtenant, and
     2. easements in gross
 Easement Appurtenant – An easement (or profit) is appurtenant when it is attached to a piece of land and
   benefits the owner of such land in his use and enjoyment thereof. Every easement appurtenant requires 2 pieces
   of land which are owned by two different persons. For example, A is the owner in fee simple of Blackacre, a 5-
   acre tract, on which he maintains a dwelling house for himself and family. Abutting Blackacre is Whiteacre,
   which is owned by B. By deed, A gratns to B and his heirs a right of way across a strip of land along the north
   edge of Blackacre. B thus has am easement appurtenant across Blackacre.
         a. The 2 pieces of land involved in an easement appurtenant are:
                   i. The dominant tenement, which is the land whose owner is benefited by the easement. In the
                      example above, Whiteacre is the dominant tenement; and
                  ii. The servient tenement, which is the land whose owner is burdened by (or subject to) the
                      easement, and is Blackacre in the example given above.
         b. The owner of the dominant tenement is called the dominant tenant – land that benefits from the
              easement; whereas the owner of the servient tenement is called the servient tenant – land that is
              burdened by the easement. Dominant - not entitled to possession, but ingress and egress across the
         c. Easements appurtenant run with the land; in other words, where the land is transferred, the easement
              appurtenant will transfer to the new owner of the land.
 Easement in Gross – An easement is in gross when it is intended to benefit the owner or possessor personally
   rather than in connection with any land the holder owns. In other words, every easement in gross requires only
   one piece of land (i.e. the servient tenement) which is owned by a person other than the owner of the easement in
    gross. There is no dominant tenement. The servient tenement is the land subject to and burdened by the
    easement. For example, A conveys “to B Utility Company and its assigns the right to install electrical wires
    along the north edge of Blackacre.” B Utility Company, which does not own any land adjunct to Blackacre, has
    an easement in gross across the servient tenement (i.e. Blackacre). The owner of the easement in gross is called
    the dominant tenant (even though no dominant tenement exists). Easements in Gross are personal.
   Affirmative vs. Negative Easements
          a. Affirmative Easements – Affirmative easements entitle the easement holder or owner to (actively use
              in a manner described by the easement) make affirmative use of the servient tenement (i.e. laying and
              maintaining sewer lines, draining water, simply having a right of way, ingress and/or egress). In other
              words, the dominant tenement owner is privileged to make affirmative use of the servient tenement.
                    i. This easement authorizes a holder to make active use of a servient estate (if there was no
                       easement, the action would be a trespass – i.e. the right to cross someone’s property to hunt.
          b. Negative Easements – negative easements prevent the servient tenement owner from doing some act or
              making a particular use of her own land. A person gives up the right to use their property in a manner
              that they are legally entitled to except in the manner which is proscribed by the negative easement. For
              example, B, the owner of Blackacre which is located between the ocean and As Whiteacre, aggress in
              writing that no structure will built on Blackacre that will interfere with As view of the ocean. A thus
              has a negative easement on Blackacre, the servient tenement that bears the burden of a negative
                    i. The holder is given up a right to prevent the owner of a servient estate from doing something
                       on the land that they would otherwise be able to do (limits – give up right)
                           1. example: B cannot build a house higher than 2 stories
                           2. These CANNOT be acquired through prescription.
          c. Note: Students should also keep in mind that a negative easement is negative in another sense: it does
              not permit the dominant tenant to engage in any affirmative act on the servient tenement.
   Creation:
   If appurtenant then there must be a dominant and servient easement.
   Easement in Gross means you are given a right to come unto a property, but there is no dominant and
    servient estate. Example would be permission to hunt on property or to allow an electric company to
    construct a electric pole.
   Commercial gross easements are transferable, but personal gross easements are not.
   Easements are perpetual and will continue forever if not limited by the defined term of years.
          a. Creation by writing – an easement is an interest in land and therefore requires compliance with the
              SOF in the creation or transfer thereof. As a general rule, the writing or express grant must be signed
              by the party to be bound.
          b. Creation by implication – An easement may also be created though not expressly in writing, but by
              implication. An easement by implication generally arises when the owner of 2 or more adjacent parcels
              sells one or more of them and it is clear (although no easement was mentioned in the instrument of
              conveyances) that one was intended.
                    i. Implied easement comes about with factual situation presented – particular set of facts creates a
                       law that shows that the parties intended to create the easement and the fact that they forgot to
                       create it, doesn’t prohibit it from being created. Prescriptive Use can be implied by the set of
                       given facts or by condemnation.
                           1. Ex: O transfers portion of land that is land-locked away from a road. Sometimes a ct
                                will imply the existence of an easement to keep land from being land-locked
                   ii. In order to establish an easement by implication, the following requirements must be met:
                           1. That at the time of the conveyance once part of the land is being used for the benefit of
                                the other part (quasi – easement); AND
                           2. That the use is apparent; AND
                           3. That the use is continuous; AND
                           4. That the use is either reasonably or strictly necessary to the enjoyment of the quasi-
                                dominant tract.
          c. Easements Implied by Grant and Reservation – if the implied easement is in favor of the conveyee
              and is appurtenant to the tract conveyed, it is called an implied grant. On the other hand, if the implied
           easement is in favor of the convey or and is appurtenant to the tract retained, it is called an implied
 Creation of Easements:
       a. Easements may thus be created as follows:
                i. By express provision/ language in a deed or will (must comply with statute of uses);
               ii. By implication of law to certain facts – which arises from the circumstances surrounding the
                   dividing by the owner of a piece of land into 2 pieces and conveying one of such pieces to
                   another. Easements by implication include (a) easements of necessity and (b) easements created
                   by conveyances in reference to a plat depicting streets, parks, and other places thereon (quasi –
                        1. Easements of necessity or Way of necessity: based on public policy b/c you want Xs
                            land to be commercially usable. Law assumes that easements were intended if not
                            expressed. Requirements for easement of necessity are:
                                a. Must be common ownership and must immediately precede severance
                                b. Must be transfer of one of the parcels
                                c. At time of severance, there must be access to a public street to a part of the
                                d. Must be a way of necessity at time of severance (no other access to x unless
                                     through y)
                                e. Must be an absolute necessity or practical choice
                                f. Ct will then imply that way of necessity is provided across y, but must be
                                     convenient for y, too – the parties would not have planned or inferred to
                                     landlock a portion of the land, so the parties must have intended an easement.
                                g. Continues only as long as necessity continues – the easement continues so long
                                     as the easement is the only way to enter the property (if a road was built in
                                     between the parcels, then the easement is no longer necessary to get to the
                                     land, so the easement isn’t valid any more)
                                h. By express language, you can negate the presumption that the way of necessity
                                     is there
                                i. WV Case—Berkeley Developers v. Hutcher: way of necessity case (1976)

                           Way of Necessity Elements
                        1. Common ownership of the dominant and servient estate immediately prior to the
                           severance that creates the need for necessity.
                        2. Must be a severance by transfer of the parcel
                        3. At the time of severance, the servient must have access to road or highway
                        4. There must be a need for access to the road at the time of the severance. A later
                           occurring need will not suffice. Some courts say the need must be absolute, others say
                           that it just needs to be a necessity.
                        5. Continuing need is the type of need necessary to be constituted as a necessity.
                        6. Based on the presumed intent of the property it must be stated.

                        2. Easement by Implication– Quasi easement (Power Line or Sewer Line Owned by
                           the Utility)
                               a. Based on inferred intentions of parties
                               b. Common ownership surrounded by others
                               c. Apparent and continuous use of part of property to benefit another part of
                                   property (ex: pathway to farm area)
                               d. During common ownership, roadway used to benefit farm
                               e. Quasi-easement essential: helps infer intent
                               f. Must be apparent use (grantee’s use would be apparent at time of severance) –
                                   apparent that the possessors are the current owners and plan to continue to
                                   use the property.
                               g. At severance, x would know purpose of y’s use of pathway
                                  h. Must be continuous use – doesn’t mean you have to use it daily, but it must be
                                      a sufficient type of use (same as for a prescriptive easement)
                                  i. There must be a transfer in the land
                                  j. All must be in existence at time of severance
                                  k. **Unlike way of necessity, in implied easement, there is no requiring of a
                                      continuing need…. if conditions exist at time of severance, continued necessity
                                      of deed is not required
                                  l. Ct sometimes use these terms interchangeably but they are very different!
                iii. By prescription – which arises by adverse use of the servient tenement by the dominant tenant
                     for the period of the SOL (WV- 10 years). To mature such an easement, the use must be (as
                     with adverse possession): (a) adverse as distinct from permissive, (b) open and notorious, (c)
                     continuous and without interruption (must have more than a verbal statement, such as a lawsuit
                     or putting up a gate/barrier), and (d) for the statutory period;
                          1. Prescriptive Easement
                                  a. Must be a trespass and must be to an individual
                                  b. Must be an adverse use, but adversity does not imply personal hostility
                                  c. Not able to obtain negative easement by prescriptive easement
                                  d. Permissive use is not adverse – If initial entry is permissive, to show you are
                                      holding adversely, you have to be clear that it is no longer permissive use
                                  e. SOL for adverse possession is applicable – 10 years in WV with a 5 year grace
                                      period (grace period is given for minorities, mental incapacity up to 20 years)
                                  f. Mental Intent towards showing hostility is not the benchmark, if the easement
                                      starts out permissive, there needs to be a clear change showing that you are
                                      openly and notoriously using the property to adversely possess the proeperty.
                                  g. A mere verbal or written protest is not sufficient to stop the running of the
                                  h. There is no such thing as a public prescriptive easement

               iv. By estoppel;
                v. By eminent domain.
 Extinguishment or Transfer of Easement: The instrument creating an easement may expressly state the terms
  on which the interests is to expire (i.e. at the end of a specified number of years). If expiration is not specified in
  the instrument, the easement is considered to be ongoing and the easement will transfer with the dominant estate.
        a. If you do not want the easement to be transferred, then you would have to expressly state in the
            conveyance that the easement is not being transferred with the dominant land (this would destroy the
        b. W. Va. 36-3-10: If you convey property all you own and all appurtenant to it will be transferred
            (except is specifically excluded).
        c. In-gross easements are not transferable (no dominant estate), unless maybe for commercial purposes
        d. However, they may be terminated in a number of different ways:
                 i. Release – The holder of the benefit of an easement or profit (i.e. the dominant tenant) may
                    execute a release, thereby terminating the burden of the servient tenement. Such a release must
                    be in writing and comply with the SOF, because it is an interest in land.
                ii. Merger - Easement will terminate upon merger if A buys back his own ppty that B had a right-
                    of-way through; resale to someone else does not reestablish easement
               iii. Abandonment – a clear showing by the dominant tenant that he intends to abandon the use
                    (and evidenced by his conduct) will extinguish an easement.
                         1. Non use of an easement, no matter how long continued, will not be sufficient to
                              terminate an easement or constitute an abandonment. However, non-use coupled with
                              an intent to abandon is sufficient to constitute an abandonment. Remember that an
                              inent to abandon must be evidenced by conduct.
                                  a. Look at the intent
                                  b. Look at the evidence by conduct
                        2. WV Case—Strahin v. Lantz: Burden is on party showing absence of easement who
                             says that it has been abandoned, must show intent and non-use by “clear and
                             convincing evidence”
                iv. Prescription/ misuse – when the servient tenant has used her land continuously and
                    uninterruptedly for the statutory period of prescription (WV 10 years) in a way that is
                    inconsistent with and adverse to the easement and without consent of the dominant tenant, then
                    the easement is extinguished by prescription. (LAST RESORT). Example) Putting a fence or
                    gate up.
                        1. If a right-of-way is misused, Ct may say that it is extinguished b/c there is no way to
                             separate permissible from impermissible use (this would make the right of way not
                             usable by anyone)
                                 a. Courts will generally separate the permissive use from the impermissive use,
                                     so the permissive right-a-way can still be used. However, when this is not
                                     possible, then the court will just eliminate the right a away completely.
                                 b. A has no responsibility to keep up B’s right of way
                 v. Estoppel – when the servient tenant, in reasonable reliance on conduct of the dominant tenant,
                    uses his servient tenement in a manner inconsistent with the existence of the easement and it
                    would be inequitable to pen-nit further use of the easement, such easement is extinguished by
                    estoppel. Requires an affirmative act by one party that the other relies upon versus prescription
                    where one party just acts.
                        1. Representation that something is allowed.
                        2. Reliance on a promise

LICENSES – A license simply permits one person to come onto the land in the possession of another without
being a trespasser. Unlike an affirmative easement, a license is not an interest in land. It is merely a privilege,
revocable at the will of the licensor (unless it is coupled with an interest).
         Compared to a lease: A license may be distinguished from a lease since a licensee never has possession
           of land. A lessee, on the other hand, always has possession of the land.
         Compared to an easement: An easement is a substantial incorporeal interest in the land of another and is
           created in most cases by a deed of conveyance. It is an interest in land and requires for its creation a
           compliance with the SOF. On the other hand, a mere license is no such interest in land and requires no
           formalities for its creation.
         Compared to a contract: A K is always based on a consideration theory. There may or may not be a
           consideration for licenses. For example, if A permits B to come onto As land to park his car for 2 hours
           with no consideration involved, then B has a mere license. This license is revocable at any time by A.
           Note however the following variation: A permits B to come onto As property to part his car for 2 hours
           and B pays A $2.00 for As agreement that B may do so without interruption. B has a license to park on
           As property which is revocable, but he also has a contract under which A has promised for a
           consideration not to revoke the license. Although A has the right and power to revoke the license, he has
           only the power but no right to breach the K (and A is liable if he does so).

Find out by calling the lender
A release is used to pay the amount owed then you should
Pay 5 dollars to have assessment recorded at the clerk of court (seller) 59-1-10, subsection 5
Treated as the deed of trust and recorded in the miscellaneous index, seller has to pay for recording it.

Who pays the real estate commission? Seller, generally paid out of the closing to listing agent.
Documentary Transfer Tax - Obligation on grantor, unless you fail to notify then it is on you as the buyer. 1.10 for
every 500, 20 dollars for the housing development authority, 0.55 cents unless the county increases it all the way up
to 1.10 for every 500.

What does the buyer pay the time of closing?
The recording of the deed…5.00 pages for 10 dollars, 1 dollars each additional page
Preparation for the deed
January – June first half tax paid, closing occurring in May 1 , seller must pay the second half of taxes July-Dec.
24.00 A MONTH

Seller will also be responsible for first half of 2008 as well, but what you do is give the money to the Buyer and tell
them that they are responsible for the taxes now. Seller should also go to the sheriff’s tax office and tell them who
is the new owner of the land and put in care of.

Fire and Casualty Insurance
Must have insurance in place effective to the date of closing and name the bank as having an interest in the loan.
You can call the day of and have a “binder” put in place but you should not wait until the last day.

Always a tax lien in West Virginia, you cannot release it. You need to get a tax ticket every year.

66 w.v. law review page 271, Londo Brown

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