A. Personal Property
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1. Wild Animals (ferae naturae)
a. Possession of a wild animal requires:
i. physical control (occupancy)
1. can be met by mortal wounding and continued pursuit
2. trapping animal so as to deprive it of its natural liberty can be
3. cornering an animal rendering escape impossible can suffice
(Liesner v Wanie: cornering a wolf)
a. Pursuit alone is not sufficient
ii. Depriving it of its natural liberty
iii. Intent to possess
iv. Superior claim ratione soli
1. A visits B, catches fox on B’s property. B sues A to recover fox.
B wins ratione soli.
2. A starts fox on own land, chases and captures it on Bs land. B
claims fox ratione soli, A claims on pursuit and capture. A
prevails but is liable to B for trespass.
3. A starts fox on Cs land, but captures it on Bs land. Possibilities:
lawsuits between A & B, or A & C.
v. Animus revertendi
1. an animal trained to return does not become ferae naturae
immediately upon leaving its enclosure
2. But if it does not return, it does become ferae naturae again
3. If an enclosed animal—like deer—escapes and is immediately
chased, it remains in the possession of the encloser
4. Marked animals remain the possession of the marker unless they
stray far and don’t return
5. Bees become property when they are hived, and remain property if
they are swarming
vi. (Tame animals are treated differently)
i. Pierson v Post: Pierson steals fox Post was chasing. Ruling for Pierson because
pursuit is not occupancy. Important issue that the chase occurred on unowned land.
1. Trespass on the case: action to recover damages that are not the immediate
consequence of an act but an indirect result of it. Squib case.
ii. Buster v Newkirk: P wounds deer, follows it, gives up for the night, the next
morning found that D had killed deer. P did not wound deer sufficiently to deprive it of
its liberty. Imp issue: that P gave up pursuit.
1. Trover: action to recover damages for the conversion of personalty
iii. Keeble v Hickeringill: D scared ducks away from Ps duck pond. P did not have
possession ‘to count’ the ducks, but he had possession ratione soli and due to the pursuit
of his trade, ergo had intent to possess. (Example of rival schoolteacher. Is it different if
D sets up own duck pond, or if he shoots gun from a public road?)
iv. Dapson v Daly: P shot a deer but not mortally, but D killed it and carried it off. P
never acquired possession because his shot wasn’t mortal and even if it had been, he had
no license to hunt. Doesn’t matter if D had license b/c P had burden of proof to show his
1. Replevin: action to recover chattel
v. State of Ohio v Shaw: Shaw steals fish from trap. Traps are not totally escape
proof and trap owners not present. Was there possession? Fish were confined enough
such that they would be there if owners came for them and were there to be stolen.
Refinement of Pierson v Post. [Does it matter that D had to interfere with nets?]
vi. Ghen v Rich: custom of killing whales with bomb-lances that identify killers when
whales wash ashore. Respondent bought whale from finder who took whale killed by L.
Case determined by whaling custom, not by common law. Custom legitimate if
1. immemorial usage
2. unanimity in its observance
3. in general usage throughout an industry
4. custom was reasonable
a. Libel: to sue in admiralty court.
vii. State of ND v Dickinson Cheese Co: D discharged whey into a river killing fish
and damaging the environment. Can state collect damages for the fish lost? State only
has sovereign interest, not ownership in fish ferae naturae. As sovereign it can regulate
how the fish will be reduced to ownership but does not have property rights upon which it
can support an action for damages.
1. Res nullius: belonging to no one, usual state of animals ferae naturae.
2. Property as Real or Personal
a. Personalty: “Personal property:” “Any movable or intangible thing that is subject
to ownership and not classified as real property.”
b. Real property: “Land and anything growing on, attached to, or erected on it,
excluding anything that may be severed without injury to the land. Real property
can be either corporeal (soil and buildings) or incorporeal (easements).
c. Differences between real and personal property:
i. Personal property can be transferred orally, real property can’t
ii. Statute of limitations have different lengths
iii. Form of action is different
iv. Succession at death is different
1. Haslem v Lockwood: P gathered manure found on a public highway into
piles intending to remove it the following day. Before he could, D removed the
manure piles. The borough has fee of the highway. Neither P nor D had
permission from borough to remove the manure. Manure ruled to be personalty,
which is important because personalty can be abandoned, realty can’t.
Abandoned personalty taken by first finder. A hard case because manure on a
farm treated like realty. P took occupancy when he put in labor to improve the
value of the manure by gathering it into heaps. Decision refines occupancy to
allow for a reasonable time to leave the property in order to arrange for its
removal: 24 hours. D took manure within that time and therefore violated
occupancy rights of P.
a. What if borough challenged possession of manure? Borough holds fee
of road, but not likely to succeed ratione soli because highway is not
private property; borough does not regulate access to it.
b. Fixture hard cases: sconces on wall? Grain on a farm? Shrubs on
i. Fixture: an item attached to a freehold of land that passes with
the land even though it is chattel.
ii. Fructus naturalis: trees, e.g.
iii. Fructus industrialis: product of the industry of the occupant of
the land, crops, e.g.
2. Goddard v Winchell: P owned farmland. The grass rights were leased to
James Elickson. A meteorite landed on P’s farm and buried itself 3 feet in the
ground. Peter Hoagland in the presence of Elickson dug up meteorite claimed it
to himself on account of having found and dug it up. Hoagland sold it to D.
Meteor is realty because affixed to the land. As part of the earth, it was not
unclaimed, lost, abandoned property available to be reduced to possession by the
first finder. [It did not matter that P didn’t know of presence of meteor, that P
was not in possession of the land surface at the time, or that Hoagland did the
work of digging it up.]
3. Abandoned Property
a. One retains rights in chattel until manifesting intent to abandon.
b. Devices for determining abandonment
i. Presumption because it’s not been claimed
1. Problem: what if not claimed because limits of technology make it
impossible, not because of lack of intent?
ii. Statute of limitations for recovery of an item
1. Problem: statute doesn’t begin to run until 3rd party tries to take
iii. RULE: “The occupation or possession of property lost, abandoned or
without an owner must depend upon an actual taking of the property with
the intent to reduce it to possession.” But taking doesn’t have to be
manual. Don’t have to have it actually in hand.
1. Eads v Brazelton: P found wreck in river. Marked wreck with buoy and on
land. Circumstances preventing him from beginning to raise the wreck, but
claims to have remained in neighborhood and to have continually asserted his
rights. Meanwhile D began to raise wreck. Not clear if D knew P was intending
to work on wreck. Buoys indicate intent but not possession. P would have had
to put boat able to raise the wreck over the wreck, keeping a guard over it to
indicate to intruders that P was occupant of wreck.
4. Finder’s Rights
a. The finder of lost property holds it in trust for the benefit of the true owner, as a
b. Finder has rights superior to those of everyone except the true owner, even if he
c. Lost property (involuntarily parting where owner had no intent to part with it and
doesn’t know where it is) goes to finder.
d. Abandoned (voluntary relinquishment of property) goes to finder.
e. Mislaid property (intentionally put somewhere by owner where he can control it
but then forgotten) goes to owner of locus in quo.
f. Problem: this assumes ability to discern intent of the owner.
g. Rule for embedded property: except in the case of treasure trove (“any gold or
silver in coin, plate, or bullion found concealed in the earth or in a house or other
private place”), embedded property presumed to become possession of owner of
the land not the finder.
i. Armory v Delamirie: chimney sweep boy finds jewel, is defrauded by jeweler, can
maintain action of trover because finder has superior title to all but true owner.
ii. Clark v Maloney: P found floating logs, anchored them. Logs float away, D takes
possession of them. P may maintain action of trover because finder has possession,
possessor who loses chattel does not lose rights of property
1. Different rule from Pierson v Post because here there is a rightful owner.
2. Does not matter how P or D came to acquire logs
3. P had to have exercised actual control over logs
a. Doctrine of accession and specification: if D had cut logs into boards P
cannot recover value of boards because there had been a change in
species, allowing no recovery except for original value unless thing can
be put back into original state.
iii. Barker v Bates: timber was driven ashore, apparently thrown overboard off a ship,
and considered abandoned. P owns land as freehold where timber washed up. D took
possession of it from P’s land in trespassing on the land. No one has claim b/c
abandoned, P gets timber in part because of trespass and in part ratio soli.
iv. South Staffordshire Water Co v Sharman: Employee cleaning pool fully
owned by P discovers gold rings. P gets rings b/c possession of land carries with it
possession of everything attached to, under, and anything in which there is absence of
better title, so presumption is that possession falls to the owner of the place where it was
found. But see Hannah v Peel which understands this as applying only to employees.
v. Hannah v Peel: P finds brooch in house which P owned but in which he had never
lived. Here rule is not clear:1) a person possesses whatever is attached to or under his
land. 2) But a thing lying on the land is not necessarily possessed by owner of land. In
this case, brooch was lost; it was never possessed by occupancy by D.
1. Bridges v Hawkesworth (QB, 19th cent): money found in shop by traveling
salesman, found to have been lost because left unintentionally (as opposed to
misplaced) and therefore the possession of the finder except against real owner.
vi. Favorite v Miller: pieces of stolen statute of King found on private land without
permission of owners. P did not know statute was there, did not find out what D had done
until reading about it in newspaper. Not lost, abandoned, mislaid property. Trespass is
significant b/c “a wrongdoer should not be allowed to profit by his wrongdoing.” And
statute fragment was embedded in land and that gives presumptive rights to land owner
even if he did not know it was there.
a. transfer of rightful possession of personal property from owner (bailor) to a
person who is not its owner (bailee) for a limited purpose.
1. Chose in action: def #3 “Personal property that one person owns but another
person possesses, the owner being able to regain possession through a lawsuit.”
b. requires possession of property by the bailor and deliverance of property to the
c. requires explicit or implicit contract between bailor and bailee
d. requires acceptance by the bailee
i. Bailee has to know what the object is that he is caring for
ii. Test of knowledge of object is not outward appearance but what bailee
should expect given nature of the circumstances
e. (qualified) possession is transferred from bailor to bailee such that the bailee can
sustain an action against anyone who deprives him of object
i. Mutual benefit/non-gratuitous bailment: If the bailment is beneficial to
both parties, the bailee must use ordinary diligence to protect the bailed
object from damage or loss.
ii. Sole benefit of bailor/gratuitous bailment: If the benefit is solely for the
bailor’s benefit, the bailee is liable only for gross negligence.
iii. Sole benefit of bailee: If the bailment is solely for the benefit of the bailee
(i.e., the bailor lends the object to the bailee for the latter’s use), the bailee
is required to use extraordinary care in protecting the goods from loss or
damage (but he is still not an insurer, and is liable only if some degree of
fault is shown).
g. Not a bailment: money in a bank (b/c don’t return exact same money), door-
to-door salesman (an agent, doesn’t have possession of the goods), chattel
mortgage (buying car on time, e.g., as long as you make payments, you keep the
car), lease, self-storage, pledge, license, conditional sale, trust.
i. Peet v The Roth Hotel: P left ring with cashier of Roth Hotel for delivery to a guest
the Jeweler Hotz. P showed the ring to the cashier who put it in an envelope, ring was
then lost. D liable b/c there was mutual consent and b/c because it knew it had a ring thus
it knew what it had responsibility for, and as bailee it had the duty to exercise reasonable
diligence in its care. It did not matter that the bailee did not know how valuable the ring
ii. Allen v Hyatt Regency: P parked and locked car in attended lot. P retained keys,
needed ticket to get out. Car was stolen. Majority finds bailment b/c D had control of
garage (not an unmanned outdoor lot) & P can assume D would protect car. Dissent says
no bailment b/c no delivery, no acceptance by bailee, no passing of possession.
1. Bailment for hire: “A bailment for which the bailee is compensated.”
2. Swarth v. Barney’s Clothes: P parks in Ds lot, leaving keys with attendant,
leaves wallet in car. Wallet is gone when P returns. There was a bailment for
the car but not for any item which one would not customarily find in the car and
which the bailor did not specifically call to the attention of the bailee. There has
to be actual or constructive acceptance by bailee.
iii. Cowen v Pressprich: brokerage firm runner brought wrong bond, D’s agent realizes
this, calls for a runner, an unknown runner comes, steals bond. Is D liable as involuntary
bailee? As long as the involuntary bailee continues to show no volition to enter into
bailment, he is not under duty to care for or guard the object and can’t be held negligent
or liable. However, as soon as bailee exercises any kind of dominion over object bailed,
he assumes the same responsibilities as a voluntary bailee. By accepting and trying to
return bond, D’s agent exercised dominion over it and therefore became like a voluntary
bailee. Dissent: if someone comes into possession of a bailed object through no express
or implied consent, they are not responsible to the true owner.
1. Constructive bailment: “A bailment that arises when the law imposes an
obligation on a possessor of personal property to return the property to its
rightful owner, as with an involuntary bailment.”
2. Involuntary bailment: “A bailment that arises when a person accidentally, but
without any negligence, leaves personal property in another’s possession.” If
the involuntary bailee doesn’t return the property, he can be liable for
6. Gifts: key issue is delivery
a. Gifts Inter Vivos: in order to transfer property by gift there must be
i. intent on the part of the donor to make a present transfer
ii. either a deed or instrument of gift, or there must be an actual delivery of
the thing to the donee,
iii. acceptance by donee.
1. Where a gift is of value to the donee, the law will presume an
acceptance on his part.
iv. There must be change of possession via actual or constructive delivery
1. There must be an actual and irrevocable present transfer of
2. Oral statement of gift is not enough
3. Delivery must conform to thing, so symbolic delivery suffices for
something that cannot be physically delivered.
a. Symbolic delivery: delivery of something representing the
gift, or of something that gives the donee a means of
obtaining the gift
v. The possession can be constructive, that is the donor can continue to hold
the property after it has been transferred
vi. The donee’s possession doesn’t have to be continuous
vii. There doesn’t have to be manual delivery, though delivery is essential
1. Irons v Smallpiece: P claims father made verbal gift of two colts, but these
remained in his father’s possession. A few days before his death, the father
furnished son hay for the colts at a stipulated price as he had promised to do 6
months before. No transfer of property, so no gift.
2. Gruen v Gruen: Father writes son [P] a letter on his 21st birthday telling
him that he wishes to give him a painting as a gift but wants to maintain use of it
for life. The son never took manual delivery of the painting, and it remained
with the father until he died. There was transfer of possession and retaining life
estate doesn’t change that.
a. In re Szabo: shares of stock, transfer not completed by company
before death of donor. Stocks only transferred when changed in the
stock books of the company. Death automatically revokes the agency
to make the transfer.
viii. Not Gifts: trusts, testaments, contracts
b. Gifts causa mortis
i. there must be intent to make present transfer of the gift
ii. the gift must be of personal property
iii. the first must be made while donor is under apprehension of imminent
death, with understanding that donee will possess gift when donor dies, if
the gift has not been revoked before then
iv. donor must die of the peril contemplated not something else
v. possession of the property must be delivered at the time of the gift
vi. gifts causa mortis may be revoked if the donor does not die of the
contemplated peril. Donor’s death makes gift irrevocable and gift
becomes valid before will becomes effective.
1. Woo v Smart: Yee gave P checks in anticipation of his death. P cashed two
checks after Yee’s death. Held not to be gifts causa mortis because transfer did
not take place during lifetime of donor. (UCC 8.3-409(1)) “Mere delivery of a
check does not place the gift beyond the donor’s power of revocation and the
check simply becomes an unenforceable promise to make a gift.” The transfer
of dominion is not complete until the donee has the money because the donor
could stop the check.
a. Problem: Does UCC really apply here?
2. Compare: gift of engagement ring is conditional. If event doesn’t occur, by the
terms of the gift it fails and is revoked.
7. Bona Fide Purchasers: nemo dat quod non habet. The problem of the "bona fide purchaser"
arises when one who is in wrongful possession of goods (e.g., a thief, defrauder, finder,
etc.) sells them to one who buys for value and without knowledge that the seller has no
a. General rule: The general rule is that a seller cannot convey better title than that
which he holds
b. Possession is good title against all the world except those having a better title
i. A sells X to B, B promises to pay next week, title changes immediately.
ii. A lends X to B, B sells it, A can sue and will win, b/c A retains title.
c. To recover must show both title and possession or right to possession.
d. Distinguish from cases like Dapson where object is res nullius—what is important
is whether true owner is known.
e. Money trumps ordinary rules: thief steals $, gives it to A. A acquires title against
i. Anderson v Gouldberg: P cut down logs on land he didn’t own. D claimed them
as coming from land belonging to logging company, which they did not. Holding for P
because only true owner who has better title than P can take logs away.
ii. Russell v Hill: Busbee received a grant of land. Later McCoy received a grant of
land, some of which was the same as Busbee’s early grant. McCoy did not know of
Busbee’s grant. McCoy sold to P some timber on the land which was actually part of
Busbee’s grant. P cut timber and carried it to a stream, where D took possession of it
without consent of P. P cannot recover b/c has no right to possess logs since McCoy has
no rights in land. D wins b/c he has same right to possess as P=wrongful, but D also has
control of logs.
iii. Porter v Wertz: P owns painting, loans it to D for private use. D sold painting
representing through a 3rd party that he was an art dealer. Not an estoppel issue: D not an
art dealer, buyer didn’t investigate provenance of painting, P did not confer indicia of
ownership on D.
1. RULE: for statutory estoppel: “any entrusting of possession of goods to a
merchant who deals in goods of that kind gives him the power to transfer all
rights of the entruster to a buyer in the ordinary course of business.”
2. Definition of UCC of buyer in the ordinary course of business: “a person who in
good faith and without knowledge that the sale to him is in violation of the
ownership rights or security interest of a third party in the goods buys in
ordinary course from a person in the business of selling goods of that kind.”
3. Equitable estoppel: precludes a party from denying that he induced another who
was ignorant of the true facts and who had a right to rely on him to believe and
act to his detriment.
iv. Chapin v Freeland: D owned two counters in 1867. One Warner, converted them,
put the counters in his shop and nailed them down. Warner mortgaged shop to De Wit,
De Wit’s testators foreclosed, sold shop w/counters to P in 1879. In 1881, D took
counters back from P. D cannot recover b/c statute of limitation had run.
f. Voidable Title: not a clear title, but can be passed on to a 3rd party BFP as
good and clear title: (Thus if B obtains goods from A by fraud (e.g., B pays with
counterfeit money or a bad check), B gets a voidable title, and if he immediately
re-sells the goods to C, a b.f.p., A cannot get them back from C.)
g. Estoppel: Also, the owner may lose to the b.f.p. by the principle of estoppel. If A
expressly or impliedly represents that B is the owner of goods or has the authority
to sell them, A cannot recover if C buys the goods in good faith from B. Today,
one who entrusts goods to a merchant who deals in goods of that type gives the
merchant power to transfer full ownership rights to a b.f.p.
h. Void Title: title of a thief, cannot be transferred. Original owner can recover
even if thief has sold to a BFP
i. Conversion: denial of the rights of the person entitled to chattel, wrongful
disposition of property as if it were one’s own. Three requirements:
i. P must assert right to possession
ii. D must have denied Ps rights, must withhold possession from P
1. Do not need a bad motive, D can act in good faith.
2. P does not need to own property, only right to possess counts
3. Real property and non-possessory interests (future right/past right
to chattel) are not subject to conversion.
j. Statute of limitations:
i. Substantive: statute transfers title from one to another rather than simply
prescribing rules for how actions can be brought
ii. Procedural: look when action accrues and how long it has been since
1. A takes from O in 2000. A conveys to B in 2004. In 2008 O sues
B. S of L is 6 years. Who wins?
a. Os action against B accrued in 2004 if look at it
procedurally b/c action against B only begins when he
b. Substantively, B prevails b/c the only issue is transfer of
title and B stands in privity with A.
i. If B stole from A in 2004, a new cause of action
accrued then b/c B was not in privity with A.
iii. Guggenheim Foundation v. Lubell: Painting stolen from P. Later D bought painting
from art dealer. D displayed painting openly. Ca 20 years later P discovered D had
painting and demanded its return or damages. Demand and refusal rule: cause of action
for replevin against the good faith purchaser of a stolen chattel accrues when the true
owner makes demand for return of the chattel and the person in possession of the chattel
refuses to return it.
1. Three ways to determine when cause of action accrues: time of theft, demand
and refusal rule, due diligence rule (time when owner w/due diligence could
have located painting).
8. Fixures: quicquid plantatur solo, solo cedit—whatever is affixed to the soil, belongs to it.
a. UCC 34-21-942(a)(i): “Goods are fixtures when they become so related to
particular real estate that an interest in them arises under real estate law.”
First chattels that are not physically attached to realty are always personalty. Second, chattels
which are annexed to realty in such a manner that they cannot be removed without materially
damaging either the realty or the chattels are always fixtures. The third category consists of those
chattels that are physically connected to the real estate but can be removed without material
injury to either the land or the chattels. When a chattel falls into the third category, its status as a
fixture or as personalty depends upon the objective intent of the owner to permanently incorporate
the chattel into real property, as evidenced by proven facts and surrounding circumstances
entered into evidence.
Factors used to determine this intent:
1. the length of time which the chattels have been attached to the realty
2. whether the chattels are essential to the purpose for which the realty is
3. whether the parties to the lease treated the chattels as part of the
b. Affixation has to be permanent
i. Teaff v Hewitt (1853) test of a fixture:
1. real or constructive annexation of the article in question to the realty
2. appropriation or adaptation to the use or purpose of that part of the realty to which it is
3. the intention of the party making the annexation to make the article a permanent
accession to the freehold, inferring the intention from:
a. the nature of the article affixed
b. the relation and situation of the party making the annexation
c. the policy of the law related to (b)
d. the structure and mode of the annexation
e. the purpose or use for which the annexation has been made
ii. Place most emphasis on intent, based on how a reasonable person would
understand the intent given the conditions and circumstances such as the
nature of the article affixed, the way it was affixed, the purpose it serves
on the land, and the annexor’s relationship to the land and the article.
iii. Constructive annexation: where the objects aren’t really affixed but
comprise a necessary, integral or working part of some other object that is
affixed. E.g. house key. Object often has no separate value.
iv. Wyoming State Farm Loan Bd v Farm Credit Sys: P and D have loaned
money to farmer secured by realty for Board’s loan and crops and machinery on Farm
Credit loan. Farmer defaults on loans. Who gets irrigation pipe? No objective intent to
affix pipe, so not a fixture.
B. Law of Neighbors
1. Adverse Possession—only begins to run when cause of action accrues.
a. ‘Relation back’ doctrine: Once the statute of limitations has run, the adverse
possessor’s title is treated as though it had existed from the moment his
possession began. And the holder of the record title has no claim to damages to
the land during the period of adverse possession, even though the statute of
limitations for injury to property may not have run. AP clears title.
b. TEST OF ADVERSE POSSESSION, possession must be:
ii. Continuous for the statutory period
iv. Hostile (claim of right or claim of title)—w/o owner’s consent
1. minority view: possessor must believe he has title to the property
v. Open and notorious—use of land must be similar to that which a typical
owner of similar land might make
c. “Possession will not ordinarily be presumed to be adverse, but rather subservient
to the true owner.” Therefore to prove adverse possession you have to
demonstrate clear, distinct, and unequivocal intent to hold
d. Title to land held by the federal or state governments cannot be acquired by
e. Statute of limitations and tacking
i. Possession by two adverse possessors, one after the other, may be
"tacked" if the two are in privity with each other.
1. tacking can also occur on owner’s side
ii. If the two successive adverse possessors are not in privity, i.e., do not have
some continuity of interest, then tacking will not be allowed.
iii. Example: In 1970 O grants land to A during A’s lifetime and to B after A’s death. X
takes AP of O in 1971. A dies in 1990. Bs cause of action against X only begins to run
on death of A. But if A lives longer than statute of limitations, X has title only against A
b/c of life estate, but not against B.
f. Disabilities: when true owner is under a disability when the cause of action
accrues, he is given extra time within which to bring an ejectment action
g. Color of title: when you possess property under a deed and only use part of the
land adversely, your possession extends to the whole. Where there is no deed and
thus no color of title, only the portion actually used can be adversely possessed.
i. Fleming v Griswold: O dies in 1815, P is heir, but P under disability. In 1805
Griswold holds land in AP, coveys to D in 1811. In 1840 P sues. S of L has run b/c P
stands in privity with O, notwithstanding any disability when right accrued to P.
ii. Anderson v Cold Spring Tungsten (P): P holds record title to land. D bought
cabin on land, did not know about P’s title. Made improvements, used cabin
continuously as vacation home, posted land, paid taxes, kept cabin locked and shuttered.
D had hostile possession b/c believed property was his, and had exclusive use by using
cabin as typical.
iii. Dillaha v Temple: dispute over land and accretions along a river. Owned
but not used by P. Land entirely controlled by the D who farmed it and
improved it. The possession was not hostile because D knew and
acknowledged that the land was controlled by P. They did not have clear,
distinct, and unequivocal intent to hold title.
iv. Meyer v Law: P owned land. D owned land next door and relying on an incorrect
survey placed a fence on Ps land thinking it was their own. This lasted for 25 years,
neither side realizing the mistake, both sides paying taxes on the whole of the land they
had title to, though this did not correspond to the land they were occupying. Don’t allow
AP b/c based on interpretation of state statute there was no color of title.
2. Lateral and Subjacent Support
a. Lateral support: landowners have duty to provide lateral support to the soil in its
natural conditionto nearby owners and adjacent neighbors. The duty can’t be
delegated, it is incidental to ownership and doesn’t depend on wording of grants
or conveyances. It is a natural right/duty.
i. The right to lateral support is absolute. That is, once support has been
withdrawn and injury occurs, the responsible person is liable even if he
used utmost care in his operation.
ii. the absolute right to lateral support exists only with respect to land in its
natural state. If the owner has constructed a building, and the soil under
the building subsides in part due to the adjacent owner’s acts, but also in
part because of the weight of the building itself, the adjacent owner is not
liable unless he has been negligent.
iii. Noone v Price: whether D is liable for damage to Ps house caused by D allowing
retaining wall to fall into disrepair when Ps house had not been built until after retaining
wall erected. Where an adjacent landowner provides sufficient support to sustain the
weight of the land in its natural state, but the land slips as a direct result of the additional
weight of a building or other structure, there is no cause of action against such adjoining
landowner either to the land, the building, or other structure .
b. Subjacent Support: The right to subjacent support arises only where sub-surface
rights (i.e., mineral rights) are severed from the surface rights. When such a
severance has taken place, the owner of the surface interest has the right not to
have the surface subside or otherwise be damaged by the carrying out of the
i. The surface owner has the absolute right to support, not only of the
unimproved land, but also support of all structures existing on the date
when the severance took place.
ii. Island Creek Coal v Rodgers: P’s house damaged by mining that might have
disturbed subjacent support. Question: is D liable to maintain surface in the state it was
when they bought the fee of the coal or when it is expected to support a subdivision? D
should be held liable for natural state of the land at the time they last took coal from the
3. Air and Light: “Cuius est solum, eius est usque ad coelum et ad inferos”
a. Airspace—rights limited in modern law.
i. Murphy v Bolger: D roof projects over onto Ps property at 16 feet above surface
level. If this is mere nuisance, D would have to pay damages, but P would lose that
airspace. Holding: if the law gives the owner the space above his land, the projecting
roof disseised the owner and D is in wrongful possession of Ps space, so he should be
1. Example: Neighbor’s tree grows over onto your land=trespass. Can cut down
branch if there is no bad effect, can’t cut out roots if there will be a deleterious
ii. United States v Causby: Respondants have farm next to an airfield being used by
military planes. The planes fly so low in the take off and landing that it has become
unlivable. The land cannot be used as a chicken farm, so respondants have suffered
damage. The landowner owns at least as much of the space above the ground as he can
occupy or use in connection with the land. New rule: Flights over private land are not a
taking, unless they are so low and so frequent as to be a direct and immediate interference
with the enjoyment and use of the land.
1. If flights occur at low altitude on property adjacent to P’s property, P might be
able to bring a suit for nuisance if the flights are low enough, frequent enough
and noisy enough to substantially interfere with his use and enjoyment of his
b. Rights in Air and Light: Sic utero tuo ut alienum non laedas: So use your own as
not to injure another’s property.
i. Sundowner v King: D blocked P’s hotel with large screen, seems only a spite fence.
New rule: one may not erect a structure for the sole purpose of annoying his neighbor.
ii. Fontainbleau Hotel v Forty-five Twenty-five Inc: Fontainebleau wants to
build a 14-story addition which would have the effect of shutting off afternoon sun from
Eden’s pool/sunbathing area. Eden says F chose to build the way it did out of malice in
order to harm ER. Does Eden Roc have a right to easement of light and air which would
estop F from building? There is no lawful right to the free flow of light and air. Where
the structure serves a useful purpose, there is no cause of action for cutting off light and
air even if the structure was erected in part from malice.
iii. Prah v Maretti: P wants to block the way D would build his house b/c it would affect
P’s solar panels. Old policy: owners could use land however they wanted, no easement in
light, want to promote development. New policy: society can regulate land use, sun had
use as energy source, unhindered development not a good. Dissent disagrees that old
policy is outdated.
1. Reasonable Use: there will be an actionable nuisance that can be abated if the
gravity of the harm is great and the utility of the conduct to D is not. Test:
a. Extent of harm involved
b. Character of harm involved
c. Social value of activity harmed
d. Suitability of use or enjoyment invaded
e. Burden on person harmed of avoiding the harm
f. Utility of the conduct of D
g. Impracticability of avoiding the invasion
c. Ancient Lights Doctrine: creates prescriptive easement in light and air when held
uninterrupted for 20 years, and prevents a neighbor from building an obstruction
that blocks light from passing through the landowner’s window. Problem: with
light and air, there’s nothing to put owner of land on which easement is taken on
notice to protect his rights.
4. Riparian and Littoral Rights
1. WESTERN: Appropriation doctrine: government apportions water to contesting
claimants. Inconsistent with common law. This is not limited to riparian landowners.
a. First in time, first in right—priority of use
b. A qualified person, in nature or law, must acquire the right
c. Person must establish he is first to appropriate water with the filing of a
permit, the intent to appropriate, and actual appropriation
d. Statutes define what water is subject to appropriation
e. Water appropriated must be put to actual and beneficial use
2. EASTERN: Riparian doctrine (Common law): Right to water is considered an
incident to the ownership of land. All riparian owners have equal rights.
a. Natural Flow Theory: a riparian owner can take water for domestic purposes
only and water level must be kept at normal levels
b. Reasonable Use Theory: no reason to maintain normal water levels, so water
can be reasonably used as long as there is no damage caused to other riparian
a. Appurtenant easement: an easement which benefits its holder in the use of
a certain piece of land, the benefit must be intimately tied to a particular piece of
i. Dominant tenement: an estate that benefits from an easement
ii. Servient tenement: an estate burdened by an easement
b. Easement in gross: easement whose benefit is not tied to a particular piece
of land (e.g. right to use a swimming pool owned by another).
c. Four means to create an easement:
i. Expressly granted, in writing by deed or will
ii. Prescriptive easement: an easement created from an open,
adverse, and continuous use over a statutory period.
1. Not recorded on the public record, so future buyers wouldn’t be on
2. Can’t have prescriptive easement in light and air b/c statute of
limitations doesn’t start to run until there is a cause of action
against the owner of the dominant tenement, since the owner of the
servient tenement never can sue the owner of the dominant
tenement, because the latter merely looks out over the former’s
property, rather than trespassing upon it
iii. Easement by implication: land must originate from a single owner
1. three requirements for an easement by implication:
a. land must be divided up (or "severed"), so that the owner of
a parcel is either selling part and retaining part, or
subdividing the property and selling pieces to different
b. the use for which the implied easement is claimed must
have existed prior to the severance;
c. the easement must be at least reasonably necessary to the
enjoyment of the dominant tenement.
iv. Easement by necessity: two parcels are so situated that an
easement over one is strictly necessary to the enjoyment of the other.
1. There must have been a common grantor: at one time, both the
alleged dominant tenement and the alleged servient tenement were
owned by the same person.
2. There does not have to be prior use at time before parcels were
d. Abandonment: an easement may be terminated by abandonment in some
i. The easement holder’s words alone will never be sufficient to constitute
ii. If the easement holder intends to abandon an easement, and takes actions
manifesting that intent, he will be held to have abandoned the easement,
and it will be extinguished. E.g. non-use on some facts.
C. Land Conveyancing
1. Listing Agreements: broker earns commission he finds a purchaser ready and
able to buy and when purchaser enters into binding contract with seller. This is often
read to mean commission is earned when purchaser completes the transaction in
accordance with provision of the contract.
a. But, if failure to complete contract is the fault of the seller, he must pay the
i. Tristam’s Landing v Wait: P acted as brokers but not exclusive brokers for
D=seller. P would receive a commission on sale. P found prospective buyer. Buyer
and seller made contract, but sale was never closed because buyer refused to go
through with purchase at the last minute. P sues for commission. D is not liable for
commission b/c failure was not D’s fault.
2. Contracts of Sale
a. Statute of Frauds (1677):
i. Contracts for sale of real property must be in writing and signed.
ii. A contract that will not be closed within one year must also be in
writing and signed
iii. The writing must
1. specify the parties to the transaction,
2. the legal description of the property,
3. the consideration
4. or include all material terms of the transaction
5. an additional writing including more or less than the material terms
is not necessary
iv. Exception to statute of frauds: when a buyer pays consideration for the
land, and takes possession of it or improves it, those actions constitute
an adequate substitute for a writing. Payment alone is never enough to
satisfy the doctrine of part performance. Most courts require
possession, some also require improvements.
1. Cash v Maddox: D contracted with P to sell land. P sent check of part
payments with writing on it: “15 acres in Pickens, S.C., land binder, 30 days
from date of check to June 3, 1970). Afterward, D decided not to sell and
returned money. P refused. Description of land on check not precise
enough to meet statute of frauds, so written memoranda or oral contract was
b. Equitable Conversion: (treating real property as personalty and vice versa)
i. between signing of K and closing, buyer has real property interest in
the property, seller has only personal property interest (the title), even
though seller may remain in possession.
1. Where an executory contract for the sale of real property does
not contain a provision allocating the risk of loss and the
property is damaged by fire or some other casualty not due to
the fault or neglect of the vendor, the risk of loss is on the
a. Exceptions: (1) the vendor bears any loss resulting
from his own negligence; and (2) the vendor bears the
loss if at the time it occurred, he could not have
conveyed title (e.g., because his title was
2. Courts may assume a provision in the contract that the
purchaser will receive the property in the condition it was in
when the contract was executed, thereby allocating the risk of
loss to the vendor (or sometimes until the purchaser takes
3. taking of land by eminent domain: e.d. award goes to buyer, K
price to seller
4. lien on real property: If the debt judgment comes after the
equitable conversion, the lien can’t attach to the seller’s land
b/c he only has possession.
ii. “As is” language normally means the condition the property was in
when the contract of sale was executed.
1. Bryant v Willison Real Estate: P contracted to buy building, before
closing, broken water main caused damage in building and surroundings. P
wants to cancel K, D refused, sold building to 3rd party to less,
counterclaims for loss. Held: K language clearly allocated risk to vendor,
so P can get deposit back and is not liable.
c. Contract Contingencies:
i. Disclosures about Property: states moving toward requirement to
disclose material latent defects to buyers
1. Material defects: those that materially affect the property’s
value, or that could significantly impair the occupant’s health
2. Latent defects—defects know to the seller but not discoverable
by the purchaser upon reasonable inspection. If there is a duty
to disclose, it only applies to residential property
a. Have to disclose material physical defects such as leaky
roof, termites, and sometimes non-physical defects
3. Seller has to know of defect before he becomes obligated to
4. Do not have to disclose defects discoverable by prospective
ii. Time for Performance: if not specified in K, parties have a “reasonable
time,” unless K stipulates “time is of the essence.”
iii. Subject to Financing clauses: condition precedent to the buyer’s
1. Condition: a event not certain to occur which must occur
before performance under a K is due.
2. Reasonable time to get financing is measured by the customary
terms and practices of the mortgage market.
3. Purchaser has to make good faith effort to get financing for a
reasonable number of lenders.
4. Contingency for financing exists to protect buyers from a
technical breach of contract due to their inability to get
financing based on facts and conditions present at the time the
contract was signed or due to some fortuitous intervening
a. Bruyere v Jade Realty: couple bought house, got financing,
but it was revoked because they intended to divorce and sale fell
through. Held: they cannot get their deposit back b/c the
revocation was buyers’ fault, and seller should not suffer.
5. Relationship between subject to financing clause and equitable
conversion: for eq. conv. to occur have to have enforceable K,
a K subject to condition is not enforceable
a. If it’s a condition precedent: if I get financing, I take
title—ergo risk does not pass to buyer.
b. If it’s a condition subsequent: I take title, if I don’t get
financing, I give it back—ergo risk passes to buyer.
d. Implied Contract Terms
i. Implied warranty of habitability in newly built houses
1. extends to land as well as improvements on it
ii. Implied covenant of marketable title
1. Marketable title: a title that is reasonably free of encumbrances
and other title defects and free of the risk of litigation.
(Purchaser should not have to purchase a lawsuit.) A title that
a reasonable buyer with knowledge of the facts would accept.
2. If seller can’t produce marketable title at closing, purchaser is
not obligated to buy the property.
3. Three ways a title becomes unmarketable
a. Vendor had title but lost it in an action or proceeding
(e.g. partition action, ejectment action after 3rd party
adversely possessed the land, or condemnation
proceeding in eminent domain)
i. Anderson v Cold Spring Tungsten: D could not
convey marketable title, even though the record
holders, b/c of the adverse possession.
ii. A title that can be shown to satisfy the elements
of adverse possession generally is considered to
be marketable, even though it has not been
proven in a quiet title action.
b. Vendor never acquired title b/c of a flaw in the chain of
title, and therefore there is an unreasonable risk of
c. There is an undisclosed encumbrance on the title (e.g.
mortgage, mechanic’s lien, judgment lien, easement,
i. An encumbrance makes title unmarketable b/c
some other party has an interest in land.
ii. Sundowner v King: spitefence is illegal, but
neighbor doesn’t have an enforceable interest in
King’s land, so King can convey marketable
title even though there is a lawsuit going on.
iii. Cf.: Murphy v Bolger, projection of D’s roof
over P’s land makes title unmarketable;
otherwise P risks creating a prescriptive
d. Burdens incident upon all property are NOT defects in
i. Public zoning ordinance, e.g., is not an
encumbrance. (But if property violated
ordinance and would be subject to judgment,
that makes title unmarketable: see,
ii. Minor building code violations do not render
iii. Tax assessment ≠ unmarketable, but a lien for
back taxes makes it unmarketable unless cured
iv. Seller needs to specify all encumbrances in K to
avoid breaching marketable title covenant.
1. Seller does not have to specify visible
v. That property is worth less at closing b/c of
damage than at signing of K, does not make title
unmarketable, see: Bryant v. Willison.
e. Chain of Title: gap in the chain of title will render title unmarketable
i. Trimboli v Kinkel: 1906, P retained lawyer D to search title to land P were
about to buy. D reported title was good and marketable. In 1910 P tried to sell land
but buyer rejected title because of flaw: 1861 title in Aaron Clark and Harriet
Anderson as tenants in common; in 1863 executor of Clark’s will conveyed
undivided interest to land to Anderson, in return Anderson conveyed to grantee
another parcel. The transaction was not a sale for money, but an exchange. In 1868
Anderson conveyed land to Grimme who title passed by mesne conveyance to sellers
to P. Held: executor acted beyond his power in making the exchange b/c he only had
power to sell and distribute the proceeds, so exchange was a nullity and Clark’s heirs
continued to own title to the property.
f. Express Title Standards in Contracts: purchaser should demand marketable
title of record. This provision is satisfied only by a title for which each
successive owner recorded the deed or other document by which it acquired
its interest in the property.
i. Alternative is insurable title, or quitclaim deed
ii. Quitclaim deed: conveys whatever interest the party has to convey;
used to clear up ambiguities in title.
g. Quantity of Acreage: Rule in sale in gross is that mistake in land acreage has
to be significant before it will void a contract.
i. Turner v Ferrin: Turners tried to get K rescinded b/c of mistake in acreage and
b/c no exceptions were made in the deed for a right of way. They contend the deed
was unmarketable and unwarrantable. Held: Turners had adequate information
before signing K and the acreage variance was not significant enough b/c this was a
sale in gross.
1. Contract for deed: K for purchase of real property where seller retains deed
to the property until buyer makes payment in installments equal to full
purchase price. Deed placed in escrow. Dangerous b/c either you pay the
whole price or you lose it all—no protections like in a mortgage.
h. Contract Remedies:
i. Damages: usually nominal damages measured on the day of the
breach. It is a restitution of the nondefaulting party’s reasonable, out-
of-pocket expenses incurred in the transaction. For vendor, this
amount is reduced by any amount recoupable when the property is
resold. E.g. if a title search can be reused.
1. Consequential damages: measured by the difference between K
price and the fair market value of the land
2. Exception: vendor’s willful misrepresentation of ownership
where damage is measured by the lost benefit of the bargain.
3. When purchaser defaults, vendor is usually entitled to keep
ii. Specific performance: traditional remedy for purchasers, less likely for
vendors, especially if property is not unique.
1. petitioner must first tender performance under the contract,
2. Specific performance will only be granted if the contract of
sale is legally binding and is supported by adequate
iii. Rescission: cancellation of a contract, by mutual agreement of the
parties or by court decree.
1. Grounds for rescission: mutual mistake of fact, failure of
consideration, fraud, intentional misrepresentation, undue
2. A person seeking rescission must restore or offer to restore all
that he received under the contract. This “tender back”
requirement is a precondition of any decree granting rescission.
3. Land Transfers:
i. the deed is the primary but not sole means of transferring title to land
(also, adverse possession, testamentary devises, etc.)
1. Dedication: transfer of land from a private individual to the
i. oral statement can be enough
ii. can be acquired by implication over time if the
public is allowed to use the land
1. simple use for prescriptive period of
adverse possession is not enough to
create a prescription. The use must also
be against the wishes of the owner.
iii. the public must accept the dedication
2. Compelled dedication: public gives zoning permission on
condition that owner dedicate some of the land for public use.
ii. Deeds versus wills:
1. Deed is in present; will takes effect after death and probate
2. Deed is valid inter partes without further formality, as soon as
it is passed between the parties; will has to be probated to be
3. Neither deed nor will require consideration, but if land is sold,
the deed is the exchange for the money.
4. A will is ambulatory—capable of being changed until testator
dies. A conveyance inter partes trumps a will b/c the will is
iii. 4 parts of a deed:
1. prologue—who the parties are and what is the situation
2. granting clause—the verbs
3. habendum clause—doesn’t add much to the granting clause b/c
the two should mesh. Clause will spell out limits in the grant
and the warranties.
4. description of land
iv. Three types of deeds:
1. warranty deed—seller warrants against all defects and
encumbrances in the title except those specifically excepted in
the deed itself no matter whether the seller or some predecessor
owner created the defect or whether the seller even knew of the
2. limited (special) warranty deed—seller limits his warranty to
those defects or encumbrances that are attributable to some act
by the grantor, but makes no warranties about defects or
encumbrances created by previous owners--deed does not run
with the land.
3. quitclaim deed—contains no warranties. Grantor conveys only
whatever interest he owns but does not even warrant that he
i. Bill of sale used to convey personalty
ii. Deed used to convey realty
1. Statement of purpose: I convey to B b/c I want to improve the
neighborhood. If I don’t keep my promise, nothing happens
2. On condition: I convey to B on condition that…. If promise not
kept, conveyance fails.
3. Promise: ordinary K (covenant), I convey to B who agrees to
improve the neighborhood. If promise isn’t kept, other party
iii. Anderson v Anderson: FB Anderson’s mother made will in 1970 granting him
land. In 1973, mother executed deed to Altha Miller, her granddaughter, conveying
the land with life interest reserved, in consideration for being taken care of. In 1975,
Altha Miller gave land to WW Anderson, another son. In 1977 mother died, will
was probated and land given to FB Anderson. Held: Altha Miller, upon receiving
the deed, did not intend to fulfill the consideration, nor did she act to disclose the
misrepresentation that she would or to reconvey the property back to her
grandmother. This is fraud, making title voidable, and deed was rescinded for fraud.
Altha’s transfer to WW didn’t cleanse the title b/c conveyance was a gift not a
conveyance to a BFP for value.
c. Statutory Short Form Deeds: first authorized in Statute of 1707, grants
containing words “grant, bargain and sell” were understood to imply certain
i. In the case of warranty deeds, the statute usually specifies the title
covenants that are statutorily implied into the deed, so they do not
have to be spelled out in the deed itself.
d. Deed Convenants
i. Present covenants:
1. Are breached or violated, if ever, the moment the deed is
delivered, b/c a grantor either has seisin, right to convey, etc.
when he conveys or he doesn’t have it at all, and encumbrances
exist at conveyance.
2. Consequences of immediate activation:
a. Grantee can bring suit for breach of convenants
immediately without waiting for someone to come
forward with a superior right to the property
b. Statute of limitations begins to run on the delivery date,
and may expire before grantee discovers the breach.
3. Seisin--grantor warrants he owns the interest he is conveying
a. Problems arise under this covenant when grantor does
not have any interest or the grantor claims through
adverse possession before all the elements of AP have
4. Right to convey—almost the same as seisin
5. Covenant against encumbrances—grantor warrants no
encumbrances burden the title except those mentioned in the
ii. Future covenants:
1. Obligate grantor to perform an act in the future if grantee’s
interest in challenged
2. Cannot be violated until the grantor refuses to act or the
grantee has been ousted or evicted by someone having superior
a. Grantee cannot bring suit against grantor unless
and until the future covenant is actually breached
b. Statute of limitations does not begin to run until a
3rd party asserts superior title or the grantor
refuses to execute a needed document.
3. Warranty—grantor covenants to defend against and
compensate the grantee for any lawful claims made against the
a. Grantee’s right to bring suit under warranty doesn’t
arise until grantee has been evicted by someone with a
b. Mere existence of a superior title in a 3rd party is not
4. Quiet enjoyment—parallels warranty. Means no one with a
superior title will interfere with the grantee’s possession.
5. Further assurances—requires grantor to execute any document
needed to cure a defect or possible defect in the conveyancing
document. (E.g. where a previously signed document has a
technical defect and needs to be redone.)
a. Only this covenant can be enforced by specific
1. Brown v Lober: 1957 P bought land from Bost, whose executors are D.
In 1974, P granted a coal option to Consolidated Coal Co for coal rights on
the land. Ca. 1976 P discovered that a prior grantor had in 1947 reserved
2/3 interest in the mineral rights of the property. This was a matter of
public record. Thereafter, P had to renegotiate with Consolidated, selling
rights for less. P sues executors of Bost for damages based on breach of
covenant of seisin or quiet enjoyment. Held: no breach of covenant of
seisin b/c statute of limitations had run. No breach of quiet enjoyment b/c
no actual or constructive ouster of P.
2. Proffitt v Isley: ProffitABIsley. Two months after buying land,
Isley’s discover Proffitts had an outstanding mortgage on the land. Isley’s
sued all previous owners back to Proffitts for breach of general warranty.
Held: Present covenants are personal, they do not run with the land, so there
is no remedy against a remote grantor only immediate grantor. And, unless
the convenantee is evicted or has satisfied the outstanding encumbrance, he
may only recover nominal damages.
a. Common law rule: cause of action arising from a breach of a
present covenant is not assignable.
3. St Paul title Insurance Corp v Owen: liability to remote grantees.
OAB—mortgagedC. When C tried to foreclose, discovered B had
no interest in property b/c O had not been paramount title holder and sued O
under covenants of title, but the breach occurred when the court ruled that B
possessed no interest in the property, frustrating C’s attempt to foreclose. C
sued B under covenants of title. B had conveyed by special warranty deed,
and the defects in the title were anterior to his possession, so B is not liable.
e. Innocent improver statutes: establish that compensation has to be paid for
increase in value made by the improver, as long as improver believes he is the
i. E.g. an adverse possessor, believing he has title, makes improvements, then record
owner takes possession. By the statute, the record owner has to compensate AP for
f. Estoppel by deed: A conveys interest in property to B, though A does not
have title but anticipates getting it later. When A gets title, it passes
automatically to B. This applies only where grantor warranted he had title,
not e.g. where grantor merely quitclaimed property to grantee.
g. Legal Descriptions:
i. Government survey system—ranges, townships, sections
ii. Metes and bounds—start at point of beginning and describe boundary
line by “calls”=distance and direction of travel of each boundary.
iii. Recorded subdivision plat
4. Recording Acts
i. Grantor-grantee index (problem of finding previous grants when you
don’t know dates, and of idem sonans)
ii. Tract index
b. Types of recording acts
i. Common law rule: first in time, first in right
ii. Notice: B must be a purchaser for value and without notice
1. E.g.: “No instrument affecting real estate is of any validity against
subsequent purchasers for a valuable consideration, without notice, unless
filed in the office of the recorder.”
iii. Race: (DE, LA, NC) B must record his own conveyance before A
records. B does not have to be a BFP for value without notice.
1. E.g.: “A deed concerning lands or tenements shall have priority from the
time that it is recorded in the proper office without respect to the time that it
was signed, sealed, and delivered.”
iv. Race-notice: B must be a purchaser for value and without notice and
also record before A
1. E.g., “Every conveyance not recorded is void as against any subsequent
purchaser or mortgagee in good faith and for valuable consideration from
the same vendor whose conveyance is first duly recorded.”
c. Constructive notice: a recorded instrument of conveyance gives constructive
notice to subsequent purchasers/encumbrancers. Such constructive notice
prevents a future purchaser/encumbrancer from being a BFP b/c the
subsequent purchasers has notice whether or not he searches the title.
i. Lis pendens: by common law any filing of suit involving land puts
purchaser on notice of asserted rights of plaintiff. Now you can file a
lis pendens in the recording office in order to give notice.
d. Bona Fide Purchasers—the person protected by recording statutes, must:
i. Be subsequent
ii. Pay value
iii. Be without notice
iv. Be of good faith (without actual or constructive knowledge of prior
1. a party inheriting land is not a BFP and BFP will prevail if
inheritor did not record)
e. Hazards not covered by recording acts: forged or void deeds, deeds by
incompetents, claims of undisclosed heirs, fraud, falsification or records,
adverse possession, etc.
f. The default is the common law standard.
i. Puzzle: OA, OB with notice of A’s interest, OC. B records. C
records. A records. In race-notice everyone loses to someone else. B
can’t prevail over A b/c B had notice. C can’t prevail over A b/c C
recorded first. Have to go to common law default.
g. Marketable Title Act: a person with legal capacity to own land who has
unbroken chain of title of record for 40 years or more shall be deemed to have
a marketable record title.
i. Root of title: extinguishes all interest in land antedating root.
h. CASES (inquiry notice)
1. In re Barnacle: A & B execute promissory note secured by mortgage,
by mistake A doesn’t sign note. A & B file for bankruptcy. Question is if
trustee in bankruptcy has constructive notice. Held: new rule-a a technical
deficiency places a title searcher on notice to inquire further regarding the
validity of the instrument. This would lead to constructive notice.
2. JC Penny v Giant Eagle: shopping center tenant wants to put in
pharmacy, claims it doesn’t know about another’s tenant’s lease giving it
exclusive rights to have a pharmacy b/c that clause wasn’t in the recorded
memorandum. Held: memorandum puts D on notice to inquiry further into
the provisions of the other lease.
3. Methonen v Stone: land subdivided, by series of mesne conveyances
lot passed to Methonen. He refused to acknowledge his lot’s obligation to
supply water to the other lots b/c he did not have constructive notice. Held:
Methonen probably was on inquiry notice, case remanded.
a. RULE: “a purchaser will be charged with notice of an interest
adverse to his title when he is aware of facts which would lead a
reasonably prudent person to a course of investigation which,
properly executed, would lead to knowledge of the servitude.”
ii. Payment of Consideration
1. Geo M McDonald v Johns: Johns owe $ to McDonald and Bechtol.
J conveys mortgage to B. Then J conveys mortgage on same land to M.
Both mortgages given to secure pre-existing loans w/o new consideration.
Bechtol mortgage executed first, but McDonald mortgage recorded first.
Who wins? Held: B b/c neither B nor M was a BFP b/c there was no
consideration, so common law controls= first in time.
iii. Bona Fide Purchaser Filter: allows a BFP of land with a prior
outstanding unrecorded interest to pass title free of the unrecorded
interest to a subsequent purchaser who otherwise would not qualify as
a BFP under the recording act.
1. Exception to BFP filter: the grantor or former own of the
property, who held subject to a prior equity, is prevented from
acquiring the rights of a BFP. (Chergosky v Crosstown Bell)
2. Principle of the BFP filter: OA unrecorded, OB recorded
and w/o notice, BC with notice of A’s interest. Once B takes
title as BFP, the question of subsequent notice to a subsequent
purchaser is irrelevant.
i. Recording and Indexing: land is not passed by conveyance but by recording.
1. Zimmer v Sundell: MR and wife (W), R dies and W takes under
survivorship. WSundell. MG by quitclaim deed. GZimmer by
quitclaim deed and Z records. Certificate of survivorship issued to W.
Sundell records deed MR/W, certificate of survivorship and WSundell.
Conveyance MG recorded. Zimmer and Sundell=BFPs without notice.
Statute is race-notice type. Who wins? Held: for Sundell b/c although Ps
deed was recorded prior to Ds, Ds chain of title was recorded before Ps was.
So Ps were strangers to the title as far as the record disclosed. Their deed
was a fugitive deed.
a. Moral: always look at the chain of title before looking
at individual recordings.
2. Documents copied into the land record but not indexed are
considered to be recorded
a. Frank v Storer: Conveyance agreement copied into record but
not indexed. Lot later conveyed by Storer to Glenn. Trustees,
Franks, tried to foreclose on Glenn, who argued that lot not
covered by trustees deed b/c not adequately recorded b/c not
indexed. Court holds for trustees.
i. Minority view is that unindexed documents do not
3. Skelton v Martin: Martin didn’t pay taxes. Land put up for auction
after adequate public notice. Bought and tax deed recorded by Skelton Jan
19 & Jan 20 resp. Jan 7 Martin sold land to Perry who recorded on Jan 25.
Perry’s agent did title search by computer but mistake did not show tax
delinquency. Perry loses b/c there was adequate notice even with mistake
and she was only entitled to same notice as other members of public .
j. Exclusions from the Recording Act:
i. Adverse possessors, marital property, implied easements, persons not
having interest in the land
ii. Mugaas v. Smith: Action to quiet title on adverse possession of strip of land. P
took possession of land in 1910, her AP dates to this time. From 1910-1928 a fence
marked her boundary. Fence disappeared. In 1941 D bought land, title included
property claimed by P under AP. There was nothing marking the boundary, no
notice, P was not using land. Held: 1) once land is aquired by AP, possessor can’t be
disseized and doesn’t have to fly a flag, 2) title by AP doesn’t have to be recorded
and trumps recorded conveyances even when land acquired by BFP.
1. SofL would have no meaning if adverse possessor had to continually assert
his claim in a way different from other possessors.
2. Recording Acts apply only to written titles: “titles matured under the statute
of limitations are not within the recording acts.”
3. Marital property rights, implied easements, interests acquired by adverse
possession do not require a written document and are therefore not subject
to recording acts.
iii. Mountain States Telephone v. Kelton: P held easement (recorded in detail)
under land that was sold to D who prepared land for development. During
preparation bulldozer damaged P’s underground cables. D refused to pay damages.
Held: a recorded deed is constructive notice only to those who are bound to search
for it. Since the contractor had no interest in the land, he was not bound to have
notice of the easement deed.
iv. Recording acts are meant to apply to people under an obligation to
consult the records, e.g. purchasers.
k. Title insurance: policy insures only against title defects that were in the
record before the date of the policy, not against defects that come to light after
the policy is issued. Expects buyer to inquire into AP, possible boundary
disputes, encroachments, etc. before taking insurance.
i. Greenberg v. Stewart Title Guaranty: P bought condominiums, before
doing so, acquired title insurance from D. Used units to secure loans. P unable to
sell units b/c titles were unmarketable due to liens and encumbrances. As a result
units were foreclosed and auctioned. P sues D for not finding the clouds on the
titles. Held: title insurer does not purport to act as anything other than an insurance
company. It does not guarantee the quality of the title based on an exhaustive search.
Not a commitment to search the title for the benefit of the insured.
D. Estates in Land
1. Basic Points
a. Estates are based upon the concept of ownership in terms of units of time. They
can be of unlimited or limited duration.
b. There is a Numerus clausus on types of inheritance: “A man cannot create a
new kind of inheritance,” Littleton.
i. Johnson v Whiton (MA 1893): Royal Whiton devised his land—real and personal—
in his will to his 5 grandchildren, and they executed deed to P, but P refused on grounds
that one grandchild, Sarah Whiton, could not pass fee simple absolute. Relevant clause of
the will bequeathed, after death of all Royal’s children, to Sarah and her heirs on her
father’s side. Problem is that it (1) creates a new kind of inheritance, and (2) tries to
create a quality which will subsist on the land forever, which violates the presumption
against restraint on alienation.
ii. Weakness of the numerus clausus is that under the common law, the lack of words of
inheritance created only a residual estate which couldn’t be fit under any of the standard
c. In modern law, the default estate is the fee simple absolute.
i. Where there is a conflict between the granting and the habendum clauses, the
granting clause controls b/c it usually conveys fee simple while the habendum clause
d. Words of limitation are those making or defining a quantum of interest given to
the grantee. (They indicate what is taken.)
e. Words of Purchase indicate who the grantee is. (They indicate who takes.)
i. A purchaser is a person acquiring an estate any way other than by descent.
He doesn’t have to pay value.
ii. A donee or devisee takes by purchase; an heir who inherits land does not
aquire by purchase.
f. Nemo est haeres viventis.
2. General policy disfavoring restraints on alienation.
a. Reasons for not permitting restraint on alienation:
i. Right to sell is part of definition of fee simple absolute
ii. Restraints impede flow of land in commerce
iii. Harms creditors who loan on strength of ownership in land, but if O can’t
alienate, creditors can’t touch land
iv. Encourage individual initiative by allowing people to sell land to raise capital
v. Dislike of deadhand control
vi. Restrictions on use of land are treated more leniently than restrictions on
1. Mountain Brow Lodge v Toscano (Cal App 1968): In 1950 grantor
conveyed by gift deed to P land to be “restricted for the use and benefit of the
[lodge] only,” and if lodge fails to use it or sells or transfers any or all of it, the
land is to revert to grantor. Majority expunges “sale or transfer” clause and
accepts limitation on use as valid restraint. Dissent thinks the whole deed is an
unacceptable restraint on alienation.
a. “Conditions restraining alienation, when repugnant to the interest
created, are void.” –Mountain Brow
2. Bank of Powhattan v Rooney (KS 1937): 1936 Hugh Rooney dies
devising his estate to his children equally with restriction that no beneficiary can
sell land to an outsider for 3 years after Hugh’s death, but only to another
beneficiary. There is long-standing judgment against Hugh’s son DP, and when
he inherited, sheriff ordered to sell his inheritance. Issue: was restraint on
alienation valid? Held: (1) a restraint, even limited as to time, is void, (2)
interest in land may be sold to pay judgment.
vii. Restrictions on alienation are not complete, e.g. ‘due on sale’ clause in
mortgage b/c it serves a useful purpose.
1. Easier to have a valid restraint on a life estate than on a fee simple
2. A partial restraint is more likely to be valid than a total restraint
3. Estate of Elizabeth Beck (PA 1890): Spendthrift trust. Beck deeds in will
1/4 of her estate to her step-daughter on the condition that the $ not be used to
pay daughter’s debts, but that the whole amount of her share shall be paid
directly to the daughter by the executor. Upon death of Beck, creditors of
daughter attach funds in hands of executor. Issue: is this an invalid restraint on
alienation? Held: Ct doesn’t allow creditors to attach funds while in hands of
executor b/c he has implied trust and he cannot alienate property. [Creating
trustee enables one to fasten restraint on alienation.]
viii. Nature of restraints (from least to most invalid):
1. Disabling—to B for life but without power to sell until he reaches
the age of 30—can’t do it, and if you try, nothing happens, it is
2. Forefeiture—to B for life, but if he ceases to live on the land and
conveys it, then to C—if you attempt to alienate, someone else will
come and take property
3. Promissory—to B for life, B hereby agreeing not to convey her
estate—if B attempts to alienate she will have to pay X
ix. How to interpret restriction on alienation depends on type of estate
1. fee simple determinable restriction would be irreconcilable
2. fee tail, can’t be alienated anyway, restriction gives guidance on
how to interpret grant (Armstrong v Smith)
x. Effects of interpretation: when there is a void limitation, but the intent of
the grantor appears to make the restraint on alienation such an important
part of the grant that without it the grant is itself void, the whole grant is
voided and reverts to grantor.
xi. Cy pres: interpretation of instruments as nearly as possible in conformity
with the intention of the testator when literal construction is illegal,
impracticable, or impossible
a. 1285: Statute De Donis Conditionalibus—creates fee tail
b. 1290: Statute Quia Emptores—freed mesne tenants to alienate land without
payment of a fine to the lord, but transferee held under transferor’s lord, not under
c. 1536: Statute of Uses—allows creation of contingent remainders and executory
d. 1540: first Statute of Wills-granting limited power to land owns to devise realty.
e. 1704: Statute of Ann: when you rent out property to a 3rd party, all the co-tenants
are entitled to share in the rents.
4. Freehold estates
a. Fee simple absolute:
i. Of potentially unlimited duration—no termination
ii. Inheritable by collaterals as well as by lineal descendants of the owner of
iii. Fully transferable, devisable, conveyable
iv. No future interest
v. Magic words: and his heirs.
1. Rule of repugnancy: if a fee simple is given to one person, together with a
general power of disposal by will or deed, a gift over to another person of what
remains undisposed of on the death of the first person is void on the alleged
grounds that the gift over is repugnant to and inconsistent with the interest of the
first person. Abrogated by statute in OH, NJ, NY, WV.
b. Fee simple defeasible: fee simple subject to special limitation, condition
subsequent or executory limitation.
i. Fee simple determinable: subject to a special limitation.
1. expires automatically upon the happening or non-occurrence of an
event stated in the will/conveyance.
2. future interest: possibility of revertor in grantor
3. Magic words: to A and his heirs as long as/so long as
a. Also: until, during, while
4. to A and her heirs as long as A does not sell alcohol on the land.
5. Peters v East Penn Township (PA 1956): P is heir of grantor of land to
school district: “to have and to hold the said piece of ground…as long as it is
used for public school purposes.” School is closed and district wants to sell
land, P argues grant created fee simple determinable so that land has reverted.
Issue: how to interpret “as long as,” where there is no reversion clause, as
purchase or limitation? Held: grant expired and reverts. [Land controlled by
deed restriction from generation to generation. Difference is that deed controls
how land will be used, not how it will pass and statutes only regulate
inheritance issues, not use of land.]
ii. Fee simple subject to condition subsequent: subject to power of grantor
to terminate the estate granted on the happening of a specified event.
1. On breach of the condition, the granted estate continues in
existence until the grantor exercises his option to terminate by
making an entry or bringing an action to recover the land.
a. The right of re-entry is NOT automatic.
2. Future interest: right of re-entry / power of termination in grantor.
3. Magic words: to A and his heirs but if + express clause granting
right to re-enter.
a. Also: if, provided that.
4. to A and her heirs, but if A sells alcohol on the land, O may re-
enter and retake the land
iii. The difference between these two types of fee simple defeasibles comes into play for
adverse possession. With FSD, if condition occurs the statute of limitations begins to run
immediately whether the grantor knew of the occurrence of the condition or not. With
FSSCS the condition’s occurrence only gives the grantor the right to re-enter but does
not start statute of limitations until grantor actually tries to re-enter and entry is denied.
iv. The future interest in Fee simple determinable and Fee simple subject to condition
subsequent can only be held in the grantor and the duration of the future interest is in fee
v. Fee simple subject to executory limitation: subject to divestment in
favor of a person other than the grantor on the happening of a specified
1. future interest: executory limitation
2. to A and her heirs as long as no hunting is permitted on the land,
then to B and his heirs
3. Hall v Hall (TN 1980): TA Hall in handwritten will bequeathed land to his
wife in fee simple (she shall have full control and full power) as long as she
remains his widow and does not remarry, in which case the land would pass to
TA Hall’s children. TA Hall dies in 1957, in 1978 P, still widowed, conveys
land to Dixon’s. P’s grandchildren raise the question of what kind of title P can
convey. Held: that the limitation remains and that P can pass title only subject to
the executory limitation that she does not remarry. If she does, the Dixon’s
forfeit their title b/c P can only convey the estate she possesses. [The restriction
is ok b/c it ends at the death of the grantee, so no restriction on alienation.]
c. Fee tail: controls devolution of the property from one generation to the next,
excluding collateral heirs, essentially creating a series of life estates.
i. Takers in tail took for a potentially unlimited duration, but did not have
power to alienate land for a period beyond their own lives or to devise it
b/c it passed by operation of law to their direct descendants at their death.
1. If there were no issue, land reverted to grantor or to specified
remainderman. [writ of formedon enforced right to revert]
2. Today, fee tail usually converted to fee simple by statute
ii. Magic words: to A and the heirs of his body.
1. Blackstone: “as the words heirs is necessary to create a fee, so…the word body,
or some other words of procreation, are necessary to make it a fee tail.”
iii. Construction problem: is issue to be taken to mean those alive at time of
grant or all those in the line of descendants.
1. common law courts favored indefinite failure of issue, today courts
favor definite failure of issue, so that time of determination is death
of first taker.
a. OA for life, then to A’s children.
i. If A dies without children, reverts to O
ii. If A has child X (X takes in fee simple), X has child Y, but Y
dies before X and X dies intestate w/o heirs land would
escheat under definite failure of issue construction and revert
to O under indefinite failure construction.
2. Armstrong v Smith (AL 1971): Parents of D deeded land to her and “her
offsprings or heirs” and in habendum clause: “and her offsprings.” Issue: did
grantors intend grant to be to D and her children living at the time or to D and
those people who would eventually be included in the terms “offsprings or
heirs”? Held: assume grantors were not only referring to 4 grandchildren alive
at the time, creating fee tail which statute converts to fee simple.
a. Nomen collectivum: in this case, a class gift, so that a child born after
the date of the deed won’t be excluded, the class gift remains open to
include new members. Use of nomen collectivum without any mention
of remainder makes them words of limitation not words of purchase.
3. Rule in Wild’s Case: where there is a limitation OA and A’s children, if A
has no children at time of grant, A takes in fee tail. If A has children at time of
grant, they take as joint tenants for life, and children born after grant are
d. Life estate: an estate that is not terminable at any fixed or computable period of
time and has its duration measured by the life or lives of one or more persons.
i. Not a state of inheritance, can be created by deed or will or operation of
ii. Interest is not devisable or inheritable, but it is transferable and transferee
holds for duration of original grantee’s lifetime (pur autre vie). Can be
alienated inter vivos, but the restraint passes with it.
iii. Pur autre vie: an estate measured by the life of a person other than the
1. AB to hold during the life of C
2. There can be more than one measuring life
3. An estate held pur autre vie is transferable, inheritable, devisable
as long as the original grantee is still alive. Upon grantee’s death,
the estate immediately terminates.
a. McRorie v Creswell (NC 1968): George conveys fee tail limited
by contingent remainder to Rosanna. Rosanna has 2 daughters. R
conveys deed to Martin, who conveys to Creswell, whose son takes
when she dies. When R dies, her daughters claim property back. Held:
R could only convey life estate.
iv. Magic words: to A for life
v. Interpretation: Where devise made to life tenant with a remainder
conditioned upon an ambiguous form of survivorship, the usu grantor
preference is to require the remainderman to survive the life tenant rather
than the testator.
1. UPC §2-707(b): “A future interest under the terms of a trust is contingent on the
beneficiary’s surviving the distribution date.” Thus a grant to T in trust for A for
life, remainder to B and his heirs would require B to survive A in order to take
the remainder. If B does not survive A, the UPC creates a substitute gift in B’s
then surviving descendants.
vi. At common law the life estate was the default if wills/conveyances
incorrectly drafted (“Where a grant is made subject to be defeated by a
particular event, and there is no limitation in time, it will be ab initio a
grant of an estate for life”)—in modern law, the fee simple absolute is the
1. Thompson v Baxter (MN 1909): P bought property from a seller, who had
leased the property to D with a clause in the lease: “To have and to hold…unto
the [tenant] his heirs, executors, administrators, and assigns for and during the
full term of while he shall wish to live in Albert Lea.” Issue: what kind of
tenancy does this create? Held: Ct dismisses possibility of tenancy at will (no
mutual right to terminate), tenancy at sufferance (not holding wrongfully),
periodic tenancy (no term agreed to), and decides it is a life tenancy b/c other
decisions (as long as the waters of the Del. shall run, e.g.) held that as the
vii. Cutting Short a Life Estate: issue is who gets the interest if the estate
ends naturally versus if it is cut short.
1. (Danz v Danz: life estate ended b/c widow took statutory share)
1. OA for life, but if A marries B, then to C and her heirs.
1. determine if express words of limitation cutting short life estate
are determinable words of limitation or condition subsequent
words of limitation.
2. Determinable words of limitation
1. “as long as”
2. the same party will hold the future interest whether the condition
occurs or not
3. only issue is whether future interest is held by grantor or 3rd
i. if future interest held by grantor, A holds a life estate
determinable and O holds a reversion in fee simple
OA for life as long as she remains unmarried.
ii. If 3rd party holds future interest, by common law 3rd
party gets future interest whether condition occurred or
life estate ended naturally. 3rd party holds vested
remainder in fee simple absolute
Oto A for life as long as she remains unmarried,
then to B and his heirs
3. Condition subsequent words of limitation
1. “but if”
2. if future interest is held by grantor either expressly or by default
and condition subsequent used to cut short life estate, the life
estate is a life estate subject to a condition subsequent, and the
grantor holds a reversion in fee simple.
i. Oto A for life, but if she marries, then the life estate
3. if future interest is held by 3rd party and a condition subsequent
is used to cut short the life estate it is a life estate subject to an
executory limitation and the 3rd party holds a shifting executory
interest. But if life estate ends naturally, O takes reversion.
i. Oto A for life, but if she marries, then to B and his
A has life estate subject to an executory interest
B has shifting executory limitation
O has reversion if life estate ends naturally
viii. Waste: Permanent destruction or injury done by the present possessor of
property to the nonpossessory interest of another.
1. a tenant for life of a possessory estate has a right to the undisturbed
possession of the land, income, and profits thereof. But, his use
and enjoyment is limited by his duty to refrain from any act which
will diminish the value of the reversion or remainder if such an act
is also an unreasonable use of the premises.
a. What is reasonable use? Browkaw v Fairchild: it’s not necessarily
2. I.e. it is necessary to balance the rights of the owner of the future
interest with the rights of the life tenant.
a. No duty to make extraordinary repairs, e.g. after an earthquake.
b. Estover: tenant has right to cut timber necessary to make reasonable
c. Tenant has no right to open new mines, drill for oil/gas, clear cut
timber w/o consent of future interest holders, but can continue current
d. Jurisdictions are split as to whether contingent remaindermen and
holders of executory interests can bring an action for waste. Executory
interest destroyed when prior estate is distributed, but: “Executory
devises are indestructible in the sense that the remainderman cannot
destroy nor create any charge against the executory interest”—Danz v
3. Waste can occur any time there is more than one interest in the
land: life estates, common tenancy, mortgage, etc.
4. Types of waste:
a. Voluntary waste: cutting trees and demolishing buildings,
diminishing value of remainder/reversion
b. Permissive waste: not keeping property up (Smith v Smith)
c. Equitable waste: an act which becomes waste only by
virtue of its motive but which would not otherwise be waste
d. Innocent waste: failure to remedy damage caused by third
e. Ameliorating waste: waste leading to improvement of
i. Note that considerable flexibility is used in applying these
standards: may be governed by the deed or lease, by
customary uses of similar property in the area, policies in the
5. Fundamental Rules of Waste
a. Possessor cannot do anything to diminish value of the
nonpossessory or future estates.
b. Possessor must act fairly and reasonably in maintaining
c. Possessor’s use is curtailed only as far as necessary to
maintain the value of the nonpossessory interests or
d. Possessor has to pass on to remainderman the same estate
as he took.
a. Traditional remedy: double or treble damages (at common law=Statute
of Glouchester 1278)
b. Forfeiture: seldom used, and only for wanton, reckless, or gross waste.
c. Equitable remedies: injunctive relief or accounting.
d. Partition—not allowed by most jurisdictions
e. Receivership to administer property—extreme remedy
7. Smith v Smith (AK 1951): mother of parties gives house to appellee,
interpreted by court as life estate, b/c it includes provision about appellee having
right to sell which would be unnecessary if it were held in fee simple, but if
appellee should sell it, proceeds to be divided equally between appellee and
appellant. Appellant sues for waste b/c appellee not keeping the house in good
repair. Held: it is permissive waste for a life tenant to fail to make such ordinary
repairs as are necessary to protect the building from the effects of wind and rain,
if the structure was in good condition when the life tenancy began. Remedy
allowed=receivership and partition.
8. Browkaw v Fairchild (NY 1929): P holds life estate in huge 5th Avenue
mansion. He cannot rent the mansion or break it up into apartments. It is too
expensive to maintain, so he wants to tear it down and put up apartments. The
future interest holders protest. Held: can’t make change b/c life estate holder
does not have the right to exercise an act of ownership and changing the
character of the estate and therefore the future interest would be an act of
dominion rather than use, and an act of the life tenant which does permanent
injury to the inheritance is waste. It doesn’t matter if the apartment building
would be more profitable than the mansion, because it is the mansion
specifically that was given in life estate.
a. Melms v Pabst Brewery: house could be torn down b/c condition of
neighborhood completely changed rendering house useless through no
action of tenant. Brewery also believed itself in good faith to be owner.
[Powers of a life tenant to alter the estate are greater if he mistakenly
thinks he holds a fee simple absolute than if he knows he holds a life
9. New York, O & W. RR v Livingston (NY 1924): Charles Livingston took
life estate with remainder in his eldest son, etc. with codicil that the heirs who take
possession of the farm can’t sell or in any manner part with it so that it remains in
the family. Charles then conveyed farm to Morss and his heirs and assigns forever,
covenanting that Livingston’s children and descendents are estopped from claiming
title to the land. Morss then conveyed land in fee, with covenant of warranty to
plaintiff RR, RR purchased other portions of the farm later. RR built station, etc. on
the land. Later, Charles died and his eldest son (D) made claim against RR for
ownership of the land. RR argued it owned the fee, but at trial and appeal lost. RR
then began proceeding to acquire title to land by power of eminent domain. Issue:
should value of improvements be included in price of condemnation? Held: where
occupant entered lawfully and innocently, just compensation does not require it to
pay the value of improvements in addition to the value of the land.
10. Failure to pay interest on mortgage with which land is encumbered, taxes,
assessments is also waste.
a. Tilman v Richton Tie and Timber (MS 1955): Tilman loses
land held in life estate b/c of non-payment of taxes. He buys back one
plot at tax sale and gets other plot as gift from a strawman who bought
it at tax sale. Tilman then conveyed his interest to Hyde who conveyed
to D. D said it was BFP with good title b/c of tax title deeds. Issue:
does D have good title? Held: tax sale purported to give good title, but
it would be wrong to let life tenant convert a life estate into fee simple
through his own wrong-doing, so holds that Tilman is merely
redeeming the life estate for the remainderman and it remains a life
estate. D required to make affirmative showing that it was a BFP.
ix. Dower & curtesy: life estates.
1. Dower: a wife’s right, upon her husband’s death, to a life estate in 1/3 of
the land that he owned in fee. (If husband only held at term, that is not a
freehold estate and husband isn’t seized, so no dower attaches.)
2. Curtesy: a husband’s right, upon his wife’s death, to a life estate in the
land that his wife owned during their marriage, assuming that a child
was born alive to the couple.
a. Melensky v Melen (NY 1922): Father Melensky conveyed land to
son Melen to manage with oral agreement to reconvey when asked.
Then Melensky remarries, asks Melen to reconvey land (wife
apparently wanted it), but Melen made deed only for life estate to his
father and refused to reconvey in fee. Father accepted, but wife sues to
establish inchoate right of dower. Held: father not seized of land
during the marriage and that is all dower applies to—life estate is not a
state of inheritance, so dower doesn’t attach to it. Dower does not
apply to chose in action, so wife is not party and cannot bring action.
[Statute of frauds problem: any transmission dealing with land has to
be in writing, so oral agreement was unenforceable at law.]
3. Reasons to abolish dower:
a. Dower had power over gifts inter vivos, so property couldn’t be
conveyed w/o burdening the land with the inchoate power of
b. Dower and curtesy were a clog on the title
c. They only attach to land, not chattels, but in our society wealth
usually in chattels so they became useless
d. They are easy to get around
4. Statutory changes:
a. Changes include (1) making surviving spouse an heir upon
intestacy, (2) widening coverage to include both personal
and real property, (3) equaling the rights, (4) restricting
property subject to curtesy and dower to that held at death,
(5) changing estate taken from life estate to fee simple
interest in portion of decedent’s estate, (6) elective share,
often 30% in lieu of will provisions.
x. Community Property:
1. property earned by either husband or wife during the marriage belongs to a
martial community of which each is half owner.
2. property owned prior to the marriage and property acquired by inheritance,
devise, or gift during the marriage remain the separate property of each spouse
3. upon the death of one spouse, that spouse may dispose of 1/2 the property by
will, but the other half belongs to the survivor
4. property acquired under a community property regime retains that character
even if the couple moves out of a community property state
a. In re Kesseler’s Estate (OH 1964): question of whether community
property acquired when couple lived in CA is subject to inheritance tax on
death of husband now that couple live in Ohio. Decision turns on
interpretation of wife’s ownership during marriage. Majority holds that it is
an expectancy that doesn’t become outright ownership until death of husband,
so tax is owed. Dissent says it is a present and equal ownership with that of
husband, so death changes nothing and tax is not owed.
Homestead rights: Exception that principal residence of a couple and perhaps some of the land on
which it is located cannot be subject to the claims of creditors without both spouses’ consent.
Policy goal: to insure a home during the marriage and for the life of the surviving spouse and
sometimes the minority of the children. A homestead right may not be defeated by the will of the
Concurrent estates permit co-ownership of land by 2 or more persons.
Basic feature: the right of each tenant to possess the whole.
Joint tenants can give exclusive possession to one among them
A tenant has the right to partition the property
Statute of Ann (1704): when you rent out property to a 3rd party, all the co-tenants
are entitled to share in the rents.
Holding per my et per tout—by the half and by the whole
Each tenant owns an undivided interest in the whole,
*Upon the death of 1 the property passes automatically to the survivor tenants
=ius accrescendi, signaling the right of the surviving tenant to succeed to the estate
without the formalities of inheritance
Four unities necessary for creation of joint tenancy.
1. title—all joint tenants must acquire title by the same instrument or by joint
2. time-- all joint tenants must acquire interest at the same time
3. interest-- all joint tenants must have shares equal, undivided and identical
4. possession-- all joint tenants have equal rights to possess the whole
If there are 2 tenants, tenancy became tenancy in common automatically if any of
the unities were destroyed. E.g. a conveyance by 1 tenant severed the unity of
time and title, ending the joint tenancy and making grantee a tenant in common
with the original tenant.
If there are 3 or more original tenants and 1 destroyed the unity, the 2 remain joint
tenants and the grantee becomes a tenant in common with them.
Created by conveying to A and B, as joint tenants, and not as tenants in
Riddle v. Harmon (Cal Ct. App 1980): Frances Riddle held land in joint tenancy with her
husband. Months before she died she wanted to terminate joint tenancy so she could devise
property by will. She deeded herself an undivided 1/2 interest in the property, without her
husband’s knowledge. Issue: can a joint tenant sever unities by conveying to self? Held: since
CA statute allows creation of joint tenancy without following 4 unities, it makes sense to allow
severence without following common law requirements of unities.
Allison v. Powell (PA Super Ct. 1984): Before his death Allison wanted to partition land he
held in joint tenancy with Powells. But he died before Powell’s were served with his complaint
for partition. The Powells claim right of survivorship over 100% of land, Allison’s wife says
intent to partition was clear. Evidence is letter between parties’ lawyers stating that Allison
would accept sum from Powells for partition and wants it done as soon as possible. Issue: what
does it take to sever joint tenancy? Held: the act of severing a joint tenancy must be of
sufficient manifestation that the actor is unable to retreat from the position of creating a
severance, and here there was no enforceable agreement from which the parties could not
1. A will can’t sever a joint tenancy, b/c at death land goes to survivor
2. A + B = joint tenants. A enters K to sell to C, then dies, by equitable conversion possession is
passed by the binding K of sale
3. A + B = joint tenants. A leases to C for term of 5 years. A dies. C’s interest is gone b/c A’s
interest is gone—it goes to B, and C takes a hike. But, does A intend to sever for the 5 years?
A didn’t intend for C to be evicted, so A must have intended severence—but Allison’s point is
that if you haven’t gone all the way in severing, there is no severence.
4. A + B = joint tenants. A mortgages property to a bank. Under title theory, the bank holds
actual title, so would this sever joint tenancy? Under lien theory, bank only holds lien on
property, so would this not sever? But if A died before paying off mortgage, bank would lose
out b/c B would take possession.
Tenancy in Common
Only unity of possession is necessary to create or perpetuate tenancy in common
Tenants have undivided interest in the property
*There is no survivorship right, so that upon death of 1 the undivided share
passes to the takers under that tenant’s will or by intestacy
Conveying to A and B, by default creates a tenancy in common.
Consequences of joint tenancy and tenancy in common:
1. No adverse possession can occur without ouster of all tenants since
each is entitled to possession of the whole
2. No rent is payable when 1 tenant occupies the whole
3. One co-tenant can recover the property against a wrongdoer and
doesn’t have to implead the other cotenants.
4. The common law favored joint tenancy, the modern law favors
tenancy in common when there is an ambiguity in the document
Camp v Camp (VA 1979): In 1955 Mother and unmarried son bought land together. In 1956
son married, in 1966 he died and widow sues for judgment of 1/2 interest in the land by right of
inheritance. Mother held she was joint tenant and by right of survivorship held a fee simple on
death of her son. Deed wording: they hold ‘as tenants in common with the right of survivorship as
at common law.’ Issue: tenancy in common doesn’t give right of survivorship, so either this is a
joint tenancy with right of survivorship in living tenant or a tenancy in common with right of
inheritance by heirs of dead tenant. Held: b/c parol evidence contradicts the wording of the deed,
go to rule of construction that first clause controls where 2 clauses are irreconcilable, and gives
tenancy in common with land passing to tenant’s heirs. Dissent: application of rule is too
mechanistic, especially b/c intent of grantor is clear from deed.
Parol evidence in property: p.e. allowed only to describe circumstances
attending the making of the K and not allowed to alter the K.
Tenancy by the entirety
Can only exist between husband and wife, they hold as one person
The surviving spouse takes the whole upon the death of the other
Neither spouse can unilaterally sever the tenancy
Neither spouse can unilaterally partition
Created by conveying to A and B, husband and wife, as tenants by the entirety.
Coparency: where lands pass to 2 or more female descendants by operation of
E. Future Interests
I. Reversions—future interest held by grantor.
a. Created by granting less than one possesses and does not need to be expressly
reserved. It is a retained estate.
b. It is always vested—not subject to any condition precedent—even when it is
uncertain whether it will ever become possessory: “O to A for life, then to B and
his heirs if B survives A.”
c. Normally transferable inter vivos and devisable
d. It can be divested: A to B for life then to such of B’s children as survive B—if B
dies leaving surviving children, A’s reversion is divested.
e. In a fee simple absolute there is no reversion
2. In a fee simple determinable the reversion is a possibility of reverter and is automatic
a. Magic words: “while,” “during,” “until,” “so long as.”
i. Long v Long (OH 1976): Henry conveys plots to each of his three children: Jesse,
Edward, Emma in fee tail. Edward (Howard-Esther + Eugene-Bessie) and Emma (Paul)
have children who took in fee simple. Jesse died without issue and intestate, but inter
vivos had quitclaimed his interest to Rosella who devised it to the Browns who
quitclaimed it to Edward’s son Howard. Edward, Eugene, Emma are dead. Issue: what
interest did O retain? Grantor of fee tail retains reversion in fee simple. Issue 2: when in
heirship determined? On Jesse’s death, assuming that he holds contingent estate
dependent upon his having issue? On Henry’s death b/c a reversion is treated as a vested
estate? Ct follows this option giving reversion to the 3 children equally.
3. In a fee simple subject to condition subsequent the reversion is a right of re-entry, and
is not automatic or immediate
a. Magic Words: “upon condition that,” “provided that,” “but if,” “if it happens
that” + provision for re-entry.
b. Grantor or his heirs may waive right to re-entry either explicitly or by conduct.
(“Rule in Dumpor’s Case.”)
c. Under common law, an attempt to transfer a right of re-entry on land for breach of condition
subsequent extinguished such right completely and vested fee simple in holder of defeasible estate.
i. Village of Peoria Heights v Keithley (IL 1921): 1904 Gilbert conveys land to
village on condition of no alcohol being sold. Village doesn’t use land. 1910 Gilbert
conveys land to Keithley. 1920 Gilbert quitclaimed all his interest in land to village,
waiving right of re-entry. Village wants to quiet title. Held: a breach of condition can
only be taken advantage of by grantor or his heirs, 3rd party acquires no rights to enforce
a forfeiture. [Common law rule.]
ii. Trustees of Calvary Pres. Church v Putnam (NY 1928): Palmer grants land
to church on condition it be used for religious purposes. Later grantor’s living heirs and
next of kin quitclaim right of re-entry to Church. Later Church brings action to determine
if living heirs can waive right of unborn heirs to exercise right. Held: the law prefers to
let holds of a title be released of future contingencies. Grantor can waive right of re-entry
before or after a breach, and heirs can waive right after a breach. Heirs inherit grantor’s
right to waive before breach, and living heirs have same rights as unborn heirs, so heirs
can waive before breach.
4. Reversions in FSD and FSSCS can only exist in the grantor or his heirs and cannot be
created in a transferee.
5. The difference between the two is in what happens if estate terminates if condition occurs.
The mode of termination provided for in the grant is the controlling test of the
grantor’s intention. Unless the intent that the estate is to expire automatically is
manifested, the grantee does not have a fee simple determinable.
Dislike of forfeitures will often lead courts to interpret ambiguous language to mean that a fee
simple subject to condition subsequent was created.
Example: OA for life on condition that A quit smoking. O retains a reversion on the life estate and
a right of re-entry on the condition subsequent.
a. Affects adverse possession. With FSD, if condition occurs the statute of
limitations begins to run immediately whether the grantor knew of occurrence of
condition or not. With FSSCS the condition’s occurrence only gives the grantor
the right to re-enter but does not start statute of limitations until grantor actually
tries to re-enter and entry is denied.
II. Remainders—future interest held by 3rd party which can become a present possessory
estate only on the expiration of the prior estate created (expressly or implicitly) in favor of
another grantee in the same instrument.
1. they are created simultaneously with and in the same document as a prior possessory interest,
and are what remains after that prior interest
2. the prior interest must be immediately prior to the remainder and there may be no gap in seisin
between them; if there is, it can take effect only as an executory interest
3. the prior estate must end naturally and it cannot be cut short by a divesting event, or the future
interest can take effect only as an executory interest
4. they must be held by s.o other than the grantor of the document in which they are created
5. Both vested and contingent remainders are today considered to be devisable, alienable, and
descendible, subject to the contingency inhering in the interest.
I. Vested: limited in favor of a person in existence, ascertained, and capable of taking
possession whenever the prior estate should end (without words of condition and not
subject to divestment).
a. Vested subject to partial divestment (subject to open): the remainderman is in
existence and ascertained but the amount of his estate is subject to diminution in
favor of other members of a class.
b. Vested subject to complete divestment: the remainderman is in existence and
ascertained and his interest is not subject to a condition precedent but his right to
possession or enjoyment on the expiration of the prior interests is subject to
termination by reason of an executory interest, power of appointment, or right of
i. Remainder is vested subject to divestment if the words of condition are a
condition subsequent. (If they are condition precedent, the remainder is
1. TEST: If the conditional element is incorporated into the
description of, or into the gift to, the remainderman, then the
remainder is contingent. But if, after the words giving a vested
remainder, a clause is added divesting it, the remainder is vested.
2. OA for life, then to C and his heirs on the express condition that if the
premises are used for the sale of alcohol, A shall have power of re-entry.
3. OT in trust for benefit of A for life, with power in T to invade principal for
benefit of A, remainder to C in fee.
4. Stewart v Merchant’s Bank (Ill App Ct 1972): O to T in trust for 10
years for benefit of O then money left over to O, but if O dies before 10 years
trust pays O’s debts and expenses and distributes remainder to devisees or heirs
in equal shares. Issue: what sort of interest is created in the heirs? Held:
consent of heirs is not required to revoke the trust as appellant did not intend to
vest such interest in them. Doctrine of worthier title converts OA for life
remainder to O’s heirs in equal shares into a reversion in O. [This was a
spendthrift trust, and you can’t establish a spendthrift trust in yourself.]
a. May v Marx held that language about remainder of trust $ going to
heirs upon death of beneficiary does not create an interest in the heirs
such as to require their consent for modification or revocation.
5. Buckley v Buckley (Mo Ct App 1984): testator devised life estate to her
husband, then to her sons for life, then fee simple to their children. Both sons
predeceased husband. Issue: is grandchildren’s interest vested or contingent.
Held: law prefers vesting of estates, so remainder to grandchildren interpreted as
vested subject to complete divestment (if there are no grandchildren), vesting at
death of testator even though at that time grandchildren not born.
6. Danz v Danz (IL 1940): widow took statutory share instead of life estate,
accelerating remainder in niece and nephew of testator. B/c they were
ascertained and ready to take, the remainder was vested subject to divestment—
future interest not contingent on surviving life tenant not just life estate.
c. OA for life, then to A’s children. Unless grantor’s intent is clear, common law rule
controls which is that only the children alive at the time of the grant can take.
II. Contingent Remainder:
a. Any remainder created in favor of an ascertained person but subject to a condition
precedent (in order for it to become a present estate, the fulfillment of some condition precedent,
other than the determination of the preceding estate, is necessary.)
b. Created in favor of an unborn person
c. Created in favor of an existing but unascertained person (e.g. nemo est haeres
d. The Condition must be:
ii. Express: the condition must be set forth in the words of the conveyance
iii. a condition precedent: condition that has to be satisfied before holder can
claim right to property
iv. set out in same clause creating the remainder or in a preceding clause.
OA for life, then to B and her heirs if A farms the land organically = condition precedent,
e. When there is a contingent remainder, there must also be someone to take if the CR fails
to vest in time and is destroyed. Where there is no express taker, the default taker is
always O in fee simple absolute, since O holds a future interest (reversion) on the original
1. If the express condition of the contingent remainder is satisfied prior to the
end of preceding estate, it becomes a vested remainder and since it is vested,
there is no longer a need for a default taker, so O’s reversion is wiped out.
f. Destructibility of contingent remainders at common law: “A contingent remainder not ready to
take effect immediately upon termination of all preceding estates is destroyed.”
i. O to A for life, then to B and heirs if B attains 21—if B is 15 when A dies, B’s remainder is
ii. Ryan v Monaghan (TN 1897) [common law controlling] Father dies leaving land
to wife for life, remainder to heirs of son, but if son dies unmarried and without
issue, then property to father’s siblings. Father dies then wife dies, son is still
unmarried and without issue. Who takes? Held: son held a contingent remainder
which could not vest at death of life tenant (b/c son is alive and has no heirs), so it
was destroyed and reversion to grantor’s heirs, which is son.
g. Destruction by (Doctrine of) Merger: if the same party holds successive vested interests, the
interests should be merged and re-identified based upon the largest estate created by the merger.
i. For merger to apply the vested interests must be held successively and by the same party.
ii. O to A for life, then to B and heirs if B attains 21, then A conveys life estate to O or
heirs, it merges with reversioner’s estate and B’s contingent remainder is destroyed.
iii. A to B for life, then to C for life, then to B and heirs—C’s remainder is vested, so not
destroyed. BUT, if A to B for life then to C for life if C marries, and later A’s reversion
conveyed to B, B has fee simple.
iv. When a supporting life estate ends prematurely through merger, if the contingent
remainder has not vested already or at the moment the life estate ends, it is destroyed
i. OA for life, then to B and her heirs if B graduates from law school
1. A has life estate
2. B has contingent remainder in fee simple absolute
3. O has reversion in fee simple absolute
4. While A was alive, but before B graduated, A transferred his life estate
to O, by merger, B’s contingent remainder is destroyed.
v. Anytime there is a contingent remainder, consider the default reversion to O.
vi. Anytime there is an interest being transferred to a party who already holds an
interest, check to see if merger applies.
vii. Exceptions: (1) fee tail will not merge into fee simple, and (2) contingent remainder will
not be destroyed by a merger of a life estate and next vested estate when two estates are
created simultaneously with contingent remainder.
i. A to B for life then to C for life if C marries, then to B and heirs—C’s remainder
is valid. B however can destroy it by conveying both his estates to a third
Abolished in most states. This changes above conveyance conditioned upon reaching 21: either to
reversion to O in fee simple subject to complete divestment by executory interest when first child
reaches 21, or held in trust.
III. Alternative Contingent Remainders:
O A for life, then to B and her heirs if B graduates from law school, but if B fails to
graduate, then to C and his heirs
A has life estate
B has contingent remainder in fee simple absolute
C has an alternate contingent remainder which if it occurs would follow A’s life estate, if B’s
O has reversion in fee simple absolute
As long as first contingent remainder has not vested, both CR’s are subject to
destructibility through merger, renunciation, or forfeiture. E.g. if A transfers life estate to
O, or O transfers reversion to A, the resulting fee simple absolute merger would destroy
l. Acceleration of contingent remainder: Contingent remainder can be
accelerated when the taker can be identified even if the event upon which the
contingency depends has not occurred.
i. Black v Todd (SC 1922): testator devises to daughter in life estate and her issue,
if she has no issue to granddaughter in life estate and her issue, if she has no issue to
grandson (P). Granddaughter dies leaving two sons. One son dies, his heir is second
son. Second son and testator’s daughter die in same year, daughter has no issue. Son
dies testate, devising land to D. Question: was second son’s contingent remainder
transmissible and descendible? Held: a contingent remainder is transmissible where
the contingency depends upon the event and not upon the person. When
granddaughter died with issue, it was clear who the remaindermen would be if
daughter died without issue, so contingent remainder could be accelerated and vest.
Cf: Ryan v Monaghan where contingent remainder was destroyed b/c taker
Key to analyzing alternative contingent remainders is to focus on how the preceding
finite estate ends.
1. If it ends prematurely, only the reversion or the first possessory estate can become
2. If the first contingent remainder has not vested prior to or at the moment the finite
estate ends prematurely, both CRs are destroyed and the reversion becomes
3. If the first CR has vested, the 2nd CR and the reversion are destroyed.
If life estate ends naturally, there is no chance the default reversion will become
possessory, so the only question is whether the first CR has vested or not.
Eliminating need for default reversion to O:
OA for life, then to B for life if B graduates from law school, then to C and her heirs.
A has life estate
B has contingent remainder in life estate
C has vested remainder in fee simple absolute
O has nothing.
IV. Vested and contingent remainders
i. Vested remainders are always alienable; contingent remainders usually are.
ii. Vested remainders may carry with them undesirable consequences: casting property to
strangers and excessive taxation.
Browning v Sacrison (OR 1974): testator devises life estate to daughter, with remainder to
grandsons equally, or if either is dead then right of survivorship to the other, as long as their father gets
nothing. Life tenant outlives one grandson. Issue: does remainderman have to outlive life tenant
(contingent remainder) or did interest vest at time of death of testator? Held: b/c testator didn’t want
land to go to grandsons’ father, gift understood as contingent remainder to prevent early vesting.
iii. Because of law’s general preference for vested remainders, contingent remainders are
identified by eliminating the possibility that they are vested.
a. Is there now someone to receive the remainder?
b. Is there now someone to receive a portion of the remainder?
iv. Vested remainder allows for acceleration of previous life estate, should life estate be forfeited.
Contingent: OA for life, then to B if she reaches 30.
Vested subject to divestment: OA for life, then to B but if she dies before 30,
remainder doesn’t take effect.
Vested: OA for life, then to B at age 30. (“At” refers not to vesting but to enjoyment,
so this becomes a vested remainder with enjoyment postponed. If B dies before 30,
the interest passes to B’s heirs or devisees.)
It is the presence or absence of a condition precedent, not the certainty or probability of
enjoyment of possession, that decides whether the remainder is vested or contingent.
III. Executory Interests:
1. Three pre-1536 rules:
c. If a fee simple may end early (fee simple defeasible), the future interest must be in the grantor. An
attempt to create a future interest in a 3rd party would be void.
d. A party holding a vested remainder cannot lose the right to take possession prior to taking
i. No future interest could cut short an existing freehold estate. This was a shifting interest,
and invalid at law. The future interest had to take on the natural termination of the prior
estate. Thus O could not convey to A for life, but to B and B’s heirs if A marries C.
e. If a remainder is going to become possessory, it must become possessory the instant the preceding
estate ends. (Gap scenario)
i. No contingent interest could be created to follow a term of years. A gap in seisin would
have existed, because the tremor was not seised, and this could not be admitted at law.
2. Statute of Uses (1536): in 14th century, practice grew whereby land owners conveyed
their lands to friends (feoffee to uses) to hold for the use and benefit of the feoffors or of
3rd persons (cestui que use). This gave legal interest to feoffee to uses and equitable
interest to cestui que use. It also permitted avoidance of feudal incidents. The Statute
converted the equitable title held by cestui que use to a legal one in order to make the
cestui que use liable for feudal dues, as only a legal owner could be. Statute discouraged
the granting of property subject to another’s use by deeming the person who enjoys the
use to have legal title with the right of absolute ownership and possession. If AB
subject to the use of C, C became the legal owner in fee simple.
a. Bargain and sale: a written agreement for the sale of land whereby the buyer would give valuable
consideration without having to enter the land and perform livery of seisin, so that the parties
equitably raised a use in the buyer. The result of the bargain and sale was to leave the legal estate
in fee simple in the seller and to create an equitable estate in fee simple in the buyer. Statute of
Uses dispensed with need for livery of seisin, so bargain and sale could create a legal estate.
i. O b&s to A, A holds use, Statute turns A into legal owner.
ii. O b&s to A for 99 years if A lives that long, then to A’s heirs, by virtue of Statute A gets
legal title and determinable 99 year estate and A’s heirs take from A not from O.
3. Executory interests
a. Executory devise: An interest in land, created by will, that takes effect in the
future and depends on a future contingency; a limitation, by will, of a future estate
or interest in land when the limitation cannot, consistently with the legal rules,
take effect as a remainder.
b. An executory devise, which is a type of conditional limitation, differs from a
remainder in 3 ways:
i. it needs no particular estate to support it,
ii. with it a fee simple or lesser estate can be limited after a fee simple,
iii. with it a remainder can be limited in a chattel interest after a particular
estate for life is created in that interest.
iv. “A remainder is a successive interest; an executory interest is, normally, a
1. Note, however, that a contingent remainder can divest a reversion by becoming
2. Also, no remainder can follow a determinable fee, even though
it takes effect on expiration of that previous estate: it is an
3. Blackman v Fysh (Ch App 1892): O to son for life, then to children of
son who reach 21 or who, if daughters, marry before 21, but b/c son can’t
alienate or accelerate life estate b/c if he tries estate will end, children take in
defeasance thus executory interests, not contingent remainders.
v. Executory interests, unlike contingent remainders, are indestructible—this
was their principal characteristic.
1. This is why there is a need for the Rule Against Perpetuities
Rule in Purefoy v Rogers: if an interest, when created, can take effect as
either a contingent remainder or as an executory interest (b/c the condition
was such that it could occur during the prior life estate or after the
commencement of the possessory estate), it will be treated as a contingent
remainder for all purposes. Thus a remainder would not be saved from
destructibility by being treated as an executory interest.
1. OA for life, then to B and her heirs if B graduates from law school.
b. Shifting executory interests: estate preceding the executory interest is held by
someone other than the grantor.
c. Springing executory interests: springs from grantor (usually b/c of gap scenario)
1. Vested remainder subject to divestment: vested remainder is divested before it becomes
possessory, the future interest following it is a shifting executory interest in fee simple
a. The vested remainder subject to divestment component must be the result of an
express condition in the conveyance and not merely b/c of the nature of the estate,
e.g. a series of life estates and B, getting a life estate after A’s, dies before A’s life
estate ends, that B doesn’t take is a condition of the estate.
b. The express condition has to be in written in the clause following the clause
creating the remainder, otherwise the remainder would be contingent if the
condition clause preceded it.
i. OA for life, then to B and her heirs, but if A fails to maintain a wetland, then to C and
B – vested remainder subject to divestment in fee simple, C – shifting executory interest in
fee simple absolute
ii. O A for life than to B and her heirs, but if C graduates from law school, then to C and
B – vested remainder subject to divestment in fee simple, Once B takes, B holds a fee
simple subject to executory limitation, C – shifting executory interest in fee simple absolute
Condition, not tied to land, could occur during A’s lifetime and would then be a vested
remainder. If it occurs after A’s life, it cuts short B’s fee simple subject to executory
As long as it is possible that the condition could occur before the vested remainderman
takes possession, the vested remainder subject to divestment analysis applies.
iii. OA for life, then to B and her heirs, but if A graduates from law school, then to C and
A. Condition subsequent: a condition which affects a grantee’s right to retain possession of
the property after the grantee has taken possession of it.
1. defining characteristic of the fee simple determinable and fee simple subject to
condition subsequent and fee simple subject to an executory limitation.
a. As long as, so long as, but if/however/provided that
B. Condition precedent: condition which affects a grantee’s right to take possession of the
property before the grantee has taken possession of the property.
1. defining characteristic of the contingent remainder
a. words of limitation is “if”
c. the condition precedent introducing a contingent remainder is either in the
same clause creating the estate or in the immediately preceding clause.
C. Divesting Condition:
1. OA for life, then to B and her heirs, but if A fails to graduate from law school, then
to C and his heirs
a. divesting condition is a condition precedent that affects the grantee’s right to take
possession of the property before the grantee has taken possession.
b. Differs from condition precedent in wording and structure of conveyance
i. In contingent remainder: condition clause is in same clause creating the
remainder or the preceding clause and is usu introduced by the word “if”
ii. In vested remainder subject to divestment, condition precedent is in the
clause immediately following the clause creating the remainder and is
typically introduced by words “but if”
c. Differs from condition subsequent in fee simple subject to condition subsequent
i. Vested remainder subject to a condition subsequent: OA for life, then to
B and his heirs, but if B sells alcohol on the land, then O has a right to re-
ii. Vested remainder subject to an executory limitation: OA for life, then to
B and his heirs, but if B sells alcohol on the land, then to C and her heirs.
iii. Vested remainder subject to divestment: OA for life, then to B and his
heirs, but if A sells alcohol on the land, then to C and her heirs.
1. key difference is when the condition occurs. If it occurs before the
remainder becomes possessory, it is a vested remainder subject to
divestment. If it occurs only after remainder becomes possessory,
and there is no right of reentry in O, it is a vested remainder
subject to executory limitation.
iv. OA for life, then to B and his heirs, but if C graduates from law school, then to C and
1. A = life estate
2. B = fee simple subject to divestment while A is alive and subject to an executory
limitation after A’s death if B takes possession
3. C = shifting executory interest in fee simple absolute
IV. Class Gifts: A class is a collection of individuals distinguished by the common
characteristics of its members.
1. The issue is always when the class closes.
2. Where there is a remainder to a class, once at least one class member vests, the remainder
a. But if the class is such that more individuals can enter the class and vest in the
property, the remainder is classified as a vested remainder subject to open.
b. The vested remainder subject to open remains open until the class closes.
i. Class closes if it becomes impossible for new members to enter (e.g. the
ii. Class closes by rule of convenience: once one member of the class is
entitled to take actual possession of the property, the class closes.
a. afterborn members are excluded
3. Class conveyances + express condition precedent
a. E.g. survivorship—makes remainder contingent until express condition is
b. OA for life, then to B’s children who survive A, and their heirs.
i. Class does not vest until death of A
V. Powers of Appointment:
1. A power of authorization given by the owner of a property interest (donor) to another
person (donee) to designate a transferee(s) of that interest (appointee) or the shares which
the appointee will take.
a. exercise of the power is not mandatory
i. therefore there is usually a taker in default if power not exercised
a. donor can circumscribe donee’s exercise
b. Appointees take the property by virtue of the original grant from the donor,
although they only become known after the donee has exercised the power.
(Relation back doctrine)
c. The power of appointment is not an asset of the donee
d. There are no necessary words to create a power of appointment.
2. Varieties of powers:
General powers: permit appointment in favor of anyone the donee chooses
Special powers: the class of appointees is circumscribed by the donor
Exclusive power: donee can appoint one or more, but not necessarily all of the
Opposite = a nonexclusive power: AB for life then to B’s children in such shares
as B shall appoint.
Method of appointment can be circumscribed, e.g to donee’s will, as B shall appoint by
will =a testamentary power of appointment and could not be exercised inter vivos.
Powers presently exercisable: power can be exercised at any time (Gilman v Bell)
Mandatory powers (Powers in trust)—donee can’t actually be forced to exercise the power,
but if he doesn’t appoint, the court will do it for him if possible (In re Rowland’s
Discretionary powers—power considered to be discretionary if there is a taker in default
Donee has no interest in property:
Gilman v Bell (IL 1881): Solomon devised property to Ellen, wife of S’s son Robert for Robert’s
life and at R’s death to his heirs in fee, subject to power in R to appoint himself or anyone else during
his lifetime. Gilman, a creditor of R, tried to reach the property in R’s hands. Issue: does R have an
interest in the property? Held: No title of interest in the thing vests in the donee of the power until he
exercises the power. Therefore R has no interest in property so creditors can’t attach it.
Limits on powers:
Bank of Dallas v Republic National Bank (Tex Civ App 1976): Fewell is settlor of trust for
her own benefit. Trustee can use up principal. On F’s death remainder of trust to her devisees. Trust
is spendthrift. Issue: can creditors attach trust funds? Held: where settlor creates spendthrift trust for
himself as beneficiary, that can be reached by creditors.
Powers in trust:
In re Rowlands’ Estate (AZ 1952): Rowland made will devising estate. Residue of undevised
property was $38,000, and will made provision for it to be distributed by Rowlands’ friends Cuthberts
to be distributed among deceased’s close friends and especially mentioning that they should “give
generously to Maria Discombe.” Cuthberts kept all the money for themselves. Held: A power is a trust
1. the subject of the power (the property to be disposed) is clearly defined
2. the object (the beneficiaries) are certain, don’t have to be named, but a class must be
3. power must be imperative, meaning donee has a duty to execute the power
This case fits the first two criteria: subject is known, object is close friends and Maria.
Is it imperative? ‘To my close friends’ is discretionary, but mention of Maria makes it imperative b/c
intent of testator is not to give donee’s discretion to decide if she should get anything.
1. Rule in Shelley’s Case: property interest in grantee’s heirs [check for merger]
“If in a conveyance or will a freehold estate is given to a person and in the same
conveyance/will a remainder is limited to the heirs or to the heirs of the body of that person,
that person takes both the freehold estate and the remainder”
5 requirements for application;
1. the ancestor must have a freehold estate
2. the reversion must be created by the same instrument as the original grant
3. only land is subject to the rule
4. the estates must be of the same quality
5. the word “heirs” must be used in its technical sense as the takers in case of intestacy.
A to B for life, then to heirs of B = life estate in B + vested remainder in B, which merge into
a fee simple.
Converts a remainder in the heirs to a remainder in the grantee/ancestor.
Operates only on the remainder given to heirs of ancestor not on ancestor’s estate.
Applies only if a remainder is given to the life tenant’s heirs. The rule does not
apply to an executory interest.
Doctrine of merger and this rule are completely distinct, independent issues—even if
merger doesn’t apply, the Rule still operates on the remainder.
Avoidance of the rule: (a) create a non-freehold estate in ancestor or (b) give heirs
Abolished in most jurisdictions.
In case of O to A for life, remainder to A’s heirs in equal shares—applying the rule
would frustrate grantor’s intent, so courts required use of heirs in technical sense.
2. Doctrine of Worthier Title: Property interest passing to grantor’s heirs. [check for merger]
“An attempt by grantor in inter vivos conveyance to create future interest in real or personal
property (remainder or executory interest) in his or her heirs (not heirs of the body) creates
instead a reversion or possibility of reverter in grantor.”
a. Applies to any future interest
b. Has to be given to grantor’s heirs, and only applies to heirs
Ofor life, then one day after A’s death, to O’s heirs and their heirs
Applying rule: O holds reversion in fee simple and executory interest in fee simple,(which merge into
reversion in fee simple absolute)
Testamentary branch was somewhat different and reflects origins of the rule: where devise to heirs gives
estate of same quantity and quality as they would have taken by descent, the heirs must take by descent and
not under the will.
“Heirs” doesn’t have to be used in technical sense as those who will take on intestacy, b/c
applying the doctrine does not frustrate grantor’s intent.
Inter vivos branch much more vigorous.
It is now (since Doctor v Hughes) a rule of construction, rebuttable by grantor’s intent.
Often comes up in cases where grantor has created a trust for himself with a remainder in his heirs.
This rule allows him to revoke such trust.
To apply, the granting clause must limit future interest to intestate successors (heirs for realty;
next of kin for personalty).
3. Rule Against Perpetuities: No interest is good unless it must vest, if at all, not later
than 21 years after some life in being at the creation of the interest.
1. RAP applies only to:
a. Contingent remainders (must vest or fail)
b. Executory interests (must become possessory)
c. Vested remainders subject to open (must close and completely vest)
Subject to RAP Not subject to RAP
Contingent remainders Vested remainders
Vested remainders subject to open Vested remainder subject to defeasance
Executory interests Reversions
Possibility of reverter
Rights of re-entry
United Virginia Bank v Union Oil Co (VA 1973): Deceased entered into option lasting 120 days to
purchase land, option to begin when the town acquired right of way of two new highways bordering plot but yet
to be built. Option held to be violation of RAP, (even though Rule doesn’t really apply b/c this is a commercial
K), b/c it is possible that the perpetuity period would be passed at the time the option was exercised. Since
there was no life in being, court simply used 21 year period. [Effect of this K is to tie up property too long, so
2. The future interest must have a right to become possessory within the lives in being +21
years or it fails ab initio.
3. If you can add up all the people who could possibly take within the perpetuities period
and property can be alienated by them, there is no violation of the RAP.
a. If you cannot create someone who would be eligible to satisfy the condition of
being born after the creation of the interest, then you cannot create a scenario
which violates the Rule and the interest must be valid.
b. If the condition is expressly tied to a named person who is alive, as opposed to a
described person, the interest will not violate the RAP.
i. OA for life, then to B and his heirs if B is 25.
1. there is no one to kill, since the condition is tied to a specific named person. So
remainder will either vest or fail within a life in being.
c. If the remainder must vest, if at all, upon the death of the life tenant, it is
impossible to create a scenario which vests/becomes possessory after the lives in
being plus 21 years and thus the interest must be valid.
d. Since the test is whether the interest vests within the lives in being at the time the
interest is created, it is critical to determine when an instrument conveying a
property interest becomes operative.
i. Inter vivos conveyance becomes effective when the deed is properly
ii. Testamentary conveyances are not effective until the will is probated.
iii. OA for life, then to O’s first grandchild and his or her heirs.
1. O has 3 children but no grandchildren.
2. By inter vivos deed, contingent remainder is invalid.
3. By testamentary disposition, O dies, class of children closes, so to create a new
life in being is to create a grandchild and interest vests. If children had no
children, remainder fails but within a life in being.
5. Stacked contingent remainders (In Re Manson’s Estate)
a. When contingent remainders are stacked one after the other, the second typically
will be void unless it vests upon the first contingent remainders becoming
b. When contingent remainders are stacked, the second contingent remainder can
become vested even though it is not possessory. The interest only has to vest
within the RAP, not necessarily become possessory.
c. OA for life, then to A’s widow, then to A’s children and their heirs.
i. First contingent remainder is valid b/c it vests upon A’s death
ii. Second contingent remainder is also valid b/c it vests upon A’s death even though it
doesn’t become possessory until the widow’s death.
d. OA for life, then to A’s widow, then to A’s children then living and their heirs.
i. Create wife X for A. A + X have child Y.
ii. Kill off A and A’s other children beside Y
iii. It is possible that Y’s interest would only vest more than 21 years later if X lived that
long, so second contingent remainder is invalid.
Rule Against Perpetuities and Executory Interests
1. RAP applied to the executory interest following a fee simple defeasible where the future
interest is in a third party
a. If limiting condition not tied to a life in being, the executory interest in fee simple
defeasible scenarios (where future interest is in a 3rd party) will be invalidated.
b. OA and her heirs, but if alcohol is sold on the land, then to B and his heirs.
i. A has fee simple subject to executory limitation
ii. B has shifting executory interest in fee simple
1. Create X, heir of A & Y, heir of B
2. Kill off A & B.
3. X could still sell alcohol on land more than 21 years after death of A & B.
c. OA and heirs as long as A does not sell alcohol on land, then to B and heirs.
i. This will work under RAP b/c condition subsequent is limited to lifetime
of a life in being, A.
d. Future interest in 3rd party but where grantor retains possession until a stated
i. Must be tied to a life in being at the time the interest is created.
ii. O’s will states: to my descendants living at the time my estate is distributed and their
1. O’s estate has fee simple subject to executory limitation
2. O’s descendants living at time of distribution have a springing executory interest
in fee simple
a. Assume: O
b. O’s executor is A, children are X & Y
i. A, X, Y are killed immediately after O, a new executor is
appointed: B. B takes more than 21 years to distribute
2. RAP applied to the executory interest following a vested remainder subject to open
a. Key is whether the divesting condition is one which must occur, if at all, during
the estate preceding the vested remainder, or whether the divesting condition is
one which may occur during the estate preceding the vested remainder.
b. Where the vested remainder subject to divestment follows a life estate, and the
divesting condition must occur, if at all, during or upon expiration of the life
estate, the executory interest cannot violate the RAP.
i. OA for life, then to B and his heirs, but if A sells alcohol on the land, then to C and her
1. A has life estate
2. B has vested remainder in fee simple subject to divestment
3. C has shifting executory interest in fee simple absolute
a. Future interest has to be determined within lifetime of A, so no
ii. If divesting condition is one that may occur during the preceding estate,
the executory interest will violate the RAP unless the divesting condition
is tied to a life in being.
3. RAP applied to the executory interest following a gap.
a. RAP will not be violated when gap is tied solely to an express time period less
than 21 years.
b. Possibility for RAP violation where gap is tied to the occurrence of an event.
i. OA for life, then 1 year after the election of a libertarian president of the US to B and
1. A has life estate
2. O has reversion in fee simple subject to executory limitation
3. B has springing executory interest in fee simple
a. Create heir for O and heir for B
b. Kill O, A, B
c. It is possible that 21 years will pass before there is a libertarian
Rule Against Perpetuities and Class Conveyances
1. Every member of the class must vest within the lives in being +21 years or the whole
class conveyance is invalid.
a. If you can create 1 scenario where 1 member of the class vests after the perpetuity
period, the interest is void for everyone in the class.
i. Jee v Audley (Chancery 1787): Devise to widow for life then to niece and the issue of
her body now and afterborn, if there is no issue then to daughters then living of Jee. At
death of Audley, Jee’s were alive and old, and they had 4 daughters, niece was unmarried
without issue, widow was dead. Problem is possibility Jee’s will have another daughter
who will not have been life in being and that niece’s estate will not end for more than 21
b. Where there is no express condition precedent, there is only one class gift after
the life estate, and the identified class does not skip a generation, there is no RAP
i. OA for life, the to A’s children and their heirs.
1. class will close at A’s death, so there will be no 21 year problem
c. Where there is no express condition precedent, there is only one class gift after
the life estate, and the identified class does skip a generation, there is a RAP
i. OA for life, then to A’s grandchildren and their heirs.
1. A has grandchildren C & D.
2. Create child of A, X
3. Kill A, C, D
4. X has child Z = grandchild of A more than 21 years after A’s death
2. Class conveyance where there are stacks contingent remainders or vested remainders
subject to open.
a. Whenever there is no express condition precedent but there are contingent or
vested subject to open class conveyances which are stacked, the 2nd contingent or
vested subject to open remainder will be void.
b. OA for life, then to B’s children for life, then to B’s grandchildren and their heirs
i. A and B are alive, B has four children (K, L, M, N) and 2 grandchildren (R, S)
ii. A has life estate
iii. K, L, M, N have vested remainder in life estate subject to open
iv. R, S have vested remainder subject to open in fee simple
1. Re: remainder in B’s children—no RAP problem b/c childrens’ interest vests at the
death of A
2. Re: remainder in grandchildren
a. Create X child of B, and Y grandchild of B
b. Kill A, B, K, L, M, N, R, S
c. X dies more than 21 years later, creating possession in Y
3. Class conveyances where there is an express condition precedent on the class
a. OA for life, then to B’s children who reach age 30 and their heirs
i. A and B are alive, B has 4 children (F age 39, G age 36, H age 33, I age 31)
ii. B could have another child who after 21 years, hasn’t fulfilled the condition
Rule Against Perpetuities and Powers of Appointment
To determine whether special powers and general testamentary powers are valid, ask “Is it
possible for the power to be exercised beyond the RAP period as measured from the time power
Sears v Coolidge (MA 1952): TJ Coolidge creates trust with himself as settlor and reserves
power equivalent to special power of appointment to himself. Distribution determined to occur at
the attainment of age 50 by the youngest surviving grandchild alive at settlor’s death. Settlor dies
in 1920, distribution event occurs in 1951. Issue: when does measurement start, when trust
established or upon death of settlor? Held: can use circumstances known when P of A is exercised,
and since settlor never exercised, his death terminates power so determination of members of class
only occurs at his death, so taker was a life in being.
To determine whether general powers exercisable by deed or by will are valid, ask “Is it possible
for the power to be acquired beyond the perpetuities period as measured from the time the power
To determine whether interests appointed under special powers and general testamentary powers
are valid, apply RAP at time power is created to the appointed interests as if they were created in
same instrument that created the power.
To determine whether interests appointed under general powers exercisable by deed or by deed or
will are valid, apply RAP at time appointed interests are created.
To determine whether an interest in default of appointment is valid when the power of
appointment is invalid, apply RAP as if the interest is ordinary interest and not a gift in default of
To determine whether an interest in default of appointment is valid when the power of
appointment is valid, apply RAP as if the donee makes an appointment in exact terms of gift in
default of appointment at the time the power expires.
An interest invalidated by the RAP is stricken from the transferor’s instrument.
1. In an inter vivos conveyance, the rules for filling the gap are:
a. When the estate preceding the one invalidated is less than a fee simple absolute, a reversion
will be implied.
b. If the preceding estate is a fee simple determinable, then a possibility of reverter will be
c. If the preceding estate is a fee simple subject to condition subsequent or an executory
limitation, it is absolute thereafter.
2. In a will or devise, the residuary clause in the will controls, except when the invalid interest itself
appears in the residuary clause. In this case, the interest passes by intestate succession.
Getting around RAP:
Cy pres-reform instrument conforming as near as possible to grantor’s wishes but not in violation
Wait and See-base judgement on how the situation turns out, but how long do you wait?
Construe around RAP-Isen v Giant Foods, lease to begin upon granting of zoning permit, not held to be
violation b/c 1) parties agreed lease had to take effect within 21 years, 2) party had to diligently pursue
permission and judge held that after 21 years K would fail as not having been diligently pursued.
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Uniform Statutory RAP: makes perpetuities period 90 years & discards life in being test.