Arthur’s Rights Transfer of Remainder Interest from Orin Arthur will argue that he was granted a remainder from Orin. In order to properly transfer an interest in land there must be a writing, signed, that adequately describes the property, there must be intent to convey presently convey an interest, and there must be delivery. Writing Because transfers of interests in land are covered by the statute of frauds, such a transfer must be in writing. Here, Orin drew up a deed which is indeed (no pun intended) a writing. Signed In order for the transfer to be valid there must be a signature of the transferor on the writing. Any mark by the transferor that is intended to be his signature generally will qualify. Here the facts state that the deed was signed by Orin. Adequate description of the property In order for a transfer of an interest in land to be valid there must be an adequate description of the property in the writing. That means a description such that the land can be ascertained with reasonable certainty. Here the writing plainly states Blackacre as the land and there does not seem to be any facts that indicate there is any uncertainty over the description of land. Intent to presently convey an interest In order for there to be a valid inter vivos transfer, the transferor must have the present intent to convey an interest in the land. Here, the deed says to Arthur “from and after Orin’s death.” The question here becomes whether or not Orin intent to presently transfer a remainder interest in Arthur, or did he intent to transfer a fee simple interest to Arthur but only after his death? Possession of the deed will be evidence of intent, and here Arthur did have actual possession of the deed which works in his favor. Orin’s estate will argue that he did not have present intent to transfer a remainder interest because he specifically told Arthur not to open the box and record the deed until after his death. Also he kept one of the keys which may indicate that he wanted the option of revoking the “future gift” he promised to make. Arthur will argue that Orin simply said not to record the deed until after his death, but recording of the deed is not necessary to pass title. Arthur will also argue that Orin told him to use it as his own and as he wished. Delivery In order for there to be a valid inter vivos transfer, the deed must be delivered to the transferee. This is typically accomplished by actual delivery, but can also be done through symbolic delivery. In this case, the deed was placed in a locked box and the box was handed to Arthur. Arthur will argue that he was actually handed the deed in a box, therefore he got actual delivery. And even if the box prevents it from being actually delivered, he will argue that Orin gave him the key thus he got symbolic delivery of the
box and the deed at the very least. Orin’s estate will argue that the key did not work and therefore Arthur never actually possessed the deed. He merely had a locked box with a deed in it, but had no access to the deed. It looks like Arthur will probably win the argument here. It seems like all the elements of a valid transfer were met and therefore Arthur did receive an interest in Blackacre. Remainder Interest If Arthur did receive an interest at the time Orin transferred the deed, the question is what kind of an interest did he get? In this case the deed makes clear that Orin wanted Arthur to take after Orin’s death. Therefore Orin retained a life estate for himself and gave Arthur a remainder interest. A remainder interest is an that is realized at the death of the holder of the life estate. Hence, at Orin’s death, his interest in the land will be extinguished and Arthur will take Blackacre in fee simple.
Adverse Possession If Arthur did not get the remainder interest because the court deems the deed not to be a proper transfer then Arthur will argue that he took a fee simple interest in the land because he adversely possessed it. Adverse possession is the trespassory taking of land through exclusive use that is adverse, open and notorious, and continuous for a statutory period of time. Actual Entry In order to properly adversely posses land one must actually enter the land. This means the adverse possession can not be a hypothetical situation but must be actually adversely possessed. Here, Arthur erected a cottage and used the land with his family. This element is clearly met. Exclusive Use In order to properly adversely posses land the adverse possessor must use the property exclusively or as exclusively as a true owner would. This puts the true owner on notice as to who is adversely possessing his land. Here, Arthur erects the cottage and frequently visits the cottage with his family. This will qualify for exclusive use as an owner would use. Any true owner would bring his family on to the cottage. Under a claim of title Under common law, and in a minority of jurisdictions, the claim of right (or the subjective intent of the adverse possessor) was relevant. Some jurisdictions require the possessor to be innocent, or have the subjective feeling that he is the rightful owner of the land. Other jurisdictions require that the possessor subjectively believe that he is not rightfully supposed to be on the land. However, in a vast majority of jurisdictions today this element is no longer necessary and the subjective intent is irrelevant. Open and Notorious
In order to properly adversely possess land the use must be open and notorious. This is to put the true owner on notice and also works in conjunction with the concept that the possessor must use that land as if he was a true owner. A true owner would not be sneaking around on his own land. Here, Arthur erected a cottage and used it frequently with his family. There are no facts to indicate that his use was not open and notorious. Thus, this element is satisfied. Adverse/Hostile In order to adversely possess land, the possessor’s use must be adverse or hostile. This means that he does not have permission to be on the land. This is to put the true owner on notice that his land is being possessed and he should bring a cause of action. Here, Orin gives Arthur permission to use Blackacre as his own and treat it as he wished. Clearly Arthur’s use in not adverse or hostile. Therefore this element is not met and Arthur will not be a valid adverse possessor. Continuous throughout the statutory period In order to properly adversely possess land the possessor’s use must be continuous throughout the statutory period. Again, this is to put the true owner on notice. In this jurisdiction the statutory period is 10 years and Arthur used the property for 12 years. This element will probably be met. Orin’s estate will argue that he did not continuously use the land, he only used the cottage as a vacation place. That argument will probably fail if he used it as continuously as a true owner would. Here it says he frequently used it and that is probably enough to put the owner on notice. Again, Arthur does not meet the element that the possession must be adverse or hostile, therefore he can not properly adversely possess the land.
Color of Title If he had properly adversely possessed the land he would normally be entitled to the amount of land that he actually possessed as the true owner would. But if he acted under color of title, that is if he had a deed that purported to give him title, he would be entitled to all the land that the deed purported to convey. This is generally limited to contiguous lots held by one true owner. In this case, Arthur did not properly adversely posses the land so color of title is not an issue. Waste against Orin If Arthur was transferred a remainder interest when the deed was given to him, then he may have an action for waste against Orin. The doctrine of waste generally tries to maintain the value of property for future possessors. If Orin cut down trees without Arthur’s permission then Orin could be considered to be committing waste on the property. Orin could defend such an action if the land was being used for its timber before Arthur got an interest. Value of Improvement if he does not have title
If it is deemed that Arthur does not have an interest in the land then he may seek to obtain the value of his improvement (the cottage). However, if he was simply a trespasser then he will not be able to obtain the value of any improvement.
Promissory Estoppel Arthur may try to argue that he should get the land by virtue of promissory estoppel. Even if he was not validly transferred an interest in the land he was promised the land by Orin and relied on that promise by expending money on the improvement. If it was reasonable for him to detrimentally rely and it should have been foreseeable to Orin, then Orin may be estopped from revoking any promise to give Blackacre to Arthur. Bart’s Interest Bart will argue that he was properly given the property via deed at Orin’s death. If Arthur was properly given a remainder interest in the land then Bart will try to trump Arthur’s interest. First In Time The general rule with property transfers is that first in time gets first in right. Here Arthur was given a valid interest before Bart. Therefore Arthur has title unless Bart can qualify for protection under the recording act. Recording Act In this case the recording acts places us in a notice jurisdiction thus, in order for Bart to qualify for protection under the recording act and trump Arthur Bart must show that he is a subsequent bona fide purchaser without notice. If Bart can show that he is a subsequent bona fide purchaser without notice then he will trump Arthur’s interest. Bart will have trouble because he is not a purchaser to begin with. Bart was given the land via will and thus he can not qualify under the recording act. However, if Arthur never got a valid remainder interest then Bart will take the property via will. Bart’s interest will be subject to Charles’ judgment because it was recorded prior to Bart taking an interest. Charles’ Interest Charles may or may not have a valid judgment on the land depending on who takes the land. Arthur will argue that Charles’ judgment died along with Orin because Charles could only get a judgment on the property of Orin. If Orin only owned a life estate then the life estate would be all that the judgment could attach to. Upon he death of Orin, Orin’s interest in the land was extinguished and thus the judgment should vanish as well.
Charles will argue for protection under the recording act. He will qualify if he can show that he is a subsequent bona fide purchaser/mortgagor/creditor without notice. The key here turns on whether Charles had notice of Arthur’s interest prior to obtaining judgment on the land. There are three types of notice: Actual Notice If Charles was actually knew of Arthur’s interest he would have actual interest and would not qualify for protection under the recording act. There is no evidence of that here. Record Notice If Arthur properly recorded his deed then the whole world is put on record notice. Charles would have been charged with a duty to search the records and thus he would be charged with record notice and would not qualify. Here, A did not properly record before C got a judgment so C is not charged with record notice. Inquiry Notice C is charged with a duty to walk the land. If he saw that A was on the land with his family he would be required to inquire as to A’s interest. Thus if C saw A on the land he would be charged with Inquiry Notice and would not trump A’s interest. Thus C would have no interest. If Bart takes the land then the land would be subject to C’s judgment.