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TABLE OF CONTENTS POSSESSION 3 1 General

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TABLE OF CONTENTS POSSESSION 3 1 General Powered By Docstoc
					                                TABLE OF CONTENTS
POSSESSION ..................................................................................................................... 3
  1. General .................................................................................................................... 3
  2. Wild Animals .......................................................................................................... 3
  3. Acquiring Possession by Finding Articles .............................................................. 5
  4. Bailments ................................................................................................................ 7
  5. Adverse Possession ................................................................................................. 9
GIFTS AND SALES OF PERSONAL PROPERTY ....................................................... 11
  1. Gifts of Personal Property..................................................................................... 11
  2. Bona Fide Purchasers of Personal Property .......................................................... 13
FREEHOLD POSSESSORY ESTATES .......................................................................... 14
  1. Introduction ........................................................................................................... 14
  2. Fee Simple............................................................................................................. 15
  3. Fee Tail ................................................................................................................. 17
  4. Life Estate ............................................................................................................. 19
FUTURE INTERESTS ..................................................................................................... 20
  1. Introduction ........................................................................................................... 20
  2. Reversion .............................................................................................................. 20
  3. Possibility of Reverter........................................................................................... 20
  4. Right of entry ........................................................................................................ 21
  5. Remainder ............................................................................................................. 21
  6. Destructibility of Contingent Remainders ............................................................ 24
  7. Rule in Shelley’s Case .......................................................................................... 26
  8. Doctrine of Worthier Title .................................................................................... 28
  9. Executory Interests................................................................................................ 29
  10.   The Rule Against Perpetuities .......................................................................... 31
POWERS OF APPOINTMENT ....................................................................................... 35
  1. Doctrine................................................................................................................. 36
  2. Terminology.......................................................................................................... 36
  3. General Background ............................................................................................. 36
  4. Types of powers .................................................................................................... 36
CONCURRENT ESTATES ............................................................................................. 37
  1. Tenancy in Common ............................................................................................. 37
  2. Joint Tenancy ........................................................................................................ 38
  3. Tenancy by the entirety......................................................................................... 40
  4. Rights and duties of Co-Tenants ........................................................................... 41
MARITAL PROPERTY ................................................................................................... 42
  1. Common Law Marital Estates .............................................................................. 42
  2. Community Property............................................................................................. 44
  3. Alt. Marriages ....................................................................................................... 45
THE SALE OF LAND...................................................................................................... 46
  1. Contracts of sale.................................................................................................... 46
  2. Mortgages.............................................................................................................. 49
RECORDING ACTS ........................................................................................................ 52
  1. Recording System ................................................................................................. 52
  2. Indexing ................................................................................................................ 52


                                                                                                                                 1
  3. Types of Recording Acts....................................................................................... 52
  4. What recordation does not do ............................................................................... 53
  5. Who is protected by recording acts....................................................................... 54
  6. The vicious circle .................................................................................................. 58
  7. Requirements for Recordation .............................................................................. 58
  8. Chain of Title Problems ........................................................................................ 59
EASEMENTS & COVENANTS...................................................................................... 61
  Easements...................................................................................................................... 61
    1. Introduction ....................................................................................................... 61
    2. Creation of Easements ...................................................................................... 63
    3. Scope of Easements .......................................................................................... 67
    4. Termination of easements ................................................................................. 69
  Equitable Servitudes ..................................................................................................... 69
    1. Introduction ....................................................................................................... 69
    2. Creation ............................................................................................................. 70
    3. Enforcement by or against assignees ................................................................ 71
  Real Covenants ............................................................................................................. 71
    1. Introduction ....................................................................................................... 71
    2. Creation ............................................................................................................. 72
    3. Enforcement by or against assignees ................................................................ 72
    4. Termination of covenant ................................................................................... 76
NUISANCE ...................................................................................................................... 77
  1. General .................................................................................................................. 77
  2. Private Nuisance ................................................................................................... 77
TAKINGS AND LAND USE CONTROLS ..................................................................... 79
  1) General .................................................................................................................. 79
  2) What is a taking?................................................................................................... 80
  3) Why Should the Govt. Have to Pay? .................................................................... 82




                                                                                                                                  2
                               PROPERTY OUTLINE


POSSESSION
1. General
      a. Definition- possession may refer either to facts indicating physical control &
         intent to exclude others from control OR to a conclusion by a ct. that a person
         is in ―possession‖ & ought to be protected as a possessor
      b. Distinguished from ownership
                i. Ownership- ―title‖, usually proved by showing document signed by the
                   previous owner or 1 st possessor transferring title to present titleholder
              ii. Possession- proved by showing physical control & intent to exclude
                   others
      c. Constructive Possession- law treats person as if he’s in possession although,
         in fact, he’s not or is unaware of it
      d. Policy Reasons for protecting Possessors
                i. Efficient way to protect ownership since ownership may be difficult to
                   prove
              ii. Prevents disturbing public peace and order
             iii. Facilitates trade
             iv. Gives effect to the expectations of a person who has asserted a right in
                   a thing until another person comes along w/ a better right
               v. In cases of person capturing wild animals or finding lost property-
                   rewards them for making a useful item available to society
             vi. Protecting possession is an easy and efficient way of allocating
                   resources
2. Wild Animals
      a. Gaining Constructive Possession- mortally wound or trap an animal or fish
                i. Wounding- wounding the animal not enough; must deprive the animal
                   of its natural liberty, either by corporal possession or by mortal
                   wounding; i.e., so that capture is ―practically inevitable‖, but pursuit
                   must be maintained- Buster v. Newkirk
              ii. Trapping- capture must be virtually complete; not necessary that there
                   be no possibility of escape- captor acquires possession if he uses
                   reasonable precautions against escape
                        1. Fish in A’s net, which has a small entrance, from which escape
                            is possible but unlikely, are possessed by A. B who removes
                            fish is guilty of larceny. State v. Shaw
              iii. Mere pursuit  property right- A pursues fox but is captured by B, B
                   has rights and possession- Pierson v. Post
             iv. Policy- various reasons for the rule:
                        1. competition- society’s object is to capture these animals- foster
                            comp. by rewarding capturer, not pursuer, bring more people
                            into pursuit- Blackstone & Posner




                                                                                           3
                        a. Problem- May argue that if create property rights- have
                            less hunters- create less incentives- how do you know
                            which way will create incentive AND how do you
                            know foxes need to be eliminated?
                2. ease of administration- ―certainty‖ – capture is objective act,
                    easier rule to administer that protecting pursuit- Hobbes
                        a. Problem- rule that if animal is greviously wounded,
                            have possession- this creates just as much uncertainty
                3. keep peace & order- recognition of property rights leads to
                    peace & order
                        a. Problem- promote peace by allowing people to take fox
                            away from pursuer?
       v. Form of action dictates what must be proven:
                1. Trespass on the case  interference with the chase of animal
                    (Pierson)
                2. Trover allegation that another has found your property
                    (Buster)
                3. Trespass – Post would have had to prove that he already
                    possessed the fox
                4. Replevin action for repossession of property wrongfully
                    taken
b. Trespasser’s title- trespasser’s title to killed or captured animal is inferior to
   that of land’s owner
c. Interference by noncompetitor- Person who doesn’t want to capture animal
   cannot interfere
        i. Society wants animal caught
       ii. A puts out decoys on pond to attract ducks, neighbor B can’t shoot off
            guns to scare ducks away BUT B can shoot to kill ducks when fly over
            his land- Keeble v. Hickeringill
      iii. Differences b/t Keeble & Pierson
                1. Injury to interest in enjoyment of land
                2. Injury to person’s trade
                3. Maliciousness of actions
                4. Competition- essence of distinctions
                        a. If you compete for same thing- its not a tort
                        b. If you simply interfere w/ business w/out justification
                            of comp.- that’s a tort
d. Custom- custom in some hunting trades may allow hunters to acquire
   possession w/out exercising physical control over the animal
        i. Whaling- possession to whaler which harpooned, even though animal
            sunk and discovered days later- Ghen v. Rich
       ii. Policy- advanced killing of whales, allowed whalers to profit from
            labor
      iii. Reasons to look to custom
                1. look to positive value of autonomy- don’t want to interfere w/
                    people- advantages of self- governance



                                                                                    4
                     2. also important is to protect people’s expectations- these come
                          from custom- people conform their behavior around by custom
                     3. expertise of people w/in industry
            iv. Proble ms
                     1. people on outside- might not know rules, their expectations
                          maybe different, their interests may not be protected
                              a. finder of whale - might not know rules- unfair surprise
                     2. chance industry acting self- interestedly- partisan way- fence
                          off whales from the rest of the community
      e. Regulation by State- State only controls the fish for regulating enjoyment and
         use; not enough property rights in fish to sustain an action- State of North
         Dakota v. Dickinson Cheese Co., Inc
      f. Escaped Animals
              i. Wild Animals w/ Animus Revertendi (habit of return)- captured wild
                 animals that develop a habit of return continue to belong to the captor
                 when they roam at large- domesticated animals are valuable to society
                 & this effort to tame wild animals is rewarded
             ii. Escaped Wild Animals- if captured wild animal that has no habit of
                 return escapes- captor loses possession
                     1. Policy- want to encourage recapture
                     2. Exception
                              a. Animal has marking- brand?
                              b. Animal is not native to the area- NOTICE of possession
                                  given
3. Acquiring Possession by Finding Articles
      a. General Rule- Owner of property doesn’t lose title be losing property- rights
         persist even though article has been lost or mislaid- finder has rights superior
         to everyone but the true owner
              i. Prior Possessor Wins- applies to personal and real property-
                 justifications for rule:
                     1. protects owner- who has no indicia of ownership (title papers,
                          etc.)
                     2. need to encourage bailments- efficient practice, don’t want to
                          discourage by allowing bailees to seize unless finder able to
                          show ownership rights
                              a. ex.- A finds jewel who takes it to get appraised, jeweler
                                  refuses to return, A is entitled to jewel (replevin) or
                                  money value (trover) - Armory v. Delamirie
                     3. incentive - want people to pick up lost objects & get back in
                          circulation
                     4. maintain public order- allow peaceable possession
             ii. Relativity of title- if finder subsequently loses property- his title
                 remains superior to that of the next finder
                     1. ex.- A finds logs and secures, later break free and found by F,
                          A didn’t abandon & has title over everyone except rightful
                          owner- Clark v. Maloney



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                  iii. What constitutes possession- for finder to become a prior possessor,
                       the finder must acquire physical control over the object AND have an
                       intent to assume dominion over it
                           1. ex.- A discovers shipwreck at bottom of river & marks w/ buoy
                                but never returns, F comes months later and salvages, F
                                prevails b/c A only shown intent NOT sufficient acts of
                                physical control- Eads v. Brazelton
                           2. Apply Ghen? – ct. rejects application, feels best way to
                                encourage immediate salvage is by ruling that only way to get
                                possession is by placing salvage boat over wreck
                  iv. Unconscious possession- person may constructively possess
                       something of which she is unaware if she is in possession of p remises
                       where article rests- entitled to ―prior possessor wins‖ rule
                           1. ex.- A (landowner) is in constructive possession of objects
                                located under surface of her land even though she is unaware
                                of objects, B (hired to clean out pool) finds ring, A entitled to
                                possession even though didn’t know ring was there- South
US rule on                      Staffordshire Water Co. v. Sharman
unconscious                2. NOTE- rule not widely followed in U.S.
possession                           a. general rule - finder’s possessory to a lost chattel
                                         found when finder was on another’s property w/
                                         consent- generally superior to that of the property’s
                                         owner HANNA v. PEEL
                                     b. no consent- trespasser not entitled to possession-
                                         Barker v. Bates
            b. Finder vs. Owner of Premises- arises where finder finds object on owner’s
               premises which owner doesn’t own the object- cases in conflict
Finder              i. Finder is trespasser- owner of land where object is found always
vs.                    prevails- Barker
Owner              ii. Finder is employee- some cts. argue employee is ―acting for‖ an
                       employer or has contractual duty to report object to the employer
                           1. ex.- Sharman
                           2. NOTE- rule followed in G.B.- not in US
                           3. NOTE- NY statute- misdemeanor to not seek rightful owner-
                                applies even if finder isn’t employee
                  iii. Finder is on premises for limited purpose- Sharman
                  iv. Object found under the soil- if object found under or embedded in
                       the soil, it is awarded to the owner of premises not to finder-
                       (prehistoric boat- Elwes v. Brigg Gas Co)
                           1. Exception- 1) gold, silver, or money; 2) concealed w/ intent of
                                returning to claim it- cts. divided, some give to owner others to
                                finder- (owner of land- Favorite v. Miller)
                   v. Object found in private home- usually awarded to the owner of the
                       home
                           1. Rationale- owner has intent to exclude everyone & admit
                                persons for only limited purposes (not fishing for lost property)



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                                          2. Owner not in possession- if owner of house not moved into
                                              house, owner of house isn’t in constructive possession of
                                              articles therein of which he’s unaware
                                                   a. Ex.- O owns home that never occupied & is
                                                       requisitioned by govt., soldier finds lost brooch, soldier
                                                       entitled to brooch since O never had physical
                                                       possession of house- Hannah v. Peel
                                 vi. Object found in public place- cts. resolve dispute by determining
                                      whether item was ―lost‖ or ―mislaid‖
                                          1. Lost- property owner accidentally & causally lost- goes to
                                              finder rather than owner of premises
                                                   a. Ex.- wallet found on floor of barbershop- lost &
                                                       belongs to finder- Bridges v. Hawkesworth
                                          2. Mislaid- property intentionally placed somewhere & then
                                              forgotten- goes to owner of the premises
                                                   a. Ex.- pocket mislaid on counter- goes to owner of shop
                                                       and not finder- McAvoy v. Medina
                                          3. Rationale- facilitate return of object to true owner- assumed
                                              owner who mislays object will remember where mislaid &
                                              return to reclaim
                                          4. NY Statute- abolishes distinction b/t mislaid & lost- encourage
                     STICK
                                              finders to turn in
                     and
                                                   a. Have to turn over found prop. to police (stick) & if no
                     CARROT
                                                       one claims- finder gets to keep (carrot)
                                                   b. Promote chances prop. end up in hands of true owner
                 4. Bailments
                          a. Definition- bailment is rightful possession of goods by one who is not the
                              owner- bailee has duty to care for goods & deliver them to owner
BAILMENT:                          i. Bailor = true owner
Actual physical                   ii. Bailee = person in possession
control                   b. Creation- alleged bailed 1) must assume actual physical control, 2) w/ intent
+                             to possess; cts. look to expectations of parties to determine whether liability
Intent to possess.            would be unexpected or unfair
                                   i. Actual physical control- bailee must take actual physical control of
                                      object
                                          1. Parking lot cases- Is bailee liable for car owner’s loss or
                   Parking lot:               damage?
                   bailment for                    a. Park & lock- O parks & retains keys
                   care, not for                            i. Older cases- no bailment
                   unknowns                                ii. Modern- bailment created- Allen v. Hyatt
                   stuff.                                      Regency-Nashville Hotel
                                                   b. Attended lots- O leaves keys w/ attendant- bailment
                   Allen                               created- expectations for B to exercise reasonable care
                                                   c. Policy argument- Garage owner in better position than
                                                       owner since he’s not around to prevent the harm-




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                                        sidestep technicalities of bailment law to put onus in
                                        party in best position
                                   d. EXCEPTION- bailee likely not liable for theft of items
                                        in bailor’s car that was bailee was unaware of (wallet
                                        on seat of car- Swarth v. Barney’s Clothes, Inc.
                    ii. Intent- bailee must have intent to exercise physical control & bailor
                        must intend to give up right to possess the object
                            1. Value undisclosed to bailee- if bailor gives article to bailee but
                               doesn’t disclose exceptional value of article, bailment still
Unknown value:                 created- risk of caring for article in its true value is put upon
bailment, so owes              bailee when he accepts possession of article
reasonable care,                   a. Ex.- O gives ring A to hold until B claims, A does so
but that depends                        but doesn’t realize ring is valuable, A neg. loses ring
on how much they                        and liable for loss since bailment created- Peet v. The
know about value.                       Roth Hotel Co.
Peet v. Roth Hotel                 b. Liability- bailee is liable to ex. due care since in better
                                        position to protect
                                   c. BUT- degree of care ex. depends on value of item
                                             i. need to know how much knowledge is
                                                 necessary in order to meet the intent standard of
                                                 possession
                                            ii. if imposing on person a burden- high degree of
                                                 knowledge required before imposing obligation
                                                 on the basis bailee best person to protect against
                                                 harm
              c. Rights and Duties of Bailee
                     i. Rights against 3rd parties- as against 3rd party, bailee entitled to full
                        damages resulting from wrongdoing by 3rd party
                            1. Rights of bailor- bailee may recover from 3rd party wrongdoer,
                               but bailee is liable to the bailor for amount recovered; 3 rd
                               party’s payment to bailee is  against claim from bailor- The
                               Winkfield
                    ii. Duty of bailee to exercise care- all bailees are under duty to exercise
                        care over bailed goods, but standard of care varies w/ type of bailment
                            1. degree of care maybe commensurate w/ who gets the benefit
                                   a. Bailment for sole benefit of bailee- if bailment is for
                                        sole benefit of bailee – bailee required to use
                                        extraordinary care, liable for even slight neglect that
                                        results in goods being lost, damaged, or destroyed
                                   b. Bailment for mutual benefit of bailor & bailee- bailee
                                        must exercise ordinary care and liable for ordinary
                                        neg.
                            2. liability depending upon nature of loss of property
                                   a. negligence standard- loss, theft, damage
                                   b. strict liability- misdelivery (Cowen v. Pressprich)




                                                                                                 8
                          iii. Duty to redeliver- if bailee misdelivers goods to wrong person, held
    Bailee can K               strictly liable for loss
    around                          1. Exception- involuntary bailee liable only if bailee was
    liability, but                      negligent in delivering goods to the wrong person- gratuitous
    bailor has to                       agent liable for not exercising ordinary care when intervening
    know and                                a. Ex.- A’s agent brings bond to B’s office & drops
    consent to                                   through letter slot, B notices wrong bond dropped &
    terms.                                       calls for A’s agent, C steps forward & B gives to C, B
                                                 liable for not exercising ordinary care- Cowen v.
                                                 Pressprich
                   d. Contractual Modification of Liability- cts. permit contractual limitations
                       provided they don’t relieve bailee from gross or willful negligence- BUT
                       bailor must consent, terms must be made known to him & he must understand
                       them- Carr v. Hoosier Photo Supplies, Inc.
             5. Adve rse Possession
                   a. Doctrine- obligates title holder of land to eject, w/in a statutorily prescribed
                       period, a wrongful possessor land- if owner fails to do so, his claim will be
POLICY                 barred & the adverse possessor may acquire title
REASONS of                  i. Effect of adverse possession- terminates owner’s title and creates
ADVERSE                        new title adverse possessor
POSSESSION                 ii. Purpose of doctrine
                                    1. Protect title- protection of possession may protect ownership
                                        since title may be difficult to prove
                                    2. Bar stale claims- require lawsuit to be brought to oust a
                                        possessor while witnesses’ memories are still fresh
                                    3. Reward those who use land productively
                                    4. Honor expectations- giving effect to expectations is policy
                                        running all through law of property
                   b. Requirements of Adverse Possession – to establish title by adverse possessor
                       must show 1) an actual entry giving exclusive possession that is 2) open and
                       notorious 3) adverse & under a claim of right, and 4) continuous for the
                       statutory period
                            i. Actual entry giving exclusive possession
Actual entry                        1. entry requirement- primary purpose of entry requirement is
                                        trigger the cause of action
Continuous
                                    2. exclusive possession- adverse possessor can’t be sharing
Exclusive                               possession w/ the owner nor w/ the public generally- ensures
                                        owner alerted that adverse possessor is claiming ownership
Hostile/Adverse            ii. Open & notorious possession
Open & Notorious                    1. use reasonable % of claimed land
                                    2. use land in manner similar to that of typical owners of similar
                                        land
                                    3. use is sufficient to put true owner or community on notice of
                                        possession
                                            a. Minerals- adverse possession includes possession of
                                                 minerals unless minerals have been severed from land



                                                                                                      9
                                                             by sale prior to entry- to start adverse possession,
                                                             possessor must start removing them
      Minerals: to start
                                       iii. Adve rse and under a claim of right
      adverse
                                                  1. w/out owner’s consent- possession not simply subordinate to
      possession, have
                                                     owner; not allow owner to be lulled into believing occupant
      to start re moving                             will make no claim against
                                                  2. objective v. subjective test
                                                         a. objective test- look to actions of possessor to see if they
                                                             look like claims of ownership, person can be adverse
                                                             possessor even though he’s not actually claiming title
                                                             against the true owner
         TESTS:                                          b. subjective test- (more widely used) adverse possessor
         Objective                                           must have a bona fide or good faith belief that he has
                                                             title- (adverse possessor’s possession not hostile since
         Subjective                                          recognizes owner’s claim on 2 occasions- Dillaha v.
                                                             Temple)
                                                  3. color of title- claim founded on a written instrument (deed,
                                                     will) or judgment which unknown to claimant is defective &
                                                     invalid
                                                         a. where person enters w/ color of title, no further claim of
                                                             title or proof of adversity is required
                                       iv. Continuous uninterrupted possession
                                                  1. definition- degree of occupancy and use that the avg. owner
                                                     would make of particular type of property
                                                         a. purpose- give owner notice
                                                         b. seasonal use- use of summer home only during summer
                                                             for statutory period is continuous use- Anderson v. Cold
                                                             Spring Tungsten, Inc.
Adv Adv =tacking if                              2. tacking- time in possession of successive adverse possessors
continuous and in privity                            may be added together to fulfill the statutory period when 1)
                                                     possession is continuous; 2) parties are in privity
O (adv. COA) LE +                                       a. privity of estate- possessor voluntarily transferred to
re mainderman = tacking, b/c LE                              subsequent possessor either an estate in land or
and R derive interest from                                   physical possession
orig.conveyance, and COA                                           i. where transfer isn’t voluntary- no privity of
tacked from then                                                      estate
                                                         b. tacking on ownership side- when owner transfers land
LE (Adv.COA) against life tenant,
      H: Entry made                                          adversely occupied, transfers same cause of action
      SOL runs out on them, what about the                   against adverse possessor, new cause of action against
Remainderman = NO
      Remainderman’s interest?
TACKING. B/c COAonly gets what the
      Adverse possessor terminates
                                                             adverse possessor doesn’t accrue w/ new owner
w/ LE, and new COA starts didn’t’
      life tenant had…that COA                                     i. BUT look to see if subsequent owner is
      belong to the Remainderman, so once                             remainderman- if so, has new cause of action
      life tenant dies, that’s when their SOL                         (no tacking) since old life estate terminates
      clock would start. It’s just as if the life                         1. look to see when entry occurred- if
      tenant had conveyed the estate to
      adverse possessor- they only get the
                                                                              occurred during period in which land
      estate for the life of the life tenant.                                 owned by indiv. who conveyed to life



                                                                                                                    10
                                                             tenant and remainderman- SL likely to
                                                             expire since remainderman derives
                                                             interest from orig. conveyance and &
                                                             cause of action tacked back from then
                               3. payment of property taxes- several western states require
                                   adverse possessors to pay taxes on land in order to prevail
                c. Disabilities of Owner- typical statutes give additional period to bring action if
                   owner is under a disability
                       i. Typical statutes
                               1. disabilities usually limited to minors, insanity, & imprisonment
                               2. only disabilities at time of initial entry- only disabilities of
                                   owner at time of adverse possession begins count- Fleming v.
                                   Griswold
                                       a. no tacking of disabilities
                                       b. heirs insanity doesn’t affect operation of statute- O
                                            gains land in 1990 and A goes into adverse possession;
                                            O wills to H (who is insane) in 1995; H’s insanity
                                            doesn’t affect running of statute
                               3. extension- usually provide for extra 10 years in which to bring
                                   suit after disability is removed
                d. Nature of Title Acquired by Adverse Possessor
                       i. New title- arises in adverse possessor
                      ii. Relation back- adverse possessor’s title relates back to date of initial
                          entry- bars former owner for separate trespass or mesne profits suits on
                          which statutes of lim. have not yet run


       GIFTS AND SALES OF PERSONAL PROPERTY
       1. Gifts of Personal Prope rty
                a. Definition- gift is a voluntary transfer of property w/out any consideration-
                        i. 3 require ments for a gift of chattels
                               1. Donor must intend to make a gift
INTENT
                               2. Donor must deliver the chattel to the donee
DELIVERY
                               3. Donee must accept the chattel
ACCEPTANCE             ii. Gifts inte r vivos- made during the donor’s life when donor is not
                           under any threat of impending death- gift is irrevocable
                               1. must be irrevocable- if not – doesn’t satisfy statute of wills-
   Getting around the              some ways of getting around:
   statute of wills…                   a. testamentary dispostion- draw a will
                                       b. gifts causa mortis
   also, joint tenancy
                                       c. make a present irrevocable grant of a future interest-
                                           transfers a part of the title but retains for you a life
                                           interest that becomes a possessory interest in donee
                                           when you die
                                       d. deposit money in a joint bank acct.




                                                                                                      11
                                                i. retain pwr. to control but have really divided
                                                   control
                                              ii. arguable that they are testamentary (pwr. to
                                                   revoke) but cts. tend to enforce
                                     e. Totten trust- a revocable inter vivos trust doesn’t vio.
                                          statute of wills
                   iii. Gifts causa mortis- made in contemplation of immediately
                        approaching death- revoked if donor recovers from illness that
                        prompted the gift
                            1. immediately approaching death
                                     a. have to have real apprehension of death (can’t just be
See also                                  that your going to Bosnia)
                                     b. donor must die of contemplated peril- at least in most
DEAD MAN’s                                states
STATUTES                    2. 2 conditions revoke gift
                                     a. recovery of donor
                                     b. death of donee
                            3. Doctrine of lapse- intention of testator was to benefit this
                                 individual, not their hiers or legatees so gifts lapse
                            4. May be revoked by donor’s will
             b. Intent- donor must intend to pass title presently & not merely transfer
                possession
                     i. Promise to give property in the future is NOT a gift
             c. Delivery
                     i. Purpose
                            1. ritual- delivery of chattel impresses grantor w/ legal
                                 significance and finality of act
                            2. evidentiary- delivery is reliable, objective evidence of grantor’s
                                 intent to give
                            3. protective- protects unwary or barely competent from making
                                 improvident oral statements
                    ii. Manual transfer not necessary- donor must do an act that evinces an
                        intent to be immediately bound
                            1. symbolic delivery- where manual delivery is impracticable-
                                 symbolic deliver is handing over of some object that is
                                 symbolic of thing given (i.e. instrument in writing)
                            2. constructive delivery- where actual manual delivery is
                                 impracticable, constructive delivery is permitted
                                     a. handing over a key- may be constructive delivery if 1)
                                          delivered sole key AND 2) delivery of the object of the
                                          gift is impracticable
                            3. delivery through 3rd parties- delivery may be accomplished
                                 through 3rd parties – law treats 3rd party as agent of donee as
                                 soon as donor hands over to 3rd party, donor disallowed from
                                 then revoking




                                                                                              12
                                    4. may transfer future interest- may make irrevocable transfer of
                                         remainder interest- Gruen v. Gruen
                    d. Acceptance- law presumes acceptance when gift is beneficial to donee
             2. Bona Fide Purchasers of Personal Property
                    a. General rule- seller can transfer no better title than he has- exception- certain
                       situations dealing w/ bona fide purchasers
                    b. Exceptions- situations in which exception made for BFP
                             i. Negotiable instruments- title to money or negotiable instruments can
                                be transferred even by thieves- facilitates trade
                            ii. Seller has voidable title- can transfer good title to BFP
                                    1. diff. b/t voidable & void title
VOIDABLE                                      a. voidable title – owner intends to pass title but can void
TITLE                                            the transaction b/c of fraud, misrepresentation, or
Post Pierson,                                   duress
who promised to                               b. void- owner doesn’t intend to pass title or has no
pay, but really had                              capacity to do so- BFP takes no title
no intention.                       2. reasons for exception- where 1 of 2 innocent persons must
                                         suffer by fraudulent act of 3rd party- one who could’ve
Pierson’s title is                       prevented harm to other should suffer loss- Owner, not BFP,
voidable, BUT can                        could’ve prevented loss to BFP, but BFP couldn’t do anything
pass on good title                       to prevent loss to owner
to a BFP. this is          iii. estoppel- if owner of goods by words or conduct expressly or
b/c Post has                    impliedly represents that the possessor is the owner or is authorized to
cloaked Pierson w/              pass title, inducing reliance by purchaser, owner is estopped to deny
title, inducing the             the truth of the representation
BFP’s reliance.                     1. ex.- O delivers possession of wagon to GT, a new employee.
                                        O wants to keep possession GT built up for himself so O paints
                                         on wagon ―GT, Piano Mover‖- GT sells wagon to BFP. O is
                                         estopped to deny GT is owner- (O’Connor v. Clark)
                                    2. 3 requirements- (not confined to sales):
                                              a. Person whose to be a estopped must make a
                                                 representation- statement by owner to world at large
                                                 that this is P’s wagon
                                              b. Reliance- b/c of representation of Pierson, believed that
                                                 it was his
                                              c. Change of position- laying out money for wagon
                           iv. entrusting goods to a merchant
                                    1. common law rule- owner entrusted goods to a merchant in
                                         business of selling goods- owner must stand by while merchant
                                         displays goods w/ goods for sale or clothe merchant w/
                                         apparent authority to dispose of article
                                    2. ex.- O entrusts painting to A, art dealer, for exam. A gives
                                         painting to B, delicatessen employee. B sells to C. Since C
                                         bought painting from B, O prevails over C: 1) B is not a
                                         merchant entrusted by O; 2) B isn’t an art merchant; 3) sale
                                         wasn’t in ordinary course of B’s business- (Porter v. Wertz)
       THINGS
       TO
       CONSIDER in                                                                                     13
       deciding BFP
              v. factor acts
                      1. factor is agent in possession of property ( A in our case)
                      2. if limitations on authority to sell that aren’t communicated to
                          BFP- BFP wins
                      3. secures transactions & encourages exchange of goods
       c. Bona Fide Purchaser- one who doesn’t know of seller’s wrongful possession
          but has a good faith belief that seller has title, and, in addition, pays valuable
          consideration
               i. Preexisting debt
                      1. old rule- person isn’t a purchaser for valuable consideratio n if
                          he takes title only in exchange for a preexisting debt
                      2. modern rule- if the mortgee in a worse position than before
                          transaction began, he is a BFP for the purposes of this
                          protection
                      3. IOU’s: B gives A an IOU for the horse ($500). B is a BFP, IF
                          the IOU gets sold to s/o else.
              ii. IOUs- UCC- mere giving an IOU or any other consideration to
                   support a K is enough to make B a purchaser for value (BFP)?
                              a. Until then: b/c an IOU is a negotiable instrument. If A
                                   sues B for the promise to pay, B will have to pay, and
                                   then if he doesn’t, A will be able to take the horse
                                   back….B won’t have to pay b/c w/o the horse, he can
                                   defend against A’s suit by saying there was no
                                   consideration for the IOU; and B can be restored to the
                                   status quo ante w/o giving him the horse by voiding the
                                   IOU.
                              b. Once the IOU is sold: owner of the IOU can enforce
                                   it, and the defenses against A won’t work against the
                                   new purchaser of the IOU! If the wrongdoer cashed the
                                   IOU, then B has no recourse! NO DETRIMENT is
                                   suffered UNTIL the IOU is sold to someone else.
                  Look at these by asking- If take prope rty away, does BFP suffer a
                 detriment?



FREEHOLD POSSESSORY ESTATES
1. Introduction
       a. Feudal Background
              i. Two ways to transfer land
                   1. Subinfeudation- process by which a tenant transferred lands in
                      his possession to others who became his tenant
                   2. Substitution- involved transfer of all of a tenant’s interests in
                      land to another party who took place of the original tenant




                                                                                         14
             ii. Escheat- if tenant died w/out heirs, tenant’s position in feudal ladder
                 was eliminated, & possession of land or whatever rights tenant had
                 reverted to the lord
            iii. Statute Quia Emptores- permits free alienation of land by
                 substitution, forbids subinfeudation; only effects estates in which
                 seisin passes (fee simple estates)
      b. System of Estates
              i. Types of estates
                     1. fee simple- potential of enduring forever, resembles absolute
                         ownership
                     2. fee tail- potential of enduring forever, but will necessarily
                         cease if and when first fee tail tenant has no lineal descendants
                         to succeed him in possession
                     3. life estate- estate that will end necessarily at the death of a
                         person
                     4. leasehold estate- 3 main types
                             a. term of years- estate that endures for any fixed calendar
                                 pd.
                                      i. ex.- O to A for 10 yrs if A shall so long live-
                                         State of the title:
                                              1. A has a determinable term of years
                                              2. O has possibility of reverter & reversion
                             b. periodic tenancy- endures from period to period until
                                 landlord or tenant gives notice to terminate at end of a
                                 period
                             c. tenancy at will- endures so long as both the landlord &
                                 tenant desire
             ii. freehold and nonfreehold estates
                     1. freehold- include all of the above estates except leasehold;
                         freeholder in possession has seisin
                     2. nonfreehold- include leasehold & other estates; leaseholder has
                         only possession
      c. Creation of Estates- words of limitation & words of purchase
              i. Words of limitation- describe what type of estate is created
             ii. Words of purchase- identify person in whom estate is created
            iii. Ex.- ―to A and his heirs‖
                     1. words of purchase- ―to A‖
                     2. words of limitation- ―and his heirs‖
2. Fee Simple
      a. Basics
              i. Creation
                     1. ―to A and his heirs‖, ―to A in fee simple‖, ―to A‖
                             a. only South Carolina & Maine still require ―and his
                                 heirs‖
                     2. presumption in favor of fee simple conveyances




                                                                                        15
                              ii. Duration- potentially last forever, largest possible estate in terms of
                                  duration
                             iii. Alienability- 3 main characteristics
                                      1. freely alienable
                                      2. can be disposed of at death of owner through will
                                      3. if owner dies intestate- passes to owner’s heirs
                       b. Inheritability
                               i. Land may be devised
                              ii. Owner dies intestate- intestacy laws (governs if will doesn’t exist or
                                  will doesn’t dispose of all the property) of state
                                      1. If wife – 1/3 to her; 2/3 to children
                                      2. If no wife- kids get all of land
                                      3. If no kids- wife gets ½; other ½ goes to other relatives
                                      4. If no heirs- by escheat goes to state
                                              a. Escheat used to mean that prop. reverts to grantor
                                              b. State doesn’t take land as grantor but as ulimate heir
                                                  under intestacy laws
You can
                       c. Rule of repugnancy
limit how
                               i. Nature of primary estate- donor grants fee simple in land or an
the land is to
                                  absolute interest in personal property to one person, together w/ a
be used, but
                                  general pwr. of disposal by deed or will
not by
                              ii. Secondary estate- donor grants over to another person what remains
whom.
                                  undisposed of on the death of the first taker
                             iii. Rule- secondary estate void on the ground that the gift over is
                                  repugnant to and inconsistent w/ interest first taken
1) if language in d. Defeasible Fees- fee simple can be created so it’s defeasible on happening of
    deed - ―tract         some event- owner of fee simple then loses, or may lose property- these aren’t
    conveyed for the      fee simple absolutes
    purpose…‖ –                i. Fee simple determinable
    cts. hold that fee
                                      1. definition- fee simple estate so limited that it will
    simple absolute
    is                                    automatically end when some specified event happens
    created..probabl                  2. creation- ―to A and his heirs, so long as they use land for
    y b/c they want                       specified purposes only‖; ―until‖; ―while‖
    strong language                           a. motive or purpose- words in an instrument that state
    when there’s                                  motive or purpose of grantor don’t create a
    going to be a                                 determinable fee
    limit on the                              b. owner retains- right of reverter
    land.                             3. duration- potentially infinite duration, as long as condition isn’t
2) if language in                         violated- if condition broken, estate automatically terminates
    deed – ―granted                       & possession reverts to grantor (possibility of reverter-
    upon the express
                                          grantor’s future interest)
    condition…‖-
    cts. hold that a                  4. alienability- freely alienable BUT remains subj. to limitation
    covenant is                               a. reversionary interest- not alienable
    created, not a                    5. interaction w/ adverse possession
    condition                                 a. ex.- O to A so long as used for cat hospital- stops being
covenant- grantor                                 used for cat hospital, A’s estate immediately terminates
could maintain an
action for damages
when land ceased to
be used as indicated                                                                                     16
but couldn’t assert
rights of forfeiture
                                 & adverse possession begins- if O does nothing, A
                                 gains estate by adverse poss. when SL run
              ii. Fee simple subject to condition subsequent
                     1. definition- fee simple that doesn’t automatically term. but may
                         be cut short at grantor’s election when a stated condition
                         happens
                             a. ex.- O to A for life- then to B and B’s heirs but if B
                                 doesn’t marry C then O has right to reenter & reclaim
                                      i. B has a vested remainder (fee simple subject to
                                         a condition subsequent) - subsequent condition
                                         rather than prior condition so it makes it a vest
                                         interest rather than a contingent remainder
                                     ii. O has right of entry for condition broken (not
                                         reversion)
                     2. creation- ―to A and his heirs, but if land is used for other than
                         specified purposes, O or his heirs shall have right to enter and
                         declare estate forfeited‖
                             a. ―but if‖, ―upon condition‖, ―provided, however,‖-
                                 words of condition
                             b. owner retains- right of entry for condition
                                 broken/pwr. of termination
                     3. duration- keeps possession until grantor enters & terminates
                         estate upon breaking of condition; violation of condition does
                         not lead to automatic forfeiture of property
                     4. alienability- freely alienable BUT subj. to limitation
                             a. right of entry- can only be exercised by grantor or his
                                 heirs- Village of Peoria Hights v. Keithley
                             b. heirs may sign quit claim to surrender right to enter
                                 upon condition broken- Trustess of Calvary Pres.
                                 Church v. Putnam
                     5. NOTE- if ct. has a choice, fee on condition subsequent is
                         preferred over fee simple determinable
                     6. interaction w/ adverse possession
                             a. ex.- O conveys to A but if land not used for cat hospital,
                                 O retains right to reenter- stops being used for cat
                                 hospital, O’s right of action is subj. to condition
                                 precedent she elect to declare forfeiture, SL doesn’t
                                 accrue until she does so
             iii. Fee simple subject to an executory limitation
                     1. definition- upon happening of a stated event, automatically
                         divested in favor of 3rd party
                     2. ex.- ―O to A but if land used to sell booze, to B and his heirs‖
                             a. B’s future interest- executory interest
3. Fee Tail
      a. Historical background- invented to keep land safe for succeeding generations
      b. Nature of Estate- two principal characteristics



                                                                                       17
                            i. Lasts as long as grantee or any of his descendants survive
                           ii. Inheritable only by grantee’s descendants
                 c.   Creation- ―to A and the heirs of his body‖
                 d.   Duration- grantee received estate for his life which passed to his first heir at
                      his death
                 e.   Alienability- grantee couldn’t transfer an interest in estate which exceeded his
                      lifetime
                 f.   Possible Future interests- if grantee dies w/out descendants-
                            i. Reversion- ―O to A and heirs of his body‖- O has reversion
                           ii. Remainder- ―O to A and heirs of his body, & if A dies w/out issue, to
                               B and her heirs‖- B has contigent remainder
                 g.   Types of Fees Tail- unless specified, fee tail inheritable by any issue of fee
                      tail tenant- but can be tailored:
                            i. Fee tail male- limited succession to male descendants of grantee
                           ii. Fee tail special- inheritable only by issue of a grantee and a specific
                               spouse
                 h.   Modern View
                            i. Delaware, Maine, Mass., RI- still permit fee tail
                                   1. BUT creditors can reach entire property just as if had fee
                                       simple
                           ii. most courts have abolished or greatly modified its effect- treat as:
                                   1. Fee simple absolute
                                   2. Life estate- grantee has life estate followed by fee simple in
                                       issue
                 i.   Construction problems—gift to B and his children
                            i. Proble m- A to ―B and his children,‖ and at testator’s (A’s) death B
                               has no children. What interest does B take? - ―and his children‖ is
                               ambiguous:
                                   1. Could be words of limitation, indicating size of estate given;
                                       or
                                   2. words of purchase, indicating gift also to after born children
                                       themselves.
                           ii. Englis h courts say words of limitation and B takes fee tail (Rule in
                               Wild’s Case)
                          iii. American courts say B takes a life estate and children a remainder.
                          iv. Alte rnate resolution: B and children take concurrent interests as joint
                               tenants for life.
                 j.   Construction problems—meaning of death without issue
                            i. Ambiguity- A to ―B and his heirs but if B die without issue then to C
                               and his heirs.‖- ―die without issue‖ is ambiguous
                                   1. Could mean C takes only when whole line of B’s descendants
Dies w/o issue                         runs out (indefinite failure of issue), or
                                   2. C takes if, and only if, at B’s death B leaves no surviving issue
Construction                           (definite failure of issue).
Proble ms                  ii. Indefinite failure  B has fee tail (by implication) and C has
                               remainder in fee simple  C takes only when B’s lineage ends.



                                                                                                    18
                     iii. Definite failure  B has fee simple subject to an executory interest in
                          C  C takes only if B dies without surviving issue  if B dies
                          leaving child, then child dies next day leaving no issue (lineage ends),
                          C does not take.
                     iv. US courts adopted indefinite failure approach- Statute can establish
                          preference for definite failure approach (about 30 states)


     4. Life Estate
            a. Basics
                    i. Creation- ―to A for life‖- may create by granting land to someone as
                       long as certain condition fulfilled
                           1. ex.- ―O to A while he shall wish to live in Albert Lea‖- life
                               estate in A created- Thompson v. Baxter
                           2. ex.- ―O to daughter as long as wishes, and in case she should
                               not use it as such & wish to sell it…proceeds to be divided b/t
                               son and daughter equally‖- life estate in daughter created-
                               Smith v. Smith
                   ii. Duration
                           1. grantee’s lifetime- estate lasts until death of grantee
                           2. per autre vie- duration measured by life of 3rd party
                  iii. Alienability- grantee is free to make inter vivos transfers
            b. Defeasible Life Estate- life estate can be conditioned upon a certain event
                    i. Ex. – ―O to A for life so long as land is used for a cat hospital‖
                           1. A dies- O retains reversion in life estate
                           2. If land stops being used as cat hospital- O retains possibility of
                               reverter
            c. Duties & Powers of Life Tenant- life tenant has certain obligations to
               remainderman (those who will take possession after tenant’s death)
                    i. No waste- unreasonable permanent impairment of future value of
                       property- 3 different types of waste
                           1. affirmative (voluntary) waste- life tenant actively causes
                               permanent injury (destroys building, removes trees)
TYPES OF
                           2. permissive (involuntary) waste- land is allowed to fall into
WASTE
                               disrepair or tenant fails to take reasonable measures to prect
                               land from elements
                           3. ameliorating waste- principal use of land changed, BUT
                               change increases value of land- still actionable if 1) grantor
                               intended to pass land w/ specific buildings on it to
                               remaindermen: 2) building can be reasonably used for purposes
                               built
                                   a. ex.- house on 5th ave. can’t be torn down & replaced by
                                        apt. building- Brokaw v. Fairchild
                                   b. ex.- if grantor’s intent of passing house can no longer
                                        be carried out b/c changed conditions have made it




                                                                                               19
                                  impractical to do so- house can be torn down if raises
                                  value- Melms v. Pabst Brewing Co.
               ii. Reasonable repairs- doesn’t include rebuilding structure destroyed by
                   natural causes
              iii. Inte rest charges on mortgage- obligation limited to value of income
                   received from land
              iv. Property taxes on estate- life tenant entitled to all rents and profits
                   from estate


FUTURE INTERESTS
1. Introduction
       a. Future Interest defined- it is a present nonpossessory interest capable of
          becoming possessory in the future
       b. Categories limited- only 5 categories
                i. Future interests in the grantor
                       1. reversion
                       2. possibility of reverter
                       3. right of entry
               ii. Future interests in the grantee
                       1. remainder
                       2. executory interest
2. Reversion
       a. Definition- created when grantor transfers estate of shorter duration than the
          one he holds- at expiration of shorter estate, future interest becomes
          possessory
       b. Divestment- reversion can be divested (exstinguished) if condition necessary
          for reversion can’t be met
                i. Ex.- ―O to B for life, then to C, if she outlives B‖
       c. Alienability- reversion is freely alienable, devisable, or inheritable
       d. Compared to Possibility of Reverter
                i. Possibility of reverter- arises where grantor carves out of his estate a
                   determinable estate of the same quantum (eg. fee simple determinable)
               ii. Reversion- future interest left in grantor after she conveys a vested
                   estate of a lesser quantum than she has (eg. life estates, fee tails)
3. Possibility of Reverter
       a. Definition- future interest remaining in grantor when a fee simple
          determinable is created
       b. Duration- runs w/ the fee simple determinable that was conveyed- if
          condition is broken, entitles grantor to automatic repossession
                i. NOTE- grantee who stays in possession after condition broken is
                   considered to be in adverse possession
       c. Creation—constructional problems
                i. Governed by intention, usually manifested in language of deed or will
               ii. Ambiguity possible
                       1. Test: mode of termination of granted estate controls



                                                                                        20
                           2. Unless intended to expire automatically, no fee simple
                                determinable
                           3. Magic words : ―while‖, ―during‖, ―until‖, or ―so long as‖
                                    a. Expression of reverter not enough (―land shall revert‖)
                                    b. Statement of purpose not enough (―for a hospital‖)
                           4. Judicial preference for fee simple subject to condition
                                subsequent when ambiguity between the two (more favorable
                                to grantee)
           d. Alienability- freely alienable and inheritable
           e. Public Policy- cts. are generally hostile, will construe restrictions as only a
               suggestion or a covenant
     4. Right of entry
           a. Definition- residual future interest in the grantor of a fee simple upon a
               condition subsequent- grantor reserves right to reenter land & reclaim
               possession if condition is broken
           b. Magic words- ―upon condition that‖, ―provided that‖, ―but if‖ coupled with
               provision for entry by grantor
           c. Duration- right of entry runs w/ the land; to take possession of the land,
               transferor must actually enter it & declare the prior possessor’s claim void
           d. Adverse Possessors – interest not automatically possessor- when SL begins to
               run varies by state- may begin to run either when:
                    i. Condition breached; OR
SOL on             ii. Owner elects to ex. right of re-entry & is rebuffed
adverse           iii. Not automatically possessory, so application of SOL may vary on
possession             state. If don’t bring ejectment w/in period allowed by SOL, grantee
                       gets title by adverse possession. BUT depending on the state, SOL can
                       start running either 1) when condition breached 2) when O elects to
                       exercise right to re-enter and is rebuffed…here, equitable doctrines
                       like waiver, laches (A $$ hurt if O slow) and estoppel may bar O from
                       exercising right of entry after reasonable period of time has passed.
           e. Alienability- in most states- future interest is devisable and inheritable but
               can’t be transferred inter vivos
           f. Public Policy- if at all possible, cts. will try to construe the grant otherwise
     5. Remainder
           a. Definition- future interest created in a grantee that is capable of becoming a
               present possessory estate upon the expiration of a prior possessory estate
           b. Essential Characteristics
                    i. Must have preceding estate-remainder can be created only by
                       express grant in the same instrument in which the preceding
                       possessory estate is created
                   ii. Must follow a fee tail, life estate, or term of years
                  iii. Must be capable of becoming possessory on natural termination of
                       preceding estate- divesting interest in grantee is an executory interest
                       (not a remainder
                  iv. Prior interest must be immed. prior to the remainder & there may be
                       no gap in seisin (ownership) b/t them



                                                                                             21
              1. If there is gap – it can only take effect as an executory interest
                  (future interest, held by a 3rd person, that either cuts off
                  another’s interest or begins after the natural term. of a
                  preceding estate)
      v. They must be held by a person other than the grantor of the document
          in which they are created
c. Classification of Remainders
       i. Reasons for classification- contingent remainders affected by 1) rule
          of destructability; 2) Rule in Shelley’s Case; 3) Doctrine of Worthier
          Title; 3) Rule Against Perpetuities
      ii. Vested Remainde r
              1. Definition- remainder created in an ascertained person and
                  not subject to a condition precedent
                      a. Ex.- ―O to A for life, then to B in fee simple‖
                      b. Condition precedent- ―to B if B survives A‖
                               i. If vested- there would be no condition precedent
                                   & possession would go to B’s grantees,
                                   devisees, or heirs if he had died
              2. 3 types vested remainders
                      a. indefeasibly vested remainder- holder of remainder is
                          certain to acquire a possessory estate at some time in
                          future & is certain to be entitled to retain permanently
                          the possessory estate so acquired
                               i. ex.- ―O to A for life, then to B and her heirs‖
                      b. vested remainder subject to open- vested in a class of
                          persons at least one of whom is qualified to take
                          possession but the shares of class members aren’t yet
                          fixed b/c more persons can subsequently become
                          members of the class
                               i. Example: A devises to B for life, then to B’s
                                   children in fee simple—B has no children at A’s
                                   death
                                       1. Contingent remainder in B’s unborn
                                           children
                                       2. When child born  child’s contingent
                                           remainder becomes vested remainder
                                           subject to open  contingent remainder
                                           in further unborn children become
                                           executory interests which will partially
                                           divest vested remainder of earlier born
                                           child
                              ii. class closing rule- existing members can move
                                   to close their class when their interest becomes
                                   present possessory
                                       1. en ventre sa mere- children conceived
                                           before but born after estate becomes



                                                                                22
                                                         possessory are deemed to be alive at
                                                         time of possession
                                   c. vested remainder subject to complete defeasance-
                                       either vested subject to: 1) divestment by operation of a
                                       condition subsequent or 2) defeasance by an inherent
                                       limitation of the estate in remainder
                                             i. condition subsequent
                                                     1. executory interest- ―O to A for life, then
                                                         to B, but if B doesn’t survive A, to C‖-
                                                         vested remainder in B is subj. to total
                                                         divestment upon occurrence of condition
                                                         subsequent (B dying & A surviving)
                                                     2. Power of appointment: ―A to B for life,
                                                         remainder as B shall appoint, and if no
                                                         appointment to C and his heirs‖- C has
                                                         remainder vested subject to complete
                                                         divestment on exercise of power of
                                                         appointment
                                            ii. inherent limitation- ―O to A for life then to B for
                                                life, then to C and his heirs‖- B’s vested
                                                remainder is subj. to total defeasance if B fails
                                                to survive A
                            3. Problems of construction: condition precedent or condition
                               subsequent?
                                   a. Condition precedent  contingent remainder
                                             i. Example: A to B for life, then, if C (a bachelor)
                                                marries before B dies, to C and his heirs on B’s
                                                death
                                   b. Condition subsequent  vested remainder subject to
                                       divestment
                                             i. Example: A to B for life, then to C (a bachelor)
                                                and his heirs but if C does not marry before B
                                                dies then to D and his heirs
Telling
                                   c. Gray’s test: if conditional element in description of or
difference btw
                                       in gift to remainderman then remainder contingent; but
condition
                                       if, after words giving vested interest, clause added
precedent and
                                       divesting it, remainder is vested.
condition
                    iii. Contingent re mainde rs
subsequent
                            1. Definition- remainder is contingent if it either is limited to an
                               unascertained person OR ascertained person subj. to a
B’s contingent                 condition precedent
b/c living                  2. Remainders in unascertained persons- remainder in person not
person’s heirs                 yet born or cannot be determined until happening of an event
are unascertained                  a. Ex. – ―O to A for life, then to A’s children‖; ―O to A
= no one is heir                       for life, then to B’s heirs‖
to the living!



                                                                                                23
                              b. NOTE- whenever grantor creates contingent remainder
                                  in fee simple- there’s a reversion in O
                      3. Remainders subject to condition precedent- condition
                          precedent is an express condition set forth in the instrument
                          which must occur before the remainder becomes possessory
                              a. Ex.- ―O to A for life, then to B if B marries C‖
                              b. Not a condition precedent
                                        i. Termination of preceding estate
                                       ii. Surplusage- ―O to A for life & on A’s death to
                                           B‖
                                      iii. Survivorship- remainder subj. to a condition
                                           precedent other than survivorship isn’t also
                                           subj. to an implied condition precedent of
                                           survivorship
                                               1. ex.- ―to A for life, then to A’s issue & if
                                                    A dies w/out issue to B‖- B’s remainder
                                                    contingent on A not having issue NOT
                                                    on B surviving A
                      4. Condition subsequent VS. vested remainder subj. to divestment
                              a. Contingent- conditional element incorporated into
                                  description of, or into gift to person taking remainder
                                        i. Ex.- ―to A for life, then to B if B survives A, but
                                           if B doesn’t, to C‖
                              b. Vested- after words giving a vested interest, clause is
                                  added divesting it
                                        i. Ex.- ―to A for life, then to B, but if B doesn’t
                                           survive A, to C‖
                      5. Alienability- most cts.- alienable inter vivos or, when
                          survivorship isn’t a condition precedent- devisable by will
6. Destructibility of Contingent Remainders
      a. Rule- legal contingent remainder destroyed if it doesn’t vest at or before
         termination of preceding freehold estate
              i. Ex. ―to A for life, remainder to A’s children who reach age 21‖- at A’s
                  death, all children are under age of 21
             ii. Ex. ―to W for life, then to A’s heirs, but if A dies w/out heirs to B‖- W
                  dies before A does, contingent remainders in A’s heirs and B is
                  destroyed, property reverts to A as heir of O- Ryan v. Monaghan
      b. Rationale- preserve continuity of seisin since import. to collection of feudal
         dues
      c. Preceding freehold- rule doesn’t apply if preceding estate is a leasehold
      d. Termination of prior freehold estate may result from: natural expiration or
         merger
              i. Natural expiration
                      1. Example: A to B for life, then to heirs of C (living)  B dies
                          before C  remaindermen not ascertained so seisin reverts to
                          A and contingent remainder destroyed



                                                                                           24
                       a. Exception: posthumous child may be considered as
                           existing prior to birth (i.e. A to B for life, remainder to
                           B’s first son in fee tail, with remainders over  B dies
                           before son born, but left wife pregnant  son entitled
                           to take)
       ii. Merger: when successive vested estates owned by same person
           smaller estate absorbed by larger one
              1. Example: A to B for life, then to B and his heirs  B has fee
                  simple (life estate merges with fee simple)
                       a. Must be both successive and vested
              2. Destroyed contingent re mainder example: ―C to B for life,
                  then to A if he marries‖- if C conveys his reversion to B before
                  A gets married (still contingent & not vested), B’s interests
                  merge into fee simple & destroy A’s contingent remainder
                       a. Any contingent remainders dependent on the merging
                           life estate destroyed
              3. Ex.- ―O to A for life then to A’s widow for life and remainder
                  to B and B’s heirs‖- B conveys remainder to A and his heirs-
                  merger takes place, life estate and remainder merge-
                  destructibility of a contingent remainder- A’s widow’s
                  contingent remainder destroyed
              4. Ex.- ―O to A for life, remainder to B if B survives A‖- if A
                  conveys life estate to O, B’s contingent remainder is destroyed
      iii. Exceptions to Merger Doctrine
              1. Fee tail will not merge into fee simple- Statute De Donis
                  prevents
                       a. Ex- ―O to A & the heirs of his body, & if A dies w/out
                           issue, to B and her heirs if B is then living‖- if A
                           conveys to O, B’s remainder isn’t destroyed
              2. Contingent re mainde r will not be destroyed by merger of life
                  estate and next vested estate when two estates created
                  simultaneously with contingent remainder
                       a. Intention of transferee completely defeated
                       b. Example (part 1): A to B for life, then to C for life if C
                           marries, then to B and his heirs  C’s contingent
                           remainder initially valid
                       c. Example (part 2): so also, if A to B for life, then to C
                           for life if C marries, and reversion simultaneously
                           descends to B as heir of A  contingent remainder in
                           C not destroyed by merger of life estate and reversion
e. Interests not affected by destructibility rule
        i. Vested re mainders & executory interests- rule applies only to
           contingent remainders
              1. vested remainder- ―O to A for life, then to B for life‖- if A
                  conveys to O, no merger b/c B’s remainder is vested




                                                                                    25
                       2. executory interest- ―O to A for 100 years if A so long live, then
                           to A’s children who survive A‖
              ii. interests in trust- (equitable estates)- ―O to X and his heirs in trust to
                  pay income to A for life, then in trust to convey to children of A who
                  reach 21‖- if A dies before kids reach 21, remainder isn’t destroyed
                  since X has seisin
      f. Avoidance of rule
               i. Term of years- create a term of years rather than a life estate
              ii. Trustees- destructibility rule can also be avoided by creating trustees
                  to preserve contingent remainders
                       1. ex.- ―to A for life, then to X, Y, and Z as trustees for life of A
                           and to preserve contingent remainders, remainder to A’s
                           children who survive A‖
      g. Modern View- most cts.- abolished destructibility rule, original grantor ends
          up retaking possession subject to the remainder
7. Rule in Shelley’s Case
      a. Rule- if 1) one instrument 2) creates a freehold in land in A, and 3) purports to
          create a remainder in A’s heirs (or in heirs of A’s body) and 4) estates are
          both legal or both equitable, then remainder becomes a remainder in fee
          simple (or fee tail) in A
               i. Ex.- ―to A for life, then to A’s heirs‖- converts remainder limited to
                  A’s heirs into a remainder in fee simple- merger doctrine steps in &
                  converts A’s estate to fee simple absolute
              ii. Ex.- ―to A for life then to heirs of A’s body‖- converts remainder to A
                  remainder in fee simple for A
      b. Rationale- arose to prevent feudal tax evasion- incidents were due only if new
          tenant acquired his interest by descent from the former tenant, rather than by
          purchase under the terms of the conveyance- modern reason- promotes
          alienability of land, if you don’t have this rule have these unidentified people
          w/ contingent interests- A less likely to be able to sell since only had life
          estate
      c. Operation of rule
               i. ―one instrument‖- for the Rule to apply, the estates of grantee and
                  grantee’s heirs must be created in the SAME DOCUMENT
                       1. exception- pwrs. of appt.- the rule still operates where pwrs.
                           of appt. involved since these pwrs. are said to ―relate back‖
                                a. ex.- ―D for life, remainder to whomever W shall appt.‖-
                                    if W appts. D’s heirs as remainderman, D gets fee
                                    simple absolute
              ii. ―instrument creates freehold estate in A‖- almost always involve a
                  life estate; life estate must be given to ancestor of the heirs given the
                  remainder
                       1. life estate determinable- life estate can be determinable or subj.
                           to condition subsequent- ―to my wife W during widowhood,
                           and upon W’s death or remarriage, remainder to W’s heirs‖




                                                                                         26
         2. life estate is in remainder- ―to A for life, then to B for life,
             remainder to B’s heirs‖
         3. subject to condition precedent- life estate & remainder must be
             both subject to same condition precedent for rule to apply
                 a. ex.- ―to A for life, then, if B marries C, to B for life,
                      remainder to heirs of B‖- rule applies
                 b. BUT if ―to A for life, then, if B marries C, to B for life,
                      remainder to heirs of B whether or not B marries C‖-
                      rule DOES NOT apply UNLESS condition is met
                      before estate becomes possessor (B marries C during
                      A’s life)- if B’s heirs can take an interest w/out B
                      taking life estate- then Rule doesn’t ope rate!!!
         4. lapse of life estate- in a will, O devises ―to A for life remainder
             to A’s heirs‖- even if A dies before O does, some authority rule
             applies & remainder to A’s heirs fails
         5. joint life estate- ―O to H & W as tenants in common, for their
             lives, remainder to heirs of W‖- authorities divided
iii. ―purports to create a remainde r‖- must be a remainder in grantee’s
     heirs (can’t be an excutory interest or other interest)
         1. contingent remainder- remainder may be a remainder
             contingent upon happening of some condition precedent- ―to A
             for life, then to A’s heirs if A survives B‖
                 a. NOTE- life estate doesn’t have to be subj. to same
                      condition precedent here- rule applies where there’s a
                      condition precedent on the remainder and not on the life
                      estate
         2. Intervening life estate- intervening estate blocks merger
                 a. Ex. – ―O to A for life, then to B for life, then to A’s
                      heirs‖- A has life estate and remainder in fee simple,
                      but intervening life estate prevents merger
         3. executory interest- applies only w/ a remainder, not an
             executory interest
iv. ―in A’s heirs (or heirs of A’s body)‖- remainder must be given to A’s
     heirs or heirs of the body in ―an indefinite line of succession rather
     than a specific class of takers- ―heirs‖ are magical words needed, but
     must be used in the technical sense
         1. ex.- ―to S for life, & remainder to heirs of his body‖-
             eventhough S dies childless, rule applies & S’s wife gets
             estate- hiers of the body are simply magic words, (Sybert v.
             Sybert)
         2. ex.- ―to S for life and if she doesn’t have heirs to G‖- S sells to
             M but does have heirs; rule doesn’t apply, S only had life estate
             and estate in remainder goes to heirs as alternative contingent
             remainder (word ―heirs‖ has to be used in the technical sense
             (+ heirs), ad not descriptio personarum denoting children,




                                                                            27
                                     issue, a particular class, or individual persons)- McRorie v.
                                     Creswell
                                3. US cts.- ignore requirement that heirs refer to indefinite line of
                                     succession
                        v. ―estates are both legal or both equitable‖
                                1. ex.- ―to X in trust for life of A to pay A income & profits,
                                     remainder to heirs of A‖- X has a legal life estate pur autre vie,
                                     A has an equitable life estate & A’s heirs have a legal
                                     remainder- rule doesn’t apply
               d. Problem of construction: ―to the heirs of B‖ or ―to the heirs of B’s body‖?
                         i. Clear language not always used
Construction                    1. A to B for life, then to his heir during its life- Rule doesn’t
proble ms:                           apply
                                2. A to B for life, then to his children and their heirs- Rule doesn’t
Rule in                              apply unless context suggests so
Shelley’s Case                  3. A to B for life, remainder to his heir- Rule applies (singaular
                                     includes plural)
                                4. A to B for life, then to his heirs in fee simple- Rule applies
                                5. A to B for life, then to his heirs of blood- Rule doesn’t apply,
                                     heirs a restricted class
                                6. A to B for life, then to heirs of his body, their heirs and
                                     assigns- Decisions both ways
                                7. A to B for life then to his issue- Rule usually applies (―issue‖
                                     = ―heirs of body‖)
                        ii. U.S.: majority of courts reject technical meaning given to ―heirs‖ or
                            ―heirs of the body‖ saying rule operates where remainder limited to
                            persons who would be heirs of life tenant at his death  rule applies
                            in A to B for life, and after B’s death to person(s) as may be entitled to
                            inherit by statute  B takes fee simple
               e. Circumventing the rule- create non- freehold estate in ancestor or executory
                   interest in heirs (rather than remainder
               f. Modern Status- abolished in most states BUT still in effect in Arkansas,
                   Delaware, Indiana, & some other states- where its abolished, grantee gets a
                   life estate and his heirs have a contingent remainder in fee simple absolute
         8. Doctrine of Worthier Title
               a. Two Branches of Doctrine
                         i. Inte r vivos branch- when an inter vivos conveyance purports to
                            create any future interest in the heirs of the grantor, the future
                            interest is void & grantor has a reversion
                                1. ex.- ―O to A for life then to O’s heirs‖ remainder to O’s heirs is
                                     void & O has a reversion
                        ii. Testamentary branch of doctrine- if a person devises land to his
                            heirs, the devise is void and the heirs take by descent
                                1. ex.- ―T to A for life, then to T’s heirs‖- T’s heirs take reversion
                                     after A’s death by descent
                                2. RP- claims testamentary branch doesn’t exist in US



                                                                                                    28
      b. Operation of the Doctrine
              i. Limitation to heirs- does NOT apply to a future interest limited to
                  ―O’s children‖ or ―O’s issue‖ or to ―O’s heirs ascertained at death of
                  life tenant A‖
             ii. Kind of future inte rest immaterial- doctrine applies to a remainder
                  or an executory interest limited to O’s heirs- future interest may be
                  legal or equitable
            iii. Typical applications
                       1. revocation of trusts- ―O to X in trust to pay income to O for life
                           & on O’s death to convey the trust assets to O’s heirs‖- trust
                           can only be terminated if all owners of equitable interests
                           consent, doctrine applies here & O has reversion & can operate
                           solely to terminate the trust (creditors can also reach this to get
                           O’s debt)
                       2. devise by O- ―O to A for life then to A’s issue, & if A should
                           die w/out issue, then to O’s heirs‖- O’s heir is C, but O devises
                           his reversion to B; B owns property if A dies w/out issue-
                           Braswell v. Braswell
      c. Modern View- valid in many jurisdictions- rule creates a rebuttable
         presumption that when conveyor limits remainder to own heirs, he intends to
         retain indefeasible reversion and not to create a remainder in heirs -
         Presumption diluted in later cases
              i. abolished in Calf, Mass., N.Y.- here heirs of grantor take future
                  interest limited to them under the instrument
             ii. NOTE- most states treat rule as presumption only which is rebuttable
                  by evidence of grantor’s actual intent
9. Executory Interests
      a. Development of the ―use‖- feudal times, expedient at times to vest ownership
         of property in 1 person who would hold for use & benefit of another
              i. Ex.- ―O to A for use of O’s wife & children‖
      b. Common law conveyancing before Statute of Uses & how rules were
         bypassed in equity
              i. Livery of seisin required- at CL, grantor had to enfeoff grantee through
                  livery of seisin
                       1. Bypass in equity- bargain and sale deed- ―O bargain and sells
                           to A and hers for a consideration‖
             ii. No springing interests- grantor couldn’t create a freehold estate w/out
                  conveying seisin- ex.- ―to A & her heirs when she marries B‖
                       1. Bypass in equity- strawman & use- ―O enfeoff’s X & his heirs
                           to use of O and upon marriage of A to B, to use of A‖
            iii. No shifting interests- grantor couldn’t create future interest in grantee
                  that cut short a freehold estate- ex.- ―to A and his heirs, but if B returns
                  from Rome, to B and his heirs‖
                       1. Bypass in equity- strawman & use- ―O enfeoff’s X & his heirs
                           to use of A & his heirs but if B returns from Rome to B and his
                           heirs‖



                                                                                           29
      iv. Methods of creating a use- had to raise a use to get into equity ct.
               1. feoffment to uses- ―O enfeoffed X & his heirs to use of A and
                   his heirs‖
               2. bargain and sale
c. Statute of Uses
        i. Background- incidents only fell when seisin of land descended to heirs
           upon death of a tenant, uses prevented descent of seisin, statute sought
           to turn uses into legal estates
       ii. Springing & Shifting interests made possible- these became known as
           executory interests
               1. springing interest- future interest in grantee that springs out of
                   the grantor at a date subsequent to the granting of the interest,
                   divesting the grantor
                       a. ex.- ―O to A and her heirs when A marries‖
                       b. ex.- ―O to A for 100 years if A so long live, then to A’s
                            heirs‖
                       c. ex.- ―O to A for life, & 1 day after A’s death, to B &
                            her heirs‖
               2. shifting interest- future interest in a grantee that divests a
                   preceding estate in another grantee prior to its natural
                   termination- shifting interest divests a grantee
                       a. ex.- ―O to A and his heirs, but if B returns from Rome,
                            to B and his heirs‖
                       b. ex.- ―O to A for life and on A’s death to B and his heirs,
                            but if B doesn’t survive A, to C and his heirs‖
               3. NOTE- executory interest is always either a springing or
                   shifting interest EXCEPT in case of a future interest in a
                   grantee following a fee simple determinable- executory interest
                   doesn’t divest it but succeeds it
      iii. Effect on Destructibility of Contingent Remainders- recognition of
           executory interests had no effect on rule, any limitation capable of
           taking effect as a remainder must be construed to be a remainder &
           couldn’t take effect as an executory interest- Purefoy v. Rogers
               1. ex.- ―O to A for life, remainder to A’s children who reach age
                   21‖- rule only creates legal contingent remainder in A’s heirs-
                   subject to destructibility, not treated as springing executory
                   interest, rule on destructibility of contingent remainders applies
               2. SOLN.- avoid contingent remainders b/c they alone are subj. to
                   destructibility- want to create springing interest instead of a
                   contingent remainder (ex.- want land to go to son (A) for life
                   but I then want it to go to my daughter’s (B) heirs)
                       a. Shifting interest- ―O by bargain and sale to A for life
                            then C and her heirs but if B leaves heirs then to B’s
                            heirs‖- This isn’t a remainder- it’s a legal shifting
                            executory which is valid at law
                       b. Springing inte rest



                                                                                  30
                                        i. ―O to A for life then 1 day after A’s death to B’s
                                           heirs‖
                                       ii. ―O by bargain and sale to A for 1000 years if A
                                           so long lives then B’s heirs‖- Springing interest
                                           following a determinable term of years
             iv. Avoiding the Statute
                      1. use-on-a-use not enacted- statute didn’t operate on a use-on-a-
                          use- statute only executed one use
                              a. ex.- ―O to A and his heirs for use of B and his heirs for
                                   use of C and his heirs‖- C still had equitable estate
                              b. BUT- ―O to A and her heirs to use of B for life then to
                                   the use of C and her heirs‖
                                        i. A gets a legal fee simple
                                       ii. B gets a legal life estate
                                      iii. C gets a legal vested remainder
                              c. this is a use after a use not a use upon a use- statute of
                                   uses executes all fleas on back of a single dog, but not
                                   fleas on back of fleas on a dog
                      2. active duties imposed- feoffee to uses had only passive duties,
                          but if given active duties, Statute didn’t apply
                              a. ex.- ―O to X and his heirs to manage the property and
                                   pay income to A for life, and on A’s death to convey
                                   property to A’s children‖- A has equitable life estate
                                   and A’s children have an equitable remainder
                              b. modern trust- trustee owns legal title & beneficiaries
                                   have equitable title- ―O to X and his heirs in trust for
                                   benefit of A for life, then for B, and if B doesn’t survive
                                   A, for C‖
              v. Modern View- accepted as a common law statute in most states today
10. The Rule Against Perpetuities
       a. Statement of the Rule- No interest is good unless it must vest, if it all, not
          later than 21 years after some life in being at the creation of the interest
               i. Ex.- O to A for life, remainder to A’s first child who reaches 25-
                  remainder is void- A might have afterborn who is born shortly before
                  A’s death
       b. Rationale- need to promote alienability of land & prevent undue
          concentration of land in hands of few; don’t want land to be tied up
       c. Inte rests subject to the rule:
               i. Springing & shifting executory interests
                      1. BUT – ―A conveys to C and heirs 30 yrs. from date of this
                          deed‖
                              a. Springing inte rest- usually will be subj. to rule and
                                   this conveyance would be in violation
                              b. Vested- exceptional situation where ex. interest will
                                   definitely become possessory w/in fixed time so
                                   considered vested and rule doesn’t kick in



                                                                                           31
       ii. Contingent remainders
      iii. Vested remainders subject to open- as long as the class of grantees is
           still open, rule applies
d. Inte rests not subject to the rule:
        i. Reversions
       ii. Rights of entry
      iii. Possibilities of reverter
      iv. Vested remainder
                1. NOTE ex.- ―O conveys to T for life, then to J’s children, but if
                    any of J’s children fail to reach 30, those shares shall pass to
                    the survivors‖ J has a 20 yr. old kid- effect of rule?
                        a. Estate- J’s kid has vested remainder subject to total
                            divestment
                        b. Application- Only the divesting condition (failure to
                            reach 30) and the executory interest (in the surviving
                            children) is invalidated
                        c. Final Result- J’s kid has vested remainder
       v. Contingent remainders involving transfers from one charity to another
e. Procedure- how rule works
        i. Identify all interests created
       ii. Identify all ―lives in being‖- any party living at the time interest
           created (for will- alive at testator’s death; for inter vivos transfer- alive
           at date of transfer) who has causal effect on when & whether future
           interests will vest or become possessory
      iii. Add 9 mo. to guard against gestation period (children had been
           conceived of but not yet born at time transfer made may be considered
           life in being)
      iv. Kill off all ―lives in being‖
       v. Determine if future interests will definitely vest or fail to vest w/in 21
           years
f. Lives in Being
        i. Relevant lives- persons who can affect vesting of the interest- can
           affect either vesting in possession or vesting in interest
                1. Vesting in possession- common ex.- life tenant
                2. Vesting in interest- interest is vested when 1) beneficiary
                    ascertained; 2) any condition precedent is satisified; persons
                    who can affect vesting in interest are:
                        a. Beneficiary(s) of contingent interest
                        b. Parent or grandparent of the beneficiaries
                        c. Any person who can affect any condition precedent
                        d. Ex.- O by rev. trust to A’s kids for life then to O’s
                            grandchildren
                                 i. lives in being- A & O’s kids
                                ii. both conveyances are fine
                               iii. note remainder is subject to rule of
                                    destructibility of contingent remainders



                                                                                     32
               3. Lives in being when interest created- relevant lives must be
                   persons alive at the creation of the interest
                        a. Will- lives in being must be alive at the time of the
                            testator’s death
                        b. Revocable trust- lives in being must be alive at the time
                            of the trustee’s death
                        c. Inter vivos transfer- must be alive at date of transfer
               4. Periods of gestation- period of 9 mo. added after death of life
                   being which creates interest- child in the womb when interest is
                   created is treated as a life in being if child is later born alive
g. Meaning of ―Vest‖- Vested interests aren’t subject to rule
        i. Exception- class gift- gift to a class isn’t vest in any member of the
           class until the interest of all members have vested- if gift to one
           member of class might vest too remotely, whole class gift is void
               1. ex.- O to A for life, then to A’s children for life, then to A’s
                   grandchildren in fee simple- gift to A’s grandchildren void- A
                   might have after born child who gives birth to child who is able
                   to inherit gift 21 years after death of last life in being
h. Application to Defeasible Fees- rule doesn’t apply to possibilities of reverter
   & rights of entry which are regarded as vested interests- BUT it does apply to
   executory interests
        i. Determinable fee- O conveys to School Board so long as used for
           school purposes and if land shall cease to be used so, to A and his heirs
               1. conveyance to A void
               2. Left w/- determinable fee in the School Board and possibility
                   of reverter in O
               3. Soln.- two conveyances- 1) O to A; 2) A to School Board so
                   long as used for school purposes
               4. NOTE- gifts from one charity to another charity excepted- ―O
                   to school board so long as used for school purposes then to the
                   Red Cross‖
       ii. Fee simple subject to executory limitation- O to school board, but if
           board shall cease to use for school purposes, to A and his heirs
               1. conveyance to A is void
               2. Left w/- fee simple absolute in Board (language which creates
                   the executory interest is cut out)
               3. SOLN.- two possibilites-
                        a. ―but if not used for school purposes during lives of
                            being or w/in 21 years after their death- to A‖
                        b. ―but if not used for school purposes during life of A and
                            21 years‖
i. Destructability of remainde rs- rule of destructibility can obviate a vesting
   that would be too late under the rule of perpetuities- rule saves conveyances-
   always consider if rule of destructibility applies
        i. Ex.- O by inter vivos conveyance to O’s children for life then to O’s
           grandchildren and their heirs when they reach the age of 21



                                                                                  33
               1. immediate possessory estate- so applies to O’s kids that are
                    alive- lives in being
               2. PROB- O might have an afterborn child (can’t take in estate)
                    who has no kids & all of O’s other children die childess
               3. remainder in grandchildren void under destructibility of
                    contingent remainders- contingent remainders are destroyed if
                    it doesn’t in fact at termination of prior estate - (remainders
                    remain destructable despite legality of springing interest)
j. Will vs. Inter vivos conveyance- can lead to different results due to
   possibility of afterborn children
       i. Ex.- O by inter vivos conveyance to O’s children for life then to O’s
           grandchildren and their heirs when they reach the age of 21- void since
           O might have afterborn child whose kid inherits 21 years after death
           after last life in being
      ii. Ex.- O devises to O’s children for life then to O’s grandchildren and
           their heirs when they reach the age of 21- all good since don’t have to
           worry about afterborn children for O
k. Remote Possibilities- interest is void under rule if any possibility interest
   might vest beyond the period
       i. Fertile octogenarian- evid. that person is 80 or has had hysterectomy
           or vasectomy is irrelevant
               1. ex.- (Jee v. Audley) T to M and if M’s line ever runs out to
                    daughters of E now living- contingent remainder in daughter’s
                    is void- on two grounds:
                         a. even though E is 80, might still have an after born child
                             in whom interest might vest
                         b. M dies w/out issue over 21 years after her death
                                  i. two possible ways dwi
                                           1. general failure of issue- occurs in the
                                               future when descendant line runs out
                                           2. definite failure of issue- die w/out
                                               children
                         c. Soln.- Could’ve saved this clause by inserting- ―this gift
                             shall not vest if does not do so w/in 21 years after death
                             of last life in being‖
      ii. the unborn widow- law assumes that person’s surviving spouse might
           turn out to be a person not now alive
               1. ex.- T devises to A for life then to A’s widow for life then to
                    A’s issue who survive A and his widow- remainder in widow is
                    fine but remainder in issue is void since won’t vest until death
                    of widow who may not be a life in being
l. Application to options- option is void if it can be exercised more than 21
   years after some life in being at its creation
       i. Ex.- A grants option to O to purchase piece of land during 120 day
           period which beings when city acquires right of way to widen two




                                                                                    34
              roads- void- United Virginia Bank/Citizens & Marine v. Union Oil
              Co.
    m. Application to powe rs of appointment
           i. General pwr.- presently exercisable gen. pwr. of appt. must be certain
              to become exercisable w/in a life in being plus 21 years from date
              created
          ii. Special pwr./general testamentary pwr.- invalid if capable of
              exercise beyond the perpetuities period
         iii. Perpetuities period: when begins to run depends on type of pwr.
                   1. special (testamentary or presently exercisable)- period
                       counted from the time of the creation of the pwr.
                   2. general (testamentary only)- period counted from the time
                       of the creation of the pwr.
                   3. general (presently exercisable)- period counted from the
                       time of the exercise of the pwr.
         iv. ex.- ―to C for life, then to whomever E shall appt.‖- E exercises the
              pwr. in favor of C’s grandkids who reach age 35; C is childless at the
              time- who takes? E or his heirs
                   1. attempted appt. violates rule against perp.
                   2. E had general pwr. of appt.- when donee attempts to ex. but
                       attempt is invalid- donee’s estate takes
                           a. NOTE- normally where no default takers are named &
                               the donee doesn’t ex. the pwr- prop. reverts to donor or
                               his estate
          v. Ex.- ―to P for life, reaminder to whomever P appts. by will; however
              in defaut of such appt., to A and his heirs‖- P appts. in will C’s (not a
              life in being) children- C is sole of heir of P when he dies- C gets the
              land
                   1. Violation of rule- P had general testamentary pwr.- period
                       began to run when pwr. created- before C even born
                   2. any interest in C’s children could vest after pd.
                   3. Since P did attempt to ex.- property reverts to donee’s (P’s)
                       estate
    n. Doctrines operating as exceptions to rule
           i. Wait and see doctrine- validity of interests is judged by actual events
              as they happen & not be possible events that might happen
                   1. Period- ½ states which have adopted wait out common law
                       perp. Period before declaring void
          ii. Cy Pres Doctrine- invalid interest is reformed w/in limits of rule to
              approx. most closely the intention of the creator of the interest
                   1. ex.- O to A for life, remainder in A’s children who reach age of
                       25- ct. may reduce age to 21 years
                   2. doctrine may be coupled w/ wait-and-see

POWERS OF APPOINTMENT




                                                                                    35
1. Doctrine
      a. Rule- authority created by a donor & conferred upon a donee enabling donee
          either to appoint persons to take the property OR to appoint proportionate
          shares which designated persons shall take in property
2. Terminology
   O  A for life, then to such persons as A appoints by will, and in default of
   appointment to Red Cross.
      a. Donor of the powe r: O
      b. Donee of powe r: A
      c. Appointee: Whoever A appoints
      d. Taker in default: Red Cross (Take if power is not exercised or ineffectively
          exercised.)
3. General Background
      a. when given
                i. testamentary pwr- A has to appoint through her will
               ii. inter vivos pwr.- A appoints during her lifetime
      b. whom given
                i. general pwr.- A has pwr. to appt. to anyone (including herself)
               ii. special pwr.- A has to appt. a member from a given class
      c. when exercise
                i. discretionary- A can exercise whenever or doesn’t even have to-
                   reversion then able
               ii. mandatory- have to exercise w/in certain time
4. Types of powers
      a. General power- enable donee to appoint to any pe rson, including herself
                i. Creditors of donee- creditors can’ subj. the property to the their
                   claims when the pwr. remains unexercised, but they can, if the pwr. is
                   exercised in favor of a volunteer or a creditor of the donee, subj. the
                   property to their claims
               ii. TWO exceptions to rule unexercised pwr. can’t be reached by
                   creditors
                       1. if donor is also donor of the pwr. & conveyance creating the
                           pwr. is deemed fraudulent
                       2. if donee is also donor creates pwr. by transferring property in
                           trust & reserves for himself life income & a general pwr. to
                           appt. the corpus
                               a. set-up a spendthrift trust from why you are beneficiary,
                                   your creditors can reach it- Bank of Dallas v. Republic
                                   Nat’l Bank of Dallas
             iii. Failure to exercise where no takers in default named- property
                   reverts to donor
              iv. Atte mpt to exercise is invalid- property reverts to donee
      b. Special power- limits exercise of pwr. in favor of a person or persons othe r
          than the donee or his estate
                i. Creditors of donee- creditors can’t subject special pwr. to their claims




                                                                                        36
              ii. Failure to exercise- appointive property goes to living members of
                  class in equal shares
       c. Power purely collateral- donee has no interest in property other than the pwr.
          itself
       d. Power in gross- donee has an interest in the property in addition to the pwr.,
          but the exercise of the pwr. doesn’t affect the interest of the donee
       e. Power appendant- donee has an interest in the property and the exercise of
          the pwr. disposes of all or part of such interest
       f. Power in trust- donee, under some circumstances & w/in some pd. of time, is
          under a duty to exercise it (also called imperative or mandatory pwr.)
               i. If stipulated that person should be provided for, pwr. is mandatory- In
                  re Rowlands’ Estate
              ii. Powe r not in trust- no duty for donee to exercise
       g. Nonexclusive power- donee of a special pwr. must appt. something to each of
          the permissible objects of the powe r
       h. Exclusive power- donee of a special pwr. may exclude one or more of the
          permissible objects & appt. all of the property to the others
               i. A to B for life, then to B’s children in such shares as B shall appoint
                   allows B to choose the shares the children will take bt does not
                  allow B to appoint to a spouse or creditor a favorable charity. Also B
                  cannot leave out one of his children, nor can he appoint to his
                  grandchildren.
              ii. limiting the way appointment may be made - Typically restricting its
                  exercise to the donee’s last will and testament.  ―B shall appoint by
                  will‖
5. Instrument creating- may be deed or will
6. Transfer of pwr.- pwr. of appointment is considered personable to the donee
       a. Note devisable, inhe ritable, delegable or assignable
               i. BUT if the pwr. is general- holder can exercise his pwr. by creating
                  another pwr. in his appointee



CONCURRENT ESTATES
1. Tenancy in Common
      a. Nature of tenancy- each co-tenant is owner of a separate & distinct share of
         the property which has not been divided among the co-tenants- each has
         separate undivided interest
              i. Right to possession- each has right to possess & enjoy entire property
             ii. No right of survivors hip- when tenant dies, interest passes to
                 devisees or heirs
            iii. Equal shares not necessary- A may hold a ¾ interest while B holds
                 ¼ interest
            iv. Same estates not necessary- A can have fee simple while B has life
                 estate
      b. Unity- only unity required is unity of possession



                                                                                       37
                 c. Alienability- tenant in common can sell, give, devise, or dispose of her
                     undivided share
                 d. Presumption of tenancy in common- when conveyance is made to 2 or more
                     people, presumption is that a tenancy in common is created
        2. Joint TenancyJoint Tenants
                 a. Nature of Tenancy- each co-tenant owns an undivided share of property (as in
                     tenancy in common) & surviving co-tenant has right to whole estate (right
Conveyance
                     of survivorship)
require d, no
                          i. Conveyance or devise required- must be created by deed or will -
INTESTACY;
req.                         CAN NOT arise where persons inherit property by intestate succession
                         ii. Right of survivors hip- joint tenant can’t devise her share of joint
EXPRESS
                             tenancy of property
words
                                 1. death of tenant- when tenant dies, nothing passes to surviving
                                      tenants, estate continues in survivors and decedent’s interest is
            Getting around            exstinguished
            the statute of       2. ex.- State imposes inheritance tax on property passing by
            wills….                   devise, bequest, or intestate succession. A & B are joint tenants
                                      and A dies, no inheritance tax is imposed on B
                 b. Four unities required- all are required to create joint tenancy
                          i. Unity of time- interest of each joint tenant must vest at the same time
                         ii. Unity of title- all joint tenants must acquire title by the same deed or
                             will, or by a joint adverse possession
                        iii. Unity of interest- interest of each joint tenant must be equal in an
                             estate of one duration
                                 1. Equal shares- shares of each joint tenant must be equal-
                                      (NOTE- upon partition, equity ct. may divide proceeds in
                                      accordance w/ proportionate consideration paid)
                                 2. Another interest in same property- property can be divided into
                                      fractional shares, one of which is owned by persons as joint
                                      tenants & the other owned by persons as tenants in common
                        iv. Unity of Possession- requires that each joint tenant have the right to
                             possession of the whole
                 c. Creation of Joint Tenancy
                          i. Overcoming presumption of tenancy in common- joint tenancy can
                             be created only be express words in instrument indicating intent to
                             create it
                                 1. ex. – ―to A and B as joint tenants with the right of
                                      survivorship, and not as tenants in common‖
                                 2. ex.- ―to A and B as tenants in common w/ the right of
                                      survivorship as at common law‖- first clause prevails and
                                      tenancy in common is created- Camp v. Camp- (might argue
                                      other way- Lay person probably wouldn’t know what a tenancy
                                      in common exactly is (don’t know that it means NO
                                      survivorship) BUT if said right of survivorship obviously
                                      intended to have survivorship rights




                                                                                                    38
                            ii. Conve rting a fee simple into a joint tenancy- occurs when one
                                tenancy wants to convert his fee simple into a joint tenancy w/ another
                                party
                                    1. common law- couldn’t be done through conveyance to another
                                        party and self (―from A to A and B‖) b/c requirements of time
                                        and title not satisfied
                                            a. SOLN.- use of strawman- ―A to X‖ and then ―X to A
                                                 and B‖
                                    2. modern statutes- allow a property owner to create joint tenancy
                                        in himself & another party w/out use of a strawman
                  d.    Severance of a joint tenancy- can be destroyed by severing any of the 4
                        unities
                             i. Conveyance by joint tenant – conveyance of tenant’s entire interest
                                or share sever the joint tenancy w/ respect to that share
                                    1. ex.- A, B, and C are joint tenants- A conveys share to D- B and
                                        C remain joint tenants toward each other but are tenants in
                                        common w/ D- if C dies, B owns a 2/3 interest while D has a
                                        1/3 interest
                            ii. Conveyance to self
                                    1. common law- joint tenant who wished to convert the tenancy to
                                        tenancy in common had to convey to a straw person who
                                        conveyed back to him
                                    2. recent cases- joint tenant can unilaterally sever tenancy by
                                        conveying her interest to herself w/out using an intermediary-
                                        Riddle v. Harmon
                                            a. Problem created- enables joint tenants to possible cheat
                                                 other tenants- Sever but keep it secret in case other joint
                                                 tenants die first
                           iii. Mortgage by joint tenant
                                    1. Title theory states- mortgage has the effect of conveying the
                                        legal title to the mortgagee, mortgagor only kept an equity of
                                        redemption to legal title back upon payment of the mortgage-
                                        destroys unity of interest & can’t be revived by paying off the
Seems like survivor                     mortgage
wouldn’t be subj. to                        a. Title- conveyed fee simple determinable to get loan w/
the debt b/c the lien                            possibility of reverter (―so long as debt is unpaid‖) or
was a burden on                                  fee simple subject to condition subsequent (―but if
dead guy’s interest,                             repaid‖)
which was                           2. Lien theory states- (majority theory)- mortgagor doesn’t
extinguished on his                     transfer legal title, only transfers a lien (security interest)-
death— When he                          states differ on whether surviving joint tenant takes ½ subject
died, he had an                         to the mortgage if the debt isn’t paid before mortgagor dies
equity of                  iv. Lease by joint tenant
redemption—did                      1. common law- lease severs- destroys unity of interest b/c lessor
that die w/ him????                     had only a reversion in property whereas other joint tenant had
                                        fee simple



                                                                                                         39
                              2. modern view- lease doesn’t sever- no severance, but cases split
                                  over whether surviving joint tenant takes a ½ subject to the
                                  lease
                                      a. lessee- lessee may protect himself by having all joint
                                           tenants sign the lease
                                      b. WHY SHOULD HE, WHEN THE LEASE WAS arose
                                           from interest that has now been extinguished?
                      v. Agreement among joint tenants- can make mutual agreement to hold
                          as tenants in common
                              1. divorce- doesn’t automatically sever, but cts. may infer
                                  agreement to sever
                              2. murder of 1 joint tenant by another- severs
                              3. simultaneous death- Uniform Simultaneous Death Act- half
                                  goes to A’s estate and half goes to B’s
                     vi. Partition- joint tenancy may be severed by partition of land
                              1. mutual agreement- tenants may mutually agree to partition
                              2. unilateral action- if 1 tenant wishes to partition, must file suit to
                                  obtain judicial decree
                              3. if petitioning tenant dies during proceedings, joint tenancy
                                  survives- Riddle v. Harmon
         3. Tenancy by the entirety
               a. Nature of Tenancy- created only b/t a husband and wife, holding as one
                  person- only recognized in less than ½ of the states
Have to be             i. Five unities required- four unities from joint tenancy and marriage
married                   required
WHEN                  ii. Presumption- if property granted to a husband & wife, presumption is
                          intended to est. a tenancy by the entirety
conveyed
                     iii. Right of survivors hip- surviving spouse has right of survivorship
               b. Rights of Tenants during Marriage- Married Women’s Property Act-
                  married woman able to receive, hold, manage, & dispose of real & personal
                  property as if a single woman- equal rights to manage property
                       i. Sale or Burden- most states hold neither husband nor wife may sell or
                          burden property w/out consent of other spouse
                      ii. Creditors- in most states, can’t encumber a debtor spouse’s property
                          while the other spouse is still living; If debtor spouse dies first,
                          surviving spouse’s interest supersedes the creditor’s interest
               c. Severance of tenancy
                       i. No termination by unilate ral action- neither spouse can act
                          unilaterally to terminate
                      ii. Mutual agreement- can be terminated through mutual agreement
                     iii. Death of spouse- tenancy terminates
                     iv. Judgment executed by creditor of both husband and wife
                      v. Divorce- severs tenancy
               d. No marriage- created tenancy by the entirety but it turned out that both
                  weren’t married (some tech.)




                                                                                                   40
                            i. Probably would be converted into joint tenancy since most similar-
                               preserve right of survivorship
                           ii. Some cts. may convert to a tenancy in common- Currie say this
                               doesn’t make any sense—probably b/c the 4 unities are there.
            4. Rights and duties of Co-Tenants
                  a. Right of Possession- each tenant has right to possess the entire property, BUT
                      no tenant has right to exclusive possession
                  b. Possession by One Cotenant
                            i. Majority rule- cotenant entitled use & occupy every part of property
                               w/out pay any rent amt. to other cotenant(s)
                                   1. Carrying charges- cotenant in possession must bear ordinary
This could                              expenses of upkeep (taxes, mortgage interest) BUT if these
arguably                                exceed fair rental value, cotenant has right of contribution
happen if                          2. Ouster- if one cotenant deprives another cotenant of right to
co-tenant                               possession- she must pay ousted co-tenant share of reasonable
rents w/o                               rental value of property
other’s                    ii. Minority rule- cotenant must account for share of reasonable rental
permission,                    value of premises
then they         c. Accounting for Rents Received from a 3rd party- any rents or other income
can’t use             collected by a co-tenant must be shared equally w/ the other cotenants if the
                      income exceeds the co-tenant’s proportionate share- rule est. by Statute of
                      Anne (NOTE- Calif. hasn’t adopted Statute- don’t have to account for rent
                      payments)
                            i. Doesn’t really make sense, since they’re renting out THEIR share,
                               and the other’s aren’t prevented from using their own. If they get
                               money, then they’re getting to have their cake and eat it too, while co-
                               T does all the work!
                  d. Exploiting Natural Resources- cotenant is accountable for profits derived
                      from use of land that permanently reduces its value
                            i. Minerals- cotenant must pay a proportionate part of the net amount
                               received for the extracted minerals to her cotenants
                                   1. oil treated as part of land (unlike crops)
                                   2. some cts. will allow drilling w/out consent b/c feel that old rule
                                        is inefficient
                           ii. Farming- cotenant who excludes her cotenants and farms the land is
                               accountable for fair rental value of the land as farm land (only in state
                               which requires rent payment for occupation), NOT the net profits
                               received from her farming operation
                          iii. Timbe r- some cts. hold that 1 cotenant can cut her proportionate share
                               of the timber w/out being liable to her cotenants for its value
                  e. Actions by cotenant to protect property- general principle is that cotenant
                      who pays money to keep up property, which benefits all cotenants, is entitled
                      to reimbursement for more than her proportionate share of costs
                            i. Taxes- each cotenant has duty to pay her share of taxes
                                   1. Exception- cotenant in possession- duty to pay up to amount of
                                        reasonable rental value of property



                                                                                                      41
                              ii. Inte rest on mortgage- cotenant who pays interest on mortgage can
                                  compel contribution from nonpaying cotenant who are personally
                                  liable on the mortgage
                             iii. Repairs- repairs are considered voluntary- cotenant who makes
                                  necessary repairs can’t compel contribution
                             iv. Improvements- considered voluntary, can’t compel contribution,
                                  BUT in a partition action ct. will give improver portion of property
                                  containing improvement if feasible
ADVERSE
                     f.   Adverse Possesion- cotenant can adversely possess against another if adverse
POSSESSION
OF CO-                    possession continues for statutory pd. BUT to est. self as adverse possessor,
                          cotenant must give other cotenants unequivocal notice of repudiation of
TENANTS                   common title


              MARITAL PROPERTY
              1. Common Law Marital Estates
                      a. Husband’s Interest in Wife’s Property
                             i. Jure Uxoris- (estate by marital rights)- life estate whereby husband
                                was entitled to use of all lands his wife possessed before, or acquired
                                during the marriage (right to occupy, alienate, & collect rents &
                                profits) BUT lost these rights when wife died
                            ii. Curtesy Initiate- birth of a live child transformed jure uxoris into
                                curtsey initiate- husband no long lost his rights to his wife’s property if
                                she predeceased him- differ from dower:
                                    1. title to all wife’s lands
                                    2. title to equitable interests held in possession- (eg. trusts)
                           iii. Curtesy Consummate- curtesy initiate transformed to curtesy
                                consummate upon wife’s death- same rights as described above
                           iv. Modern view
                                    1. jure uxoris - destroyed by Married Women’s Property Act
                                    2. curtsey- abolished in most states, statutes give husband
                                        percentage interest (1/2 or 1/3) in wife’s property; states which
                                        still have curtsey- husbands can choose b/t curtesy & statutory
                                        share
                      b. Wife’s interest in husband’s property- Dower
                             i. Dower limitations- at husband’s death, wife had dower in all freehold
                                land 1) which here husband was seised during marriage; 2) is
                                inheritable by issue born of the marriage- dower is a life estate in 1/3
No dower in equitable           of each parcel of qualifying land
estates (but if Statute of          1. ex.- H acquires land before marries W, conveys to S who
Uses turns it into a legal              makes oral promise to reconvey land upon request, H asks to
estate—watch out!                       reconvey but S refuses, when H dies W has no dower rights to
OA for use of B, B’s                   land since H’s only right was a chose of action- Melenky v.
use converted to legal                  Melenky
title. There’s dowe r!) or                   a. above seems like an equitable estate W wouldn’t rights
to land that H held as                           to but it was a passive trust which the NY equivalent of
LE or w/ s/o as joint
tenants
                                                                                                        42
                                      the Statute of Trusts would execute it as a transfer of
                                      title and a legal estate
                                  b. Statute of Uses- doesn’t execute a trust where there are
                                      active duties on the trustee; here it is paper trust and not
                                      an active duty (turns out that management of land
                                      wasn’t one of four active duties in NY law)
                                  c. he who has the use of a legal estate has seisin
               ii.   Land seised during marriage- dower doesn’t attach to:
                         1. leasehold interest of husband
                         2. remainder interest husband has following life estate
                         3. personal property- (no seisin)- includes stocks
                         4. equitable interest- (trustee has seisin)
              iii.   Land inheritable by issue- dower doesn’t attach to land in which
                     husband had only a life estate nor to land the husband owned w/
                     another person as joint tenants
              iv.    Rights during husband’s life- dower attaches to land the moment
                     husband is seised during marriage- once inchoate dower attaches, wife
                     prevails over any subsequent purchasers of property and attaching
                     creditors of husband
                         1. ex.- H, married to W, purchases fee simple in Blackacre, then
                              conveys to BFP- BFP purchases land subject to W’s 1/3 life
                              estate
                         2. release of dower- wife may release dower in order for
                              purchaser to be free of it
                         3. Divorce- absolute divorce puts and end to marriage & to
                              inchoate dower
               v.    Rights on husband’s death- dower gives wife right to possession for
                     her life of 1/3 of each parcel of land subj. to dower- wife’s dower isn’t
                     terminated upon remarriage
              vi.    Statutory abolition- dower only exists in Arkansas, D.C, Iowa,
                     Kentucky, Michigan, Ohio, Virginia, West Virginia
                         1. states in which abolished- wife may choose b/t share prescribed
                              by will or statutory share (usually ½ or 1/3, applies to both real
                              and personal property (but only that which was owned by
                              decedent at death; surviving spouse takes an interest in fee
                              simple, not just life estate)
                                  a. NOTE- NJ statute- abolishes interest of dower and right
                                      of dower BUT claims doesn’t affect interests or estates
                                      already vested
                         2. dower states- wife may elect b/t dower & statutory share
Benefits of                   (benefit in choosing dower- passes free from claims of
Dower                         decedent’s creditors)
                                  a. ex.- H dies survived by W & owning blackacre, stocks,
                                      & cash- H also owned whiteacre during marriage but
                                      gave to D- under dower, W gets 1/3 life estate in




                                                                                               43
                                 blackacre & whiteacre; under statutory share, W gets
                                 1/3 share of blackacre, stocks, and cash
     c. Uniform Probate Code- abolishes dower & curtsey and expands statutory
        share by not allowing you to get around stat. w/ sham transfers
             i. Augme nt estate- provides to surviving spouse right to elect take a
                sliding scale percentage (depending on length of marriage) of property
                held by first spouse to die at death and assets subj. to inter vivos
                transactions (e.g. property held in revocable trust, property held in
                joint tenancy)- this allows spouse to benefit from lands which other
                spouse had effective control over
            ii. NOTE- for most part, surviving spouse can’t take both elective share
                and what is allotted under decedent’s will
2. Community Property
     a. Where- eight states have community property- (Arizona, California, Idaho,
        Louisiana, Nevada, New Mexico, Texas, & Washington)
     b. Basic Theory- husband and wife are a marital partnership, both contribute to
        material success, both should share equally in marital acquisitions and
        community property is owned in equal undivided shares by the spouses
     c. What is community property- consists of earnings of either spouse during
        marriage & property acquired through earnings
             i. Separate prope rty- property owned before marriage or acquired after
                marriage by gift, descent, or devise
            ii. Income from community property- all income & proceeds of sale of
                property are community property- one spouse CAN NOT, w/out
                other’s consent, change community property into separate property
                    1. ex.- H earns $1,000 at work but then goes and buys Disney
                        stock in his name- stock is still community property
           iii. Income from separate property- Idaho, Louisiana, & Tx. Income
                from separate property is community property- where characterization
                of property is doubtful- strong presumption in favor of community
                property
                    1. ex.- W inherits farm- considered seperate property in most
                        states; principle of tracing - can sell farm and profits remain
                        seperate profit; if use profits to buy stocks & later gain
                        dividends from stock- still considered separate property in most
                        states
                    2. BUT - What if wife operated the farm and received profits
                        from wheat?
                            a. in states where profit from sep. property remains sep.
                                 property-SP
                            b. BUT in other states where CP is found where have
                                 efforts of the community to earn CP- then profits are
                                 CP
           iv. Salary received during marriage for services rendered before the
                marriage




                                                                                     44
                        1. Earning capacity at this time belonged solely to that person-
                            Question is the CP on a cost or accrual system?
                        2. Question- did the efforts or community earn the income? - NO
                            so CP follow the accrual system and this income is not CP
       d. Commingling of Community & Separate Property- if commingled so as to be
          impossible to identify separately- treated as community property
       e. Conveyance of Share- neither spouse acting alone can convey his or her
          share of community property, except to other spouse- BUT, by agreement of
          parties, community property may be converted into separate property of either
          spouse & separate property may be converted into community property
       f. Management of Community Property- either husband or wife acting alone
          can manage community property- can sell it, lease it, invest it, etc.
                i. Real property- usually land held as community property can’t be sold
                   except w/ consent of both husband and wife
                        1. Homestead exemption- property interest (usually in the
                            couple’s home) that can’t be: defeated by the conveyance by 1
                            spouse w/out other’s consent AND acts as shield against
                            creditors
                        2. Limited shield
                                a. Doesn’t provide protection from creditors who loaned
                                    money for purchase or improvement of homestead
                                b. Homestead is also limited to a stated value (by statute)-
                                    if exceeds, other creditors can reach
       g. Rights at Dissolution of Marriage- when marriage dissolved- community
          property usually divided equally
       h. Death- when spouse dies- decedent has right to transfer his or her ½ share by
          will to anyone
                i. Ex.- H purchases stock- when dies, W gets ½ share- transition was a
                   taxable succession b/c wife’s interest in ½ of property doesn’t fully
                   become complete until death of husband- In Re Kessler’s Estate
       i. Conflicts of Laws Rule- property acquires its character at time of procurement
                i. Personal prope rty- classified in accordance w/ law of couple’s
                   domicile at time of acquisition
               ii. Real Estate- always classified in accordance w/ laws of state where it
                   is situated
              iii. NOTE- State legis. tried to pass statute in Calif. making it CP- SC of
                   Calif. said unconst. to take away property
                        1. Now made quasi-CP for when spouse dies- see note on p. 271
                        2. BUT- Nothing unconsti. About law that takes sep. property
                            from 1 spouse and gives it to another- think dower and
                            statutory share
       j. Uniform Marital Property Act- provides that all property acquired during
          marriage other than by gift or inheritance is marital property- Wisconsin was
          first state to adopt
3. Alt. Marriages
       a. W earns salary earns money during marriage BUT she was already married



                                                                                         45
                i. If there’s no marriage- there’s no CP (just like tenancy in the entirety)
               ii. BUT states recognize a putative marriage- person who reasonable
                   believes himself to be married, is treated as if married for CP purposes
       b. What if act like there’s a marriage but never in fact a ceremony?
                i. No putative marriage b/c good faith req.- No CP
       c. What if same-sex marriages
                i. No CP
               ii. Vermont?- have to look and see if CP among those rights that these
                   unions are entitled to
       d. alt. set of theories of how obligations of support or prop. share outside of
          marriage
                i. Express K- if 2 people made K for division of people b/t them- should
                   enforce it- maybe some limitations on it for public policy reasons
                   (mereiticious Ks voided- based on sex services)
               ii. Implied K- can have these
              iii. Quasi-K- unjust enrichment- unjust to allow one party to benefit from
                   the exertions from the other (Miller at home putting me through law
                   school)
              iv. Constructive trust- unjust enrichment except in equity

THE SALE OF LAND
1. Contracts of sale
      a. Broker’s Role- seller signs K w/ the broker, giving broker right to list & show
         the property to prospective buyers and, if the property sells, to collect a
         commission out of the purchase price
              i. When commission earned
                     1. traditional rule- broker entitled to commission if she produces a
                         customer ready, able, & willing to buy upon the terms and for
                         the price set by the seller in the brokerage K
                     2. modern rule- broker earns commission only when buyer
                         completes the transaction by paying the purchase price
                             a. BUT if the sale falls through b/c of the seller’s fault-
                                 seller may be liable to the broker
      b. Written K Required- Statute of Frauds requires that the K for the sale of land
         be in writing, signed by the party to be charged thereby- both buyer AND
         seller must sign the K of sale
              i. Kind of writing- can be a formal K, informal memo, or even several
                 documents taken together to be a K
                     1. Negotiations- binding K doesn’t come into existence until
                         formal K is executed
             ii. reasons for- prevents fraud, cautionary value (solemnity)
                     1. cost of all this- might be frustration of intention
                     2. doctrine of part perf.-sometimes if party partly performs K-
                         might be held as substitute for requirements of Statute of
                         Frauds- buyer must take certain actions for application- 1) pay




                                                                                         46
                                 all or part of the purchase price; and 2) enter into possession;
                                 and 3) make improvements.
                    iii. Essential terms
                             1. identification of the parties;
                             2. description of the property; and
                             3. terms and conditions (such as price & manner of payment if
                                 agreed upon)
              c. Installment K- small down payment by purchaser, who borrows the balance
                 of the purchase price from a lender or the seller. In default- lender or seller
                 receives the property
                      i. Advantages
                             1. Buyer- avoid high interest rates, closing & mortgage lending
                                 fees
                             2. Seller- sells his property quickly for higher price than might
                                 otherwise be able to charge; isn’t taxed for purchase price in 1
                                 tax year
                     ii. Typical K
                             1. Possession- transferred to buyer as soon agreement signed
                             2. Taxes and Assessments- Buyer pays all taxes & assessments
                                 from date of K
                             3. Deed, Title- transferred by Seller when payments completed
                                      a. NOTE- Luette v. Bank of Italy Nat’l Tr. & Savings
                                          Ass’n- vendor doesn’t need to have title until purchaser
                                          has fully performed K
                             4. Default by Buyer- if Buyer 30 days late, any monies paid to
                                 Seller is forfeited as liquidated damages & K terminated;
                                 Buyer then has no rights to possession and expressly waives
                                 any right to title b/c of possession (can’t later claim adverse
                                 possession?)
                             5. Legal Expenses- Buyer pays atty. fees if Seller has to sue to
                                 collect payment
                             6. Seller’s Option- Seller can decide to deliver deed to Buyer who
                                 will then provide promissory note for remaining payments;
                                 note financed by mortgage on the property
                             7. Risk of loss- Buyer bears risk of loss property during
                                 executory period
BUYER BEARS THE
                    iii. Ameliorating the harshness- some states have enacted statutes to
RISK OF LOSS             soften the legal effects of a default by the buyer
                             1. Foreclosure safeguard- when a buyer has paid a substantial
                                 portion of the loan, he has the rights of a mortgagor
                             2. Equitable right of redemption- buyer can prevent forfeiture by
                                 obtaining financing from another lender
                             3. Reinstatement- buyer pays the amt. of his default & continues
                                 the K as if the breach never occurred
                             4. Restitution- buyer recovers payments in excess of damages
                                 incurred by the lender as a result of the default



                                                                                                47
                   d. Marketable Title
                            i. Implied in K- unless there is a provision in the K of sale to the
                               contrary, it is implied that the seller must furnish the buyer w/ good &
                               marketable title at closing
                           ii. Marketable title defined- title reasonably free from doubt, one which
                               a prudent purchaser would accept- although perfect title is NOT
                               required, title must be such that there is no reasonable probability that
                               the buyer will be subjected to a lawsuit
                                   1. NOTE- this doesn’t include adverse possession
                                   2. Record- buyer might also have to put in provision promise to
                                        convey a marketable record title- title that is recorded
                   e. Remedies for Breach of K- if one party breaches the K, the remedies of the
                       other party are recission, specific perf., and damages
                            i. Remedies of Buyer
                                   1. specific perf.- land considered unique, money damages may be
                                        inadq.; equitable s available to seller
                                   2. damages- benefit of the bargain- buyer seeking damages is
                                        entitled to the difference b/t the K price & the market value of
                                        the land on the date perf. is due
                           ii. Remedies of Seller- under installment K- foreclosure
                   f. Doctrine of Equitable Conversions- may be invoked to solve problems
                       resulting from conveyancing- doctrine invented to treat buyer as having title
                       for certain purposes prior to the date set for closing
                            i. Statement of Doctrine- based on idea that since either party can
                               demand specific perf., equity regards as done that which ought to be
If K, but no deed,             done- buyer has equitable title to the land after K signed, seller has
then it’s not a                legal title in land in form of action for payment of the purchase price
conveyance, and            ii. Consequences of doctrine
buyer only has                     1. hyp.- O Ks to sell to A and O then marries & dies
action for price, not                        a. O’s wife doesn’t have dower in land-at time of
the title...Buyer has                            marriage, O had right of action for price, not a legal
an equitable interest,                           estate- seller’s later acquired wife denied of dower!!
for which there’s no                         b. A’s wife doesn’t have dower
dower/curtesy, b/c                                    i. Equitable conversion makes it the purchasor’s
there’s no seisen.                                        land eventhough legal title has not passed
                                                     ii. Not traditionally dower in equitable estates-
                                                          wife doesn’t have dower unless husband is
                                                          legally seized
                                   2. hyp.- O Ks to sell to A then O mortgages (or even conveys) to
                                        B
                                             a. A has equitable title w/ promise to get legal title in
                                                 future- O won’t be able to fulfill (anticipatory breach?)
                                             b. Obligation is to convey title some time in future
                                                      i. Not clear that mortgage/conveyance presents
                                                          this transfer




                                                                                                        48
                                          c. A can’t stop payments on the installment- Calif. rule-
                                              still have to keep paying on expectation that O might
                                              still be able to perform on date specified (Luette)
                                    3. hyp.- O Ks to sell to A then A cuts timber the land
                                          a. A as buyer has equitable title and right to possession-
                                              right to exploit the land
                                          b. If installment K- A’s case is stronger b/c has
                                              possession- in reg. sale, right to possession doesn’t
                                              transfer until title is transferred
                                    4. hyp.- O Ks to sell to A then O cuts timber the land
                                          a. Installment K- O would be violating A’s exclusive right
                                              to immediate possession
                                          b. Reg. K- O had Ked to transfer those trees & you would
                                              be breaching K by cutting the trees
                2. Mortgages
                      a. Terminology
                              i. Mortgage- document giving lender the right to claim real property if a
                                 borrower defaults on a loan
                             ii. Mortgagor- borrower who gives the mortgage
                            iii. Mortgagee- lender who receives the mortgage
                      b. Theory of Mortgage
                              i. 2 strands
                                     1. Title theory states- states which treated legal title as being in
                                         the mortgagee title state
     Title State                     2. lien theory states- states which declared that legal title
     Lien State                          remained in the mortgagor & mortgagee merely had a lien on
                                         the property to secure the debt lien state .
                             ii. Dower- if property is mortgaged: title & lien states treat same-
If seller has a                  mortgagor’s wife has dower & land can’t be attached
mortgage and it’s c. Foreclosure- takes place through a judicial sale (auction of property- sell
foreclosed, buyer        prop. to highest bidder & collect the price)
loses b/c all O had           i. Recovery by single mortgagee
was an equity of                     1. Creditor - first claim on price b/c of mortgage- pay of the
redemption, and                          remaining purchase of debt- get amt. entitled to
buyer’s interest                     2. Surplus- surplus goes to mortgagor
disappeared when                     3. not enough money to pay off existing debt- Ct. will likely enter
the equity was                           a deficiency judgment against the debtor- K remedy for
foreclosed…buyer                         repayment of the borrowed money
could have damages           ii. Recovery by multiple mortgagees- O to M & O to M(2)
though…MAYBE                         1. money from sale: first distributed to M1 & if surplus, then to
                                         M2
                3. The Deed
                      a. Formalities
                              i. Signature of grantor only- writing must be signed by the party to be
                                 bound- the grantor; neither necessary nor customary that the grantee
                                 sign the deed



                                                                                                       49
      ii. Consideration- consideration is NOT necessary to transfer land; a
          person can give land away; neither necessary not customary to recite
          the true consideration, if any in, deed; likely will recite that the deed is
          given ―for one dollar and other good and valuable consideration‖
b. Warranties of Title
       i. Covenants of Title- extent of seller’s liabilities for some defect in title
          is governed by covenants contained in deed- no covenants of title are
          implied in the deeed
      ii. Types of Deeds
              1. general warranty deed- normally contains all 6 ―usual‖
                  covenants found below- it warrants title against defects arising
                  before as well as during time grantor had title
                      a. ìconveys and warrantsî
              2. special warranty deed- also normally contains 6 usual
                  covenants BUT warranties cover only defects arising during
                  the grantor’s tenure and not defects arising prior to that time-
                  grantor guarantees only that he has done nothing to make title
                  defective
                      a. ìbargains, sells, and conveysî
              3. quitclaim deed- warrants nothing; grantor merely transfers
                  whatever right, title, or interest he has, if any; useful in clearing
                  an apparent defect in tile
                      a. conveys and quitclaimsî
     iii. Covenants for title in warranty deeds
              1. covenants of seisin- grantor covenants that he owns the estate
                  or interest he purports to convey
              2. covenant of right to convey- grantor covenants that he has the
                  pwr. to make the conveyance, conveyance is satisfied if the
                  grantor has title and is under no disability, or if he is acting as
                  trustee or agent for the owner
              3. covenant against encumberances- grantor covenants that there
                  are no easements, covenants, mortgages, liens, or other
                  encumberances on the property
              4. covenant of quiet enjoyment- grantor covenants that the
                  grantee will not be disturbed in possession or enjoyment of the
                  property by a 3rd party’s lawful assertion of superior title
              5. covenant of warranty- grantor covenants that he will defend on
                  behalf of grantee any lawful claims existing at date of
                  conveyance, and will compensate the grantee for any loss
                  sustained by the assertion of superior title- this covenant &
                  covenant to enjoyment amt. to same thing
              6. covenant of further assurances- grantor covenants to perform
                  whatever acts are reasonably necessary to perfect the
                  purchaser’s title, if it turns out to be imperfect- not used much
                  in U.S. & is often omitted
     iv. Breaches of covenants


                                                                                    50
                                    1. covenants of seisin, of right to convey, & against
                                        encumberances
                                           a. present covenants- guaranteed at the time of the
                                               conveyance itself , as of that time which means that it’s
                                               broken if at all at the time of the transfer if in fact seller
                                               doesn’t have title, etc. or any of these are broken.
                                           b. Doesn’t run w/ the land- present covenants cannot be
                                               enforced against the covenantor by a transferee of the
                                               covenatee- only immediate grantee may enforce present
                                               covenants
                                    2. covenants of quiet enjoyment, warranty, and further assurances
                                           a. future covenants- covenants is not breached until the
                                               grantee is actually or constructively evicted in the future
                                           b. run w/ the land- covenant attaches to the fee simple
                                               estate & runs w/ it to subsequent grantees
                    c. Delivery- requires words or conduct of the grantor that shows an intent to
                        make the deed operative and pass the interest to the grantee; usual method of
                        delivery is handing over the deed from the grantor to the grantee, but handing
                        over a deed w/out concurrent intent isn’t an effective delivery- manual
INTENT is
                        transfer not necessary; crucial issue is intent
KEY to                       i. Conditional delivery- provision indicates deed becomes final upon
DELIVERY                        the happening of some future event
                                    1. can be interpreted in two ways
                                           a. provision may mean that there is no delivery and the
                                               deed isn’t effective at all until the condition happens;
                                               OR
                                           b. provision may mean that grantor intends the deed to be
                                               legally effective now, but passing only an interest that is
                                               subj. to a condition precedent
   Choosing btw                     2. 2 types of conditional delivery deeds
   interpretations of                      a. Commercial escrow- title will pass when money
   conditional delive ry                       received by escrowee
   deeds?                                           i. No risk of invalidation under statute of wills
                                                       (gift upon some condition other than death
                                                       aren’t testamentary)
                                                   ii. arrangements are irrevocable (presumed
                                                       intention of the parties)
                                                  iii. absconding escrowee- if grantee pays money &
                                                       escrowee runs off w/ cash before grantor
                                                       conveys deed, grantor bears loss- Lechner v
                                                       Halling
                                           b. Family Will substitute- give to deed to person & say
                                               give when I die
                                                    i. Handing deed over is ambiguous- need
                                                       extrisinic evid. of intent




                                                                                                          51
                                     ii. PROBLEM- conveyance looks too much like a
                                         will- if this is a testamentary gift that is
                                         revocable until death, must conform to statute of
                                         wills or be void
                                    iii. How do you save them?- make clear making a
                                         springing interest (present irrevocable grant of a
                                         future interest) (O to A on O’s death- Gruen)
                                         (otherwise risk revocation under the statute of
                                         wills); make gift in a will
                      3. To the grantee- Can’t make a conditional delivery of a deed to
                         the grantee- have to use a middleman
                             a. Cts.- if deliver a deed to a grantee- has to be
                                 unconditional- cts. worried about fraud



RECORDING ACTS
1. Recording System
      a. History- 1st introduced in the Mass. Bay Colony- means by which titled to
          parcel of land determined, record as public document in the county where it’s
          located, anyone can search through record to determine state of title ; also
          establishes priorities among conflicting claims to land and promotes certainty
          of titles
2. Indexing
      a. 3 types of indexing systems
               i. Grantor & grantee indexes- separate index volumes maintained for
                    grantors & grantees, enable a title searcher to locate an instrument by
                    searching under either the grantor’s name or the grantee’s name
              ii. Tract index- entries are made under block & lot number, greatly
                    simplifies title search
3. Types of Recording Acts
      a. Race statutes- earliest statutes- under the statute, as b/t successive grantees to
          the same land, priority is determined solely by who records first- notice is
          irrelevant
               i. Rationale- determining who has actual notice depends upon extrinsic
                    evid., which may be unreliable- only Delaware, N.C., and Louis. have
                    today since deemed inequitable for a person w/ notice of a prior claim
                    to prevail
      b. Notice statutes- under statute, a subsequent BFP prevails over a grantee who
          fails to record IF the BFP has no actual or constructive notice of prior claim
          at the time of the conveyance (1/2 the states- Colo. & Iowa)
               i. Ex.- ―a conveyance of an estate in land shall not be valid against any
                    subsequent purchaser for value, w/out notice thereof, unless the
                    conveyance is recorded‖
              ii. Irrevelant WHO RECORDS FIRST.




                                                                                         52
      c. Race-notice statutes- under statute, subsequent BFP prevails over prior
          grantee ONLY if he is 1) w/out notice; AND 2) wins the race to record – (1/2
          the states- Washington)
               i. Ex.- ―a conveyance of an estate in land shall not be valid against any
                  BFP w/out notice thereof, whose conveyance is first recorded‖
      d. Example - O to A (unrecorded); O to B (unrecorded)- then A records
               i. Notice statute
                      1. A’s deed was void when B purchased title
                      2. Since A failed to give B warning- B retains title
              ii. Race-notice statute
                      1. A was already the owner before recording, B didn’t record
                      2. A merely records to protect against subsequent purchasers
             iii. Race statute- A’s deed not invalid against B’s deed since recorded
4. What recordation does not do
      a. Validate invalid deed- recordation only raises a rebuttable presumption that
          the instrument has been delivered & that it is authentic
               i. Forgery- O to A (recorded BUT deed is forged); A to B (BFP who
                  records)
                      1. Nothing O could’ve done to prevent or did to further the fraud,
                          it was A who did the forging….
                      2. notice statute- doesn’t protect against forged deed
                              a. Invalidates unrecorded deeds against BFP
                              b. Doesn’t validate invalid recorded deeds
                      3. property remains in O
              ii. Undelive red- O to A (but not delivered); A to BFP (recorded)
                      1. Undelivered deed is same as fraudulent deed
                      2. Purpose of recording statute is not to validate deeds which are
                          void
             iii. Fraud- O to A (recorded but obtained by fraud); A to B (BFP &
                  recorded)
                      1. Actions O can take unable to do w/ forged deed
Recording                     a. O likely discovers fraud (more likely to be able to do
and                               than forgery)
FRAUD                         b. O could sue to quiet title and void deed
                              c. Plus this goes back to estoppel wagon—O clothed A
                                  with title.
                      2. Deed that is obtained by fraud is voidable BUT NOT VOID-
                          privilege on victim to get void deed- but not automatically
                          voided
                              a. Assuming O can discover the fraud- would expect the
                                  recording acts to protect the BFP since O could have
                                  done something
                              b. Race statute- doesn’t make valid an invalid deed
                                      i. BUT O probably still should be required to go
                                           take judgment and record into record just in case




                                                                                         53
     b. Protect against interests arising by operation of law- Recordation doesn’t
         protect a subsequent purchaser against prior interests that arisen by operation
         of law (e.g., dower rights, prescriptive & implied easements, title by adverse
         possession, wills, inheritances)- statutes only apply to unrecorded
         conveyances
              i. Adve rse Possessor- O to BFP; A is adverse possessor; Even though
                 A’s interest has never been recorded and a look at the premises would
                 reveal nothing of A’s claim, A prevails against BFP
                     1. recording statutes- don’t invalidate the unrecorded title
                         obtained by adverse possession
                              a. Only thing that is invalidated is ―instrument affecting
                                  real estate‖
                              b. No instrument by which title was obtained by adverse
                                  possession- obtained by possession
                     2. BUT- O owns, A is adverse possessor, 10 years into adverse
                         possessor O to A (unrecorded), then O conveys to B (BFP
                         records)
                              a. NOW A has obtained title through an instrument
                                  affecting real estate
                              b. Recording statute kicks in- can’t say A obtains over B;
                                  deed from O to A is voided by statute
             ii. Dower interest- O to A (records) – turns out O is married and wife is
                 entitled to dowry- nothing in record to indicate that O’s wife retains a
                 dower interest
                     1. Not recorded- so no reasonable way A could have obtained
                         info.
                     2. Wife’s interest, though not recorded, is not invalidated unless
                         wife relinquished it
                     3. Dowry arises out of operation of law NOT by conveyance so
                         isn’t transferred by paper- not an interest that has to be
                         recorded
5. Who is protected by recording acts
     a. General- only BFP is entitled to protection under notice & race- notice. To
         attain BFP status, person must satisfy 3 requirements: 1) person must be a
         purchaser (or mortgagee, or creditor if statute allows); 2) who takes w/out
         notice (including actual, record, or inquiry notice) of the prior instrument, and
         3) gives a valuable consideration
              i. Ex.- O to A (unrecorded); O to B (unrecorded); (A records); A sells to
                 C (record)
                     1. Notice statute
                              a. B had title at least up until A conveyed to C
                              b. C is sub. purchaser, though, who records & B’s
                                  instrument is of no use since not recorded
                              c. C gets title from A even though A doesn’t have title,
                                  A’s title is only void against subsequent purchasers;




                                                                                        54
                          whole point of statute is to be able to get title from
                          someone who doesn’t have it
              2. race-notice statute- C wins- subsequent purchaser, won notice
                  race, and C got conveyance from A who had the legit. title (not
                  B)
              3. race statute- C wins- A had recorded first so even if B
                  recorded before C recorded, C gets title from A whose title is
                  the only one legit. & since he records, his title is protected from
                  subs. BFPs
      ii. Ex.- O to A (unrecorded); O to B (notice & records); O to C (w/out
          notice of A & records)
              1. Notice statute
                      a. A is invalid against C since A didn’t record & invalid
                          against sub. BFP in good faith
                      b. B is invalid against A since B had notice of A’s deed
                      c. C’s is invalid against B since B’s is recorded (statute
                          invalidates only unrecorded deeds!!)
                      d. Don’t know who gets its
              2. Proble m
                      a. B & C both think they are getting 2nd mortgages
                      b. B should put into deed- ―2nd mortgage subord. to A‖-
                          when C goes to search title, won’t find mortgage to A
                          but will find reference to it in B’s mortgage
b. Purchasers
       i. Donees- generally, donees do not come w/in the protection of
          recording system b/c they don’t give value
              1. Ex.- O to A (unrecorded); O to B (recorded but it is a gift)
                      a. statutes- usually require to be a sub. purchaser for
                          valuable consideration
                               i. Donees aren’t usually considered purchaser
                      b. B not prejudiced by undoing of the deed- just loses a
                          freebie, a windfall
                      c. If gave property to B, A is deprived of land AND
                          consideration A had given to O for the property
      ii. Creditor- recording acts vary considerably in protection afforded
          creditors
              1. Mortgagee- O to A (unrecorded); O to B (recorded,
                  mortgage)- statute only protects sub. purchasers- Is a
                  mortgagee a purchaser?
                      a. If B gets mortgage for antecedent debt- Not a purchaser
                          since if take away mortgage still have some cause of
                          action for antecedent debt, what you had before (similar
                          to donee)
                      b. BUT could argue that B is worse off b/c could have
                          sued debtor at time took mortgage, forewent that
                          opportunity to collect on that debt in reliance on that



                                                                                  55
                            mortgage on the property, in meantime O has gone
                            bankrupt & has disappeared
                        c. NOT clear that mortagee should be not be considered
                            worse off- some courts hold that mortgagee who
                            accepts mortgage for antecedent debt is a purchaser for
                            purposes of the recording statute
      iii. BFP Filter Rule- (some states)- BFP that was subj. to a prior
           outstanding unrecorded interest may pass title free of the unrecorded
           interest to a subsequent purchaser who otherwise wouldn’t qualify as a
           BFP under the recording act (say X w/ notice) (Chergosky v.
           Crosstown Bell, Inc.)
               1. Ex.- O to A (unrecorded); O to B (has notice & records); B
                   conveys to C (BFP & records); C conveys to D (notice of A’s
                   unrecorded deed)
                        a. C is the rightful owner before conveyance
                        b. A’s deed was no good against C (since C was BFP)
                            BUT if C goes on & conveys to D (not a BFP), A’s
                            deed is not invalid to D (at least according to plain lang.
                            of statute)
                        c. BUT C owned the property!!! One of the rights that
                            goes along w/ property ownership is the right to sell, C
                            is owner and can do whatever she pleases
               2. Exception to rule- can’t sell to prior owner who purchased w/
                   notice!
                        a. ex. - O to A (unrecorded); O to B (has notice &
                            records); B conveys to C (BFP & records); C conveys
                            to B (has notice)
c. Without notice- to be protected by a notice or race-notice statute, a
   subsequent purchaser must be w/out notice- this means that the purchaser has
   not actual, record, or inquiry notice of the prior claim at the time he paid
   consideration and received his interest in the land
        i. Actual notice- if a subsequent grantee actually knows of the prior
           instrument, he has actual notice & isn’t a BFP
       ii. Record notice- if an instrument is properly recorded, any subsequent
           purchaser has record notice & is therefore not a BFP- record notice is
           one form of ―constructive notice‖- notice that law imputes to the
           purchaser whether he actually knows or not
      iii. Inquiry notice- another form of constructive notice- under certain
           circumstances, purchaser is required by law to make reasonable
           inquiries and is charged w/ notice of whatever the inquiry would
           reveal, even if he didn’t make one
               1. Inspection- majority of courts charge the subsequent purchaser
                   w/ knowledge of whatever an inspection of property would’ve
                   disclosed
               2. Inquiry from neighborhood- deeds out from a common
                   grantor (subdivider) to buyers of other lots in a residential



                                                                                    56
                  subdivision may contain express written restriction on land
                  retained by common grantor & later sold to a subsequent
                  purchaser w/out an restrictions- under doctrine of implied
                  reciprocal negative easements, negative restriction on use may
                  be imposed by implication on lot in a subdivision, where
                  there’s uniform scheme for development of subdivision, even
                  though deed to that lot may contain no restrictions- cts. hold
                  that from looks of neighborhood, purchaser should reasonably
                  conclude that a restriction on use of subj. lot might exist & is
                  put on inquiry notice of contents of other deeds out of common
                  grantor
                      a. Methonen v. Stone- Water well in one subdivision lot is
                          being used as source of water for other lot owners-
                          purchaser bound to continue to supply water from well
                          to other owners even though easement not on deed
                               i. At the time the purchaser acquired the property,
                                   he was aware of the well and the water pipes
                                   running from the well to the adjoining lots. B/c
                                   he knew of these pipes, he should have made
                                   inquiries.
                              ii. you have a duty to inquire even before you see
                                   the pipes. You are held to have notice of
                                   everything an inspection might reveal, whether
                                   you know of the possession (or existence of the
                                   pipes) or not. Regardless of whether or not you
                                   have information that would put you on notice,
                                   you are held to know of info an inquiry would
                                   have revealed
     iv. ex.- O  A in fee simple unrecorded, O  B recorded. A is on the
          land, under a recorded lease. Does B have constructive notice of the
          unrecorded deed in FS?
              1. B misled - B shouldn’t be on notice of A’s FS deed, bc there is
                  nothing fishy about seeing A on the land, since A has a
                  recorded lease.
              2. NY decision- 48 unit apt complex - 48 recorded valid leases- ct
                  held purchaser should have inquired if any of the leaseholders
                  had a FS. Inquire notice means that you should inquire of the
                  possessor of ALL the reasons the possessor is there.
              3. Purchaser is held to know what a reasonable inquiry would
                  reveal? . . if the owner is not in possession, and attempts were
                  made to find out the identity of the owner from the neighbors,
                  and purchaser still couldn’t figure out . . then purchaser is held
                  to what was reasonable that he should know.
d. Valuable consideration- to be protected under the recording acts, purchaser
   must give valuable consideration




                                                                                 57
               i. Antecedent debts- person who receives a deed or mortgage as
                  security for a preexisting debt is usually found not to have given
                  valuable consideration at the time instrument executed- person is
                  usually considered not to have been a BFP (but note argument that
                  individual is protected- made above)
6. The vicious circle
      a. Mortgages- (ea. For $5000)- O to A (unrecorded); O to B (has notice &
          records); O to C (BFP & records) – Assume we’re in notice state
      b. The vicious circle
               i. A prevails over B b/c B had notice
              ii. B prevails over C b/c B recorded
             iii. C prevails over A since A’s deed was unrecorded
      c. Imagine judicial foreclosure sale- property sold for $10,000- who gets what
          proportion of the cash?
               i. Options
                      1. Case for C- C didn’t do anything wrong (didn’t have notice &
                          recorded)
                              a. If give C $5000 – get what she expected she was
                                  getting- C knew that she was taking on a 2nd mortgage
                      2. Sins of the others
                              a. A didn’t record
                              b. B should’ve noted on record that he was taking out a
                                  2nd mortgage
                              c. seems like A caused the whole problem BUT by statute
                                  A prevails over B
                      3. can depart from lang. - ask who deserves more than the others-
                          get C
                              a. now left w/ A & B & $5,000- who gets it?
                              b. Could give it to A since by statute A prevails over B;
                                  and say that B only expected to get 2nd $5000 (knew he
                                  was a 2nd mortgagee), since there’s no 2nd $5000 (went
                                  to C) so not disappointing his expectations when give to
                                  A
7. Requirements for Recordation
      a. What can be recorded- practically every kind of deed, mortgage, K to convey,
          other instrument affecting an interest in land can be recorded
               i. Mortgages- O to A (unrecorded mortgage); O to B (fee simple
                  recorded)
                      1. Recording statute requiring recording of ―instrument affecting
                          real estate‖
                              a. Mortgage is ―instrument affecting real estate‖
                              b. Mortgage is voided by subsequent BFP
                      2. Recording statutes requiring recording of ―conveyances‖
                              a. Title theory - some states treated mortgage as a
                                  conveyance in fee simple upon condition subsequent
                              b. Lien theory- in other states, mortgage is treated as a lien



                                                                                         58
                                      i. Cts- often construe conveyance broadly enough
                                         to req. recording of mortgages
      b. What constitutes recordation
              i. Failure to index- Occasionally clerk in recorder’s office fails to index
                 instrument properly- cases are split on whether the grantee of such
                 instrument is protected against a subsequent BFP
                     1. Minority view- protect the grantee- by delivering the deed for
                         recordation, grantee has done all she could reasonably be
                         expected to- Frank v. Storer (FL) (grantee protected here even
                         if knew clerk had failed to record!)
                     2. Majority view- protect the BFP- only a properly indexed in
                         instrument imparts sufficient constructive notice to sub. BFP-
                         grantee seems to be better risk bearer- can make sure that
                         instrument gets recorded (Federal National Mortgage Assn. v.
                         Levine Rodriquez)
8. Chain of Title Proble ms
      a. Problem- even though instrument has actually been recorded & indexed in the
         recording office, the instrument might not be recorded in such a way as to
         give notice to subsequent purchasers- deed may not be in the ―chain of title‖-
         to give notice to subsequent purchasers deed must be in the ―chain‖
      b. Chain of title defined- includes, and is co-extensive w/, those documents of
         which the purchaser has constructive notice- purchaser is charged w/ notice of
         those conveyances by the property of her grantor recorded after the grantor
         acquired the property from his predecessor in title and recorded before a deed
         is recorded conveying title from that grantor to another
              i. Wild deeds- recorded deed to the property which isn’t recorded w/in
                 the chain of title
      c. Grantor not connected to chain of title- if a deed entered on the records has a
         grantor unconnected to the chain of title, such a deed isn’t recorded w/in the
         chain & doesn’t give constructive notice
              i. Ex.- O to A (unrecorded); A to B (recorded); O to C (BFP & records)
                 (Zimmer v. Sundell- Wisc.)
                     1. C unable to find B’s recorded deed since doesn’t attach to O
                             a. Looks at grantee index- make sure O got title in the 1st
                                  place
                             b. Look up O in the grantor index- won’t find any deed
                                  from O to anyone since A’s deed not recorded
                             c. Purpose of recording statute completely frustrated
                     2. B should’ve originally verified whether there was deed from O
                         to A- when doesn’t find one, force A to record his deed- B’s
                         fault when later doesn’t force A to record his deed- B in a
                         better position to prevent the harm to BFP than C is to find this
                         deed
                     3. Statute protects C- if B doesn’t check to see that grantor has
                         recorded- she doesn’t benefit from the rules




                                                                                       59
                        a. Additional inducement for BFP to record not only his
                             own deed BUT also to record the deed of his grantor-
                             protect future BFPs
                        b. B’s deed considered recorded outside the chain of title-
                             if that chain is not recorded as to a subsequent BFP, that
                             owner does not take advantage of the recording statute
                        c. Statute- have to record it to take advantage of statute
                             AND record means record in chain of title (make sure
                             that grantor’s deed is recorded)
d. Deeds recorded before grantor obtained title – estoppel by deed- must a
   purchaser under the name of a grantor prior to the date title ca me into the
   grantor to see if the grant gave an earlier deed to the property to which the
   doctrine of estoppel by deed applies?
        i. Estoppel by deed- if grantor who doesn’t have title later acquires it,
           title passes by operation of law immediately to the grantee
                1. ex.- A to B (B records but A doesn’t own); O to A (A records)
                        a. A sold deed to B while representing she was owner
                        b. B detrimentally relied on A’s representations
                        c. As soon as deed passes from O to A- automatically
                             transfers to B
       ii. Subsequent BFP- A to B (B records but A doesn’t own); O to A (A
           records); A conveys to C (records and is BFP)- who prevails, C or B?
                1. Maj. – limited search required- most courts hold that C prevails
                    over B on theory that a deed from A to B recorded prior to the
                    time title came to A, is not in the chain of title
                        a. Rationale- would put an excessive burden on the title
                             searcher to req. search of the index under each grantor’s
                             name prior to the date grantor acquired title
                2. Min.- extended search required- minority protects B over C
                        a. Rationale- under doct. Title passed immediately to B, A
                             had nothing left to transfer to C, B’s deed was also
                             recorded as required by race statutes
e. Deed Recorded Late- Must a purchaser search the index under the name of a
   grantor after the recordation of a deed by that grantor transferring title- does a
   deed recorded after the grantor is shown by the record to have parted w/ title
   give constructive notice?
        i. Ex.- O to A (unrecorded); O to B (notice & records); A records; B to C
           (no notice & records)- DOES C HAVE CONSTRUCTIVE NOTICE?
       ii. Limited Search required- in most states, C prevails over A
                1. Rationale- if A prevails, title searcher would have to look in the
                    indexes under the name of each grantor in the chain of title to
                    the present date (not just to the date of the 1 st recorded deed
                    from each grantor) to see if there was a deed executed before
                    the 1st recorded deed BUT recorded later- too great a burden
      iii. Extended Search required- min. of states (NY & Calif.), A’s deed
           gives notice to sub. purchasers, although recorded after B’s deed- title



                                                                                    60
                                searcher must search to the present date under the name of each
                                person who ever owned the property in to pick up deeds recorded late
                   f. Defective Documents- will not serve as notice
                            i. Ex.- O to JS (records); JS them marries DT & becomes JT; JT to A
       Married                  (records); JT divorces DT resumes name JS and conveys to B
       name and                 (records)
       recording                    1. B goes to the grantee section- look for deed to JS- find a deed
       proble ms                       from O to JS and goes to the grantor section- can’t find a JS
                                       (because she was JT)
                                    2. PROBLEM is w/ A – probably made inquiries when doing title
                                       search b/c couldn’t find a JT- once JT told her she was JS at the
                                       time of the orig. conveyance, A should’ve insisted that JT
                                       either convey to her as JS or put a note on deed to cross
                                       reference to orig. conveyance to JS
                                    3. Makes more sense to give to B who did nothing wrong-
                                       construe recording statute to not only requiring indexing
                                       BUT also indexing in way that can be found….
            9. Torrens Title Registration System- basic idea is to register title to land, instead of
                merely recording evidence of title- the system:
                   a. judicial proceeding to figure out who owns the land.
                   b. Once ct determines who the owner is, it makes a certificate representing it,
                       and the certificate is recorded, and the owner gets copy (in US, gvmt only
                       records, but does not deal with the validity of what is recorded).
                   c. Land can’t be sold except by going to ct with the certificate, and getting new
                       certificate from ct.                           Profit: right to enters another’s
                                                                      land and remove something from it
                                                                      (minerals, water, food); when
            EASEMENTS & COVENANTS                                     granted, easement is implied.

             Easements

             1. Introduction
                    a. Definition- easement is a grant of an interest in land that entitles a person to
                       use land possessed by another
1. type of          b. Types of easements
   easement                 i. Affirmative- owner of an affirmative easement has the right to go
2. scope of                    onto the land of another (the servient land) & do some act on the land
   EAS                     ii. Negative- owner of negative easement can prevent the owner of the
3. whether it’s                servient land from doing some act on the servient land
   been                            1. English law- only recognized 4 types- easements for light, air,
   terminated                          subjacent or lateral support (not dig to undermine holder’s
                                       house), or the flow of an artificial stream (not interfere w/
                                       aqueduct bringing water to holder’s home)
                                   2. Compare- affirmative act by servient owner- if owner of
                                       servient land agrees to perform an affirmative act on the
                                       servient land- this is a covenant & not an easement


                                                                                                      61
                        c. Easements appurtenant or in gross
                                  i. Easement appurtenant- if an easement benefits its owner in the use
                                     of another tract of land, it is appurtenant to that land- the land
                                     benefited is called the dominant tenement; the land burdened is the
                                     servient tenement- the servient tenement usually is, but doesn’t have to
                                     be, adjacent to the dominant tenement
                                         1. passes w/ the dominant tenement- attaches to the dominant
                                             tenement & passes w/ it to any sub. owner- can’t be separated
                                             from the dominant tenement & turned into an easement in
                                             gross, unless the owners of the dominant & servient tenements
                                             make a new agreement
                                         2. negative easement- always appurtenant to the land- easement
                                             protects the holder in his enjoyment of his land
                                         3. easement appurtenat favored- if an instrument creating an
                                             easement is ambiguous, cts. generally construe it as creating an
                                             easement appurtenant rather than in gross
                                 ii. Easement in gross- if an easement doesn’t benefit its owner in the use
                                     & enjoyment of his land, but merely gives him the right to use the
                                     servient land, the easement is in gross- easement may be assigned or
                                     may be personal to the holder
                                         1. determining if personal- look to scope of easement- was it
                                             intended to benefit grantee to cross property OR was it
                                             intended to run to successor for expanded use
                        d. Interest in land- easement is an interest land, burden passes to subsequent
                            owners of the servient estate- owner of an easement doesn’t merely have K
                            rights against the orig. grantor, BUT also rights against successors
                        e. Profit (profit a pendre)- right to enter another’s land to remove its products,
                            such as minerals or crops- when profit is granted, easement to go on land is
DIVIDING appurtenant implied
EAS: Subdividing        f. License compared- license is permission to go upon land belonging to
Dominant Estate: EAS        licensor- license is revocable at the will of the licensor
appurtenant said to benefit       i. Ex.- grantor thought creating license BUT when writing gives one
every part of the dominant           ―exclusive right‖ to maintain a sign on another’s prop. for term of yrs.-
estate, so goes w/ each              easement in gross arises & specific perf. granted after attempt to
parcel, BUT burden can’t             revoke- Baseball Publishing Co. v. Bruton
be greater than what was         ii. Ex.- grantor told O that right to pool would run w/ the land and make
foreseeable when EAS                 land more valuable, later bars subsequent owner from using pool;
was created. Have to                 license was created (Bunn v. Offut):
decide that on case by                   1. Right to use was conveyed by K- Provisions of a K are merged
case; smaller # of                           in a deed- superseded by deed which wipes out all provisions
division, more likely to                     to K
continue.                                2. HAVE TO INCLUDE RIGHT TO POOL IN DEED- only
                                             rights to property are acquired through the deed- Deed was
                                             silent as to the right to use of pool- wipes out anything in K
    LICENSE: only               iii. Irrevocable licenses- estoppel- license may become irrevocable
    thing that can                   (become an easement) if licensee has constructed substantial
    be oral.


                                                                                                           62
                                                                                                      BFP of servient
                                                                                                      must have notice

                                  improvements on either the licensor’s land or the licensee’s land,
                                  relying on the license & the licensor’s silence- may states hold that the
                                  licensor is estopped from revoking the license since it would be unfair
                                  to the licensee to permit revocation after he spends money in reliance-
                                  Holbrook v. Taylor (Ky.)

              2. Creation of Easements
                       a. Creation by express grant
                              i. Statute of Frauds- unless one of the exceptions to the statute applies,
                                  creation of an easement requires a written instrument signed by the
Dividing EAS in                   grantor- if the grantor doesn’t sign the instrument but orally gives the
GROSS                             grantee permission to enter the land, grantee has a license to use the
if EXCLUSIVE it’s                 land
subdividable; if       b. Creation by reservation- easement may be reserved by the grantor over the
non-exclusive, its        land granted- if the grantor conveys land, reserving an easement, land
divisibility              conveyed is the servient tenement
depends on                    i. Reservation in favor of a 3rd party
grantor’s intent                      1. CL- easement couldn’t be reserved in favor of a 3 rd party-
(look to language                         reason for this prohibition lay in feudal notions of
of the instrument                         conveyancing & in theory that the grantee regranted to the
in which ease was                         grantor the easement (Estate of Thompson v. Wade- NY)
created—some Cts                              a. Soln.- draft around- rule can be circumvented by
say that the very                                 putting 3rd party in position of grantor & using 2 pieces
fact that it’s non-                               of party
exclusive suggests                            b. Ex.- M to P reserving a parking easement for a church
that the grantor                                  on the corner (4 ways to get around NY law)
didn’t intend for it                                    i. give easement to church for parking (can be in
to be divisible, and                                       gross or appurtenant); give a fee simple subj. to
some say simply                                            the easement to P
that non-exclusive                                     ii. M to P on condition that P deposit in escrow a
eas in gross are                                           deed for an easement to the church
non-divisible)                                       iii. M to P on condition precedent (give easement to
                                                           church)
                                                      iv. M to church in fee simple- church conveys to P
                                                           in fee simple while reserving easement
                                      2. NOTE- covenants can be created to benefit a 3 rd party
                       c. Creation by implication- easement by implication is created by operation of
                          law, not by a written instrument- operates as an exception to the Statute of
                          Frauds- implied easements are limited to 2 kinds: 1) an intended easement
                          based on an apparent use existing at the time the servient tenement is
                          separated from the dominant tenenment, and 2) an easement by necessity
       Implied                i. Easement implied from existing use- if, prior to the time a tract of
       Easements:
                                  land is divided into 2 lots, a use exists on the ―servient part‖ that is
       some state
                                  reasonably necessary for the enjoyment of the ―dominant part‖ and
       say you cant               which the ct. finds the parties intended to continue after the tract is
       have
                                  divided- easement may be implied
       reciprocal
       implied
       easements?
       Sanborn                                                                                           63
may apply (estoppel)

Implied EAS:
   1) common
      owne rship b/f
      severance            1. Factors to conside r
   2) use apparent- vis.          a. Was land formerly in common ownership?
      or reason.                  b. Was use of one part of land made for the benefit of
      discoverable                    another part up until time of the severance of
   3) continuous                      ownership?
   4) reasonably                  c. Is use of 1 part is both reasonably ascertainable and
      necessary for                   reasonably necessary for the enjoyment of the other
      enjoyme nt of                   part?
      dom. Est.            2. Implied only over land granted or reserved when tract
   5) no implied EAS          divided- easement can be implied only over land granted or
      in gross                reserved when tract is divided into 2 or more parcels
                                  a. Implied only in favor of dominant tenement- easement
                                      in gross will not be implied- easement by implication
   BEFORE land is                     must benefit a dominant tenement created by a dividing
   conveyed, it’s quasi               tract into 2 more lots
   easement where owner    3. Existing use at time of tract division- use of one part of the
   of dom. and serv.          tract must exist from which it can be inferred that easement
   estates holds both.        permitting its continuation was intended (sometimes called a
   Can’t be an easement       quasi-easement)- it’s not a legal easement (O can’t have an
   b/c can’t have EAS on      easement in his own land) but it can arise when O divides the
   own land!                  land for sale
                                  a. Apparent- to have an implied easement, previous use
   Implied reservation:               must be apparent- it’s apparent if grantee could, by a
   in favor of conveyor               reasonable inspection of the premises, discover the
   and appurt to tract                existence of the use (eg. a ―beaten path‖)- ―apparent‖
   retained.                          doesn’t mean the same thing as ―visible‖; nonvisible
                                      use may be apparent, underground sewage pipes maybe
   Implied grant-                     apparent- surface connections would put reasonable
   appurtenant to tract               person on notice- (Flax)
   conveyed                                i. Rationale- alert buyer to existence of right over
                                               property when purchasing
                                  b. Continuous- previous use must be continuous- req.
                                      based upon idea that activities should be such that there
                                      is a great probability that the use was known to the
                                      parties at the time of the grant, from which an intent can
                                      be inferred that the parties wanted the use to continue
                           4. Reasonable necessity- must be necessary for the enjoyment of
                              the dominant tenement- necessity is an important circumstance
                              in implying an easement b/c it probably affects intention of
                              parties as to whether the existing use is to continue
                           5. ex.- (Flax v. Smith- Mass.)- 3 lots under common ownership,
                              owner defaults on taxes & city seizes property (lot A), sewer
                              lines go under lot B & C to lot A
                                  a. Owner argues that wasn’t his intention to grant implied
                                      easement- therefore no easement




                                                                                             64
                       b. Ct.- city didn’t intend to take property w/out easement-
                            otherwise worthless
                       c. Sometimes it’s public policy (not an intention of
                            grantor) that creates an implied easement
      ii. Easement by necessity- easement by necessity is implied if owner of
          a tract divides the tract into 2 lots & by this division deprives one lot
          of access to a public road- easement by way over lot to road is
          implied- rests on ground that public policy requires a way of access to
          each separate parcel of land or on the ground that, since access is
          essential to use, the parties intended to create an easement but
          overlooked putting it in the deed
               1. 3 separate elements for creation
                       a. prior common ownership of the dominant & servient
                            estates
                       b. transfer of one of the estates by the common grantor,
                            creating the lack of access
                       c. necessity of the easement for making use of the
                            transferred estate
               2. Implied only over landlocking parcel- easement by necessity
                   is implied only when land is divided- necessity must exist
                   when the tract is severed
               3. Difficulty of access- existence of easement may depend on
                   what forms of transportation are common and in use where
                   property is- maybe if its out in the wilderness, everybody out
                   already gets around by helicopter
                       a. Kingsley v. Gouldsbourough Land Improvement Co.
                            (ME)- no easement where can access land by boat!
                       b. Today- unless its common to travel by boat in this area-
                            likely have an implied easement for necessity
               4. No existing use required- don’t req. an existing use at the time
                   tract is divided into 2 lots
               5. Location of easement- owner of servient parcel has right to
                   locate the easement by necessity, provided the location is
                   reasonably convenient
               6. No implied easements by necessity in gross- whole idea of
                   easement in necessity comes from necessity of access to
                   appurtenant land
     iii. Easement by estoppel
               1. Creation- when owner of servient tenement changes his
                   position in reliance on words or conduct of the easement holder
               2. Importance- writing not required
               3. ex.- P to M (right to clear a path on P’s land so M can cross);
                   M later paves path for use; P denies giving right of use & seeks
                   to revoke- easement by estoppel arises in M
d. Creation by prescription




                                                                                65
                       i. Historical development- statutes of limitations applicable to recover
                          possession DID NOT apply to easements (nonpossessory interest)
                          BUT same policies that underlie law of adverse possession apply to
                          long use of an easement- cts. developed doctrine that easement could
                          be acquired by adverse user for a req. period
                              1. Englis h law- focused on fiction the lost grant- if person had
                                 been using another’s land for the req. pd., ct. presumed that she
                                 was doing so under a grant from some frmer. Owner
                              2. U.S. law- doctrine of prescription has been developed as a
                                 matter of public policy by analogy to law of adv. poss.
                      ii. Easements by prescription – 3 Elements
                              1. Open & notorious use- use must be made w/out any attempt
                                 to conceal
                              2. Hostile and adverse- can’t be there w/ owner’s permission
                                     a. Ex.- Church yard w/ sign granting permission for use-
                                         can’t get PE when permission has been given for use-
                                         no trespass
                                     b. Ex.- hostile use can begin as soon as exceeds
                                         permissive use- puts on reasonable notice claiming
                                         right to use
                              3. Continuous use- use must be continuous BUT this doesn’t
                                 mean constant- continuous requires a continuous claim of right
                                 & periodic acts which give notice to the owner that an
                                 easement is being claimed- continuity also takes into account
                                 the normal use and characteristics of the land
                                     a. Tacking- tacking is allowed in prescription- one
                                         prescriptive user can tack on to his pd. of used the
Extinguishing a Rx                       prescriptive use of a predecessor in interest
EAS.                                 b. uninte rrupted use- if adverse use is interrupted,
INTERRUPTION:                            prescriptive pd. ends
Servient owner can                            i. Ex.- Rockefeller closed for 1 day a year- use has
extinguish a Rx EAS                              to be continuous- when users come back there’s
same way it was                                  a new cause of action that begins to run against
created—adversely                            ii. lost grant juris.- (Conn.)- owner of serv. Estate
interfere w/ it (block                           can interrupt use by merely protesting the use
it) for the statutory                            (mailing letter)
period…Some Cts                             iii. other juris.- owner must eff. interrupt use (sign
would be satisfied                               or oral protest insuff.)
w/ a nasty letter,            4. NOTES-
though!                              a. exclusivity not required- adverse possession requires
                                         exclusive possession by the possessor, prescription does
                                         NOT req. ex. use
                                     b. easements which can’t arise by prescription-
                                         necessity and neg. easements
                                     c. usage by general public- can’t usually arise in (use
                                         must be by an individual)



                                                                                               66
           iii. When prescriptive rights can’t be acquired
                   1. negative easements- in U.S., negative easements CAN’T arise
                       by prescription- reason is that prescription bars a cause of
                       action and where the owner has no cause of action (trespass),
                       prescription doesn’t apply
                           a. Ex.- A owns a lot; B owns a lot next door; A builds
                               house on border w/ sun windows facing across B’s
                               property, A enjoys sunlight & view for 53 years; B
                               builds 140 story apt. building which occupies the entire
                               lot
                                    i. NO PE- A hasn’t done a wrong- can’t get a PE
                                       w/out violating a right of someone else
                                   ii. Brit. Cts.- doctrine of ancient lights- recognize a
                                       prescriptive right in this situation
                   2. easement by necessity- use of an easement by necessity
                       CAN’T give rise to prescriptive easement- b/c use of an such
                       easement is by right & not wrongful- BUT when necessity
                       ends, use becomes wrongful and adverse, then can get
                       prescriptive easement
           iv. Public easements- most juris., public at large can acquire a public
               easement in priv. land by prescription if members of public use the
               land in manner meeting of req.
                   1. Minority view- public can’t acquire prescriptive rights in
                       private property; Rationale- owner’s cause of action runs
                       against the specific trespassing individuals & not against the
                       public at large (State ex. rel. Haman v. Fox – (Idaho))

3. Scope of Easements
     a. Question- what use easement holder can make of easement or about what
        interference by servient owner is permissible
     b. General Rule- scope depends upon intention of parties- in ascertaining this
        intent, ct. may examine:
              i. Whether easement was created expressly or by prescription
             ii. What changes in use might reasonably be foreseeable b y the parties
           iii. What changes in use are required to achieve the purpose of the
                 easement under modern conditions & preserve the usefulness of the
                 easement to the dominant tenement
            iv. NOTE- when easement is created & instrument creating doesn’t limit
                 the use to be made of it, easement may be used for ―any purpose to
                 which dominant estate may then or in the future, reasonably be
                 devoted‖ (Hayes v. Aquia Marina, Inc.- Va.)
     c. How easement was created
              i. Express easement- extent of easement limited by what was specified
                 in terms or reasonably implied
                      1. Easement of way- given a scope that permits it to meet the
                         needs of the dominant tenement as it normally develops- may


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                    be used in ways reasonably foreseeable by the parties, or, if
                    not foreseeable, by ordinary means of transportation as those
                    means normally evolve
                        a. Public policy- strong policy that land have access
                             necessary to make it useful under contemporary
                             conditions
                        b. Ex.-  has easement over ’s land for boat marina- 
                             makes plans to expand marina & pave road easement-
                             expansion changes degree of use (not type) & is
                             allowable- (Hayes)
                                 i. Ct. - invalidate expansion if it had added
                                     additional burden
        ii. Implied easements
                1. Prior use- changes that reasonably might have been expected
                    or that are necessary to preserve the utility of the easement are
                    permitted- Prior use seemingly should determine extent of
                    easement
                2. Easement by necessity- extent of necessity determines scope-
                    can you make effective use of prop. w/out easement?
       iii. Easements by prescription- more diff. to increase scope of this
            easement than any other
                1. ex.- if acquire presecriptive easement to reach house and use of
                    dominant tenenment is changed from residential to
                    commercial- added burden of traffic probably won’t be
                    permitted
d. Subdivision of dominant tenement
         i. Dominant estate subdivided – each subdivided lot has right to use
            easements appurtenant to dominant estate
        ii. Limitation- servient estate is not to be burdened to a greater extent
            than was contemplated at the time the easement was created
       iii. Ex- Unqualified easement to get to farm w/ two single family
            dwellings- owner wants to subdivide farm, turn into residential
            subdivision; Degree of burden is increased but ct. rules that this is fine
            & easement stands- (Cushman v. Barnes- Va.)
                1. Lesson- limit these easements expressly
e. Use for benefit of nondominant land- easement granted for the benefit of lot
   1 can’t be used for the benefit of lot 2, eventhough same person owns lots 1 &
   2; Ex.- O grants A easement over WA for benefit of BA, which A owns. A
   later buys GA and builds home b/t BA & GA which she accesses over WA
         i. Brown v. Voss (Wash.)- O might be given damages against A BUT no
            injunction- burden is not increased & awarding of injunction allows
            weighing of equitable factors
f. Improvements- owner of dominant estate has right to make reasonable
   improvements to an easement, so long as the improvements does not
   unreasonably increase the burden upon servient estate (Hayes v. Aquia
   Marina, Inc.- Va.)



                                                                                   68
                 4. Termination of easements
                     May be terminated in the following ways:
                       a. Written release
                       b. Abandonme nt- holder must manifest an intent by conduct (not words alone)
                           to permanently discontinue using easement
                       c. Merger- (i.e., common ownership of the servient and dominant tenement)
                       d. When purpose for the orig. creation of the easement no longer exists
                       e. Changed conditions- When creating document prescribes conditions
                           governing the easement’s duration
                       f. Forefeit (i.e., the servient tenement’s burden dramatically increases & can’t
                           be alleviated)
                       g. When the easement is by necessity & the necessity no longer exists
                       h. Estoppel (i.e., the owner of the servient tenement changes his position in
                           reliance on the words or conduct of the easement holder)

                 Equitable Servitudes

                 1. Introduction
                         a. Definition- promise by the holder of a piece of land to conduct a stated
                            activity on or make a stated use of his property (or a promise not to do so),
                            which is binding on his successors- privity not required to create an equitable
                            estate- equity will enforce against assignees of the burdened land who have
                            notice of the covenant
                         b. Historical development- arise in England- by time of Indus. Rev. cts. realize
                            value of enforcing covenants to run w/ land (cov. couldn’t run w/ land at law)-
Equitable servitude:        covenants enforced in equity against sub. purchaser w/ notice of the covenant
Enforced in equity.              i. Tulk v. Moxhay -  houses which surround a garden & sells garden to
Don’t need privity, DO              E. w/ covenant attached to deed- only use land as a garden-E. sells
NEED NOTICE                         garden to - his deed contains no convenant BUT he admits to having
                                    had notice
Covenant enforced at                    1. Ct.-inequitable that a covenant should be unenforceable against
law: get money. Don’t                       a sub. purchaser where purchaser acquired land w/ knowledge
necessarily have to have                    of restriction- purchaser probably paid less for land b/c of
notice- could have                          restriction, to hold covenant unenforceable would give
constructive notice in                      purchaser adv. he didn’t bargain for, unjust enrichment
your grantor’s deed,                    2. Currie- real focus of ct.- value of covenant
then you’re bound.                              a. covenant is important b/c led to sale of land
                                                b. covenants can enable to sell land that would otherwise
                                                     be left off the market b/c the owner is afraid of how it
                                                     would be used- contrary to his interests
                         c. Elements- for an equitable servitude to bind a subsequent purchaser, the 3
      Requirements          main following requirements must be met:
      for equitable              i. Parties creating the servitude must intend to benefit a particular
      servitude                     parcel or parcels of land
                                ii. Promisor’s successor must have notice, actual or constructive
                               iii. Burden and benefit must ―touch and concern‖ the land


                                                                                                          69
                                  1. burden must touch and concern the burdened estate
                                  2. benefit must touch and concern the benefited estate
                         iv. NOTE- Compliance w/ statute of frauds- negative equitable
                              servitudes may be implied in cases of restricted residential
                              subdivisions, carried out pursuant to a general scheme
                    d. Equitable servitude compared w/ easement
Equitable                  i. 3rd party- equitable servitude can be reserved in a 3 rd party
servitude                 ii. Aff. duty- equitable servitude may impose an aff. duty on the owner of
vs.                           the servient land
Easement                 iii. Easement is an interest in land.
                         iv. Parties have to agree in equitable servitude, in EAS they don’t
                    e. Equitable servitude compared w/ real covenant
                           i. Creation- real covenant must be in writing- in many states an
                              equitable servitude may be implied
          Equitable       ii. Privity of estate- neither horizontal nor vertical privity of estate is
          servitude           required in equity- in enforcing an equitable servitude, ct. is enforcing
          vs.                 an interest in land analogous to an easement (enforceable against any
          Covenant            person who interferes w/ it)
                                  1. NOTE- when a 3rd party beneficiary is suing to enforce an
                                      equitable servitude, in some states the 3rd party must own the
                                      land that was granted to the beneficiary or his predecessor by
                                      the promissee
                         iii. Identical re quirements- both real covenants & equitable servitudes
                              require that the covenant touch & concern land. Neither is enforceable
                              against BFP w/out notice thereof

             2. Creation of Equitable Servitudes
                    a. General Rule- most cts. require writing signed by the promisor
                    b. EXCEPTION- Negative servitude implied from a sche me- when a
                       developer subdivides a tract of land, putting restrictive covenants on some, but
                       not all, of parcels, reciprocal negative servitudes (implied equitable
                       servitudes) arise even if no writing creating the servitude on the particular lot
                            i. Theory- equitable estoppel- where purchaser, buying lot restricted to
                                residential use, relies upon promise of subdivider to restrict other lots
                                & makes substantial investment, subdivider & any assignee of other
                                lots are estopped to plead Statute of Frauds (not in writing)
                                    1. Ex.- Rogers v. Watson – (Vt.)- s (grantees in
                                         subdevelopment) sue  to prevent him from putting up trailer
                                         on property- even though no restriction on his deed, ct. rules
                                         that  had notice & covenants runs w/ the land binding 
                           ii. Requirements:
                                    1. negative- it must be a restriction- cts. won’t create affirmative
                                         obligations by implication
                                    2. common plan- it must have been part of a common plan or
                                         scheme from the beginning



                                                                                                      70
                   3. assurances- developer must have assured earlier grantees
                        (orally or in writing) that sub. grantees would face same
                        restrictions
                   4. notice- either actual, constructive or inquiry
           iii. Who enforces- usually other grantees; Enforce ment- 3 main
                conditions
                   1. Subdivision carried out pursuant to a general scheme- uniform
                        scheme for development of all lots of the same character,
                        existing at the time the developer sells the burdened lot w/in
                        the scheme
                            a. NOTE- if the scheme arises later, it cannot impose
                                 burdens on lots previously sold w/out the burdens
                   2. grantees seeking enforcement purchased their lots in reliance
                        on right to enforce the restrictive covenant
                   3. grantee against whom enforcement is sought had actual or
                        constructive notice that the land may be subj. to a restrictive
                        covenant-
           iv. Method of enforce ment- injunctive relief
            v. Not enforceable against the original grantor! (Houghton v. Rizzo-
                Mass.)
                   1. ex- O owns everything- divides up into plots to create
                        residential community- sells A (w/ rest.), sells B (w/ rest.),
                        reserves rest for himself - O builds a factory
                            a. A & B can’t sue to enforce restriction- vendor has to
                                 bind the land in writing or it doesn’t count- no implied
                                 restriction arises on vendor’s own property until he
                                 conveys

3. Enforcement by or against assignees
     Requirements:
     a. Notice- actual, constructive, or inquiry
     b. Intent- contracting parties must intend that the servitude be enforceable by &
        against assignees- no tech. words required- ct. ascertains intent from purpose
        of covenant & surrounding circumstances
     c. Touch and concern requirement
             i. General rule- early cases focused on whether the covenant burdens or
                benefits a party in physical use or enjoyment of particular land (now
                seen as too narrow)- some covenants merely enhance the value of the
                benefited land, but they have been held to touch & concern the land


Real Covenants
1. Introduction
     a. Definition- covenant running w/ the land at law (i.e., a real covenant) is a K
        b/t two landowners, binding the successor in interest of each, that restricts one


                                                                                       71
        owner’s use of his land (the burdened estate) in a manner benefiting the
        other’s land (the benefited estate)- covenants may be either affirmative or
        negative
     b. Covenants Distinguished from othe r inte rests
            i. Equitable servitude- equitable servitude enforceable in equity (get
                equitable relief- injunction or SP) where real covenants enforceable at
                law (get money damages)
           ii. Easement- covenant is a promise respecting the use of land; an
                easement is a grant of an interest in land

2. Creation of Real Covenant
     a. Writing required
     b. Grantee bound w/out signing

3. Enforcement of Covenant by or against assignees
     a. Major issue - whether the covenant can be enforced by a successor to the
        promisee or against a successor to the promisor- this all depends on whether
        the benefit or the burden run to the assignees
     b. Requirements for burden to run at law
             i. Intent- contracting parties must intend that successors to the promisor
                be bound by the covenant- usually indicated by lang. binding the
                promisor’s ―hiers and assignees‖
            ii. Privity of estate
                    1. vertical privity- (b/t the orig. party & successor in title)- entire
                        estate be conveyed (eg.- adverse possessor isn’t in vertical
                        privity w/ orig. promisor since he takes a new title to land)
                    2. horizontal privity- (b/t the orig. promisor & the promisee)
           iii. Touch & concern the land- covenant must reduce the land’s use or
                value to the burdened property owner
                    1. BUT- ct.’s have req. satisfied where- burdened land touched
                        b/c covenant benefits it- (b/c burdened land worth more b/c
                        common areas maintained)
           iv. Notice- subsequent purchaser of the promisor’s land is not bound by
                the burden unless he has notice of the covenant before buying
     c. Requirements for benefit to run at law
             i. Intent- look to lang. of K- ―these covenants shall run w/ the land‖;
                ―the grantee promises for herself, her heirs and assignees‖
            ii. Privity of estate- only require vertical privity (here privity b/t the
                promisee & the assignee)
           iii. Touch & concern- benefit must touch & concern land owned by the
                promisee
     d. Privity of estate
             i. Horizontal Privity
                    1. running of the burden - U.S. rule- covenant must be created
                        in a deed of the property itself
                    2. running of the benefit – horizontal privity not required


                                                                                        72
      ii. Vertical Privity- For an assignee to sue on a covenant, assignee must
          be in privity of estate w/ the orig. promisee; for an assignee to be sued
          on a covenant, the assignee must be in privity of estate w/ the original
          promisor
               1. running of the burden- required succession to the estate of
                   one of the orig. parties; assignee must succeed to identical
                   estate owned by the promisor- if promisor has fee simple,
                   covenant runs only to a person who succeeds to that fee simple
                   (Currie thinks this is silly)
               2. running of the benefit- benefit will run to assigns of the orig.
                   estate or of any lesser estate, such as a life estate
     iii. ex.- Feider v. Feider- 2 bros. Promise divide family estate & write an
          agreement to right of first refusal to each other’s heirs & assignees in
          sale of land- heirs of 1 bro. later attempt to bind other bro. to promise
          by suing for injunction to prevent his sale of land
               1. Ct.- covenant doesn’t run w/ land since no horizontal privity-
                   agreement wasn’t contained in conveyance
               2. Currie- ct. was correct that there was no horizontal privity
                   BUT horizontal privity was not required! Two reasons:
                       a. Since there are assignees suing an orig. party- running
                           of the burden isn’t at issue- question is whether the
                           BENEFIT runs w/ the land!
                                i. Benefit clearly runs & heirs can sue as 3 rd party
                                   beneficiaries of the agreement
                       b. Assignees are suing in equity (for injunction)- in equity,
                           horizontal privity not required (see equitable servitudes)
     iv. Strawman- enable you to create a covenant b/t two people (A & B)
          with no privity burdening the land that runs at law
               1. A conveys to C (strawman) w/ covenant (no trailers)
                       a. horizontal privity- in a deed w/ conveyance of the land
               2. C conveys back to A w/ covenant (no trailers)
                       a. vertical privity
e. Touch and Concern
       i. Real Test- does it makes sense to tie the land up?- If going to tie the
          land up & reduce its alienability- must have a good reason & not a
          good reason unless its about the land itself
      ii. Ex.- N conveys ½ of his land to J w/ covenant for J to maintain flood
          insurance on the property & use proceeds to rebuild buildings in case
          of flood
               1. touches burdened land b/c proceeds have to be used to rebuild
                   on it
               2. NOTE- if J weren’t required to rebuild on prop w/ proceeds-
                   covenant wouldn’t touch and concern- would be considered
                   personal
     iii. Ex.- covenant (no gas station ) b/t seller of a parcel adjacent to his
          property and buyer- does it T&C?



                                                                                  73
                                     1. touches burdened land b/c limits use
                                     2. touches benefited land b/c it enhances its value
                             iv. Ex. - covenant (contribute a $100 year to a local cat hospital)
                                     1. doesn’t touch benefited land
                                     2. doesn’t touch burdened land- not enough to simply require
                                         owner to do some affirmative act not connected w/ the
                                         burdened land
                                             a. ownership of adjacent parcel has nothing to do w/
                                                 action (someone from St. Louis could pay the $100)
                              v. Ex.- covenant to pay fee to maintain common areas- (Neponsit Prop
     WHEN it                     Owners Ass’n v. Emigrant Industrial Savings Bank)
     touches or                      1. benefited land touched (neighbors’ land touched b/c of
     concerns the                        improvements in the neighborhood)
     land—benefited                  2. burdened land touched b/c covenant benefits it- b/c burdened
     or burdened                         land worth more b/c common areas maintained
                                     3. social need for this type of covenant- have to have some way
                                         for maintaining these common areas
                                     4. NOTE- homeowner’s association allowed to sue even though it
                                         directly owns no benefited land
                                             a. Property ownership assoc.- alter ego of the owner’s of
                                                 benefited property
                                             b. since they can sue (cov. Touches & concerns their
                                                 land), assoc. can sue
                      f.   Real Covenant Decision Tree- Running of the Burden
                               i. When it was created, did the covenant comply w/ the statute of frauds
                                  (in writing)?
                                       1. if N- not a real covenant
                                       2. if Y- go to (ii)
                              ii. Did the successor have notice of the burden before buying the land?
                                  (notice may be actual [knowledge of covenant in current or prior deeds
                                  w/ same restriction], constructive [covenant appears in grantee’s
                                  ―chain of title‖], or inquiry [physical appearance suggests covenant])
                                       1. If N- burden doesn’t bind the successor
                                       2. If Y- go to step (iii)
                             iii. Did the orig. parties intend to bind their successors?
                                       1. If there is express lang. in the covenant, like ―and their heirs,
                                           successors, and assigns‖ in describing the parties to the
                                           agreement, OR statement mandating that the covenant run-
                                           intent is clear- go to step (iv)
                                       2. If no express lang., modern court will imply if agreement
                                           ―touches and concerns‖ land- go to step (iv)
                             iv. ―touch and concern‖ - Is the covenant affirmative or negative – that
Sanborn: (MICHIGAN)               is, has the burdened property owner agreed to do something (positive)
reciprocal negative               or has he agreed not to do something (negative)?
easement...owner of 2 or               1. If affirmative- go to step (v)
more in gen. Scheme of                 2. If negative- go to step (vi)
development—sells one
w/ an EAS of benefit to
the land retained,
                                                                                                        74
servitude becomes
mutual, neither can do
anything forbidden.
        v. Affirmative- Did the burdened property owner’s promise consist of
           performing a stated act or undertaking a name d use of the burdened
           land that reduces the land’s value or use to him?
                1. If Y to any- it touches and concerns the land- go to step (vii)
                2. If N – doesn’t touch and concern the land- can’t run w/ the land
       vi. Negative- did the burdened property owner’s promise consist of not
           conducting a stated activity on, or making a stated use of, the burdened
           land?
                1. If Y to either- it touches and concerns the land- go to step (vii)
                2. If N- it doesn’t touch and concern the land (it’s in gross)- can’t
                   run w/ the land
      vii. Privity - Is there horizontal privity? Look at orig. parties- did the
           covenant accompany the transfer of an interest in land b/t them (e.g.
           landlord/tenant, grantor/grantee, mortgagor/mortgagee)?
                1. If Y- there’s horizontal privity- go to step (viii)
                2. if N- burden doesn’t run w/ the land
     viii. Is there vertical privity? Look at the relationship b/t the covenanting
           party and successor(s) in interest- did the successor in interest take the
           entire state?
                1. If Y- there’s vertical privity and burden runs
                2. If N- burden doesn’t run (NOTE- Currie thinks this is silly)
g. Real Covenant Decision Tree- Running of the Benefit Land
       i. When it was created, did the covenant comply w/ the statute of frauds
          (in writing)?
              1. if N- not a real covenant
              2. if Y- go to (ii)
      ii. Did the orig. parties intend to bind their successors?
              1. If there is express lang. in the covenant, like ―and their heirs,
                  successors, and assigns‖ in describing the parties to the
                  agreement, OR statement mandating that the covenant run-
                  intent is clear- go to step (iii)
              2. If no express lang., modern court will imply if agreement
                  ―touches and concerns‖ land- go to step (iii)
     iii. Touch & Concern- Is the covenant affirmative or negative?
              1. If affirmative- go to step (iv)
              2. If negative- go to step (v)
     iv. Affirmative- does performance of the covenant increase the use or
          value of the benefited land?
              1. If Y- touches and concerns the land- go to step (vi)
              2. If N- doesn’t touch and concern the land- doesn’t run
      v. Negative- does the promise increase the use or value of the
          benefited land (e.g., non-compete clause covering burdened land)?
              1. If Y- touches and concerns the land- go to step (vi)
              2. If N- doesn’t touch and concern the land- doesn’t run
     vi. Benefited- is there vertical privity? Look at the relationship b/t the
          covenanting party and successor(s) in interest. Did successor take


                                                                                  75
                 possession plus some of the estate (eg., life estate from fee owner,
                 sublease from tenant)?
                     1. If Y- there’s vertical privity, and the benefit runs w/ the land.
                     2. If N- no privity and benefit doesn’t run
     h. Covenants in gross- could the benefit be given to a person who doesn’t stand
        in shoes of benefited property owners & could he sue to enforce the covenant?
        (just like homeowner’s association)
             i. General Rule
                     1. benefit will run if the burden is in gross
                     2. burden won’t run if the benefit is in gross
            ii. Ex. - city conveys land to A (covenant for no buildings on strip that
                 may later be required for construction of strip)
                     1. does this convenant bind A’s successor?
                     2. City hasn’t retained any adjoining land
                     3. This is a covenant in gross that would run w/ the land & be
                        attached the land
                     4. Any reason we should have easements in gross BUT not
                        covenants in gross?
                            a. Brits.- covenants had to be appurtenant to benefited
                                land; had to touch & concern benefited land
                            b. no appurtenant land here, no city land here that can be
                                benefited- touch & concern req. not fulfilled
                            c. some cases in this country- covenant in gross can’t run
                                w/ land b/c doesn’t touch & concern the benefited land,
                                can’t impose a burden on the land except for the benefit
                                of some other land
                            d. some cases do come out the other way- recognize these
                                as socially beneficial restrictions on land

4. Termination of covenant
     a. General- covenant ceases to have legal force when change circumstance have
        made it no longer useful (Grange v. Korff)
           i. Ex.- covenant- residential use only- BUT over time other landowners
               move out & factories prop out all around this land
                   1. restriction merely destroys the value of land- covenant no
                       longer makes sense
                   2. changed circumstances doctrine- firmly est. at least in equity
                           a. Justification for doctrine- efficiency- against public
                               policy to destroy value of property w/out any
                               corresponding benefit to anyone




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NUISANCE
1. General
       a. Doctrine- nuisance is an unprivileged interference w/ a person’s use and
          enjoyment of her land- relief awarded at CL under basic maxim one must use
          her property so as not to injure that of another
       b. two types:
               i. Private nuisance- involves interference w/ the private use &
                  enjoyment of one or a number of nearby properties
              ii. Public nuisance- when the interference is w/ a right common to the
                  general public
       c. nuisance v. trespass:
               i. Trespass- right to exclusive possession, requires some intrusion,
                  damages don’t have to be proven, b/c P’s right of exclusive possession
                  is absolute
              ii. Nuisance- right to use and enjoyment, can be infringed w/ou physical
                  intrusion. P has to prove actual damages
2. Private Nuisance
       a. Definition- conduct that causes a substantial interference w/ the private use of
          land and is either
               i. Intentional and unreasonable; OR
              ii. Unintentional but negligent, reckless, or resulting from
                  abnormally dang. Activity
       b. Who can sue- anyone who is entitle to use & enjoyment of the land (owner of
          property, life tenant, lessee, holder of easement)
       c. Qualify as nuisance
               i. 2 require ments
                      1. Harm must be substantial
                      2. harm must be unreasonable (this got messed around w/
                           Boomer)
              ii. Rationale- property owners have right to use their land in most
                  manners- if label what they are doing as nuisance, then you are
                  limiting the right of the owner to use his own land- have to take into
                  account the interest of the owner in using his land
       d. Intentional nuisance- primary factor in determining is the unreasonableness
          of the interference w/ the neighbor’s use & enjoyment- an activity is labeled a
          nuisance when the gravity of the harm outweighs the utility of the actor’s
          conduct
               i. Gravity of harm- factors to consider
                      1. extent of the harm
                      2. character of the harm
                      3. social value of the use or enjoyment invaded
                      4. suitability of the use invaded to the locality; AND
                      5. burden on the person harmed of avoiding the harm
              ii. Utility of the conduct- factors to consider
                      1. social value of the primary purpose of the conduct
                      2. suitability of the conduct to the character of the locality



                                                                                       77
             3. impracticability of preventing or avoiding the invasion
     iii. Nuisance per se VS. Nusiance pe r accidens
             1. per se- activity that is a nuisance no matter where done
             2. per accidens- activity that is a nuisance only b/c of
                 surroundings in which conducted
e. Types of unreasonable interference
       i.  must take action- in order to be found liable for nuisance,  must
          have taken an action that could be labeled as a nuisance
             1. ex.- natural stagnant pond- attracts mosquitoes – NOT a
                 nuisance
                     a. owner didn’t do anything- there naturally
                     b. if make liable- then creating an affirmative duty
                     c. nuisance- usually requires an aff. act of interference-
                         don’t have that here
      ii. Character of the harm
             1. Depreciation of property value- use of property in a manner
                 that depreciates the value of surrounding property is not
                 enough by itself to constitute a nuisances- BUT it is an
                 important factor in proving a sub. injury to 
                     a. Ex.- cemeteries & funeral homes often labeled
                         nuisances
                     b. BUT aesthetic harms aren’t considered nuisance (ugly
                         house)- tastes are too subjective
             2. Discomfort- serious discomfort & inconvience in use of land
                 (noise, odors, or smoke) are another impt. factor in determining
                 a nuisance- standard of unreasonable inte rf. Measured by the
                 sensibilities of the avg. person
                     a. Sunlight- older cases held that cutting off a neighbor’s
                         sunlight by building next to the property line was not a
                         nuisance (Fontainebleau Hotel Corp. v. Forty-five
                         Twenty-five, Inc.) BUT view may change as result of
                         development of solar collectors providing cheap
                         energy- held that blocking a neighbor’s roof solar
                         collecter can be enjoined as nuisance (Prah v. Maretti)
                     b. Spite fences- erected solely to harm the neighbor and
                         of no eco. benefit to the erecting party- can be enjoined
                         as nuisance since has no social utility
             3. Character of neighborhood- use authorized by zoning-
                 zoning ord. Is admissible in ct. to show community policy w/
                 respect to desireable land use w/in neighborhood BUT local
                 zoning is NOT controlling, even though zoning may permit the
                 use generally, the specific activity may be carried out in such a
                 manner as to constitute an unreasonable interference w/
                 particular adjoining properties (Boomer v. Atlantic Cement
                 Co.)




                                                                               78
                      4. Social value of conflicting uses- one of primary objective of
                         law is to avoid more serious harm- if one party’s conduct has
                         great social value, ct will be reluctant to enjoin BUT if harm is
                         serious & payment of damages won’t shut the plant down, ct.
                         may order the payment of damages for nuisance & refuse to
                         enjoin the activity (Boomer)
                              a. Boomer- pro- case; said only do this cost-benefit
                                  analysis when determining whether or not to issue
                                  injunction or award damages, NOT whether or not
                                  something was a nuisance
                              b. no reason owner of plant should be able to externalize
                                  costs & appropriate neighbor’s property w/out paying
                                  for it
                              c. NOTE- ct. refuses to issue injunction b/c plant
                                  produces an enormous amt. of cement that we need-
                                  loss to neighbors is minor; ct. fails to look at total harm-
                                  Could be other neighbors, could be people miles &
                                  miles away
                              d. hyp.- Boomer situation, but plant not built yet
                                       i. assume that costs and benefits will be the same
                                          after it is constructed
                                      ii. BUT now the fixed costs have not been
                                          incurred- once these are set, will be more costly
                                          to shut down than the harm suffered
                                     iii. This is time to enjoin & cause them to move
                                          elsewhere to diff. location
                      5. Priority in time- another impt. factor is which of the
                         conflicting uses was first located in the vicinity- if ’s use was
                         first, the  has ―come to the nuisance‖ & has less appealing
                         case b/c she could’ve avoided the harm- assumed the risk
                              a. BUT- might argue buyer buys a preexisting cause of
                                  action when factory has been there polluting- Buyer
                                  buys right to use land- this is being interfered w/ by
                                  plant- should be able to recover the DIV of the plant


TAKINGS AND LAND USE CONTROLS
1) General
   a) Eminent domain- (police pwr.)- pwr. of the state & federal governments to take
      private property- this pwr. is limited by the 5th Amend.
   b) Fifth Amend.- ―nor shall private property be taken for public use, w/out just
      compensation‖- 5th amend. held applicable to states through Due Process Clause
      of the 14th Amend.
      i) Inte rests in land- Takings clause protects against takings of all interests in
          land (ex.- easements included but not licenses)




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   c) Four Elements- to determine if action is in violation of the 5 th Amend.- must
      show:
      i) Property taken was private property
      ii) A taking actually occurred
      iii) Property was taken for public use
      iv) There was no just compensation (market value) to the landowner
2) What is a taking?
   a) Physical Invasion- if the govt. physically invades property, w/out taking title, it
      has taken property per se and must pay for it, no matter, apparently, how trivial
      the invasion
      i) Ex- taking occurs when govt. opens private property to the public- Kasier-
           Aetna v. U.S.
           (1) Facts- Owner builds a marina & limits it to his customer & then digs a
               channel to connect to navigable waters, govt tried to argue that by digging
               the channel to connect to public waters owner can’t exclude peop le from
               property- this is unconst. says the ct., right to exclude is part of the
               fundamental rights
      ii) Ex.- statute authorizing private cable TV companies to install cable in apt.
           buildings over landlord’s objections is a physical invasion and taking –
           Loretto v. Teleprompter Manhattan CATV Corp.
      iii) Ex.- military airplanes fly over A’s chicken ranch causing so much noise that
           A’s chickens quit laying and A is forced out of business- taking- U.S. v.
           Causby
      iv) COUNTER Ex.- state ct. decision that dirty hippies may ex. free speech
           rights in large private shopping center not a taking since physical invasion
           didn’t ―unreasonably impair the value or use of their property as a shopping
           center,‖ indicating invasion for free speech may not be a taking- PruneYard
           Shopping Center v. Robins (Currie doesn’t think this came out right)
   b) Regulatory Takings (Inverse Condemnation)- occurs when govt. restricts a
      landowner’s use of property through reg. w/out paying compensation- no set
      formula for whether a govt. regulatory activity should be considered a taking- SC
      has applied each of following tests to determine when, based on particular facts,
      justice and fairness require that economic injuries caused by public action be
      compensated by the govt.
      i) Harm Test
           (1) Doctrine
               (a) Police pwr.- when reg. has purpose or effect of protecting the public
                    from harm (or prohibiting a nuisance)- noncompensable
                    (i) Ex.- Kansas law prohibits manufacture and sale of liquor- Brewery
                         owner claimed law forced him to shut down brewery- not a taking
                         b.c state was regulating a public harm - Property in country is held
                         under the implied obligation that the owner’s use shall not injure
                         the community- Mugler v Kansas
                    (ii) Scalia (Lucas v. South Carolina Coastal Council)- Taking is a
                         deprivation of an existing property right, so if you don’t have a
                         right to create a nuisance, the gov’t isn’t taking a property right



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                 when it limits the property in such a way to prevent uses which
                 might be a nuisance or something else the owner never had the
                 right to do
        (b) Taking- when reg. has purpose of extracting a public benefit- taking
            and owner must be compensated
        (c) Main idea- Public can’t extract a public good w/out paying for it, but
            it can prohibit an owner from making a nuisance of himself
    (2) Proble m
        (a) Benefits- all restrictions preventing A from harming B confer a benefit
            on B (eg. a zoning ordinance prohibiting the continuation of a
            brickyard in a residential confers a benefit on the neighbors)
        (b) Harms- when 2 landowners have incompatible uses, not proper to say
            only one is inflicting harm upon the other- each harms the other in the
            sense that each interferes w/ the other’s use of his land
ii) Severe Economic Loss
    (1) Doctrine- when an owner can no longer realize a reasonable return on his
        investment, a taking occurs regardless of the public benefit
    (2) Ex.- PA statute forbids coal mining that caused subsidence of any house-
        before statute enacted, coal company had sold surface right to land it
        owned to M, reserving right to remove coal thereunder- b/c statute made it
        commercially impracticable to mine the coal, SC holds statute invalid as a
        taking w/out compensation (Penn. Coal Co. v. Mahon)
        (a) Holmes- ―general rule at least is, that while property may be regulated
            to a certain extent, if regulation goes too far it will be recognized as a
            taking‖
        (b) Conclusion- ct. believes that if diminution in economic value goes
            too far it will be a ―taking‖
    (3) Ex.- Landmarks commission designated grand central station as a
        landmark and under law the landmark owner must be maintain the exterior
        in good repair and face other restrictions- owners prevented from building
        office building on top of station- SC says no taking since the landowner
        was left w/ some reasonable economic value in the property- (Penn
        Central Transportation Co v NY)
    (4) Scalia (Lucas v. South Carolina Coastal Council)- if you regulate in such
        a way as to take away a right of property owner so as to deprive property
        of value- this is a taking
        (a) CURRIE- he needs to go further- Loretto showed us that it doesn’t
            matter how small the taking is – its still a taking – so doesn’t have to
            completely deprive property of value to be a taking
        (b) BUT- can’t go to far down this road though
            (i) Holmes- govt. could hardly go on if to some extent values incident
                 to prop. couldn’t be diminished w/out paying for every such
                 change in the general law
                 1. States have been going beyond CL in reg. property rights
                     through police pwrs- not every reg. that limits use beyond CL
                     has been considered a taking (tradition)



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                      2. Long recognized some values are enjoyed under an implied
                          limitation & must yield to the police pwr.
   c) Reciprocity Test
      i) Doctrine- regulations that involve reciprocal advantages are not a taking- if
          regulated owners obtain some advantage (even if less than adv. obtained by
          others) reg. is w/in police pwr.
      ii) Ex.- taxes- effectively compensation in kind b/c you benefit from what govt.
          does w/ the tax money
3) Why Should the Govt. Have to Pay?
   a) Unjust Enrichme nt
   b) Fundame ntal Prope rty Rights- have right to exclude people from your property
   c) incentive to use of property- if people are to be encouraged to put the property
      to productive use, need to know that government will compensate
   d) incentive for govt. to consider the costs- if doesn’t have to pay, govt. doesn’t
      have to consider the costs – internalize the costs- force them to go through a cost-
      benefit-analysis- govt. won’t take the prop. if costs exceed the benefits
   e) equality- public benefits from seizure of land, if no pay than only landowner pays
      the costs; unequal & unjust for one person to bear the whole cost of a benefit for
      everyone




          H10 : O A for 10 years
                   Type of Leasehold: doesn’t involve seisen.
                           Term of Years technical term for lease hold interest
                             whose time is fixed.
                   State of title: O has a reversionary interest b/c didn’t give away
                     all he had. A has possessory interest. ANSWER : A has a term
                     of years, O has reversion in FS.
                   O has seisen.  A can’t have seisen, b/c A has no freehold estate.
                   What if: A B + heirs? B has term of years, and O has reversion,
                     O has seisen, A has nothing.
                   What if : A dies? A’s heirs gets it…
                   Term of years can be alienated, can descend, can be devised.

          3 Kinds of Leasehold:
           o Term of years:
           o Month to month, week to week: terminates unless renewed OR it
              continues unless someone exercises the right to termination when it’s up
              for renewal…interpretation of lease depends on total circumstances.
           o Tenancy at will:either landlord or tenant can terminate by giving notice.
              Can be statutory requirements of length of notice, but that depends on
              jurisdiction




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          Tenancy of substance: tenany holds over after the end of the
           lease really a type of tenancy at will. once the lease is up, tenant
           can be ejected/evicted at any time.

o SEISEN: just impacts the legality of transfer. Only freeholder has seisen;
  tends to be the estate in possession.

o H11 : O A for 10 years if A shall so long live.
       State of title: A has a determinable term of years ; O has a
         possibility of reverter and a reversion.
       2 things can terminate this estate: end of 10 years (reversion-
         natural), or A’s death (possibility of reverter- artificial)
       This isn’t a life estate: b/c if A lives for 10 years and a day, A
         doesn’t have a life estate.
       NOT A FREEHOLD: O has seisen. .
       Peeps used to use this to avoid creating a freehold estate in A—
         there were some things you couldn’t do if you conveyed a life
         estate in A.
       Suppose: O A for 1000 years? Still a determinable term of years.




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DOCUMENT INFO
Description: Vermont Quit Claim Deed Land Invalid document sample