Types of Ownership o Private Can transfer ownership to whomever they deem Theories justifying private property Occupational theory – occupation or possession determines property Labor – right to possession of something acquired through labor Contract – result of a contract between individuals and the community; patterns the behavior of society Natural rights – natural law dictates the recognition of private property; what is the natural law theory o A body of law or specific principle of law derived from nature and binding upon human society in the absence of or in addition to positive law o Refers to a moral theory stating that the moral standards that govern human behavior are taken from the nature of humans and as far as in regards to the legal aspect, at least some legal standards are derived from these standards Social utility – private property promotes maximum fulfillment of human needs and aspirations; make people happy o Collective – demonstrated in the Native Americans Automatic ownership – such as in a clan; moves through members of the collective Collective was though to be better because there would be no greed; survival of the fittest – potential abuse in an unregulated system Law of Finders o Finders are entitled to property against all but the true owner o Abandoned Has been placed by the owner in a certain location and then willingly left Voluntarily relinquished possession of the property No longer wishes to possess the property The finder owns this property because of the law of capture, but there is also the issue of who is determined the finder The issue of someone being hired by another, this is owned by the person for whom they were working The first person to capture the property has the right to it o Lost Unintentionally and involuntarily parted with Is in the possession of the finder against all but the true owner In the case of a company, it does not belong to the employee but the company because any number of employees could have been working that shift o Mislaid Has been place in a specific location by the owner and then forgotten about
The finder does not acquire rights, but the rights are possessed by owner(s) of the premise This is thought because the actual owner would be more likely to return to the premises than to some random finder The property is the right of the owner of the place where the item was found against all but the true owner o Treasure trove Refers to the antiquity, but again is specifically concealed by the owner Must have been concealed for such a period of time that the owner is probably dead or undiscoverable Encourages trespassing Salvage law This is preferred in cases of shipwrecks and sunken treasures because it is less competitive and secretive A main concern is preserving the artifact; there is sufficient award given for the services rendered, many times meeting and even exceeding the amount of property retrieved. o Possession Must show better claim to possession Prior possessor is going to prevail against the subsequent possessor Discourage someone from stealing because this would encourage multiple thefts due to the saying that whoever possesses has control The true owner would have prevailed over the trespasser o The subsequent possessor has not rights over the prior possessor, unless working as an agent for the true owner Bailment o There must be delivery and control There can be involuntary bailments, constructive bailments, etc. o A rightful possession of personal property by one who is not the true owner Requires mutual assent of a delivery of physical control and acceptance of control Bailee – person holding the property Holds for a certain purpose with the understanding that the property will be returned after that purpose has been completed Bailor – person handing over possession for a specific purpose true owner o Creation: Bailor must deliver the physical control of the property Must have the intent that the bailee will exercise control over the property o Should be analyzed in the following manner: Does a bailment exist? Are all the elements of a bailment present? delivery of control mutual assent acceptance of control
What is the scope of the bailment? expectation of care What standard of liability should be imposed on the bailee? gross negligence – bailor benefits (large amount of negligence) ordinary negligence – mutual benefit slight negligence – bailee benefits (little negligence is required) Who has the burden of proof and can it be satisfied on the facts? Often a presumption of negligence by the bailee, so it is the bailee’s burden of proof. Bailor must prove that a bailment was created, and the bailee must prove that there was not a misdelivery, negligence, etc. o Misdelivery – strict liability o Pete v Roth – held ordinary negligence in all cases (Mn) o Subrogation – when an insurance company pays an insured’s claim of loss due to another’s tort and then the company sues against the tortfeasor o Ejectment – an action at common law that is to determine the right to possession of property and for the recovery of damages and that is brought by a plaintiff who claims to hold superior title Adverse Possession o The non-permissive occupation of another’s land, which possession, if continued for the period of the statute of limitations on actions to recover land, will give the occupier the estate owned by the person then legally entitle to possession o The person in adverse possession of the land is the disseisor, and the displaced owner is the disseisee o Two aspects or divisions: There is a statute of limitations on actions to recover land Tolling – suspension of the running statute There is a judicially created doctrine of adverse possession Possession must be: o Actual Substantial and visible enough that the true owner is held to take notice of them o Open and notorious Attempting to notify the true owner of their possession o Hostile Determined by an objective test Should be able to look at the acts and not ask the intention, and if this puts you on notice, than there was hostile possession Not necessary to be intentional, but a mistake would be sufficient The fact of possession is enough o Exclusive Against all others o Continuous
How the true owner would have used the land Color and claim of title – the acquiring of property at the tax sale, but the failure to have the full title when they did not extinguish the true owners rights
o Inverse tacking Whether an adverse possessor will run the statute against successive owners of the record title Tacking – on squatter can transfer property without title to another squatter to tack on time o In the case of adverse possession, the title that is obtained is new, and original title The former owner’s title is said to be extinguished This comes from society’s desire that land should not be abandoned but should be kept in useful production, if not by the owner, then at least be someone o Adverse possession is a doctrine of repose It is not good that boundaries remain uncertain indefinitely o The policy issue behind this is that land should be used to its fullest extent We do not want someone to own land and just let is sit there The land should be productive o This is similar to abandonment because the owner is not using the property If they aren’t using it, then someone else should be allowed to Similar to the wild animal theory (capture) because there was no ownership over it before Whoever takes control should be allowed to do so Nuisance o The right of reasonable use o Common law zoning – an owner will not be permitted to make an unreasonable use of premises to the material annoyance of his neighbor if the latter’s enjoyment of life or property is materially lessened o The nuisance is dependant upon the reasonableness o Unreasonable activity or condition of the defendant’s land which unreasonably interferes with the use of the plaintiffs land o Trespass v nuisance: You can have a trespass even though there is not a physical invasion, there can be invasion by an object It is not necessary to prove that the conduct is unreasonable conduct or damages Non-permissive Nuisance is unreasonable activities Dust and smoke and other such things could be also considered to be trespass, since there are particles involved, and trespass can just include objects o There must be the weight of detriment and benefit between D and P to determine if an injunction is an appropriate solution, or if other alternatives would be better NIMBY – not in my backyard
o Coming to the nuisance: If the person causing the nuisance is first in possession o the air, and someone fixes habitation near him, the nuisance is of his own seeking and may continue o Traditional remedies: An award of monetary damages Equitable relief by way of injunction Harder to find There must be a balancing of equities to determine if injunction is the appropriate step o Factors to determine nuisance Location of the claimed nuisance Character of the neighborhood Nature of the thing complained of Frequency Effect upon the enjoyment of life and property o Public nuisance Affects the public as a whole rather than just one individual Claims are generally brought by a public prosecutor or other public official For an individual to seek public nuisance claims, there must also be a private nuisance experienced There would be two claims brought in one suit o Quiet title action – filed when there is question as to who owns the property o Land can have one person who owns everything or the land can be separated One person can own the land, one person can own the air, and one person can own the subsurface materials The rights can be severed o Air Inverse condemnation – when a governmental entity has engaged in some activity that a landowner contends amounts to a de facto taking of some property interest in the land, but the governmental entity has not brought an eminent domain action Easement – the right to do something to another’s property o Water Natural flow theory It is the right of every riparian proprietor to have the flow of water across his land maintained in its natural statue, not sensibly diminished in quantity or impaired in quality Based around the agricultural society This favors the lower riparian owner because the upper owner must be cautious about his use of the water o Problem is that the water is not supposed to be used off the site of the riparian owner Reasonable use doctrine
Allows full use of the watercourse in any way that is beneficial to the riparian owner provided only it does not unreasonably interfere with the beneficial uses of others This is the preferred theory Riparian rights Private rights enjoyed only be person in possession of riparian land o That which has a boundary on, or which is traversed by a stream, lake or pond Those that are adjacent to some body of water Rights: o Water of a certain quality o Water of a certain quantity o Right to use the water but there are conditions o Water can be used for power but there are conditions o Right to access and navigation of the water o Right to be free of flooding Surface water: trying to get rid of the water Common enemy rule: landowners had an unlimited privilege to deal with the surface water on their land as they pleased without regard to the harm which may be caused to others o As far as policy is concerned, the is no regard for others and this leads to chaos Self help issues tend to have a lack of control Civil law rule: recognized that higher elevation tracts had an easement or servitude over lower tracts for al surface water that naturally flowed downhill o If you put one more drop on neighbors land, you pay o Anyone who increase or interfered with the natural flow of surface waters so as to cause invasion of another interests was subject to liability to the other o Acted as an impediment to the improvement of land Reasonable use rule: a possessor of land is not unqualifiedly entitled to deal with surface waters as he pleases, nor is he absolutely prohibited from increasing or interfering with the natural flow of surface waters to the detriment of others o Each possessor is legally privileged to make reasonable use of his land even though the flow of surface waters is altered thereby and causes some harm to others o Liability is only incurred when his harm is unreasonable o Only altered the rule where land is improved There is a lack of predictability Underground or perculating waters: English or common law – similar to the common enemy rule o This says to take all you want without regard to the neighbors
Reasonable use – this give reasonable use to the person taking water from the ground ,and it must be used for some useful or beneficial purpose in connection with the land it was taken from o Any legitimate use, but doesn’t generally like use to be off the land Correlative rights – all rights are coequal, and one cannot extract more than his share of the water where others’ rights are injured o Used more where water is scarce Restatement rule – use for beneficial purposes without liability unless there is sufficient harm
o Land support Contiguous property – there is a duty of lateral support and it is absolute liability as long as the land is in its natural state There is strict liability if the land is in its natural state If the land would not have subsided without improvements (natural state), but does subside because of the improvements, than the standard is negligence Noncontiguous land There is a standard of negligence Transferring property o Transferability is a fundamental aspect of ownership of property o There are two parts to how property is transferred: Transfer while the owner is alive (inter vivos transfer-lifetime transfer) Most of these involve sales Voluntary transfer o Deed – written and signed Typical method used to transfer real estate by sale or gift Escrow agent – most sale transactions are done in conjunction to make sure that it is done correctly In the case of a gift, there is no need necessarily for an escrow agent, but you need to make sure it is recorded The deed is the consummation of the real estate contract because it is the transfer of ownership Is not a contract There are usually warranties in the deed: General warranty – against all others that have ever owned the property o Avoid when representing the seller o Typically see in the sale of real estate Special warranty – making representation to the time that you have the property Quit claim deed
Grantor must sign the deed and date it, and then the property is transferred Grantee is the recipient of the deed o Lease – a landlord’s transfer of an estate to a tenant for a limited period of time o Patent – transfer of title from the Government to a private owner Involuntary transfer o Eminent domain Property condemned for the building of a new street The court transfers the land to the government o Adverse possession There is no transfer of title but a new title is created Look at color of title o Sheriff’s deed Tax sale, mortgage foreclosure o Trustee’s deed Gives the trustee the ability to sell the property, even though they were just holding the property for the beneficiary To foreclose is to give the trustee the power to sell to satisfy the lien Transfer of personal property o A formal document of title may be used but is not necessary to transfer ownership of goods to a purchaser 2-401 o The transfer of formal title documents may be routine in some personal property contexts, such as with cars o The transfer of ownership of a variety of intangible personal property often entails the use of title documents, such as the transfer of stocks and bonds Transfer at or after the owner’s death Most are gifts There are two types of transfers at or after death o Testamentary – by will Always have as a backup A person’s declaration of what is to be done with his property after his death, which declaration is revocable during his lifetime and applicable to the situations which exists at his death Most states require only two witnesses, but some require three There are many different requirements across states, and the laws that determine the validity of a will are based on the law of any state in which it may be offered for probate
Because of this , the lawyer must be sure that the will is executed with the maximum formalities required in any jurisdiction Revocation A will may be revoked by a subsequent instrument executed with the formalities required for a will, though it does not itself make any disposition of the testator’s property A will may be partly revoked by a duly executed codicil o Makes a different disposition of part of the testator’s property When a new will is executed, there should be an express clause revoking all prior wills and codicils Will substitutes Most favorable choice by estate planners Joint tenancy o The property does not pass through probate estate because it transfers through the deed itself through right of survivorship o Once the first tenant dies, the survivor takes the property without requiring a transfer through probate Merely takes ownership Revocable intervivals trust – living trust o Transfer the property into a trust and it is revocable o Upon death the trust becomes irrevocable, and the successor trustees take control of the property o Immediate access to the property o Self declaration of trust o Good for if someone becomes mentally incompetant Payable on debt o If you have a certificate of deposit at the bank, and it says on death pay the proceeds to o Does not go through probate o Life insurance policy, as long as it is not the estate stated to take property A trust is created whenever legal ownership of real estate or personal property is
transferred to or retained by one person to be held for the benefit of another o Normally income producing property o Intestate – transfer under state statutes dictating how property will pass in the absence of a will Based upon two sources: English feudal law o Eldest male inherited to the exclusion of others o Where there were no sons, the daughters took equally o There was exclusion of inheritance by ancestors and spouses o Persons would inherit who were of the blood of the first purchaser English ecclesiastical law o If there were children, the spouse took 1/3, and if there weren’t, the spouse took ½ o Children took 2/3 with spouse and all without o Next of kin took half with spouse and no kids, and all if no spouse or kids Most modern statutes make no distinction between personal property and realty Heirs are simply those persons who are entitled to the property of one who dies intestate Estate planning documents o Revocable intervivals trust Will substitute Transfer the property into trust, either with a third party trustee or acting as your own trustee Self declaration of trust Can be revoked, changed or amended Good for if someone become mentally incompetent o Durable power of attorney for property decisions Power of attorney is an agency relationship where the agent acts on behalf of the principle Extension of an individual Can bind to transactions that are within the scope of the relationship Did not survive the incapacity of the principle Would end at death or at mental incapacitation If you follow the states statutes you can act on behalf of the principle even if there is the incapacity
o Pour over will Provides that upon death, if all assets are not in the RIT, all the rest will go to the trustee to divide o Durable power of attorney and living will – healthcare cases Living will – setting forth when you want life support disconnected This is set forth in great detail Important, but no enough because you would have to take it to the court to authorize the life support being disconnected Durable power of attorney – provides that you give the power to someone else to make the decision rather than having to go to the court to get authorization Responsibility is passed to another, but it makes the process easier Estates o Estate – an interest in land which is or may become possessory and is ownership measure in terms of duration A non-possessory interest in land may be created, but is not an estate Ex – a right of way other than an easement Burden on the land – an interest which subjects the ownership to a servitude Duration – how long the land may be held Seisin – possession under claim of an estate of freehold, and the person who was seized was the person who was responsible for the feudal services owed to the lord Only the various fee estate and the life estate are called freehold estates Landlord-tenant relationships are called non-freehold estates o Types of estates Present estate – an immediate right to possession Freehold estates o Fee simple absolute – the typical sale of residential property involves a transfer of the fee simple absolute from seller to buyer Ownership in owner or ownership group Not subject to divisibility like a split estate No future interests involved The largest estate known because of unlimited duration Words of purchase – who takes the estate and how To A Words of limitation – describe or limit the estate And his heirs No longer required to transfer a fee simple absolute o Now just put the name of the grantee Fee
Indicates an estate which is either of infinite or uncertain duration
Simple Distinguishes from fee tail Limited who could own the property Absolute Forever – cannot be cut short Heirs – the person or persons who, according to the statutes of descent and distribution in the particular state, are to inherit property of one who dies intestate Cannot be determined until death Words of inheritance – describe an inheritable estate, or one which does not end at the holder’s death, but which can be inherited if held at the moment of death When one has acquired a fee simple absolute, it does not follow that he alone has interest in the land which the law recognizes and protects Has the largest estate and is entitled to possession presently Of infinite duration o Defeasible fee estates Transfer in fee simple but keep a string so that if certain events occurred the estate might come back Fee simple determinable o Automatically terminates upon the occurrence of the event designated o Leaves a possibility of reverter in the grantor o The moment it has been breached, the adverse possession can begin Fee simple subject to a condition subsequent o Did not automatically terminate the grantee’s estate, but gave the grantor the power to terminate o Leaves a right of entry in the grantor o The issue of adverse possession cannot start until the power of termination has been acted upon Fee simple subject to an executory limitation o Shift to a third party Defeasible – may not last as long as a fee simple absolute Transferable by deed, will or intestacy Important policy matters
Defeasible fee Fee simple determinable Fee simple on condition subsequent
Future estate Possibility of reverter Right of entry or power of termination Executory interest
Fee simple subject to an executory limitation
The existence of a possibility of reverter or power of termination detracts substantially from marketability of the estate of the possessor If the condition or limitation is associated with land use, it may severely restrict that use Duration Transferability Potentially infinite, so long as event By deed, will does not occur or intestacy Potentially infinite, so long as the By deed, will condition is not breached and, or intestacy thereafter, until the holder of the right of entry timely exercises the power of termination Potentially infinite, so long as stated By deed, will contingency does not occur or intestacy.
o Fee tail Created an estate which would pass to the direct descendants only, and if there were not, it would revert to the grantor Grantor retained a reversion The fee tail lasted as long as there were lineal descendants Duration – for the life of the first take in tail and thereafter through succeeding generation so long as there are any living lineal descendants of the first tenant in tail Transferability – by deed, but the transferee acquired an estate which would end at the transferor’s death in favor of the latter’s bodily heirs Primogeniture – the rule of inheritance where land descends to the oldest son OBSOLETE Most common - converts this into a fee simple in the grantee, and any remainder shall be construed as an executory interest in fee simple to become possessory if the first taker dies without lineal descendants Next common – changes into a life estate with a remainder in fee simple absolute to the lineal descendants of the first take Least common – first taker has a fee tail and lineal descendants acquire a fee simple estate
Delaware, Maine, Massachusetts and Rhode Island have the fee tail o Difference – power to convey an estate and thereby bar the entail and all future interests limited to take effect upon termination of the fee tail by failure of issue
o Life estate Future interest Reversion in grantor Remainder in grantee Duration For the lives of the persons indicated Transferability – by deed only Life estate-future estate pattern of disposition may be implemented through the use of trust There is a separation of legal and equitable ownership The trust company has full legal ownership Rights: Has a possessory right of the property so if no one else has rights, he should be able to reap the benefits of the land Drawbacks The potential of having a split title The issue of marketability and getting both together Non-freehold estates o Leasehold estates Distinguishes a tenant’s interest from rights under a freehold estate Technically called chattels real, which means that, while they are interests in land, they are regarded for some purposes as personal, not real, property May be made defeasible by words of limitation or words of condition Routinely created as estates on condition subsequent Landlord wants to maintain as much control as possible and would not want the tenant to be able to bring about automatic termination by violating a limitation Future estate – the right to possession will be in the future; there is an ownership interest in the land, but there is no possession until the future date
Future estates created in the grantor o Reversion Created when grantor holds a fee simple absolute and conveys a lesser estate, such as a life estate Any future interest created in the grantor that is not either of the other future estates created in the grantor Must ask: What type of future interest is it? If and when it becomes possessory, what type of possessory estate will it be? Might be created in a will rather than a deed Created in the testator and transferred to the heirs at the very same moment – the moment of death Freely transferable by deed, will and intestate succession o Possibility of reverter The interest that arises in a grantor who conveys a fee simple determinable (or a life estate that is determinable) Subject to a condition precedent in that it can become possessory only upon the happening of the condition that terminates the prior possessory estate Difficult question of classification can arise if the estate that precedes the grantor’s future interest is not a fee simple Devisable by will and descendible by intestate succession Alienable inter vivos as well Several states have statutes which limit the period of time during which fee simple estates can be made determinable Upon the expiration of the prescribed period, the possibility of reverter is extinguished and the possessory fee simple estate becomes indefeasible o Indefeasible – not capable of being made void o Right of entry (power of termination) Left in grantor when he creates a fee simple subject to condition subsequent
A right or power in a grantor to take certain action which will terminate a possessory estate which the grantor has previously conveyed Cannot be created in any other person Not wise for the drafter to rely on words of condition alone to create a right of entry Words of reentry or their equivalent should also be included for the sake of clarity Several states have statutes which limit the period of time during which fee estates can remain subject to conditions subsequent Those always created in someone other than the grantor o Remainder Created in someone other than the grantor and becomes a present estate immediately upon and no sooner than the expiration of all prior estates created simultaneously with it If it fails to comply with any of the four rules, it can’t be a remainder and by default is an executory interest Rules: o A remainder must be created at the same time and by the same document that creates the prior estate o A remainder must follow a freehold estate, but cannot follow a defeasible fee simple o A remainder must not have the capacity to cut short prior estates o There must be no built-in time gap between the termination of the prior estate and the remainder’s taking of possession Unless a succession of remainders ends with a remainder in fee simple absolute, the conveyor will have retained a future interest As soon as a provision appears for a remainder in fee simple absolute, no further remainders can be added and nothing more remains in the grantor Contingent remainders Subject to the rule against perpetuities Subject to the rule of destructibility of contingent remainders Are not alienable inter vivos
Have either of the following characteristics: o The taker of the remainder is unascertainable o The remainder is subject to an unfulfilled condition precedent Alternative contingent remainders There is an express condition precedent for both possible takers Whenever a conveyance leaves a contingent remainder in fee as the final disposition, there is always a reversion in the grantor, and that reversion persists until the condition precedent is satisfied Rule of destructibility of contingent remainders A contingent remainder must vest on or before the termination of the preceding estate If it does not, it is destroyed When the life estate and reversion are held by the same person, all contingent remainders are destroyed when the life tenant gets the reversion Forfeiture might occur whenever the life tenant failed to perform his feudal obligations or attempted to convey a fee Where all interests were created simultaneously the vested estate did not merge so as to destroy the contingent remainder Destructibility compared to failure Failing simply means that the condition imposed by the grantor hasn’t been and cannot be satisfied Unless a contingent remainder is so limited that it will terminate on or before the death of the remainderman, it is devisable and descendible Vested remainder There is an ascertainable taker, and he is ready, so long as his estate continues, to take possession whenever and however the preceding estate ends This remainder is ready to take immediately upon the expiration of the previous estate o The taker is ascertainable and there is no condition precedent Three types:
o Indefeasibly vested remainder Certain to become possessory at some future time and certain not to be permanently cut off or cut down in size o Remainders vested subject to complete defeasance May come to an end prematurely Are not destructible under the rule of destructibility Not subject to the rule against perpetuities o Remainders vested subject to open (partial defeasance) A remainder in favor of a class of persons that is capable of increasing in membership A class will close at the time the interest becomes possessory Rule of conveyancing: A freehold estate could not be created to commence in the future o Cannot spring up at some future date Can not be created in one person wit hteh provision that it should automatically shift to another at some future date or upon the happening of a future event o Rule against shifting interests Three matters as to rules of construction If the conditional language comes later than the language granting the remainder, it will likely be said to create a condition subsequent If the conditional language comes before the language creating a remainder it is said to be a condition precedent Where there is doubt, courts express a preference for a vested condition o Executory interest Any future interest created in a third arty which is not a remainder because it fails to comply with one or more of the four rules Can take effect by springing or shifting
Can cut short the preceding estate (divest) Must take effect in someone other than the grantor, and must do so by way of automatically divesting either a possessory estate or a vested future estate, and only executory interests can operate in this way Rules relating to remainders: o Rule in Shelley’s Case The rule rewrites to the heirs of A as if it read to A and his heirs, and therefore there is a remainder in fee simple Criteria: There must have been an estate of freehold There must have been a remainder in the heirs or heirs of the body The estates must have been created in the same conveyance The interests to the heir and the ancestor must have been either both legal or both equitable The grantor must have used the words heirs in the technical sense o Using the words children or issue would make the rule inapplicable If all are met, there is a life estate in A and a vested remainder in A, which therefore vests, giving A a fee simple absolute This has been mostly abolished by statute o The Doctrine of Worthier Title Concerns a conveyance by the landowner to his or her own heirs, not the heirs of the grantee life tenant The remainder in favor of the heirs of the grantor is a nullity This leaves the grantor with a reversion that will become possessory at the termination of the life estate The remainder does not refer to the remainder of the grantee but instead the remainder of the grantor (comparing this to Shelley’s) o Estates in personal property The law of estates and future interest governing the disposition of real property is equally applicable to personal property A gift of consumable goods (bottle of wine) cannot have division of present and future interest o The rule against perpetuities
No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest Tries to assure that land will be alienable and not tied up in family or removed from the stream of commerce for unreasonable periods Policy Do not want to inhibit the mobility of property The rule of perpetuities can be ignored with dynasty trusts Focuses on the possibility of remote vesting Even if not probably, it could be possible Does not focus on likelihood, but on possibility If there is any possibility that the interest might vest after the end of the 21 years, it is void Interests covered Executory interests Contingent remainders Class gifts vested subject to open Must vest, if at all There must be no possibility that the interest will vest beyond the period laid out in the rule of perpetuities o Direct restraints on alienation Owners of land should be able to transfer it without regard to limitations imposed by their predecessors When ownership is so divided, a prospective buyer must contact and negotiate with multiple owners in order to buy a fee simple Types of restraints: Disabling – this is the worst because it makes the transfer of land void o To A and her heirs, but A shall have no power to transfer said estate without the grantor’s prior consent, and any attempted transfer shall be ineffective o On a life estate this is void o On a leasehold estate it is held to be void o This is pretty much always void Forfeiture o The grantor seeks to create an estate in the grantee which either automatically terminates upon an attempt to alienate or which is subject to a power of termination held by the grantor in such event o This is void on a fee o If limited in time or scope, there is some authority for upholding the restraint On a life estate there is authority for upholding On a leasehold estate it is held to be valid Promissory o This is the least offensive o On a leasehold estate it is held to be valid
o The grantor seeks to create a contractual promise by a grantee not to convey an interest in land which the grantee is receiving o If unlimited in time and scope in fee simple absolute, it is generally held to be void If reasonable, generally held valid o Law of waste The unreasonable use of the property by the owner that reduces the value of the future estate Types of waste: Voluntary waste o Someone decides they don’t like something and decide to change it, and from doing so, the value of the property goes down and up, but the down is more Per se voluntary waste o Removal of the substance of soil is this unless you can prove: Open mines doctrine – there was an open mine when the conveyance was created Doctrine of estovers – permitted the life tenant to cut timber needed for reasonable use of the premises Specific grant in the document stating that the life tenant shall have the right… Permissive waste o Breaches the obligation of repair o Ordinary wear and tear is an exception Ameliorative waste o Tear something down and rebuild, and there is no decrease in value o When there is a substantial change that does not decrease the value of the property or actually increases the value o Brokaw v Fairchild Doctrine of emblements Unless the instrument creating the life estate provides otherwise, the life tenants personal representative and not the holder of the remainder is entitled to the profits of the crop Marital estates o Common law – the purpose was to leave something in the widow or widower at death Dower - wife Applied to real property only – no personal property Provided a life estate in the surviving wife o 1/3 provided the husband’s estate was inheritable by the wife’s issue and that it had not been released during marriage
o Wife would receive even if there was no issue Curtesy – husband Broader than dower – husband entitled to all real property Requirement that the wife must have had issue born alive by the husband o Today – there is a protection provided for the surviving spouse and family in MO Family protection upon death of husband or wife; assets left in probate Certain property is exempt from creditors o Household furnishings, one car, etc Ability to have a family allowance o Allowance for living during the first year after death o Transitional money – up to the discretion of the judge Homestead exemption o A dollar amount up to 15,000 or 1/3 of the estate after the above two are received Option to elect against the will or intestate share o Take against if the surviving spouse is cut out or reduced Transfer of real estate without spousal consent is a fraud of the wife’s marital right Property owned individually or jointly can be pulled into the marital estate at a later date This is why husband and wife are both required to sign off Operates to require equitable division of property at divorce Common law states are like this Community property states Property acquired is owned 50/50 by the spouses o Irrespective of who truly owned o This works with salary as well Property acquired prior to marriage and truly owned by one party or property specifically gifted to one party and not the other is not deemed community property Concurrent estates – two or more persons own land together o Rights are equal in quality and are usually equal in quantity o Joint tenancy At common law, presumed to create a joint tenancy Four unities: Time – must arise at the same time Title – by the same instrument Interest – identical interests, in fee simple or otherwise Possession – common right of possession and enjoyment Right of survivorship Upon one joint tenants death, the other receives all rights Even if there is a will leaving property to someone else, that is found void due to the right of survivorship Can be severed and made into something else
As soon as severed, the joint tenancy becomes a tenancy in common and the right of survivorship is destroyed o Tenancy by the entirety Only exists between husband and wife Neither can sever absent the consent of both Still requires the four unities and has right of survivorship Each has an undivided right to possession All can occupy at once o Tenancy in common This is presumed to be created rather than a joint tenancy A tenancy by the entirety is still presumed in a conveyance to husband and wife Joint bank accounts o This does not have the same effect as in real estate Frequently a bank account is used as a will substitute or as a matter of convenience o Often times statutes are used to determine what is done in such cases o Other theories: Contract theory The survivor is entitled to the account balance as a third party beneficiary of the contract of deposit between depositor and bank Sustained as a will substitute Gift theory Survivor succeeds to the balance so long as the traditional gift requirements of intent and delivery are satisfied It must be shown that there is intent to gift the account o If you don’t sign the card, there is no delivery o When there is not total control, like when the donor can still withdraw, total control has not been relinquished and therefore was not gifted Totten trust Only the depositor has rights to make withdrawals from the account Beneficiary is only entitled to the account upon depositor’s death This creates revocable trust o It becomes irrevocable at the time of death o Every time a check is written, there is partial revocation Payable on death accounts Deposit is made in the name of the depositor alone The survivor only receives upon death o Two parties and one drains the account? Each owner has the right to withdraw all the money without liability An extended withdrawal was not extended to but rather a pooling of funds Such a withdrawal ends joint tenancy and changes to tenancy in common Causes of action o Action for partition
Out or in possession party is looking for a final settlement of all accounts and severance of the relationship o Action for accounting Out of possession tenant attempts to account for actual or imputed income for the real estate o Action for contribution In possession tenant forces the other for their share of the upkeep of the property