Property I Outline
“First in time” doctrine – first possession, first occupancy is extremely important.
Actual vs. constructive possession rules modify first in time rule if unfair.
Satisfies the principle of first in time.
When property is “discovered”, occupants have no rights. The discoverer is considered first possessor.
Ex. Indians occupied the land, but did not possess it. The discoverers took first possession (Johnson v. M’Intosh).
Inhabitants retain right to possession when land is conquered.
Conquerors are NOT first possessors!
First to possess – physical control, intent to control.
Blurred line between what constitutes possession.
In animals context, pursuit is NOT sufficient (Pierson v. Post)
Killing the animal is usually actual possession, or strong case of constructive possession if not taken
immediately (Ghen v. Rich)
Preventing another from taking possession is generally unfair and does not divulge possession (Keeble v.
Creation (chattel, land maybe):
Making something is essentially first in time.
Problem is with intangible goods (labor)
Ex. Journalists have interest in profits, NOT the news itself (INS v. AP)
Determination turns on which party has superior rights to the efforts.
At CL, ‘created’ ideas are NOT protected; only the chattels are.
Ex. Creation of scarf patterns; can be copied, but the actual scarves cannot be taken (Cheney Bros. v. Doris Silk).
There are statutory channels to protect ideas – copyrights, trademarks (NOT at CL)
Public interest concerns to allow imitation of ideas (Smith v. Chanel)
Property that is already owned.
Hierarchy of rights – determination of better title as to the other party, not to the true owner.
Only the true owner has superior title as to the whole world.
Title of finder depends on category of chattel.
Lost/Mislaid – ownership to finder except as to the true owner.
Abandoned – ownership to finder because true owner is said to have relinquished all rights.
Finder has superior title to all but the true owner. Third parties have no rights to recover on true owner’s behalf
(Armory v. Delamirie).
Property “embedded” in land is considered owned by the landowner (Hannah v. Peel)
Analysis turns on whether the property is “embedded.”
Also important is where the property is found – private or public land (McAvoy v. Medina)
Actual entry, possession, occupation
Open and notorious
Hostile to owner
Continuous (statute of limitations period)
Under ‘claim of title’
Theory is that adverse possessor gets new title when true owner can no longer bring an ejectment action.
Adverse possessor usually must be present (as often as the type of land dictates).
Land should be utilized, again in an appropriate manner.
Open and Notorious:
Others should notice the adverse possessor.
Does not require adverse possessors from being aware of the adverse possession.
Incentive for owners to monitor their premises.
Hostile to owner:
Must be without the owner’s permission.
Consent is only analysis – whether owner has allowed adverse possessor (Mannillo v. Gorski)
Does not necessarily mean constant. Behavior must be appropriate for the average owner of land (i.e.,
summer home does not necessarily need to be used year-round) (Howard v. Kunto)
Must not be interrupted by third persons, except where in privity.
Under claim of title:
Highly dependent on jurisdiction.
State of mind analysis.
If encroaching boundary by mistake, some courts hold the possession is not hostile (Van Valkenburgh v.
If known, possession is clearly hostile, but problem is of awarding the knowing trespasser.
Adverse Possession of Chattels:
Due diligence by original owner is required or property may be considered abandoned (O’Keeffe v. Snyder).
Is the property currently owned?
If NO: Who is the first possessor?
If YES: Which party has superior title?
Are the elements of adverse possession satisfied (actual possession, open/notorious, hostile to owner,
continuous, under claim of title)?
Possessory (Present) Estates
Fee Simple Absolute:
The highest form of ownership. Potentially infinite in duration, no services required.
“To A and his heirs” creates the fee simple absolute.
Keeps property in the family (may only pass to issue). Not freely alienable.
The fee tail transfer cannot be stopped by will (title will pass to issue despite testamentary conveyance).
Fee tail can be converted to fee simple with an inter vivos deed.
“To A and the heirs of his/her body” creates the fee tail.
“To A and the male (female) heirs of his (her) body” creates the fee tail male (female).
Estate continues during the life of the measuring life.
“To A for life” creates the life estate.
“To A for the life of B” creates the life estate pur autre vie (B is the measuring life).
Note: Traditional CL presumption of life estate has been replaced by presumption of a fee simple.
Estates of uncertain duration subject to specific qualifications or conditions.
Fee Simple Determinable:
Ends automatically if a certain event occurs.
May last forever if event does not occur.
Created using words of duration – “as long as” or “until”
“To A and her heirs, so long as liquor is not sold on the premises” creates the fee simple determinable (with
possibility of reverter in grantor).
Fee Simple Subject to Condition Subsequent:
Does NOT end automatically upon the happening of an event.
When the condition is broken, the grantor has affirmatively act to retake property.
Created using words of condition – “but if”, “on condition that”, or “provided that”
“To A and her heirs, provided that liquor is not sold on the premises” creates the fee simple subject to condition
subsequent (with right of re-entry in grantor).
Fee Simple Subject to Executory Limitation:
Created when a future interest is created in another person/transferee.
“To A and her heirs, but if liquor is sold on the premises, then to B and his heirs” creates the fee simple subject
to executory limitation (with the executory interest in B).
Future Interests retained/created in the grantor:
Will CERTAINLY become possessory when the prior estate terminates.
Created whenever a smaller estate is conveyed to another.
Follows the life estate. Reversion occurs after the life estate ends and the grantor retakes possession.
Ex. When grantor has fee simple absolute and conveys a life estate, there is a reversion.
Possibility of Reverter:
Follows the fee simple determinable. The possibility of reverter is a future interest that may or may not
provide possession. If the determinable event occurs, the possibility of reverter gives the grantor
possessory rights automatically.
Adverse possession is a risk when grantor does not know the transfer has occurred.
Right of re-entry:
Follows the fee simple subject to condition subsequent. The grantor has just that – the right to re-enter
and take the property back when the condition is broken.
Future interests created in grantees/transferees:
May be vested or contingent.
Must become possessory, if at all, immediately upon termination of the prior possessory estate.
Remainders may NOT divest prior interests.
Held by an ascertained person (in being).
AND, no condition precedent – becomes possessory immediately upon termination of prior estate.
May be contingent because the takers are not yet ascertained.
Ex. “To A for life, then the heirs of B” creates a contingent remainder in B’s heirs if B is still alive (heirs not
OR, may require a certain event occur other than the termination of the prior estate (condition
Ex. “To A for life, then to B and her heirs if B survives A” creates a fee simple contingent remainder subject to
condition precedent in B (B must survive A to take possession).
May be springing or shifting.
Divests either another transferee or the transferor in the future.
Shifting Executory Interest:
Divests an interest held by another transferee.
“To A for life, but if A goes bankrupt, then to B” creates a shifting executory interest in B that would divest A if
she went bankrupt, before the life estate’s natural termination.
Springing Executory Interest:
Divests an interest held by the grantor/transferor.
“To A when she is 21” creates a springing executory interest in A that divests the grantor when A turns 21.
Rules relating to future interests:
Destructibility of contingent remainders:
Contingent remainder that does not vest at or before the prior freehold estate terminates is destroyed.
Continuity/abeyance of seisin problems, enhances alienability of land.
“To A for life, then to B and her heirs, provided B is 21”—the remainder is contingent upon B turning 21. If B is
NOT 21 when A dies, B’s remainder is destroyed and grantor takes possession.
Doctrine of Merger --
Merger applies to combine lesser estates owned by the same person.
“To A for life, remainder to B and her heirs” creates a vested remainder in B. If A conveys the life estate to B, the
estates merge to give B a fee simple absolute.
Rule in Shelley’s Case:
Used to avoid feudal duties.
Creates life estate in A
Creates remainder in “A’s heirs (heirs of A’s body)”
“To A for life, then to A’s heirs” gives A the vested remainder in fee simple (or fee tail) in A.
Doctrine of Worthier Title:
Inter vivos conveyance from grantor to grantor’s heirs does not create a future interest.
It gives the grantor a reversion.
“To A for life, then to O’s heirs” creates a reversion in O instead of a contingent remainder in O’s heirs.
The Rule Against Perpetuities:
Stated – No interest is good unless it must vest, if at all, not later than 21 years after some life in being
at the creation of the interest.”
ONLY applies to NONVESTED interests – contingent remainders, executory interests, including vested
remainders subject to open (considered nonvested for the purposes of the RAP).
Measuring lives must be alive (in being).
Probability is NOT a concern when applying the RAP – one example of a violation is sufficient to destroy
the future interest.
Traditional CL rule did not care if the condition is actually met during the perpetuities period – it was
invalid from the creation.
Modern RAP may allow wait-and-see approach to see if contingency actually vests.
“To A for life, then to A’s children when they turn 21.” – the RAP does NOT destroy the contingent remainder
because it must vest (if A has children they must turn 21 within 21 years of A’s death) or it must fail (if A has no
children at death). The contingent remainder has NO chance of vesting after 21 years of A’s death – A cannot
have children after she dies.
“To A for life, then to A’s children when they turn 25.” – the RAP DOES destroy the contingent remainder. There
is a possibility that the interest WILL NOT vest within 21 years of A’s death (if A has a child at death, it will satisfy
the condition 25 years after A’s death, 4 years too late). The interest would be destroyed by the RAP NOW.
Estates with interests arising at the SAME TIME.
All interests below share common characteristics.
All tenants hold separate but undivided interests in the property.
Property held in joint tenancy is subject to survivorship.
Interest dies with cotenants – there is nothing to convey upon death.
“To A and B as joint tenants” creates a joint tenancy. If A dies, her interest disappears and B gets everything.
Time -- Interest of the joint tenants must vest or be acquired at the same time.
Title – same instrument or joint adverse possession.
Interest – tenants must have equal undivided shares, same durational interest.
Possession – right to possession of the whole.
Destroying the joint tenancy:
Inter vivos deed – destroys unities of time and title. Remaining tenants will hold as tenants in common.
Strawman traditionally required, but some jurisdictions do not require it (Riddle v. Harmon).
Joint tenancy may only be destroyed during life – once the tenant dies, survivorship divests the interest.
Tenancy by the entirety:
Separate but undivisible interest in property.
Subject to survivorship.
In addition to the unities of joint tenancy, the tenants must also be married.
Neither tenant, acting alone, may do anything.
Terminating the tenancy by the entirety:
Divorce destroys unity of marriage.
Tenancy in common:
No survivorship rights.
Interest is created if unities are not met, or otherwise not specified by grant.
Unity of possession is only unity that must exist in the tenancy in common.
o All cotenants have undivided interests, with no exclusive right to any part of the property.
Each tenant’s interest may be conveyed inter vivos or by testament.
Attempts to divide undivided interests.
Two types: partition in kind (physical division) or partition by sale (function of judicial equity).
Presumption towards partition in kind.
Partition by sale is ONLY permitted if partition in kind is somehow not possible.