How to use:
There are two outlines, "Big Property Outline #1", which consists of a large collection of notes of the various things covered in class, and "Condensed Property Outline #2", which consists of a smaller more condensed and arguably more useful set of notes.
I don't encourage law students to copy this or any other outline prepared by another, but rather, read through it and use it to gap-fill or review the subject matter. I do encourage students to copy the strategy of writing a condensed outline for the final rather than bringing in a giant 80+ page behemoth into finals, provided they are open book/open note. Honestly, I'd prepare short-form outlines even if it was closed notes, just to use as a study aid.
Before using or relying upon this outline, please refer to this website's disclaimer.
Big Property Outline #1 (.doc file hosted here, on Dropbox)
PropertyFinding
Goddard v. Winchell (1892)
- Facts
o Goddard (P) owner of section of land where meteorite fell, Land leased to Elickson
o Meteorite dug out of the ground by Hoagland, in presence of Elickson, Hoagland claimed ownership, sold it to Winchell (D) for $105
o P ordered writ of replevin for meteorite to D. District Court Found:
* Meteorite became part of the soil when it fell, therefore the property rights of the meteorite resided with P, the established owner of the land
- Issue
o Is the meteorite part of the land and thereby already under the ownership of the landowner (P), or is it an undiscovered thing that is not owned, which may belong to the finder (D)?
- Holding
o Affirmed: Meteorite became part of the land and under ownership of the landowner (P).
- Rationale
o Rule
* Finder of lost articles, even when found on a property, is the owner except for the true owner.
* But this doesn’t apply because it became part of the earth and should be treated as such, ownership retained by owner of the land.
o Reason/Application
* Distinction between movable things and things affixed, so that something in or attached to the earth permanently is a part of the property, NATURALLY, no matter from whence it came – like a meteorite. It was not an unclaimed object, as it is a rock firmly imbedded in the earth.
- Thoughts
o May not apply if not imbedded. Is a necessary quality, must be affixed, as a part of the earth, imbedded in the land. But that seems like a silly distinction. What about rocks on the land? Those would be indistinguishable from the land, whereas the meteorite is unique AND not imbedded. Is dependent upon the ‘fixture’ definition.
o Is item part of the land?
* 1. If natural. Most courts disagree with this factor, however.
* 2. If it is buried or imbedded in the land. Most courts agree with this point.
o Shifting of boundaries, if that were the case:
* 3. Accretion. Gradual change of land boundaries through gradual deposits of soil or erosion over time by a river or stream. Eroded land owner loses, too bad so sad.
* 4. Avulsion. Like accretion but sudden. Result is that the boundaries stay as they were.
o What if Hogland was a trespasser, and did not have permission to be on the land? Relevant? Not if in either case, it belongs to land owner. But if item was not affixed, trespasser would not have finder claim. [Brown, The Law of Personal Property (1975)]
* Would not want to reward trespasser as a matter of public policy.
o Policy
* Finder rule is good for policy, as it supports industrialization and economic discoveries
* Landowner rule protects private property, personal security, economic interests, etc.
Eads v. Brazelton (1861)
- Facts
o Brazelton (P and appellant) discovered wrecked steam boat America
o Eads (D), a firm of wreckers that recovered property from the wreck that Brazelton held claim to
o P issued injunctive order and to recover property/compensation for what had been taken
o Boat and cargo was wholly abandoned by the owners many years prior
o P fastened buoy to wreck, marking it
* It was a temporary buoy, not a permanent fixture, and had no other claim to the wreck
o D started loading up lead before P got back to the boat, but after P marked it
o Lower Court Decision:
* Decree enjoining interference by the defendants and awarding damages to P.
- Issue
o Was the claim of occupancy and the temporary buoy sufficient to mark the claim?
- Holding
o No, it was not sufficient. Reversed lower court ruling in favor of Eads (D).
- Rationale
o Rule
* The occupation or possession of property lost, abandoned or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession.
o Reason for the Rule
* Brazelton’s marking with buoys or marking trees was not sufficient to take into possession.
o Application of Rule
* D did not violate P’s claim because it wasn’t taken into possession.
- Thoughts
o Did Brazelton do enough to gain possession? That is the key question here: To determine what is sufficient to gain possession.
o Court requires an “actual taking” Court says that the P did not do enough to take, so they support the D.
* Actual taking means reducing to possession. What qualifies, depends on the circumstance and the nature of the property involved.
* Court would have been satisfied if the boat was there with equipment. It just wasn’t far enough given the circumstances.
o What about in a hunting situation, where one hunter has been chasing for a long time but another takes it right before capture?
* Court says must have actual capture before any claim exists. Maybe some rights if fox was mortally wounded. Good chance of capture is not enough.
* It would have led to more disputes, more claims over things. A clear rule of possession makes it clear and simpler. Also, rewards and encourage successful pursuits. Contributes to a productive society.
* But, subject must be subject to capture. Will not apply for an object such as a plot of land. Can’t just put it in your pocket. Or if it is affixed to the land, like a meteorite.
o What makes a thing subject to capture?
* Must be abandoned, and generally, is subject to the first one to take it into their possession.
* Beehive, if leave, not subject to capture because of their propensity to return to the hive, which is owned by another.
* Fish thing. If something is released and the intent is to release control, then it is out there.
Popov v. Hayashi (2002)
- Facts
o P and D attended baseball game and tried to catch home run ball, worth a lot of money
o Initially landed in the upper part of the glove of Popov (P), which stopped the trajectory of the ball but was not clearly secure. P was beaten up by the crowd and lost the ball.
o Hayashi (D) found the ball loose and picked it up. D did not assault P or commit any wrong to him aside from taking the ball into his possession.
o Critical finding of fact, if P had clear possession, is not shown by the evidence
o P claimed conversion, trespass to chattel, injunctive relief and constructive trust.
- Issue
o Did Mr. Popov achieve possession or the right to possession as he attempted to catch and hold onto the ball?
- Holding
o Both individuals have equal claim, and the value of the property is equally split between them.
- Rationale
o Rule
* The first person to come into possession of abandoned property becomes the owner of said property.
* Possession is difficult to define and depends on the circumstance. Generally, possession requires physical control and a manifest intent to control it or exclude others from it.
* D argues that the first person to pick up a loose ball and secure it becomes its possessor
* P argues that whomever manifests intent by stopping forward momentum of the ball is the possessor, regardless of complete control.
* In this context, the expectation is complete control as a requirement for possession.
o P did not have complete control, but only due to unlawful acts of others, i.e. assaults from the crowds.
* Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. This interest constitutes a right to possession which can support a cause of action for conversion.
* Pre-possessory right does not establish a full right to possession that is protected from a subsequent legitimate claim.
* Equitable division of property rights to resolve competing claims between finders of lost or mislaid property.
o Application of Rule
* Ball must be sold and the proceeds divided between P and D.
- Thoughts
o Conversion is wrongful exercise of control over someone else’s personal property.
o Constructive possession: sort of fictional possession, or legal but not necessarily actual
* May be sufficient to have constructive possession, or as much as circumstances reasonably allow.
* Court not generous with a baseball because it is small and easily taken into actual possession
o Equitable division okay if both have equal shares, valid claims, innocent and nobody at fault
o Keron v. Cashner
* Five kids, one finds an old sock, out comes money when torn.
* Kid who found the sock says it is his, but the court says that the possession of the sock doesn’t mean that he has the possession of the cash inside.
* But if it is a wallet, then it can be reasonably expected that there is a wallet and his intent would be to exercise control over the cash inside. But a sock, less obvious.
Armory v. Delamirie (1722)
- Facts
o P is a chimney sweeper who found a jewel and took it to D’s shop.
o P refused cash offer and wanted the jewel back, to which D refused because D’s apprentice took the gems out of the jewel.
- Issue
o Does P have a right to the property, which was found, such that D cannot take it into his possession and claim ownership of it?
- Holding
- Rationale
o Rule
* Master is answerable for the neglect of his apprentice.
* The finder of a thing will enable him to keep it against all but the rightful owner
o Application of Rule
* D must either present the jewel and give it back, or the court will assume it is of the finest quality possible and will award P the value assumed in that most favorable light.
- Discussion
o Facts
* Apprentice took jewels, just gave ring back to chimney sweep
* Both are finders
o Difference between prior cases?
* There is most likely a true owner out there somewhere, neither of the folks in the dispute.
o Who Wins?
* The chimney sweep
* Because the finder has a claim to the property against all but the actual owner.
o Other fact situation
* What if P had stolen it?
* Most courts would say it has no effect, as counter intuitive as it seems.
* What if D was land owner?
* Depends if it was imbedded. Will be able to answer this more.
* What if P lost the ring, in that ring is lost, found by 1 and lost then found by 2, finder 1 has claim above 2. Rank of claim: True owner, finder 1, and then finder 2.
* Wild animal analogy would say that claim is lost after loosing the article
* But courts say no, in that finder 1 would have priority over finder 2.
o Why? It’s a simpler rule. Analogy is not sufficient because there is no actual possession. Finding encourages industriousness and productive economy; prevents further taking down the line – it would reward stealing from finders.
o Rules of finder as of yet
* Finder has claim to all, except
* 1. True owner; 2. Imbedded things (then land owner), 3. Trespassers
o Do finders owe duties to true owners?
* Duty to find the true owner, or to exercise reasonable efforts. Is a state by state thing, but generally this is the case
* To return it to the true owner (miss-delivery), to keep the item in good condition.
Bridges v. Hawkesworth (1851)
- Facts
o D shopkeeper, P traveling salesman who sold things to D.
o P noticed a package on the floor of the shop and gave it to D.
o Package was full of money, and P requested that D return them to the owner.
o Three years elapsed and nobody took ownership, and so P sought to take possession as the finder.
- Issue
o Do the circumstance of the money being found in the D’s shop give him a claim to ownership despite P finding the thing?
- Holding
o No. P found it, P has claim, despite where it was found.
- Rationale
o Rule
* Finder to any article has right to ownership against all except the true owner.
o Application of Rule
* Notes were never in the possession of the D, nor within the protection of his house before they were found, and so the D came under no responsibility.
- Discussion
o Issue here is finder versus landowner: who has claim to the found property?
* A true owner would trump everyone. But between finder/land owner
* Stronger claim in Armory because: it’s a public shop instead of a private home, so it should be more fair game; item is clearly unattached and not buried
* Weaker claim because: There was a third party in Armory, here it is an actual land owner where the article was located;
o Court rules for the finder against landowner
* Notes being found on shop keeper’s floor because it is unattached, shop keeper didn’t have possession, and it is a public location.
o Hypotheticals
* What if item was located in a storage room in the back, or in a manager’s office?
* May be regarded as less public and the item not subject to finder’s rule. Priority may go to land owner instead of finder.
* Private club but located near the door?
* Maybe, if it still seems like a wide open public space. It’s questionable.
o “Mislaid property”
* Something unintentionally left in a place, purposefully and knowingly placed there but forgotten
* “Lost” may mean that it was never intended to be placed in it’s location at all.
* Courts apply finder rule for lost items, but not mislaid. If mislaid, then land owner has priority over finders.
* Objective/purpose is to return the item to the true owner. Thought is that if mislaid, a true owner would be more likely to retrace their steps and recover the article.
* How to decide if an item is lost or mislaid?
* Something found on the floor, more likely to be dropped. It is based on all the circumstance. This is decided by the finder of fact.
South Staffordshire Water Co. v. Sharman (1896)
- Facts
o P = employer of D and land owner
o During the course of employment, D found gold rings while cleaning out a pool
o P demanded the rings, but D refused and gave them to the police
o Police did not find real owner, returned them to D
o P sued D for recovery of the rings
- Holding
o Judgment for the P.
- Rationale
o Rule
* The possession of land carries with it in general… possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also.
o Application
* Rings were buried in the land, and therefore a part of it. When uncovered, it still had ownership with the title holder, not the finder.
* Expands the definition from Goddard to unnatural objects, like rings
o Reason for Rule
- Discussion
o Facts
* Gold rings at the bottom of a swimming pool in mud. (almost certainly lost, not mislaid).
o Court finds for the land owner over the finder
* Rings were imbedded in deep mud and therefore owned by the land owner.
o Hypothetical
* If found on the grass, not imbedded in the dirt?
* Would likely have a different result, provided finder is not trespassing.
* What if found on a table?
* Land owner due to mislaid rule.
o Distinguished from Bridges case
* Rings located in a private place rather than public. Also, imbedded.
* Finder is an employee rather than a visitor/independent agent, may give claim to employer
* Some courts agree, other courts deny relevancy of scope of employment, but most courts disagree and say that employee/employer relationship does not matter (exception if it is a part of the employee’s duty to return items, such as hotel chambermaid).
o Hypothetical
* Would it make a difference if it was a public pool?
* Would be more fair game and a stronger case for the finder. But it would still be imbedded, so the land owner may still have priority.
o Hanna talks about this case
* Says that the court says employment factor makes a difference. But not really.
* Employment argument: if finder acts within the scope of his/her employment, item belongs to employer
* Most courts disagree, saying that priority goes to finder, not employer, even if finder finds it while in the scope of employment
* BUT if it is part of the employee’s duty to report find things, then it may be relevant
Hannah v. Peel (1945)
- Facts
o D owner of house, but having never lived in it, rented it out.
o P stationed at the house, found a brooch hidden in a crevice in the house
o P gave it to police, but was unclaimed. Police gave it to the D, who sold it.
- Issue
o Owner of land or finder has title for an object not attached, but hidden within or in a property?
- Holding
o Finder has title, never in possession of owner, who didn’t know it was there, and it was not affixed.
- Rationale
o Rule
* Finders keepers.
- Discussion
o Court says: Rule for finder
* 1. D never occupied the house, 2. Absentee owner, 3. Item not affixed,
* House was requisitioned, and so it, arguably, made the house more like a public place, and therefore more of a fair game item.
o Reason for affixed rule relevancy?
* Able to exercise control over the land and all the things it controls. If absentee, not exercising dominion. BUT even if not there, still your house. No legal obligation to occupy what you own.
* What if occupied?
* Maybe less fair game for a finder.
o Knowledge not a factor if imbedded, it goes to landowner (South Staffordshire)
* But if landowner knows and it is loose, then the landowner is sort of the finder?
* Not sure.
o Container found and contents?
* May take a container, but may not indicate you are the possessor of the contents
* Deemed to be in possession if you have the intent to exercise dominion over that thing. Unconscious possession is not recognized. Must have intent. So unknown object in a thing doesn’t count.
o Once abandoned, even the original owner looses claim
* Abandoned but imbedded?
* Landowner, because it’s imbedded.
McAvoy v. Medina (1866)
- Facts
o D barber and P customer in D’s shop
o P found pocket book lying on a table, lost. D counted the money, P told D to keep it if the owner returns.
o Later P made demands for the money, and D didn’t.
- Issue
o Who had title of pocket book?
- Holding
o The D barber.
- Rationale
o Rule
* Finder has claim against all except true owner, and the place where it is found is no exception.
* To place a pocket book upon a table and forget to take it away isn’t the same as losing it in the same sense of lost property.
o Application
* P acquired no original right to the property, as the shop keeper was responsible for this kind of abandoned property in this context.
- Discussion
o This case illustrates the mislaid vs lost rule
* Mislaid if intentionally set down. Then it belongs to landowner
* Purpose: if mislaid, true owner more likely to retrace steps and return to place where it was laid down. Want to have the item remaining there, where it was laid down.
o True owner have a cause of action against shop keeper?
* Some duty owned by the shop, landowner. There is a duty to keep it there, a duty to protect the property owed by the landowner.
* Duties of a finder to the true owner?
* Reasonable attempt to find the owner, and to maintain the lost item.
* There are benefits, such as becoming the owner after an item is left abandoned for a period of time.
Schley v. Couch (1955)
- Facts
o R landowner employed P to finish cement in the garage floor.
o When digging, P found $1000 in cash buried
o A prior owner of the garage claimed that he had buried money in the garage
o Prior owner of garage tried to sue, but was unsuccessful to reclaim the money. Owner declared unknown.
o R sued P for money and damages
- Procedural History
o Jury ruled that the property was mislaid and not lost, and therefore verdict in favor of R landowner at trial
o Appeals reversed and claimed the property was neither lost or mislaid, but a 3rd category “treasure trove”
- Issue
o Is property mislaid, lost or treasure trove?
- Holding
o Affirmed trial court ruling. Property is mislaid and in favor of R landowner. Property was mislaid.
- Rationale
o Rule
* Treasure trove: if left buried, hidden treasures, only applies to gold, coin, bullion, silver, etc., left by Romans or whatever - finder keeps.
* Not recognized by Texas law previously, no statutory law supporting it, is ancient in origin. Not recognized, but is merged with lost goods category.
* Lost: that which the owner has involuntarily parted with through neglect, carelessness or inadvertence. Finders keepers.
* Mislaid: owner intentionally places it somewhere but forgets to pick it up. Landowners keepers.
o Application
* Bills were left purposefully, not inadvertently or through neglect. Since it was buried, seems very much not on accidently placed there.
- Discussion
o Jury said it was mislaid, which makes sense.
* But even if lost, it was buried and so it may be considered attached because it was buried.
* STRONG case for the land owner
o Treasure trove applies to buried things, money and whatnot, then it would go to finder
o What if 104 years, abandoned, but finder is trespasser?
* An additional reason for the landowner
Statutes on Lost and Found Articles
Examples from New York statutes.
- §1. Definitions
o a) The term “lost property” as used in this statute includes lost or mislaid property. It also includes property claimed to be abandoned, unless an action commenced within six months after finding validates that claim.
o b) The term “owner” as used in this statute means any person entitled to possession of the lost property as against the finder and against any other person who has made a claim.
o c) The term “finder” as used in this statute means the person who first takes possession of lost property
- §2. Deposit with Police
o Except as otherwise provided, any person who finds lost property of the value of ten dollars or more or comes into possession of property of the value of ten dollars or more with knowledge that it is lost property or found property shall, within ten days after the finding or acquisition of possession thereof, either return it to the owner or report such finding or acquisition of possession to the police and deposit such property in a police station of the city where the finding occurred or possession was acquired. Except as otherwise provided, any person who shall refuse or willfully neglect to comply with this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one hundred dollars or imprisonment not exceeding six months or both.
- §3. Duties of Police
o Except as otherwise provided, lost property shall be kept in the custody of the police for the following periods, unless sooner delivered to the owner: property having a value of five hundred dollars but less than five thousand dollars, one year; property having a value of five thousand dollars or more, three years.
- §4. Disposition of Lost Property
o If at the end of the period specified in section 3, the owner has not claimed the property, it shall be delivered to the finder or person entitled to assert the rights of the finder, upon his demand and payment of all reasonable expenses incurred in connection therewith.
- §5. Exceptions
o a) If a finder takes possession of lost property while he is upon premises with respect to which his presence is a crime, the person in possession of the premises where the lost property was found shall have the rights of the finder if, before the property is delivered to the finder by the police, he shall file with the police having custody of the property a written notice asserting such rights.
o b) If the finder is an employee under a duty to deliver the lost property to his employer, the employer shall have the rights of the finder if, before the property is delivered to the finder by the police, he shall file with the police having custody of the property a written notice asserting such rights.
o c) If lost property was discovered upon the enclosed safe deposit premises of a safe deposit company or safe deposit department of a bank, the police shall return it to the safe deposit company or bank at the expiration of six months from the date of deposit. If not claimed by its owner within fifteen years, this property shall escheat to the state.
- §6. Title to Lost Property
o The title to lost property which has been deposited with the police shall vest in the finder or other person entitled to assert the rights of the finder when the property is delivered to him by the police.
Unauthorized Possession/Adverse Possession
Anderson v. Gouldberg (1892)
- Facts
o P brought suit to recover pine logs that P claims he cut.
o D claims the logs were cut on land owned by 3rd party logging company, who directed D to take the logs
o P claims the logs were cut from other land, as trespasser, but not on land owned by logging company
- Procedural History
o Court said that even if P was trespasser, title would be good against all but true owner.
o Jury question: where logs were cut? Found for P
o D moves for retrial, fails.
o D appeals ruling
- Issue
o Is possession of property obtained as trespasser sufficient to give title against one who takes the property from the trespasser?
- Holding
o Yes. Title is held by trespasser. Ruling affirmed denying retrial.
- Rationale
o Rule
* Right to replevin requires that it be lawful dispossession. Possession is good title against all except those having better title.
o Application
* D took wood from P. P did not have a valid claim as P took it as a trespasser. Still, P had a better claim to the wood than D. Therefore, wood goes back to P.
- Discussion
o If you gain possession as a thief, do you still retain rights?
* Court in Anderson says prior possession gives the P superior rights, even though property may have been acquired by trespass/conversion/theft
* Against all but the true owner
* Rationale
* “Two wrongs don’t make a right” It would make lots of stealing from stealers, and so on and so forth.
Bailments
Parking Management, Inc. v. Gilder (1975)
- Facts
o D parked car at P’s parking area as directed by an attendant
o Placed a bag in the trunk. When D came back, the trunk was broken into and the bag was stolen
o Documents from P’s business says:
* Employees are uniformed…control parking stuff…
* Security was a major concern
* Agreed that employees act as a “kind of security”
- Procedural History
o Trial court said to jury there was either a) bailment or b) protection was not provided.
* Judgment for D
o P appeals, claiming retaining keys prevented bailor-bailee relationship
- Issue
o Did P owe any duty to D to protect the car from thievery?
- Holding
o Duty of reasonable care to protect the car existed, and the duty was violated. Affirmed for the D.
- Rationale
o Rule
* Parking a car in a parking enclosure and retaining car keys is does not create a bailor-bailee relationship. (Quinn v. Milner (1943)) and subsequent decisions.
* However, evidence that the parking arrangement included security that was not there.
* Implication: a reasonable expectation of reasonable care creates a duty for reasonable care
o Application
* Car owner entitled to protection BECAUSE
* Circumstances create a reasonable care expectation that would be given to prevent tampering with his car. Therefore, not clearly erroneous and precedent doesn’t apply.
Shamrock Hilton Hotel v. Caranas (1972)
- Facts
o P Caranas, husband and wife staying at D’s hotel
o P forgot purse, D busboy found it and gave it to restaurant cashier in conformity with policy
o Cashier gave purse to some other person. No testimony as if identification was sought by cashier.
o P tried to claim the purse, but it was gone. P sued for negligent delivery of the purse to an unknown person and sought to recover the value of the purse and its contents. There was a lot of jewelry in the purse, worth a lot.
* Court ruled judgment nov that D’s negligence was the proximate cause, entered for the P
- Issue
o Bailment exists for the lost item?
- Holding
o YES. Bailment existed for the lost item, D responsible for the purse. Judgment affirmed.
- Rationale
o Rule
* Duty may be owed if there is a mutual benefit of the parties and an expectation of bailment.
o Application
* Does not matter what was in the purse. There was a mutual benefit for the hotel to protect the items forgotten by guests. Reasonable expectation of due care. Therefore, duty was owed.
- Discussion
o What when the value is far greater than what was thought?
* If it is a clear expectation or reasonable one that something could be very valuable.
o What duty is there at the end of the bailment – when it is delivered back to bailor
* Bailor must show some level of fault. Different approach at the end of the bailment
* Strict liability
o Bailee is automatically liable for misdelivery. Even if not at fault in any way.
o What about false representation?
* Defense by bailee
* “I did everything that anyone could do. I took every possible precautionary measure. It just turned out to be the wrong person. I was not negligent.”
* Too bad.
o What if someone steals it?
* Must be intentional handing-over. If someone steals from the bailor, no just some limited liability and P must show negligence, or fault. Strict liability doesn’t count here.
o RULE
* General Rule
* Must show fault in order for bailee to be liable.
* Exception
* Misdelivery = Strict Liability for bailee.
o Exception1
* If misdeliveree has a convincing document that indicates claim, and bailee asks for it, and it is shown to bailee, and a misdelivery takes place, strict liability is not applied
* Is called the “Claim Check” exception
o Exception2
* If an involuntary bailment, and there is fault, then not strict liability. Only negligence.
* Example: landowner and mislaid property
Bona fide Purchasers
Introduction to Concept
- What is it?
o A good faith purchase, and it is a buyer
- In these situations
o A is the real owner.
o B has unlawful possession of X.
o B sells X to C.
o C believes B has title of X.
o C is the Bona fide purchaser, or BFP
o Conflicting interests between A and C, both lawful.
* Better claim or interest in X belongs to A.
* Must protect the rights of the original owner of the item.
- Rules in BFP circumstance
o B only has the legal right to sell what is owned. So C can only effectively buy what B is authorized. That is why the sale may not be respected.
* Any purported purchase is ineffective, regardless of good faith.
* BFP Exceptions! (of course)
o Part 1: Necessary qualities for exceptions
* Subjective tests
* Must not know of standing superior claims (actual knowledge)
* Objective test
* No circumstance that would have made you inquire as to standing superior claims (constructive knowledge)
o Paying considerably less than fair market value
o Part 2:…
o If an unknown true owner, then the buyer has some claim here.
o C may sue B for taking C’s money for X
Porter v. Wertz (1979)
- Facts
o Porter owned a painting. Sued to recover possession or the value of it from the Ds, of which there were several, through a series of sales. Painting ended up in Venezuela. Feign were the main D, owners of art business.
o Chain of custody for the painting
* Porter -> Harold von Maker, a con man, borrowed the painting to see how it looked in his home. Porter sought the return of the painting, but Maker sold painting ->
- Discussion
o Painting. Dude loans other dude painting to see if he likes it. Chain of sellers, ends up in Venesuela
* Porter v. Wartz, Fagan is the main defendant.
* What is Fagan’s defense? It would be statutory estoppel, owner trusted possession to someone who sells good of that kind, he was just a good faith buyer.
* Fagan is BFP. Other parts satisfy parts of a statutory code UCC which says:
* Original owner entrusted painting to thief dude, thief was a merchant also who deals with paintings. Third, Painting was sold in the ordinary course of business to a BFP. Uniform Probate code says it’s cool then.
* If entrusted to a merchant, and it is sold to a bfp, then the bfp has priority over the original owner.
o Increases buyer confidence
* Fagan fails to qualify because a) not during ordinary process and b) didn’t verify ownership
o Lose Rights you would otherwise have
* Because of some action you yourself took or some statement you yourself made upon which someone else realized to their detriment. Formula:
* Person a takes some action or makes some statement or fails to act/make a statement
Sheridan Suzuki, Inc. v. Caruso Auto Sales (1981)
- Facts
o Suzuki sold bike to Bouton. Kind of sold. Gave him the bike, signed a bill of sale, and filed an application for certification of title. BUT title was never received by Bouton. Bouton’s check bounced. Title processing ceased. Bouton absconded. Caruso bought the bike from Bouton, thinking that it was legit. Caruso even called to confirm it with Suzuki, and at that point, it was cool.
- Rule
o A thief can pass no title whatsoever to stolen goods.
* HOWEVER, UCC applies to goods received for dishonored checks or delivery through fraud considered thievery by the law.
o Under the UCC
* BFP may receive title from a person with voidable title.
- Application
o Okay. So BFP can receive title from a person with voidable title. However, the title was not perfected, or complete. The title Bouton had was not yet processed, and it could not be passed on to the BFP.
- Ruling
o Bike goes back to Suzuki.
- Discussion
o Facts overview
* Suzuki exchanges bad check for bike -> Bouton -> Caruso
o In this jurisdiction, it is required that a certificate of title must be owned in order to transfer title.
* Is a 2nd requirement on top of the UCC requirement.
o What would Caruso need to prevail?
* Would need valid title. Would have voidable title… would win under 24031. But would need state law, certificate of title.
o The point here?
* Needs to satisfy all elements, both UCC and local statutes.
* In this case, Caruso satisfied UCC but not local statute. Did not get to keep the bike.
* Local statute required certificate of title.
* Why is there this exception to the general unable-for-a-thief-to-sell
* To promote the flow of commerce, BFPs need to trust that they can buy things and hold title to the things they buy.
o What if Bouton right up stole the bike instead of by bad check or fraud?
* Caruso would have void title rather than voidable.
* Theft = void, bad check/etc. = voidable
* Void = favor the owner. Voidable = favor the BFP
o Reason for difference in treatment?
* Because voidable, they did give some rights to the thief. If voidable, the true owner is totally innocent. BFP is always innocent as a matter of definition.
Review
o If sell at a garage sale an item that took your ring?
* Not consistent with goods of this kind being sold my merchants who deal in goods of this kind.
o A steals diamond ring. Person A entrusts it to jeweler. Jeweler sells it during the ordinary course of business. Is the BFP protected?
* You would think yes. BUT!!!!....
* No. The rights transferred are the “entruster”. In this situation, you would be purchasing the rights of the thief, not the owner.
o Buyer purchases TV on credit. Seller has security interest – if default, they take TV back. TV is entrusted to a repair person, who also deals in goods of this kind. Repair guy sells it to BFP in the ordinary course of business. What does BFP get?
* Only limited rights – ownership of the television, but qualified subject to the original seller’s security interest.
o Original owner, someone steals it, another thief steals it, entrusts it to a merchant, merchant sells it to a BFP during ordinary course of business. What rights does the BFP receive?
* Thief 2, the entruster. Scope? Right subordinate to the original owner as well as Thief 1.
o What if intent is intended to be permanent, not temporary?
* May acquire title only that the seller has. As an exception, you have the power to pass full and absolute title to BFP even if the acquired title is only voidable.
* Can pass on more than is received. Relevant in Suzuki case.
o Voidable title, defined as: if person x acquires title from owner with the use of (x), then it is voidable.
* X = fraud, bad check, others (like Suzuki)
- Differences between section 1 and 2
o X doesn’t need to be a merchant under section 1, but does under section 2
o Doesn’t need to be during ordinary course of business under 1, but does under 2
- Review (handout)
ORIGINAL OWNER ------------------> X ---------> BONA FIDE PURCHASER
- General Rule
o X has the power to sell only what he or she owns. Buyer can only buy what seller has the power to sell.
o X borrows O’s bike and sells it to BFP. Still O wins.
- Exceptions
o UCC 2-403 (2)
* If O entrusts to X and X deals in goods, X can sell to BFP during ordinary course of business, and then BFP gains the rights of entruster, (O in this case).
Adverse Possession
What is Adverse Possession
- Requirements for Adverse Possession
o Must act like an owner of land, and take possession of it.
* Do this in a way that gives reasonable, fair notice to the original owner.
* Time limit, statutorily determined, in which the true owner is required to sue for trespass. If not, trespasser becomes new true owner.
- Significance of adverse possession
o Possessor gains ownership rights even as against the original owner. Possessor becomes the new true owner.
Cheek v. Wainwright (1980)
- Facts
o Land ownership dispute, P says timberland belongs to them, alleged that D were trespassing and should be enjoined. D says no, it’s our land. Jury said D is right.
o Wainwright bought the land in 1945. 1966, Cheek bought a deed that claimed that some of Wainwrights land was theirs. P obtained deed of correction, in 1970 which said the land was theirs. However, D planted hedges and crops of some kind in the disputed land.
- Rule
o Possession must be in the right of the possessor, must not have originated in fraud… something about notice nobody cares about.
o Actual possession of lands is evidenced by enclosure, cultivation, or any use and occupation thereof…
- Application
o It was pretty clear that D had cultivated the land. The piece of paper saying that P was the owner, or had the title, was bogus because D had it longer and kept it longer. Screw yo’ deed of possession.
- Ruling
o Judgment affirmed for the D
- Discussion
o P must argue adverse possession to gain control over the land. Argues timber farming qualifies as adverse possession. Agricultural practice done for a long number of years. Lots of work put into the land. Does not require subjective test of knowledge. Constructive – should have known – is sufficient.
o When does statute of limitations begin to run?
* When victim first had reasonable notice of problem, or actual adverse possession.
* Most courts say when victim first had constructive notice
o Morango Cave case
* Cave entrance on one parties land, but runs under another’s. P discovers that the cave is partially under his land, and wants to sue for trespass. When does statute run – when trespass began or when reasonable notice occurred?
o Are actions taken to conceal make a difference in fact and treatment?
* Adverse possessor should maybe get benefit if no concealment took place? Not directly. Doesn’t matter so much. Only reasonable notice matters.
o Hypo: Imagine in Wainwright, true owner uses land for a week a year to store some crops. How would it affect the claim of adverse possession?
* Would likely have the effect of defeating adverse possession claim because it would negate exclusive possession argument. Second, would negate continuity. Possession needs to be exclusive and continuous.
o Permission?
* If you have permission, cannot have adverse possession. 1. Owners don’t ask for permission. 2. Adverse possession is based on trespass. If no trespass occurs, no adverse possession and no taking of ownership claim can occur.
o Hypo: Gained possession of 15 or 20 feet if a deed was made wrong for 20 and a house was built over the 15 only?
* Argument for the 20 feet: no direct possession, but there has been constructive possession with no dispute by true owner.
* The point: what qualifies as possession depends on nature of adverse possessor’s use and the nature of the land itself – don’t need to build a house over every inch of land in order to adversely occupy it.
o Determining possession of land
* Occurs on a spectrum
* Sitting on it - build a house on it - fence around it - plant some trees – hunting
o Somewhere along this spectrum is direct possession, and on the other is constructive possession. Both may be adverse possession over time.
o Constructive possession must be supported by at least a purported deed or “color of title”
* Number of years required for adverse possession
* 7 years under some statutes, under color of title, 20 without color of title. Depends on statute, however.
* In other words, color of title plays a role in reducing number of years, regardless of direct/indirect possession
o Rationale?
* Person may act based on idea of having title, having evidence of that…
Joiner v. Janssen (1981)
- Facts
o Plaintiffs, the Joinders, brought suit for title of land. Claiming adverse possession under 20-year statute of limitations. Defendants, Janssens, live next to Joinders. Dispute about the little bit of land across the driveway. Trees and bushes.
- Procedural History
o Lower court said that strip of land wasn’t in the Joinder’s deed and were given notice to that effect. Because of this, possession not sufficient to establish adverse possession. Decision appealed.
- Ruling
o Reversed. Was a mistake, understandable mistake. Didn’t realize it until like 20 years later. Appellate court reversed, circuit court affirmed.
- Rule
o Doctrine of adverse possession is the holding of the land adversely to the true titleholder.
o A party claiming title by adverse possession always claims in derogation of the right of the real owner. He admits that the legal title is in another… Statute is that seven years under color of title, having adverse possession. Requires good faith, too.
- Discussion
o Intent to exercise control over land that is not theirs – what satisfies this requirement?
* Two possible views to apply to this issue:
* 1. Subjective. What was the mental state of the Plaintiffs, that they did or didn’t actually own the land, or just did it by mistake?
* 2. Objective. Doesn’t matter what the adverse possessor thinks, the actions taken matter. Was the land adversely possessed?
o Most courts apply this test.
* The actual application of the court in this case?
* 2. Objective – the external behavior test. Court doesn’t care about internal motive and intent.
* Rationale: Reasons to prefer objective standard
o 1. Easier for courts and juries to apply objective determinations over subjective – how do you prove a person’s state of mind?
o 2. Isn’t possible to gain adverse possession by mistake. Most if not all cases of adverse possession are unintentional and would fail this test, and that would not represent the spirit of the laws here.
* Also, benefits innocent trespassers. Don’t want to punish innocents and benefit jerks. That’d be dumb.
o Open and visible adverse possession rule
* Needs to be open and visible before the clock starts ticking, so to speak
* HOWEVER:
* Boundary lines are invisible, so how is it possible to know that trespass is taking place?
o The point of Joinder case?
* 1. Crossing over a surface boundary line is deemed to be open and visible for adverse possession
* 2. Objective standard – doesn’t require that a person knowingly trespass in order to gain adverse possession.
Howard v. Kunto (1970)
- Facts
o Long time ago, McCall lived in house now occupied by Kunto. Dispute is over 50 feet in the deed, that is adjacent to the house. In other words, deed was for one lot, and his house was on the one next to it. :P
* Is a situation common to several property owners in the area.
o Several conveyances have occurred. Kuntos took possession of the disputed property under deed in 1959. P Howard lived east… blah blah… D had been in occupancy less than 1 year. Denied adverse possession because the D failed to prove adverse possession of predecessors
- Issues
o 1) is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?
o 2) May a person who receives record title to tract A under mistaken belief that he has title to tract B, occupies B, for the purposes of establishing title to B by adverse possession…
- Rule
o To constitute adverse possession, there must be actual possession that is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period.
- Ruling
o Summer occupancy doesn’t destroy adverse possession.
o Continuity of use still exists despite used only as like, a summer home.
- Application
o Several successive purchasers received record title to tract A under mistaken belief. All considered, there is sufficient privity of estate to establish adverse possession.
- Discussion
o Important facts: (because it’s confusing)
* Entire neighborhood is skewed by one lot – each person’s deed describes the lot next door to them.
* Trying to fix the deeds: Howard convey to Moyer on the deed, and so they have the right land. In exchange, Kuntos living on Howard’s land. Howards want Kuntos to move out so that Howards can sell their home. Kuntos want to stay put, claiming adverse possession.
* Problems?
* Kuntos have only lived there for less than a year
* it has been used as a summer home (continuity)
o Why is this a problem?
* Needs continuity of possession
* Admitted by Kuntos, but they ask for credit for adverse possession of predecessors
o What would be required for this argument?
* Privity of estate – mutual and successive interest in the land.
o Court says it’s okay because of the nature of the land.
* Was a summer home spot. Sufficient to qualify as continuity.
o Privity of Estate
* Must be a transaction-type connection between the two parties
* Gives credit for previous adverse possessor’s time
o Hypo
* Assume original owner discovers adverse possession is in progress. Original owner has mental disability, or imprisoned, or if out of the country, or others. Many states will suspend statute of limitations during the time when O has mental disability. “Freezes the clock”
* Called “tolling” statutes: Based on premise that adverse possession is a sanction against O, who has been lazy or inattentive about pursuing a trespasser. During these times, owner isn’t receiving notice.
Chapin v. Freeland (1886)
- Facts
o Replevin for two shop counters (the table kind), nailed to the floor of a shop. One from when the shop was built (Warner original owner), and second one put in by De Witt, who leased the property at one point. De Witt foreclosed, sold to P. D took counters from P’s possession. D says nope, it’s mine.
- Procedural history
o Lower court found for D.
- This case isn’t well written
o P says D wrongfully removed two counters in P’s possession. Evidence that counters originally belonged to D, but were lost in foreclosure. P contends counters were part of the realty, as they were affixed. Plus, statute of limitations, adverse possession.
- Ruling
o Statute of limitations ran on the property.
- Discussion
o Case brings to light distinction between real property and personal property.
* “open and notorious”
* May be open and notorious but still not give fair notice to the O
o Facts of the case
* Freeland = original owner
* Werner takes counters and nails them to the floor of his shop.
* DeWitt takes the land, forecloses on it eventually
* Sells property it to Chapin.
* Freeland comes back and physically takes the counters.
* Chapin sues Freeland, based on adverse possession
o Trial court
* Running of statute doesn’t divest of interest rights. Only effect, is that you are barred from suing as plaintiff. It’s because the original owner had possession and physically took it.
o Ruling
* Trial court ran, because it established title to the adverse possessor. There was an actual shift of ownership rights.
O’Keefe v. Snyder (1980)
- Facts
o Action seeking replevin of 3 small pictures painted by O’Keefe (P) by Snyder D, owner of art gallery
o Paintings were stolen, turned up in D’s gallery many years later
- Procedural History
o Trial court summary judgment for D based on action not commenced within 6 years of theft.
o Appellate reversed the decision, and so…
o D appeals summary judgment to P
- Holding
o Reverse and remand for plenary hearing to determine who holds title
- Rule
o If paintings were stolen, thief acquired no title and couldn’t transfer title to others.
* Proof of theft would advance O’Keefe’s right of possession
o Statute NJSA 12A:2-403(1): acquisition of a voidable title to a BFP may be good title
* Action for replevin must be commenced within 6 years after the accrual of the cause of action.
* May be on the date of possession by D or the date of theft.
o Statute of limitations for replevin will begin when the owner of the chattel should have, through due diligence, discovered the facts that form the basis for a cause of action.
* Trial court should determine (1) whether the Plaintiff used due diligence to recover the paintings at the time of the alleged theft; (2) whether at the time of the alleged theft there was an effective method of for the Plaintiff to alert the art world of the theft and (3) whether registering the painting with an art organization would have put a reasonably prudent purchaser of art on constructive notice that someone other the possessor was the true owner. .
Estates and Future Interests
Overview
o There are different kinds of estates and interests in them. Some are in the future.
* Rules stand unless explicitly specified otherwise in an estate
- Five types of future interests
o Fee Simple Absolute
* The largest is this
* Total and unconditional ownership to holder, subject to no restrictions.
* Worded as “to A and his heirs”, with A being the conveyee, and “to” referring to the conveyance.
o Fee Tail
* Words of conveyance: “to A and the heirs of his body”
* Specifies direct lineal descendants like children and grandchildren. Not collateral heirs like brothers, sisters, uncles, aunts, etc.
* Why is this different from Fee Simple Absolute?
* Because there is a limitation on biological descendants rather than just “heirs.” Limit for the property is for the life of A, and then it goes from his estate and must go to eldest son and so on.
* IS not indefinite, and terminates eventually
o After a generation, unless not specified, and then it turns into Fee Simple Absolute.
* Policy Reason – makes property more conveyable, usable, to have stable title.
o Defeasible Fees
* What are they?
* Interests that have the potential for being perpetual but may be terminated under certain conditions
o Possibility of reverter – the future interest that isn’t conveyed. Aka right of entry or power of termination
* Three types
* 1) fee simple determinable
o To A and his heirs for so long as no beer is consumed on the premises
* Estate comes to an end immediately in this situation.
* 2) fee simple subject to a condition subsequent
o “but if beer is ever consumed on the premises, then O and his heirs shall have the right to enter and declare the estate forfeited.”
* 3) fee simple subject to an executory interest
o AKA fee simple on an executory limitation. Refer to executory interests.
o Life Estate
* “To A for life”
* Lasts as long as A is alive.
* If A subsequently conveys interest to B, B receives estate pur autre vie
o Aka for another’s life, or for as long as B is alive.
o Reversion if grantor retains it, remainder if grantor conveys it to a 3rd party at time of the life estate to A
- Future Interests
o The five types of future interests are listed above
* Three are retained by grantor: a) possibility of reverter, 2) right of entry, and 3) reversion
* Vested for purposes of the Rule Against Perpetuities
* Two held by grantee: a) remainder, and b) executory interest
- Remainders
o Interests created in 3rd party that becomes possessory upon termination of a preceding life estate/fee tail.
* Two kinds: 1) vested, 2) contingent
* Vested: “To A for life, remainder to B if B survives A”
o Grant contains a condition precedent, or a condition that must be met before the interest becomes vested.
o Types of vested remainders:
* 1) Indefeasibly vested
* Example: “To A for life, remainder to B and his heirs.”
* 2) vested subject to total divestment
* “To B for life, remainder to C and his heirs, but if C fails to survive B, then to D and his heirs”
* C’s interest is vested subject to total divestment
o Not yet possessory, but is vested, but may lose it prior to possession
* 3) vested subject to partial (open) divestment
* “To A for life, remainder to A’s children”
* If no length specified in the open divestment, it will generally remain open under Rule of Convenience
o Closes at the first moment when a member of the class is entitled to possess his share.
o Rule of Convenience exception: child in gestation, may be treated as alive and not a future born sibling.
* Contingent: 1) “To A for life, remainder to the heirs of B” or 2) “To A for life, remainder to A’s children”
o Alternative contingent remainders: “To B for life, remainder to C and his heirs if C survives before B, but if C dies before B dies, then remainder to D and his heirs”
o Contingent remainders are subject to destructibility
* By a failure to vest at or before termination of the immediately preceding life estate, OR by merger.
* Failure to vest – “To A for life, remainder to B if B shall live to be at least 21” and then B dies at age 18.
* Merger – two successive vested interests held by the same person. “To A for life, remainder to B if he survives A”
* Some states have statutes that abolish destructibility
* Apply generally to remainders that have failed to vest by the end of the preceding life estate.
* Importance of distinction between vested and contingent: three reasons
o 1) The Rule Against Perpetuities
o 2) destructibility
* What does it mean?
* Two types
o If contingent remainder fails to vest on time
* If fails to vest at or before the termination of the preceding life estate
o Merger
* If A life estate + reversion to A, then = a fee simple absolute. Any contingent remainders are destroyed.
o Merger Exception: If holders of the interests received interests simultaneously
* From same document, same interests received simultaneously from that document. Contingent remainder not destroyed in this case.
* Consequence?
* Contingent remainders are vulnerable to the rule of destructibility
* Vested remainders are not subject to the rule of destructibility
* Executory interests also not subject to destructibility
o 3) conveyability
* Ways in which stuff may be conveyed
* Deed
o Stuff sold or given away
* Devisable
o By will
* Descendible
o Passable by intestate succession (die without will)
* Future interests (contingent or vested) not used to be conveyable, but yes nowadays.
* But not while contingent remainders, in some states
o Policy reasons – too anticipatory, speculative
o O can do it, though
- Special Rules
o Shelly’s Case Rule
* If a grantor conveys a life estate to grantee and purports to convey a remainder in fee simple absolute to heirs of that grantee, remainder is deemed to have been conveyed to the grantee rather than the heirs.
* Coincidental matchup doesn’t apply the rule
* Would not effect who takes, but how they take. Intestate succession rather than by will.
o Inter vivios – Doctrine of Worthier Title
* If Grantor conveys a life estate to a grantee and a remainder in fee simple absolute to the grantor’s own heirs, the remainder to the grantor’s heirs is void and the grantor is deemed to have retained a reversion.
* Example: O says “To A for life, remainder to my heirs”
o “Wills” – Doctrine of Worthier Title
* If a will devises to a devisee the same interest that devisee would have received had testator died without a will, then interest passes by intestate succession, rather than by the will
* Example: O devises Blackacre “to my son S”
o In gestation
* At any particular moment, if C is in gestation at a point in time, C may be treated as alive.
* Acts as an exception to the rule of convenience.
* Applies in the absence of grantor’s specification
o Special rules often abolished by statute
* Such as in Kansas, but not if documents took effect before 1939.
- Executory Interests
o A future interest in a grantee that isn’t a remainder. Not subject to destructibility.
o Either something is being divested or something is being defeased.
* Two types
* 1) shifting executory interests
o If the executory interest divests or defeases another grantee
o “To A and his heirs for so long as A does not consume beer on the premises, in which event to B and his heirs”
* A’s interest is called fee simple subject to executory interest
* 2) springing executory interests
o If the executory interest defeases the original grantor
* Ways to create a springing executory interest
* Grantor can state that the grantee’s interest is to become possessory when a specified event occurs
o “To A when he gets married”
* Grantor can state the grantee’s interest is to become possessory after the lapse of a specific time period
o “To A ten years from now”
* Grantor can state that the grantee’s interest is to become possessory after the lapse of a specific time period after a future event
o “To A for life, and one year after A’s death, to B”
o AKA, what was a reversion may become a fee absolute subject to springing executory interest. Then it becomes a Fee Simple Absolute after the springing executory interest becomes possessory.
- Rule Against Perpetuities
o Applies to contingent interests. Sets a time limit within which contingency must be met.
* The classic rule:
* No interest is good past 21 years after creation of interest
o Future interest must be certain to either vest or terminate within 21 years following the death of at least one life in being
o What may be subject to the rule?
* Contingent remainders, vested remainders subject to open and executory interests
* (that may remain open for too long)
o to those of my lineal descendants that may be alive after the death of prince William. – springing executory interest would be interest of descendants.
o What is not?
* Vested remainders, reversions, rights of entry, possibilities of reverter
o Purpose?
* We want contingencies resolved within a reasonable amount of time. We want reasonable reliance, certainty and stability within a period of time.
o How to show that it is destructible?
* If there is a possibility that the interest will remain contingent for more than 21 years after the deaths of all people who are alive on the effective date of conveyance.
* Explanation:
o No single being who can survive that long… plus 21 years, and it could still possibly be contingent
o Can refute by pointing to at least one person who, when he/she dies, before 21 years following their death, it will be resolved. It will either be vested or terminated.
o Result?
* Just ignores the conveyance, declares it void
o Saving clauses for provisions that violate the rule
* “Already living at the time of this conveyance” to restrict from after-born
* “Within A’s lifetime”
* “Within 21 years following A’s death”
Fee Simple Absolute
- Potentially infinite duration
o If the fee simple absolute is not conveyed away by its owner during a lifetime or by will at his or her death, it is inherited by his or her heirs.
Cole v. Steinlauf (1957)
- Facts
o P and D entered into a contract for the sale of real estate.
* P buyer D seller
o Contract said if seller unable to convey title, buyers had option of rejecting the seller’s deed.
o P paid 420 to D as a deposit.
* No mention of heirs or anything like that was mentioned in the contract
* P refused to accept the deed because it didn’t mention heirs in it.
* P demanded return of deposit for the flaw of not mentioning the heirs.
- Procedural history
o Trial court found for the D, on the basis that the title was not fine.
- Issue
o If the 1945 deed operated to convey the totality of the fee to the grantee without a flaw or defect which would render the title offered to the P unmarketable.
- Rule
o To create an estate of inheritance in land by deed, it is necessary to use the words “heirs” (Chappell v. New York (1892))
* A deed can be reformed to vest a fee in a grantee where the word ‘heirs’ is omitted if it can be determined from the clearly expressed intent of the parties that a fee was intended. (Chamberlain v. Thompson)
- Application
o It seems harsh to say that because of the absence of two words, the title is unmarketable. However, they are some pretty important words. But the Jury erred because the issue should be if the mistake is significant enough to make the record marketable or unmarketable.
- Ruling
o Remanded with the direction to render judgment for P for 470 and costs.
- Discussion
o Could a reasonably prudent bank have doubts or be scared off because of the risk that the seller would be unable to establish fee simple absolute?
* Court doesn’t like this test. Court says they will use this test:
* Title must be free from reasonable doubt. Doesn’t even need to be in the context of a lender.
o Must establish ultimate title by litigation to establish clear title
o Before that, title is not marketable
Moore v. Phillips (1981)
- Facts
o Leslie Brannan died, left wife Ada Brannan a life estate including farmhouse, with remainder to Dorothy Moore and Kent Reinhardt.
o Ada lived in farm house, rented it out for a while, and then it was left unoccupied, then it was leased to remaindermen (Dorothy Moore and Kent Reinhardt), but they didn’t live there.
o Ada Brannan died, Moore and Reinhardt weren’t included in Ada’s will. Moore, Ada’s daughter, was estranged.
o Moore and Reinhardt filed demand against the estate to recover deterioration of farmhouse
o Executrix of estate denied any neglect or breach of duty by Ada as life tenant
- Procedural History
o District court held that defense of laches or estoppel shouldn’t be applied
* Laches?
* Delaying pursuit of the claim that “estoppes” someone from bringing suit.
- Issue
o Did the remaindermen, by waiting 11 years until the death of the life tenant before filing any claim or demand against the life tenant for neglect of the farmhouse, are barred by laches or estoppel?
- Rule
o KSA 58-2523: a remainderman may sue to prevent waste during the life of the tenant while the life tenancy is still in existence.
o There is a duty to keep it in good repair
- Holding
o Affirmed in favor of remaindermen.
- Application
o P claims the damage occurred in the last few years of Ada’s life
* Evidence is clear that Ada failed to keep the property in good repair. Delay did not prejudice the estate.
- Discussion
o Dissent?
* Remainderperson can sue after the death of the life tenant
* Have suffered no harm until they die, theory that life tenant will restore the land before they die.
o Statute
* Clear that Remainderperson can sue for waste while life tenant is still alive.
o Hypo
* Life tenant actively and purposefully destroys the house with dynamite.
* Pretty clear waste. Difference between act versus omission. (Moore case is passive)
* Difference between regular wear and tear versus actual waste
* Assume O fee simple absolute, uses land for oil and gas development
* Waste with possibility of reverter?
* No. Not unless or until it reverts. And the waste had to be extreme, severe, wanton, etc.
* Life tenant is a little tougher to get away with
o Because life estate is clearly temporary whereas reverter is not.
o Emblements
* Things like crops or other product of the land may be estate of life tenant
* Yes fixture, only if they can do so without causing substantial damage to what remains
o Valuation
Roberts v. Rhodes (1982)
- Facts
o Two small tracks of land deeded to a school a long time ago. When tracts no longer used by the school, would revert to heirs and assigns of the original grantors.
o School sold the land to D Rhodes.
o P Roberts seeks to claim title by deed as an heir of original grantors by reversion
- Rule
o An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, a) creates an estate in fee simple; and b) provides that the estate shall automatically expire upon the occurrence of a stated event.
- Application
o Present case contained no words like “until” “so long as” “during” etc.
o These words usually denote that the land would revert to heirs, but it doesn’t say that.
* Statement of purposes of conveyance doesn’t limit the extent of the grant.
- Ruling
o Reversed and remanded, judgment directed for the Defendants (not the heirs)
- Discussion
o Fee simple determinable, vs. fee simple absolute
* Conveyances
o Ruling
* The second part here is a mere statement of purpose, no consequence if there is a violation of the terms of the conveyance.
Johnson v. City of Wheat Ridge (1975)
- Facts
o Land formerly owned by Johnson, who died.
o Estate gifted for public park.
o Plaintiff heir of Johnson and executor of the estate.
* Alleges original conveyance was made under undue influence,
* He was old
* and the City failed to satisfy certain conditions under the deed.
* City didn’t install public water and lavatory facilities on one of the land areas within the required 2 years of conveyance
- Rule
o Statute of limitations, one year from date of violation for which action is sought to be brought or maintained.
- Procedural History
o Lower court found all conditions but one were met, and that action was barred by statute of limitations
o Insufficient evidence to support undue influence charge
- Application
o The statute was valid, they waited two years, started running as soon as the deed’s condition should have been met.
- Ruling
o Affirmed. Statute of limitations not met.
- Discussion
o Statute compared to common law
* Subject to condition subsequent, Estate not over until right of entry exercised, no triggering of the running of the statute of limitations.
* Would point toward: 1. Phrase ‘condition subsequent’, 2. ‘may re-enter and take possession’ (signifies option not immediate)
* No trespass for adverse possession, court goes for this
o Problem?
* Condition created 1950. 1961, still as is. 1962, violation of condition. 1963: right of entry is exercised or claims trespass.
* Imagine a statute exists where it begins to run when the interest is created. This means that the clock begins to run in 1950. So, there will be bar to reverter. But right of entry will still be there.
* With fee simple determinable, estate is over as soon as terms are violated, and statute begins to run.
o Point?
* Statutes are important
Caccamo v. Banning (1950)
- Facts
o Potter devised real estate to his wife for her life and, upon her death, “all the same over unto my granddaughter, Coverdale, in fee simple and absolutely forever; but… without lawful issue of her body begotten (no kids?) then and in that case… children of Potter (O) in fee simple.
* O conveyed To A for life and then to GD and her heirs, unless GD has no heirs.
* A died. GD married Caccamo, GD sold land to D. D wanted fee simple.
- Issue
o Did GD convey fee simple or was that in doubt due to the fee tail?
- Holding
o Judgment for P, or GD.
- Rule
o At common law, a gift to A for life and upon death to heirs of his body or issue, was a gift of fee tail.
- Application
o Remainder for O, sure. But vested remainder in B.
- Discussion
o Discussion of fee tail, it’s more limited than fee simple absolute
* What is a fee tail
* “To A and the heirs of his body”
* Public policy argument for or against fee tail
* Some uncertainty about staying in their family, interests may be extinguished and there is a lot of uncertainty in conveyances. Land is not very usable, title is not unified. It’s generationally staggered.
* If you are A, what do you have to do to convey fee tail to fee simple absolute?
* Convey to B in fee simple absolute. In some statutes, fee tails are taken as simple absolutes. A doesn’t need to do anything.
* Other statutes, A needs to convey it as a fee simple absolute.
Kost v. Foster (1950)
- Procedural Posture
o Appellant challenged the Circuit Court of Fulton County's (Illinois) decree for partition of real estate at appellee's request in a bankruptcy proceeding, claiming he had a contingent remainder which would not pass to a trustee in bankruptcy.
- Overview
o A warranty deed was executed granting a life estate to appellant's father with remainder to go to appellant and his siblings. Appellant, while his father was living, filed for bankruptcy. A trustee conveyed appellant's interest to appellee, who received order from a referee in bankruptcy to have real estate partitioned and sold. Appellant challenged the conveyance claiming he only had a contingent remainder. The court affirmed the decree holding that appellant had a vested remainder and that it was immaterial that he was a member of a class that was subject to open. Since the appellant had a vested remainder, a trustee in bankruptcy could properly convey his interest pursuant to an order of the referee in bankruptcy; the appellee was found to have acquired an undivided one-seventh interest in the fee of the real estate, subject to the life estate.
- Outcome
o Decree was affirmed because the appellant had a vested remainder which a trustee in bankruptcy could properly convey pursuant to an order of the referee in bankruptcy.
- Discussion
o To R for life, remainder to R’s children but if a child of R pre-deceases R, that child’s share to that child’s children.
o Problem Sets:
* 1
* A has life estate, B’s kids have contingent remainder in fee simple absolute.
* Contingent upon their birth.
* O has a possibility of reversion in fee simple absolute if B has no kids when A dies
* Fee simple subject to springing executory interest
Abo Petroleum Corporation v. Amstutz (1979)
- Facts
o Turknetts owned in Fee simple the disputed property. Had two kids, B and R.
o Conveyed life estates in two parcels, to B and R, separately.
* “during her natural life… and at her death to revert, vest in, and become property absolute of her heir or heirs, then and in that event this said property and real estate shall vest in and become property of the estate of…[her], to be distributed as provided by law at the time of her death…”
o B and R attempted to convey Fee Simple to predecessors of Abo, which was conveyed to Abo in fee simple upon his parent’s death
- Issue
o Did the parents retain any interest (Turknetts) whether by subsequent deeds to their daughters they conveyed any interest that remained, and whether those conveyances destroyed the contingent remainders to the children?
- Rule
o Doctrine of destructibility of contingent remainders
* Obsolete by legislatures and whatnot
* Conveyance to daughters merged with daughter’s life estates, and destroyed contingent remainders
- Ruling
o The rule sucks and is obsolete
o Conveyances to daughters did not destroy contingent remainders in the daughter’s children.
- Discussion
o Daughter gets life estate. Life estate can come to an end if life tenant forfeits life estate. Happens when life estate attempts to convey in FSA to a third party.
* Tortious feoffment
* Daughter would have FSA because of the merger with the initial deed.
City of Klamath Falls v. Bell (1971)
- Facts
o Corp conveyed land to city for gift to be used as library
* Had a “so long as” provision with that condition
o City quit using it for a library
- Issue
o Does the title to the land remain in the city or did the termination of use as a library cause title to pass to the descendants of the shareholders of the donor corporation (now dissolved)?
- Ruling
o Estate passed to city was a fee simple on special limitation, aka fee simple determinable, or base or qualified fee
* Terminates automatically upon breach of the condition
o Rule against perpetuities
- Application
o Does violate the rule against perpetuities, but that doesn’t mean that the city has a fee simple absolute now
* Grantor intended to limit, there existed possess a renewal option, but no longer than 99 years or whatever.
- Discussion
o The interest is a fee simple subject to executory interest, with a shifting executory interest to the heirs.
* Possibility of reverter versus absolute interest in the property belonging to the city
* What are the consequences of the violation of the rule of perpetuities?
* Turns into a fee simple determinable, because it strikes the language that violates the Rule, but it may depend on the language and form of the phrasing.
* But here, the grantor corporation, possibility of reverter doesn’t violate the rule, goes back to grantor…
o Lives in being
* Must be alive to be a life in being
* Gestation counts
* Dead folks don’t have kids
* So all of Tom’s kids are lives in being
* No guidance on issue of sperm banks
o Cy pres
* Allows the court to change a conveyance to bring it into compliance with the Rule
*
Concurrent Ownership
Overview
- Definition
o Any situation in which two or more persons may assert interests over the same thing
- Three kinds
o Tenants in common
* When two or more persons share ownership of the property, often as the result of intestate succession
* No right of survivorship
* Means that if one tenant dies, the dead one’s interest does not go to the other tenant(s)
o Dead one keeps it, and it’s part of his/her estate
* Can transfer ownership/interest in co-tenancy, but it retains the structure of the tenancy
o Identity of members may change, but basic structure remains intact.
o Joint tenancy with right of survivorship
* In a corporation, which is a single unit, the joint tenants gain the proportional interest of the others as they die. But their interest is indivisible, because the corporation is a single unit.
* It is a finite and closed group, which can’t be penetrated even by estate.
o Tenancy by the entirety
* Available only to married couples
* Refers to mutual ownership by a married couple, based in old convention
- Issues that may arise from co-tenancy
o What duties are owed between co-tenants?
o Accountability between co-tenants when resources are removed from the land?
o Is it a joint tenancy or a tenancy in common?
* If not clearly stated, the presumption is that it is a tenancy in common.
Jackson v. O’Connell (1961)
- Facts
o N devised properties in joint to 3 sisters, N A and K
o N conveyed al interest to A
o A died, and devised all her interest into P
o P says
* N to A severed joint tenancies between N, A and K. A became owner of 2/3 and D 1/3.
* Each P should have 1/6 interests [4/6 or 2/3], K/D should have 1/3
o D says
* N to A severed joint tenancies only in that grantor’s 1/3 was concerned; that the remaining 2/3 upon A’s death went to K/D.
* P should only have 1/12 each [4/12 or 1/3]. K/D should have 2/3.
- Issue
o Whether a conveyance by one of three joint tenants of real estate to another of the joint tenants destroyed the joint tenancy in its entirety or merely severed the joint tenancy with respect to the undivided third interest so conveyed.
- Rule
o Any act of joint tenant which destroys any of these unities operates as severance of the joint tenancy and extinguishes the right of survivorship.
- Application
o Where there were 3 tenants and one conveyed interest to a third party, the joint tenancy was only severed as to the part conveyed
* Supporting the D’s argument
- Ruling
o For the D
Matter of Estate of Vadney (1994)
- Facts
o C died, deed to son and herself.
o P son says it was joint tenancy with right of survivorship, and he got it
o Other sons say it was intestate and should have been split among all because language didn’t specify
- Ruling
o Court said that intent was clear despite lacking language that the estate go to P instead of all sons.
o Court affirmed appeals court ruling in favor of P
People v. Nogarr (1958)
- Facts
o E and C, husband and wife. Had x property, and remained joint tenants until death of C. But they separated before then, and C gave note of 6,440 to parents. C mortgaged the house to Parents without consent of E. Both claimed ownership of x.
o E contends that mortgage didn’t sever joint tenancy and sever the interests, and that the mortgage was a lien only on C’s interest, not E’s as well.
* Court agreed with E. Doesn’t sever because it doesn’t transfer title, it only places lien on the property. Assets all go to E.
- Issue
o Is a mortgage upon real property executed by one of two joint tenants enforceable after the death of that joint tenant?
- Holding
o Yes?
- Rule/Application
o Mortgage did not transfer legal title to anyone, or destroy unities. The lien therefore only had ties to his interest, and therefore expired with his interest and his mortgage also expired.
- Discussion
o Joint tenants, E and C. C alone executes the mortgage, without E’s consent. C dies, and so E is survivor of joint tenancy.
* Would the mortgage sever and negate the joint tenancy and make them tenants in common?
o Hypo
* AB joint tenants, B conveys to C.
o Act of cotenant, if removing resources from land, must give proceeds proportional to others
Laura v. Christian (1975)
- Facts
o C claims ? interest as tenant in common with L in x property.
o C’s interest was to secure payment of ? of all sums expended by L to preserve common property.
o X was subject to mortgage lien, which C stopped paying, L took over payments. X about to be foreclosed.
o Property value went up and offers were made, at which time C showed renewed interest in x.
- Issue
o Did C lose his property rights on the co-tenancy due to his nonpayment?
- Holding
o No.
- Rule
o Cotenant who pays more than his share of debt secured by a mortgage or other lien on the common property… is entitled to reimbursement to the extent to which he paid their shares of indebtedness.
o Loss prevention by one may be subject to right of contribution by the other.
- Application
o It may be an issue, but in this case C’s payment was timely enough to retain his interest in the property.
- Discussion
o Liable for improvement to property or out of pocket cost?
Mercer v. Wayman (1956)
- Facts
o P, widow and children of Fred (dead)
o D, sons of Lora, (dead)
o Dispute over oil and gas leases, D wants to have themselves declared full owners of the land
* 40 acre land, originally owned by John Mercer. Died intestate, leaving to widow, 5 sons and 2 daughters.
* Daughter Lora died, leaving to her husband and 3 minor sons. (D)
* John’s widow, 4 sons, surviving daughter joined in quitclaim, conveying to Fred and his wife (P)
* Purported to grant all interest to Fred’s estate
o D made no claim to the land. Never asserted claim of adverse possession against P.
* Both executed oil and gas leases on the entire tract.
- Issue
o Are D barred by statute of limitations
- Holding
o No. Was not held in adverse possession, so no bar to statute of limitations for the claim. Had no notice.
- Rule/application
o Statute of limitations
* P say possession of land ripened into title due to adverse possession, D barred from any claim
* D say tenants in common and not barred by statute of limitations
* Mere possession by one co-tenant doesn’t count as adverse possession
* Gave no notice of adverse possession
* Burden is on P to prove statute of limitations would bar D from asserting a claim of ownership against, and they failed.
Sawada v. Endo (1977)
- Facts
o P, M and H Sawada
o D, K and S and T Endo
o Conveyance
* Real property conveyed from debtor K Endo to S and T Endo
* Because conveyance was fraudulent
* K conveyed to sons without consideration
* Sons knew K had accident, no liability insurance
* P accuse D conveyed property to keep the property
- Issue
o Does the interest of one spouse in real property, held in tenancy in entirety, is subject to levy and execution by his or her individual creditors
- Holding
o Conveyance was not in fraud of creditors.
- Rule and application
o Tenancy by entirety
* Only valid in a few jurisdictions
* At common law, TBE depends on where you are at. Some conveyance by either spouse void, or only by husband valid, or just use and profits may not be alienated or attached.
* Hawaii hadn’t decided on the issue
o Neither husband nor wife has separate divisible interest in the property held by the entirety that can be conveyed or reached by execution
* Not divisible by any means in marriage, except divorce or separation of the marriage.
Landlord/Tenant
Brown v. Southall Realty Co. (1968)
- Facts
o Appellee, landlord
o Appellant, tenant
o For nonpayment of rent
* Tenant contends the lease was an illegal contract, therefore no rent due
- Issue
o Was the contract illegal?
- Holding
o Yes. Contract was illegal.
- Rule
o Court will not enforce illegal contracts
* Contracts that violate local housing regulations and are deemed uninhabitable under such regulations may be unenforceable leases.
- Application
o Building code violations made it unsuitable for dwelling place.
o Appellee said it’s cool, you can stay here anyway, and Appellant did
* Unenforceable lease because of the local building code regulations
Adrian v. Rabinowitz
- Facts
o D leased store to P for 6 months
* Monthly rent, paid in advance
o Breach
* Lessor to deliver lessee possession of the premises
* Duty to give and deliver possession of the premises on the first day of the term
* Express covenant to put lessee in possession on that day.
* But at the time of the signing, another tenant was occupying the store
* Failed to vacate timely
o Trial court
* Damages for resale of seasonable merchandise, not liable for rent during the time.
- Issue
o Does contract imposed upon lessor the duty of putting the lessee in actual and exclusive possession of the premises at the beginning of the term?
- Holding
o Yes. But the lower court messed up on damages.
- Rule
o Covenant for quite enjoyment (exclusive lease)
* Imposes duty to deliver possession on the first day of the term.
* But doesn’t generally protect from interference by strangers with his possession
- Application
o Was right in the contract to take possession on the day, and D’s failure, it wasn’t a stranger.
* Should not be liable for the rent during the time not occupying the property. That is the measure of damages.
- Discussion
o English rule
* 1. New tenant not responsible for payment of rent until holdover tenant is finally removed. It’s the landlord’s responsibility.
* 2. May be liability to new tenant for harms incurred as a part of being excluded from the property
o American rule
* Not in very many jurisdictions.
o Two main types of leases (for our purposes here)
* Estate for years
* Annual lease
o “x annually, y per month” constitutes an annual lease that requires six months notice in most jurisdictions
Commonwealth Building Corp. v. Hirschfield (1940)
- Facts
o Suit for rent money
o D lived with family in apartment
o Lease with P, landowner
o The lease
* Clause, provided that if D held over, he would become liable for double rent.
o D moved
* Told P about 2 months prior to the expiration of the lease. Notified by registered mail.
* D employed a moving company. Work not quite completed by time lease expired.
* D stated that employees of P were partially responsible, who were helping him move.
* P attempted to charge D for extra rent because of the delay. Was only a single day’s delay.
- Issue
o D liable for extra rent due to P’s actions?
- Holding
o P not entitled to recover. No. D not liable for extra rent.
- Rule
o Tenant who holds over after expiration of his term may be held as trespasser or tenant for another similar term. Up to the landlord.
- Application
o Was not voluntary agreement to sign another lease or stay for another term. D was trying to get out of the apartment.
* Lease contingency, paid double time for actual time of his occupancy after expiration of the lease.
- Discussion
o P landowner trying to say D triggered an entire extra term for staying over on the lease for like, a day.
* Common law says that it would count as signing on for a second term. Or, may treat them like a trespasser.
* But there is an element of intent or consent, and the Tenant did everything possible to not become a holdover.
Richard Barton Enterprises, Inc. v. Tsern (1996)
- Facts
o D, Tsern
o P, Barton
o Agreement
* Lease for commercial building. B renter, D landowner.
* “as is” building condition
* Lease was for 1 year
* Required D to repair leaky roof, and freight elevator to good working order
* P was to have antique shop there.
* Roof and elevator remained inoperative.
o Dispute
* P sues for rent abatement and cost of repairing an elevator
- Issue
o Rent abatement for poor condition of building?
- Holding
o
- Rule
o Rent credit/abatement
* Court may not impose modification of a lease to which parties have not agreed and may not do so when parties have explicitly disagreed as to the essential terms thereof.
o Constructive eviction
* If lessor breaches implied covenant of quite enjoyment, could constitute constructive eviction and relieve a tenant of the obligation to pay rent.
* Lessee would need to vacate, and only then withhold rent.
* Continued enjoyment of possession is a condition of tenant’s duty to pay rent or perform his other covenants.
o But that’s all old common law stuff. Modern leases are different.
* For commercial context, cases recognize that the covenant to pay rent is conditional upon compliance with the terms of the lease.
- Application
o Parties did not agree to an amount for the abatement.
o However, Barton couldn’t be held liable to pay for the rent as according to the agreement, because he wasn’t able to use the land as he wanted. Therefore, lessee entitled to abate rent in equal amout to the reduced value of the premises due to lessor’s breach.
- Discussion
o Mainly deals with landlord’s duty to maintain the premises
o Covenant of quiet enjoyment violations
* Holdover tenant prevents new one from moving in
* Is the landlord’s responsibility, if the state recognizes it
* Partial eviction, lease out a floor, relieved from all premises’ rent obligation
* Breaches quiet enjoyment
* Problem caused by neighbor?
* No basis for constructive eviction. Must be the landlord who is responsible for the problems. Landlord not responsible for activities of third parties, generally.
o Implied warranty of habitability. Tenant’s covenant to pay rent.
* Dependent upon each other. Failure to maintain premises excuses obligation to pay any further rent.
o Conveyance of estate theory applies here
* A lease is a conveyance of land. Not a contract, under the traditional view. But if there are agreements in addition to that, they are incidental to that.
* But now, it’s treated more like a contract.
* Tenant is excused only if covenant is one that was essential to the lease agreement. “Significant inducement”
o Entitled to damages resulting from.
Walls v. Oxford Management Co (1993)
- Facts
o P, Walls, sexually assaulted in her vehicle, parked on Apartment premises.
* P lived with mother, who leased an apartment there.
* Buckley arrested and convicted for the assault.
o D, owner of apartment
* Complex has had a lot of crime, thefts and whatnot.
o P accuses D of
* Breaching duty to provide reasonable security measures, warn of lack of security, and warn of the criminal activity
- Issue
o Did D breach duty and liable for damages?
- Holding
o No
- Rule
o Duty for landlord to protect tenants from harm, or not subject others to reasonable risk of harm
* But, private persons have no general duty to protect others from the criminal acts of third persons
* Exception where some duty exists, such as creation of danger, overriding foreseeability…
o It used to be that landlords had virtually complete immunity
* Modern laws have abolished the immunity, and the court has acknowledged considerations of human safety in an urban community…
- Application
o Warranty of habitability implied to protect against structural defects, but not affirmative measures for security against criminal attack.
* Not valid if there is some agreement to provide security. But here, there was no agreement.
- Discussion
o Landlord immunity is the majority rule still today
* Unless duty
* But some recognize negligence actions
* But not 3rd party, unless special duty assumed
o Warranty of habitability does not impact duty to protect from 3rd party criminal acts.
Edwards v. Habib (1968)
- Facts
o Appellant Edwards, rented a house from Appellee, Habib.
* Month to month rental agreement
* Soon after moving, complained to Department for sanitary code violations
* Discovered many code violations, and Department ordered landlord to correct.
* Habib retaliated by evicting her, gave her 30 days notice
* P sued for retaliation to contest possession of landlord
- Issue
o Retaliation relevant?
- Holding
o Maybe. Permitted to bring it before a jury to decide if it was retaliatory.
- Rule
o Tenant may refuse to surrender possession of a leased premises… landlord can bring action to recover.
* May argue, bring before the court, due process stuff
* These laws don’t say anything about retaliatory intent
o But it seems like it would make sense from a policy perspective to not allow retaliation. And this is a court of equity
o Effectiveness of the law is hurt if people are punished for reporting it
- Application
o Facts, blah blah blah, Tenant deserves a jury trial to determine if the landlord was a jerk, retaliated, and if he can kick her out.
- Discussion
o Trial court said it doesn’t matter what the motive is for a month to month rent. Can evict for any motive.
* However, this court reversed that decision because it undermines the legislative intent to enforce housing codes.
o If retaliation, does it trigger damages?
* Possibly, even punitive damages
Childs v. Warner Brothers Southern Theatres (1931)
- Facts
o Company owned certain theater property. Company leased property to Craver. After that, Company conveyed property to P. Craver transferred and assigned lease to Warner Bros. Warner Bros reassigned lease to Carolina Theatres. Carolina didn’t pay their rent to P, P sued Warner Bros.
o P told Warner Bros that rent still needs to come from them.
- Issue
o Is Warner Bros liable to P for the rent that Carolina failed to pay after the assignment?
- Holding
o Yes
- Rule
o Lessee or his assigns should not alienate the premises to any one without special license of the lessors
- Discussion
o Tenant 1 abandons, tenant 2 defaults on rent
* Traditional rule is that landlord has no obligation to mitigate damages.
* Creates more risk, in fact, by finding a replacement because it mitigates the first’s damages responsibility.
o Reason?
* New rule, must attempt to mitigate damages
* New lease doesn’t need to match the old replacement lease. May be more or less.
* Reasonableness standard – right to be reasonably selective for new tenant.
* Part of the trend of adopting stuff from contracts
* Intent of the parties
* Flexible test
o Privity of Estate
* If assignment, Tenant drops out and assignee steps in.
* If no privity, then sublease and not assignment
* Consequence?
o Who is directly liable to the landlord
o Privity of contract does not drop out.
* Could sue the defaulter, Tenant, or both
* If Landlord sues tenant, tenant can then sue the assignee
o Rule
* If you waive once, or give permission once, you waive it forever, to give assignees under this rule.
* Means that assignee could assign further down the chain. But is this the case here?
* Rule doesn’t apply because if it’s a bigger, long term lease type thing
o Depends on the intent, really.
o If you draft a lease
* Make sure it says “and assigns” to keep veto power intact for as long as possible.
Easements and Other Land Interests
Easements
Generally
- The right to use land or whatever.
o Such as the right to cross it, or use a specific part of the land for a specific purpose. Privilege of utility lines.
- Types
o Either Affirmative or Negative
* Affirmative Easements
* Entitle one to act upon the burdened land or which affect the burdened land
* Negative Easements
* Prevent the owner of the burdened land from doing something with it.
o Easement in appurtenant or in gross
* Appurtenant
* Benefits its owner with his ownership of neighboring land
* In gross
* Benefits one without regard for his ownership of any land.
o Profits a Prendre
* Confers the right to enter and remove natural resources or other substances from the land in the possession of another
o Licenses
* Subject to termination at the will of the possessor of the land, subject to the privilege of use while an easement is not
* Subject to few if any conveying rules, and in explaining why this is true it is often said that a license is not an interest in land at all.
Mitchell v. Castellaw (1952)
- Facts
o D petitioned for relief from judgment establishing easements for P as owners of a corner filling station lot
* Driveway
* Grantors shall not build or permit any one else to construct on the portion…
* Grantor shall have the right to use this part of said lot as a driveway
- Issue
o Is it an easement?
- Holding
o Yes.
- Rule
o Easement of this kind may be validly reserved in a deed of the fee simple title is beyond question
- Application
o Not only terms, but nature of the right and the surrounding circumstances may be concerned.
o Smith had long been using the driveway when Stapp conveyed the lot to him, yet easement of the purpose only useful to the lot which Stapp owned… easement considered appurtenance
Willard v. First Church of Christ, Scientist, Pacifica (1972)
- Facts
o McGuigan owned lots 19 and 20. Building on 19, parking on 20. McGuigan was member of Church. Permitted Church to use lot 20 for parking during services. She sold 19 to Peterson. Willard expressed interest in 19 and 20. Peterson agreed to sell 20 and 19 before Peterson owned both. Peterson asked McGuigan for the lot, and said yes, but included an easement.
- Issue
o Whether a grantor may in deeding reserve an interest in the property to another.
- Holding
o In this case, such a reservation vests the interest in the third party.
- Rule
o A reservation allows grantor’s whole interest to pass to grantee, but revests a new interest in grantor
* Attacked as groundless, not followed here.
o Effect to grantor’s intention
- Application
o It was the intention of the grantor, McGuigan, to have an easement to the church
* Therefore, there is one.
- Discussion
o Court says
* The intent of the parties was to create the easement. Don’t need to be so technical. And some of the language hints toward recognition of the easement.
o Better way to do it?
* Convey easement to church, later convey lot 20 to Peterson. The 2nd conveyance, it would have remained subject to the church’s easement.
o Can’t establish an easement on your own land for yourself.
o Use the right word, “I convey to you, and reserve for myself an easement”
Stoner v. Zucker (1906)
- Facts
o D entered upon P’s land under license, constructed a ditch.
o P never agreed to convey any right of way or easement
o P served D notice that license was being revoked
o D disregarded it, and P sued
- Issue
o Able to kick them out?
- Holding
o No. Use of land may continue.
- Rule
o A license justifies anything done by the licensee before revocation, is revocable at the option of the licensor, so that no further acts may be justified under it
* But such injustice and hardship from no ability to have claim after expenditures and improvements, it may be held as irrevocable
- Application
o They put in the money for the ditch, they have a right to go and use it and maintain it.
* P can’t just kick out D.
- Discussion
o Revocation of licenses
* A key distinctive feature of licenses is that they are revocable by the grantor. And it is a license if that is what they agree to at the time of conveyance of their interest.
Finn v. Williams (1941)
- Facts
o D sold some land to P. D inherited remaining land.
o P’s land’s only means in and out from D’s land.
- Issue
o Implied easement, right of way of necessity?
- Holding
o Yes.
- Rule
o Where an owner of land conveys a parcel which has no outlet except over the remaining lands of the grantor, a way by necessity exists over the remaining lands of the grantor
* A right to way by necessity may lie dormant through several transfers of title
- Application
o So, yeah. Rule is pretty clear.
* P’s land is entirely surrounded by property of strangers and the land of the D from which it was originally severed. A right of way easement of necessity was necessarily implied in the conveyance severing the two tracts.
Granite Properties Limited Partnership v. Manns (1987)
- Facts
o P seeking to enjoin D from interfering with P’s use of two claimed easements over driveways on D’s property.
o They are between the stores, P needs them for moving stuff in and out of his shop.
* Had been using them for a while.
- Issue
o Easements?
- Holding
o Yes.
- Rule
o Two kinds of easements implied: necessity and pre-existing use
* Easement by necessity arises when an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned either by the grantor or the grantor plus strangers.
- Application
o Here, strong evidence of prior use and D’s knowledge thereof, must agree sufficient for the requirement.
Bebe v. DeMarco (1998)
- Facts
o P and husband bought lot 11. D owned lot 14, three lots west of P’s lot. Driveway at issue went across all lots between...
o New development to the south that opened up a new way to their property.
* P began to store a boat on the alley/driveway in question, and drove it across several times.
o No evidence of permission, but was regular use with tire tracks across D’s property
- Issue
o Easement by prescription?
- Holding
o Yes.
- Rule
o Continuous use does not mean constant use; refers only to character of user’s state of mind and the needs of the user.
* Must grade, level, drain and maintain the roadway as necessary if used by prescription.
- Application
o P made use of the road, it was cool. Shared… blah blah blah.
- Discussion
o Implied reservation, or implied grant
* Easement by implied reservation, demand more in terms of proof.
* If O conveys to a lot 1, will say “I hereby convey lot 1 to A.” But A receives something less. Lot 1 subject to easement, if we recognized implied easement.
o Easement by implication
* Necessity
* Prior use
o Easement by estoppel
o Easement by proscription
* The easement parallel of adverse possession
* Hostile, continuous, etc.
* Not an easement, however, because easement is not possessory interest
o This case is easement by proscription case
* Was not “continuous,” but it was frequent use. Continuous enough to give notice of use and etc.
* Trial court permits improvements as necessary on the easement/land
* ‘reasonably necessary’ to achieve easement’s purpose.
State Ex Rel. Thornton v. Hay (1969)
- Facts
o Hay, owners of tourist facility
* Appeals decree enjoining them from constructing fences or other improvements on their land
o Public/state
* Easement for recreational purposes to go upon and enjoy the dry-sand area, and it was appurtenant to wet-sand portion of the beach admittedly owned by the state.
* State right to protect the public in enjoyment of their rights by causing the removal of fences and other obstacles.
- Issue
o State have power to prevent D from enclosing dry sand area contained within legal description of their ocean-front property?
- Holding
o Yes.
- Rule
o State has right to restrict some things for building codes and whatnot.
* Publics assumption that the area is public property is reinforced by some early judicial decisions…
o Legislation cannot divest a person of their rights to land.
- Application
o Many elements of prescription.
* Long and general usage.
* Right exercised without interruption.
* Use was peaceable and free from dispute
* Reasonableness
* Visible boundaries and character of the land
* Custom was obligatory
* Not repugnant or inconsistent with other customs of law
o All elements satisfied by the custom basis for prescriptive easement.
* Confirms public right to use the land and not have them build fences and whatnot
Some Case
- D owners of land propose building on the land, and it would create a right of way only 8 feet tall. D also offered moving the right of way to another area. P objects
o If not designated, must be reasonable, grantor has first choice.
o If grantor fails to choose
o Or what about trying to expand a right of way easement?
* Would ask if the new proposed expanded use is something that could have been or was reasonably anticipated as the intent of the original easement.
Condensed Property Outline #2 (.doc file hosted here, on Dropbox)
Found Property
Un-owned Goods: Finder vs. Finder
- Applies to goods: never owned OR abandoned by owner
- Finder must take property into possession in order to have claim over later finders.
o Act sufficient to establish possession of found property depends on the nature of the property.
* 1.Exercise physical control over property. 2.Intent to control it. 3.Exclude others.
* May rely on common standards for similar types of property
- Pre-possessory interest if steps to possess, & would’ve but for unlawful acts of others
o Not absolute, but may have some claim over others.
- If both finders have equal claim, court may split the value
Embedded or Affixed: Finder vs. Landowner
- Landowner has superior claim for embedded or affixed goods
- Deposits via accretion or avulsion: owned by landowner of deposited land
- Treasure Trove: Gold, coin, silver, etc. Finders have priority, but rule isn’t recognized anymore
- Buried money in a jar may be considered mislaid, despite being embedded
Owned Goods: Lost/Mislaid Property
- Duty to return lost/mislaid property to original owner:
o Scope of duty: “reasonable effort” for some length of time to find true owner and return property
o Until Owner is found, Finder OR Landowner will retain possession
* Possessor has superior claim against all EXCEPT Owner
- Landowner has possessory interest IF:
o Property was MISLAID
* Policy reason: More likely Owner will retrace steps and find mislaid item
* Buried money may be considered mislaid, despite being embedded
o Finder is a trespasser
* Policy Reason: don’t reward trespassing
- Finder has possessory interest IF:
o Public Property
* If a private room on public property, land owner may have a better claim
o If land owner doesn’t occupy property, greater claim to finder
- Note:
o Possessing a container, doesn’t necessarily possess contents
Stolen Goods
- Thief A has claim over thief B
o Policy reason: Would create incentive for chain of unlawful acts over the same property
Bailments
Establishing the Relationship
- A duty of care exists for property owned by another if:
o There’s a reasonable expectation of reasonable care
o An involuntary bailment (mislaid property)
The Duty
- Strict liability for misdelivery of bailed goods
o Check Claim Exception: Taker has a convincing document that indicates valid claim
- Reasonable duty of care to prevent theft
o Liable for the value even if the value of the bailed good is far greater than assumed
Purchasers Of Goods With Superior Claim
Requires a Bona Fide Purchaser
- In order to be a BFP
o 1. Must not know of standing superior claims
o 2. No circumstances must occur that would have made the buyer doubt the claim
Rights of a Bona Fide Purchaser Over True Owner
- Normally, true owner has claim over BFP
o Exception: 1.Property entrusted by Owner to Merchant. 2.Merchant sells property during the ordinary course of business to BFP.
* Policy Reason: To encourage commerce, buyers must trust they get to keep what they buy
* Policy Reason: If Owner passes on some rights to Thief, then Owner isn’t totally innocent and the BFP has better claim. If Thief has no title whatsoever, cannot pass it to BFP.
Adverse Possession
Defined
- If Owner fails to sue Possessor during statute of limitations, possessor acquires title.
o Must be: 1. Continuous and Uninterrupted (Possessor tacks with generations of Possessors), 2. Open and Notorious (Must be sufficient to give constructive Notice), 3. Exclusive
Evidence of Possession
- Enclosure, cultivation, any use/occupation
o Depends on the context and nature of the property, and its use
* Generally: actual, uninterrupted, exclusive possession
* Personal property: more difficult to establish adverse possession
* Policy reason: Less likely to give notice.
* Successive conveyances count: called “privity of estate” or “Tack”
- Possession must not have originated in fraud
o Doesn’t need to be conscious trespass
- Statute of limitations: begins when title holder has actual or constructive notice of adverse possession
Estates and Future Interests
Present Estates
- Freehold Estates: No Ascertainable termination date
o Fee Simple, Fee Tail, Life Estate
- Non-Freehold Estates: Ascertainable termination date
o Tenancy for a term, periodic tenancy, tenancy at will, tenancy at sufferance
Future Estates
- Possibility of Reverter and Power of Termination
o Possibility of Reverter = determinable estate
o Power of termination = right of re-entry
- Remainder
o Future interest created in third person, takes effect after termination of preceding estate
o Types: Contingent Remainder(Taker undetermined or subject to condition precedent)Vested Remainder (Taker determined & not subject to condition precedent)Defeasible Vested Remainder(subject to condition subsequent & partial divestment by class that reduces individual share size)
- Reversion
o Interest retained by grantor when possessory estate is smaller than what was held. Becomes possessory at termination of prior estate. Always vested but may be subject to divestment.
- Executory Interests
o Shifting Executory Interest: Conveys defeasible estate & the future interest to third person.
o Springing Executory Interest: If executory interest will divest grantor’s possessory estate.
Conveying Language
“To A and his heirs”
[Words of Purchase] [Words of limitations]
- “To A and his heirs”
o Fee Simple Absolute: A has the entire interest of the estate
- “To A and the heirs of his body”
o Fee Tail: Interest descends only to A’s direct lineal descendants
- “To A and his heirs for so long as no beer is consumed on the premises”
o Fee Simple determinable: future interest contains possibility of reverter
- “To A and his heirs, but if x happens, then O and his heirs shall have the right to enter and declare the estate forfeited”
o Fee simple subject to condition subsequent: future interest contains right of entry
o Condition subsequent: optional termination power of grantor O
- “To A and his heirs for so long as A does not x, in which event to B and his heirs”
o Fee simple subject to an shifting executory interest
- “To A and his heirs for so long as A does not x, in which event to B and his heirs”
o Shifting Executory Interest: executory interest divests or defeases another grantee
- “To A when he gets married”
o Springing Executory Interests: grantor retains a fee simple subject to an executory interest
- “To A for life”
o Life Estate: interest lasts as long as A is alive
o A may convey interest to B: B’s interest would terminate at the end of A’s life
o Reversion: Grantor retains future interests
- “To A for life, remainder to B”
o Vested remainder: No conditions need occur other than expiration of preceding life estate
- “To B for life, remainder to C and his heirs, but if C fails to survive B, then to D and his heirs”
o Vested remainder subject to total divestment
- “To A for life, remainder to A’s children”
o Vested remainder subject to partial divestment: Contingent with no children, vested with one child, but subject to partial divestment, i.e. may become split with additional children
o Rule of convenience: Class closes (no additional children may be party to the estate) when a member of the class is entitled to possess (A’s life ends)
- “To A for life, remainder to B’s children”
o Vested remainder subject to partial divestment
o Exception to rule of convenience: If A dies before B has children, and B is still alive, then B’s children’s interest would remain open until B dies instead of reverting to grantor.
- “To A for life, remainder to B if B survives A”
o Contingent remainder: condition must be met before interest becomes vested
- “To A for life, remainder to the heirs of B”
o Not obvious Contingent remainder: If B has no heirs, it is contingent upon B having children
- “To B for life, remainder to C and his heirs if C survives B, but if C dies before B dies, then remainder to D and his heirs”
o Alternative contingent remainders: C and D have alternative contingent remainders
Special (Weird) Rules
- Rule in Shelley’s Case
o Owner conveys: “To A for life, remainder to A’s heirs”
* A conveys all interests to B. A dies. A has one daughter C. B has superior interest despite fee simple appearing to go to A’s heirs and not A.
o If a grantor conveys a life estate to a grantee and, in the same instrument, purports to convey a remainder in fee simple absolute to the heirs of the grantee, the remainder is deemed to have been conveyed to that grantee rather than to the grantee’s heirs
- Doctrine of Worthier Title
o O conveys: “To A for life, remainder to my heirs.”
* Later, O conveys all his interest to B. O dies with only heir C. A dies. Between B and C, B has superior interest because grantor retained reversion, and remainder was void.
o If grantor conveys life estate to a grantee and remainder in fee simple absolute to the grantor’s own heirs, the remainder to the grantor’s heirs is void and the grantor is deemed to have retained a reversion.
* There is also a wills version of Worthier Title where interests will pass intestate rather than by will if the same recipient exists
- Rule Against Perpetuities
o Provision is void if it doesn’t vest within 21 years after some life in being at the creation of the interest.
* Can determine by the measuring life in being. Must within vest 21 years after their death.
o When does it apply?
* Contingent interests, or, interests which are not vested
o Exception: Vested remainders may be subject if:
* Vested remainder that may be subject to open for more than 21 years beyond the death of all lives in being
o Does not apply to: Vested remainders, reversions, rights of entry, possibilities of reverter
- Rule of Convenience
o Class closes (no additional children may be party to the estate) when a member of the class is entitled to possess (A’s life ends)]
* EXCEPTION 1
* If 1. Conveyance is to a generic class; 2. Destructibility has been abolished; AND 3. When A dies, no child of B has yet been born.
o If C1 had been born before A’s death, Rule of Convenience would apply and close the class at A’s death because C1 would be entitled to take possession at that point, which excludes later-born children.
* THEN: Class remains open until B dies and can no longer have children.
* EXCEPTION 2: Does not apply to non-possessory members of class current born; it only excludes after-born
- Merger
o “To A for life, remainder to B if he survives A. (Reversion to A)”
* A will have a fee simple absolute here, according to merger doctrine
o The contingent remainder is destroyed where two successive vested interests come to be held by the same person
* Destructibility may be abolished by statute and this rule would not apply
Conveying Language
1
2
2
3
3
4
4
5
5
Words of Purchase
Words of Limitation
To A
Fee Simple Absolute
and his heirs
Fee Simple Determinable
for so long as
Fee Simple Subject to an executory interest
in which event to B and his heirs
Shifting Executory Interest
to B and his heirs
To A
Fee Simple Absolute
and his heirs
Fee Simple Subject to Condition Subsequent
but if… then
Right of entry
O shall have right to enter and declare estate forfeited
To A
Springing Executory Interest
when X occurs.
To A
Fee Tail
and the heirs of his body
To A
Life Estate
for life
Vested remainder
remainder to B
Vested remainder subject to total divestment
but if B… then to D
Vested remainder subject to partial divestment/open
B's children
Rule of Convenience
Class closes when any member is entitled to possess
Exception to Rule of Convenience
Class remains open if no members are yet born
Contingent Remainder
remainder to B if…
Alternative contingent remainders
but if…then to D
Rule Against Perpetuities
Type of Interest
Rule Would Rule Against Perpetuities Apply?
Fee Simple Absolute
Fee Simple Determinable
Fee Simple Subject to Executory Interest
Yes
Shifting Executory Interest
Yes
Fee Simple Subject to Condition Subsequent
Yes
Right of Entry
Springing Executory Interest
Yes
Fee Tail
Life Estate
Vested Remainder
Vested remainder subject to (open/total divestment)
Yes
Vested remainder subjected to partial divestment
If destructibility abolished, Yes. Otherwise, No.
Contingent Remainder
Yes
Alternative contingent remainder
Yes
Reversion (to grantor)
Other Weird Rules Guide
Rule
Effected Langauge
Thing that happens
New Conveyance Type
New Effective Language
Shelly's Rule
To A for life, remainder to A's heirs
Fee Simple Absolute
To A and his heirs
Doctrine of Wortheir Title
To A for life, remainder to my heirs
O conveys interest to B while having heir C
B has superior title to heir C
Then
B has superior title to heir C
Merger
To A for life, remainder to B if he survives A. (Reversion to A)
Contingent remainder is destroyed
Fee Simple Absolute
To A and his heirs
Concurrent Ownership
Kinds of Concurrent Ownership
- Tenants in common
o Shared ownership of the property, often as the result of intestate succession
* No right of survivorship
* If a tenant dies, the deceased’s interest remains part of the estate
* Can transfer ownership/interest, but it retains the structure of the tenancy
o Contributions
* Cotenant who pays more than his share of debt on the common property is entitled to reimbursement to the extent to which he paid their shares of indebtedness.
* Loss prevention by one may be subject to right of contribution by the other.
o Exclusive Possession by one co-tenant doesn’t count as adverse possession
- Joint tenancy with right of survivorship
o Joint tenants gain proportional interest of the others as they die. Interest is indivisible.
* It is a finite and closed group, which can’t be penetrated even by estate.
* Conveyance severs right of survivorship for that party’s stake
* Can’t convey an interest that one doesn’t have
* Attempting to mortgage joint tenancy without permission of joint tenant, the mortgage is invalid upon the mortgager’s death
- Tenancy by the entirety
o A unilaterally indestructible right of survivorship, inability for one spouse to alienate his interest, and broad immunity from claims of separate creditors remain amount its vital incidents.
* Available only to married couples
* Refers to mutual ownership by a married couple, based in old convention
Landlord/Tenant
Duration and Timing
- Lease implies that possession takes place when signed.
o English Rule (followed by most jurisdictions): Quiet enjoyment/exclusive possession is implied
* New tenant not responsible for payment of rent until holdouts are removed. Landlord may be responsible for lost profits if tenant can’t take possession.
* Partial eviction: if part of premises leased to someone else, quiet enjoyment = violated.
o American Rule: Landlord not responsible for acts of strangers
* Quiet enjoyment/exclusive possession is not necessarily implied
- Leases generally categorized by their duration
o At Will: Indeterminate durations create an at will lease, terminable at any time by either party – applies in some jurisdictions
o Tenancy for years: Lease for a time certain, specified in the agreement
* Requires notice for termination, usually six months.
* “x annually, y per month” = annual lease. Requires 6 month notice in most courts
o Periodic tenancy
* Continues from year to year or month to month until notice of termination is given
- Tenant stays past duration
o If voluntary, may be treated as trespasser or a renewal of lease.
o If involuntary, may be charged for only the time extending past the lease, not a whole new lease
Condition of Premises
- If condition is breached
o Landlord immunity in common law BUT changes due to modern structures and urban housing
* Tenants have less access to care for leased property
o Deemed uninhabitable under regulations = unenforceable lease.
* Sometimes the landlord still able to recover for the stay
* Landlord retaliatory eviction for reporting living conditions is invalid
o Constructive Eviction under common law - Tenant may still have to pay, until he moves out
* Modern law – Tenant mot liable for rent because property isn’t as agreed. Tenant only pays for reduced value of the premises due to landlord’s breach Implied Warranty.
- Duty to protect tenants from third party does not exist UNLESS:
o Reasonable expectation, contractual duty, or clearly and obviously foreseeable
Transfer of Tenancy
- Tenancy is transferable unless the original lease states otherwise
- Kinds of Transfers: Assignment and Sublease
o Assignment: Privity of estate between assignee and landlord, and tenant and landlord. Assignee who assigns no longer has privity with landlord
o Sublease: Sublessor and Sublessee in privity of contract, not Sublessor and landlord. Terminates if lease terminates.
Easements
Types
- Covenant or Easement
o Covenant compels owner to do x on his own land. Consists of: 1) Benefit AND 2) Burden. Only runs with the land IF:1)Intent 2)Touch and Concern 3)Horizontal privity of estate 4)Vertical Privity of Estate
o Easement permits individual to do x on another’s land. Easier to enforce against successors.
- Either Affirmative or Negative
o Affirmative Easements: Entitlement to act upon land or affect the land
o Negative Easements: Prevents owner of land from doing x with it.
- Easement in appurtenant or in gross
o Appurtenant: Benefits its owner with his ownership of neighboring land
o In gross: Benefits one without regard for his ownership of any land.
- Profits a Prendre: Confers right to enter and remove natural resources/other substances from land
- Licenses: Subject to termination at will
o Subject to few conveying rules, and it is often said that a license is not an interest in land at all.
