Property Law Outline - Dukeminier PDF

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E&E Property Outline Supplement to Property 9th Edition by Jesse Dukeminier Professor Seplowitz 2019 Personal Property & First Possession

Property

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Real Prop: land & the improvements attached to the land. Ex: buildings, fences, damns

Personal Prop: all prop other than real prop. Ex: cars, books, comps

Fixture: personal prop that has been permanently attached to real prop, but can be removed. Has a hybrid nautre. Ex: dishwasher installed in a kitchen cabinet

Tangible: prop of physical nautrue; you can see & touch it. Ex: car, book, clothes, comp

Intangible: assets that cannot be seen or touched but still have vaule. Ex: stocks, bonds, copyright, patent, $

Possession, Relativity of Title, & First-In-Time ! Possession: controlling or holding of personal property, w/or w/o claim of ownership. It has 2 elements: 1. An intent to possess o the part of the possessor, & 2. His actual controlling or holding of the property o a possessor is said to have superior rights to pers prop against all except those having higher rights or title, & a possessor can recover possession of an item of pers prop, or recover damages for its injury or destruction ! Relativity of Title: the idea that a person can have a relatively better title or right to possession than another, while simultaneously having a right inferior to yet another person ! First-in-Right: is one way to prioritize several individuals’ rights; establishes a priority of rights based on the time of acquiring the right in question. o The chronologically first possessor has the better title

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Actual Possession & the Fox Case ! Pierson v. Post→since Post never actually controlled the fox, the appellate ct rules that Post never took legal possession. o Post did not have control o This case involved a rule of possession made so that the first hunter to capture the fox wins. This is a rule of first-in-time, first-in-right. ▪ Necessity→if the law is to devise a rule for a race w/o a common starting line, then the end of the race is all that matters bc it is all the ct has to work with. Constructive Possession ! Denotes possession that has the same effect in law as actual possession, although it is not actual possession in fact. o Ex1: the dissent in Pierson argued that Post’s pursuit put him in a constructive possession of the fox, in that it gave him a right to possession that was not yet actual possession o Ex2: natural resources law→the owners of land w/oil, gas, or other minerals lying beneath its surface might not be in actual possession of those materials, but they are often said to be in constructive possession of them. Whoever owns the surface also owns to the depths of the earth. Custom ! =another basis for determining possession, custom being a use or practice long adopted, having the force of law. Majority of the court chose to ignore this basis Law of Finders & Proper Possessors ! common law=a finder of lost property has greater rights to the found property than the entire world except the true owner. →the goal here is to facilitate the return of lost prop to its true owner. o If the true owner is located, the true owner can recover the lost prop ! A finder of lost prop=a person who 1. Takes control of the lost prop, & 2. Has the intent to maintain possession of the prop Conversion, Replevin, & Trover ! Conversion: common law tort of using another’s prop inconsistent w/the rights of the true owner or rightful possessor o True owner or rightful possessor can recover the prop ! Replevin: the action or remedy to recover the asset itself (plus $ damages for injury to the asset) ! Trover: the action for $ compensation for conversion of personal prop; a forced sale o a person who is compensated pursuant to a trover action loses his rights to have the asset returned to him 2!

! The decision to seek trover or replevin is up to the true owner or rightful possessor, NOT the present possessor. ! These actions can be brought by finders or prior possessors on occasion, but it is rare o Armory v. Delamirrie ! Subrogation: a succession to another’s right or claim. It puts another in the place of a person originally holding the claim Lost Prop, Mislaid Prop, Abandoned Prop, & Treasure Trove ! Lost Property: prop the true owner unintentionally & unknowingly dropped or lost→this prop belongs to the finder, unless & until the true owner is located ! Mislaid Property: prop of the true owner intentionally placed in a given location & then left, or intentionally left intending to return for it later. o Watch example on pg 35 ! Abandoned Property: prop the true owner intentionally & voluntarily relinquished, w/ the intent no longer to own the object, & w/o transferring his rights to another person. Has 2 elements: 1. An act of abandonment, & 2. The intent to abandon →this must be proved & is not presumed ▪ The passage of time gives no rise to the presumption of abandonment ▪ Abandoned prop belong to the finder ! Treasure Trove: finder keeps gold, silver, & in some juris, currency, intentionally concealed or placed underground, w/indications it has been so long concealed that the true owner has long since died.

Adverse Possession : a legal process to gain (or lose) title to either real or personal prop Intro ! Ejectment: a landowner can have a person wrongfully on his land, such as a trespasser, removed from the property ! Adverse Possession: a person who is not the legal owner of prop, & who could have entered as a trespasser, who uses the prop for enough years becomes the owner of the prop & defeats all rights of the true or rightful owner, even if the latter had legal title. o Statute of Limitations Period: the # of years an adverse possessor must use the property. Varies among states o Color of Title: faulty deed owned by the adverse possessor ▪ There are 2 main types of adverse possessions 1. The adverse possessor claims a parcel of land completely unrelated to any other land the adverse possessor owns or claims 2. Boundary disputes Elements of Adverse Possession 3!

! To assert a successful adverse possession claim, an adverse possessor must show that the adverse possession satisfies each of the following common law elements: 1. Actual 2. Open & notorious 3. Exclusive 4. Hostile or adverse 5. Continuous *some cts add the following additional elements including the following: 6. Claim or title or claim of right 7. Good faith/bad faith 8. Improvement, cultivation, or enclosure 9. Payment of property taxes ! An adverse possessor must satisfy all elements to win o As a general guideline, an adverse possessor who acts w/respect to the prop as would an owner of similar prop in the community for the period of limitations usually satisfies each element. A. Actual Possession ! Purposes of Actual Possession: o Gives notice to the true owner & others who come on the property that the adverse possessor is using the prop o It indicates that the adverse possessor may be claiming the prop & has ousted all other ppl o The date the adverse possessor entered onto the prop triggers the true owners’ cause of action in ejectment or trespass, & the adverse possession statute of limitations period starts to run Exception to Actual Possession ! Color of Title: person claims ownership pursuant to a written doc (usually a deed) purporting to transfer property to him, but the document is defective in some matter→a faulty deed ! Benefits to the adverse possessor: 1. many state statutes reduce the SOL period for someone taking possession of prop w/color of title 2. the adverse possessor w/color of title who successfully proves an adverse possession claim based on actual possession of a a part of the tract described in the doc constituting color of title is deemed to be in constructive possession of the whole tract. ▪ Exception to Constructive Ownership by Color of Title=the true owner’s actual possession of a a part of the described land negates the constructive possession, & thus the adverse possession is limited to the land actually possessed. 4!

! Benefits of constructive possession=an adverse possessor occupying 1 lot has constructive possession of several lots conveyed separately if all lots are enclosed as a unit B. Open & Notorious Possession : the adverse possessor’s use of the prop is so viable & apparent that it gives notice to the true owner if he checked his land that someone may be asserting an adverse claim to it. ! Needs to be able to be indicated to a reasonably attentive owner o Buildings, fenses, crops, or animals might constitute as open & notorious. ▪ Fences, crops, cultivation, or enclosures are sometimes statutory req too ! If the true owner has actual knowledge of the adverse possessor’s claim, the open & notorious element is met even though no one else has reason to know of the adverse claim ! Normally, the adverse possessor is not req to give actual notice to the true owner that he is claiming the land as his own. o Exception to Notice=adverse possessor must give actual notice when the adverse possessor is claiming adversely against a co-owner C. Exclusive Possession : the adverse possessor hold the land to the exclusion of the true owner ! Possession can not be exclusive if 2 or more adverse possessor use the property adverse to each other’s ownership o If 1 adverse possessor has a superior legal right, by holding color of title or having entered the property first, the adverse possessor w/the superior right may oust the other adverse possessor & continue possession D. Hostile or Adverse Possession ! 3 theories of what constitutes hostile or adverse possession: 1. Majority/Objective View→the adverse possessor under this element uses the occupied prop w/o the true owner’s permission, & inconsistent w/the true owner’s legal rights. A person entering the prop w/true owner’s permission cannot claim adverse possession (ex: a tenant cannot claim adverse possession) 2. Minority, Bad-Faith, or Intentional Trespass View→state of mind is used here, asking whether the possessor’s subjective intent is relevant. Tempts the possessor to lie. Most cts don’t use this. 3. Good-Faith View→some cts require that the adverse possessor in a boundary dispute to be on his neighbor’s land in good faith, actually believing it to be included in his own deed description. Most cts don’t use this. E. Continuous Possession :the possessor must use the prop as would a true owner under the circumstances ! Does not mean uninterrupted ! Seasonal use may be continuous 5!

! Focuses on the adverse possessor’s time on the prop Disabilities ! If a true owner of prop is a disability, the statute of limitations will not run against him until the disability is removed. Disability must exist on the date of the adverse possessor’s entry onto the land. o Meanwhile, while the disability is in occurrence, the SOL is tolled ! There is no taking of disabilities →first disability is all that matters Privity & Tacking ! Tacking: adverse possessor may gift or sell his interest to antoehr person, who then succeeds to the adverse possessor’s attributes, including the time the first adverse possessor occupied the property. The adding of time the first possessor occupied the prop to the second possessor’s time is tacking ! Privity: relationship necessary to use tacking. It occurs by contract of sale, gift, will, or other inheritance (interstate succession).

Gifts ! :non-contractual, gratuitous transfer of prop made w/o legal consideration ! Inter Vivos Gift=a gift between living persons. There are 3 elements 1. Donative Intent→donor must have intended to make the gift 2. Delivery of the object to the donee a. Actual b. Symbolic→the thing delivered stands in the place of the prop (ex: when a pic of a dresser is delivered to the donee) c. Constructive→the prop itself is not transferred, but something giving access to & control over it is (ex: a key) 3. Donee’s acceptance of the object ! Gift Causa Mortis=a gift made on account of a donor’s impending death o These gifts are recoverable if the donor recovers from the illness

Common Law Estates & Present Interests Estate: ends

Estates

Present Interests

ownership interest in property. Also refers to when & how ownership

Future Interests

!Present Interest: can take possession & currently use the prop !Future Interest: person must wait until some future time to take possession

Estate Terminology

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! Condition Subsequent: occurrence or nonoccurrence of an event that can cut an estate short ! Devisable: owner can transfer the prop by will ! Descendible/Inheritable: prop can pass by the state’s intestacy statute to heirs if the owner died w/o a will ! Alienable/Assignable/Transferable: if the owner can sell or give away prop during his lifetime 1) Fee Simple Absolute: complete ownership, lasting until the end of time ! Owner can enjoy the prop, transfer it away by sale or gift during his lifetime, or devise it (by will) @ his death o If owner dies w/o a will, the prop passes to his descendants ! ”to X & her heirs”, “to X”, “to X, his heirs, & assigns” 2) Life Estate: it lasts as long as A lives & no longer ! The life estate’s duration is measured by the life tenant’s life ! Is NOT devisable nor descendible (by the life tenant) bc the life estate ends on the death of the life tenant o Is alienable inter vivios→transferable during the life tenant’s life ! There are no mandatory words required to create a life estate→common words= “to X for her natural life,” “to X for life,” “to X during her lifetime” ! If the grant to the life tenant does not stipulate who takes the prop upon the life tenant’s death, the original grantor (or his estate is he is deceased) takes possession. When the grantor receives the prop bac when the life estate ends, the grantor’s future interest=Revision. ! When a person’s interest in a life estate is measure by the life of a third party, the life estate is called a life estate pur autre vie (the third party’s name) o Can transfer or assign the life estate & can be devisable & descendible Life Estate or Fee Simple ! Sometimes it is unstated, ex: “I want my home to go to X to live in” o The issue here is whether the transferor or grantor intended to give the transferee a fee simple absolute or a life estate ! Judges will use the plain language to try to identify the grantor’s or testator’s intent. Next the Judge will look to the Rules of Construction: they are not laws, but are accepted suppositions that can be rebutted by evidence o Example of a rule of construction=a testator intended to give away all his prop through his will 3) Fee Tail/Fee Simple Conditional: “to X & the heirs of her body” ! Series of life estates to pass prop down to generation after generation ! Only ends when the blood line ends “without issue” then the prop reverts back to the grantor or one of the grantor’s heirs 7!

! Not devisable or generally inheritable ! All but 4 states have stopped using fee tail except for 4 states Waste ! Occurs when a possessory life tenant permanently impairs the prop or condition or value to the future interest holder’s detriment. Usually involves abuse, alteration, or destruction of realty by a person not a trespasser & not holding a fee simple. ! Affirmative/Voluntary Waste: occurs when the life tenant actively changes the prop’s use or condition, usually in a way that substantially decreases the prop’s value ! Permissive Waste: the life tenant fails to prevent some harm to the prop (ex: not making normal repairs to a water pump that resulted in dead lawn & trees) ! Economic Waste: occurs when the income from the prop is insufficient to pay the expenses the life tenant has a duty to pay→ordinary maintenance, real estate taxes, interest on mortgages, & in some juris, insurance. o Baker v. Weedon= ct held that only if the income from the prop is insufficient to “pay taxes & maintain the prop could a ct order a sale of the prop” 4) Fee Simple Determinable: an estate that would be a fee simple absolute but for a provision in the transfer doc that states that the estate shall automatically end on the happening of an event or nonevent ! Key words=so long as, during, while, unless & until o Ex: “ to X & her hairs so long as the prop us used for school purposes” ! Difference b/w fee simple & fee simple determinable=determinable could end if the condition subsequent occurs ! Possibility of Reverter: the chance that the prop might return to the grantor fi the condition subsequent happened o SOL for adverse possession starts running against the holder of a possibility of reverter on the day the condition subsequent happens 5) Fee Simple Subject to a Condition Subsequent: holder of this estate may hold the prop forever, but could lose it entirely if the condition subsequent occurs ! Difference b/w fee simple determinable & fee simple subject to a condition subsequent is that here, the grantor must assert his right of entry o Until the grantor exercises his right of entry, the holder of the fee simple subject to a condition subsequent continues to own the prop ! Key words=provided that, but if, on the condition that, provided, however. ! SOL for adverse possession does not begin to run until the holder of the right of entry exercises that right 6) Fee Simple Subject to Executory Limitation: the same granting language that would create either a fee simple determinable or fee simple subject to a condition subsequent is done here if the future interest goes to a third party 8!

Estate

Duration

Fee Simple

Forever

Fee Tail (fee simple conditional)

Until original grantee’s lineage dies out

Life Estate

For the life of the grantee

Term of Years

Fixed period measured in years, months, or days

! All =freehold estates except for term of years o All have different ways of ending o Possession of a freehold estates=Seisin

Future Interests Future Interests Retained by the Grantor/Transferor 1. Reversion: retained by the grantor when he transfers an interest less than the one he owns to another. It follows a life estate, fee tail, or term of years ! It does not depend on the occurrence or nonoccurrence of a condition precedent 2. Possibility of Reverter: future interest held by the grantor who transfers a fee simple determinable 3. Right of Entry (right of reentry, power of termination): is the grantor’s future interest that follows the fee simple subject to a condition subsequent ! Once classified, a future interest in the grantor thereafter retains the same even if owners change: if the transferor dies or assigns his future interest to a third party, the name of the future interest remains the same ! Most future interests are assignable (transferrable), devisable, & inheritable. o Ex: reversion Future Interests In Third-Party Transferees 1. Vested Remainders 2. Contingent Remainders 3. Executory Interests Remainder: future interest in a third party that “remains” after the interests & estates prior to it end naturally ! Must be created in the same instrument of transfer ! Must be possibly to become possessory immediately following the natural termination of the prior estate o Most commonly follows a life estate; but may follow a term of yrs or fee tail Vested Remainder 9!

a. Is owned by an ascertained person (person who can be named); and b. Is not subject to a condition precedent ! Follows any life estate, fee tail, or term or years that end naturally o Condition precedent=event that must occur before an interest before vested Contingent Remainder ! Either the owner is unascertained or the right to the current or future possession of the prop is subject to a condition precedent o The most common unascertained persons are unborn persons Executory Interests: future interest in a third party that takes effect only when the preceding interest is divested or cut short by a condition subsequent ! Typically follows an interest held in a defeasible fee o The fee simple divested in favor of the third party is called a fee simple subj to an executory limitation ! Springing Execut...