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Property Outline **On essay do not forget to talk about damages; will this result in equity (injunctive relief of action or result in law (damages) 1. Property and Society a. Locke and Hobbs i. Why Should we set up govt. to defend a civil society? 1. Locke – need civil society 2. Hobbs Monarchy ii. Property is social (related to society as a whole) 1. Absent society, property does not exist iii. Hobbs: 1. Human beings are equal (some have better attributes) 2. In state of nature, industry could be destroyed at any time 3. Right to violently protect one’s property 4. Absent violence, hard to keep property 5. Conflict with society on how to use your property (foundation of property law) 6. Lacking in the state of nature a. Culture b. Safety c. Produces rough state of things iv. Locke: 1. Do not have in the state of nature a. Preserve one’s property b. Right to self-defense and protect property c. Driven to civil society in order to preserve property d. Sees civil society as a republic e. People give up liberties for protection in the civil society f. Mix labor with land to the extent of not spoiling property b. Charles Mills – Racial Contract i. Social contract is political and moral but abstract, while the racial contract is concrete, realistic (all people not equal in a civil society) ii. People in the state of nature: non-whites iii. Civil society intended to be universal, but in practice treats people different iv. Racializing spaces c. Cases i. Johnson v. M’Intosh 1. By the law of nature, the Indians are sub-persons 2. Natives do not have a social contract; therefore, these rules do not apply, but racial contract does apply

3. Their property rights are not our property rights. We are going to civilize the land. Therefore, cannot recognize that they own that space. 4. Discovery Doctrine: related to euro ownership; social contract between euro nations – SCOTUS validates this 5. Doctrine of Conquest: conquering nation get property rights but does not deprive every one of their land. a. Euros do not recognize the Indians right to land because they are savages. 6. Although in state of nature, Indians can occupy the land but do not have ownership (right of occupancy). ii. Tee-Hit-Ton 1. Noncitizens have protections under the 5th amendment 2. Own property here, then have rights under constitution 3. THT are to be treated the same way as we treated the plain Indians (all savages) 2. Adverse Possession a. Elements: i. Actual Possession 1. Must be physical – i.e., it must take place in the ordinary way an average owner would use the property. (See the relevant statute for specific activities) 2. Generally, the tending of land through farming, clearing, planting shrubs and other means establishes actual possession. Likewise, occupancy, erecting structures, and conducting business have generally been held to constitute actual possession. Actual possession may be established by showing that the use of the land conformed to the typical uses of land in the area and uses for which the land is suited. 3. Boundary fences raise a presumption of actual possession. 4. Note: a. Under color of title (defective deed), occupancy of any portion of the land described in the deed is deemed to be actual possession of the entire lot described in a defective title. ii. Open and Notorious 1. Possessory acts must be sufficiently visible and obvious to place a reasonable owner on notice that his property is being occupied by a non-owner. Adverse possessors merely need to show that the owner’s reasonable inspection would have revealed the occupant; not that the owner had actual knowledge. 2. Building a structure, clearing land, mowing grass, and paving land have all been found sufficient to place the owner on notice of a

non-owner’s occupancy, along with parking, storage, picnicking, and the use of land for garbage removal. Planting and harvesting crops and the construction of fences and walls also constitute open and notorious acts of possession. iii. Exclusive 1. To support a claim of adverse possession non-owners must show that the possession was of a type that would be expected of a true owner and that the possession cannot be shared with the true owner. This may require showing that the true owner was effectively excluded from the property. iv. Continuous 1. To be effective, possession must continue throughout the statutory period. However, because adverse possessors are expected to exercise control in the ways customarily followed by like property owners, seasonal and periodic possession are considered continuous when consistent with typical property use. 2. Note: Tacking rules allow non-owners in privity with preceding adverse possessors to add together uninterrupted periods of use. v. Adverse or hostile (presumed element) 1. The hostility requirement means that possession must take place without the owner’s permission. As a general matter, possession of another’s property is presumptively non- permissive. However, in some instances permission can be implied from the established custom of a community 2. Written authorizations and leases establish permissive uses, however, the continued possession of property after express revocation, termination of such permission constitutes a hostile possession. (i.e. do not want someone to adverse possess your property give them permission to be there) 3. Written and other expressions denying permission can also establish the hostility of a non-owner’s possession (e.g., no trespassing signs or notices of intent to sue for trespass or ejection). vi. Intent 1. The majority of jurisdictions use an objective test to assess the adverse possessor’s intention to possess the property in dispute. Accordingly, the state of mind and character of adverse possessor’s is generally irrelevant. b. Claim of Right Statutes i. Though a minority of jurisdictions require a “claim of right” test, in most of these, the test only requires that the possessor act toward the land as an average landowner would from which the intention to claim the land is implied. A smaller number of these states allow a presumption of a claim of right through acts of possession to be defeated through evidence that

the adverse possessor did not intend to claim property that was not her own. c. Evidence i. The majority of jurisdictions require that adverse possession be established by clear and convincing evidence rather than a the preponderance required in most civil cases. d. Cases i. Brown v. Gobble 1. To not have to bring an adverse possession claim to adverse possessor and transfer ownership of title, its automatic. 2. Hostile element is presumed ii. Romero v. Garcia 1. Color of title can be utilized to actually posses the entire land when only a portion is in actual possession 2. Color of title = defective title iii. Nome 2k v. Fagerstrom (1990) 1. Subject view of the person adversely possessing does not come into play. Courts will look at general area usage and what the owner will do, they will look at other neighbor to determine what the areas general usage is. 2. Mere use does not mean possession; could mean easement iv. East 13th Street 1. Needs to be a privy relationship between person claiming taking in order to add on to another’s continuity 2. Privy generally acquires agreement between parties v. Community Feed Store 1. Hostile element not met; there is a presumption in this case that the space is open to the public (which is presumed permissive) vi. Somervill v. Jacobs 1. Dissent (which what we should follow on exam) – no ; payment for building and no forced sale. 3. Present Estates and Future Interest – Freeholds Estates a. Freehold Estates b. Overview i. Fee Simple Absolute 1. Words Used to Create a. To A b. To A and her heirs 2. Future Interest a. No future interest ii. Fee simple determinable 1. Words used to create a. A as long as b. During

c. Until d. While 2. Future Interest a. In Grantor i. Possibility of Revert iii. Fee simple subject to condition subsequent 1. Words used to create a. Provided that b. On condition c. But if 2. Future interest in grantor a. Right of entry b. Right of reentry c. Power of termination iv. Fee simple subject to executory limitation 1. Words used to create a. Until or unless b. Then to c. But if then to 2. Future interest a. Third party (named different as compared to third party interest in life estate) i. Executory interest v. Life estate 1. Words used to create a. For life 2. Future interest a. In grantor i. reversion b. In third party (named different as compared to third party interest in fee simple) i. Remainder (only follow life estates and term of years) b. Vested (ascertain person, no condition) a. Subject to open (subject to class closing rules; remands subject to division among future born person) b. Subject to Divestment c. Contingent (always has reverter to grantor) vi. Fee Simple 1. O to A “and her heirs” 2. This is a complete estate. It lacks any limitations on alienation, assignment, or use.

3. It is created through an expression of intention to convey and unlimited estate. 4. “O to A and her heirs” 5. “O to A” a. Create fee simple absolute estates vii. Fee Tail (majority of jurisdictions do not recognize this) 1. O to A “and the heirs of his body” 2. This estate is limited by lineal descent. It lacks any limitations on alienation, assignment, or use, however. If the grantee fails to have any lineal descendants then the estate “reverts” back to the grantor. 3. It is created through an expression of intention to convey an estate limited to lineal descendants. viii. Life Estate 1. O to A “for life”. 2. A life estate is an alienable, assignable, useable estate which is limited by the lifetime of the grantee. When the estate ends the ownership reverts to the grantor. 3. An estate per autre vie is also alienable, assignable, and fully useable but the duration of the estate is measured by another persons lifetime. a. O to A for life b. O to A for the life of B i. Create a life estate and an estate per autre vie, respectively. c. Defeasible Fees i. Fee Simple Determinable (created with : while, during, until, as long as) 1. These are words of duration that indicate a limited time period for the estate measured by a limiting event. 2. If the limiting event takes place the property automatically passes back to the grantor or her heirs 3. Grantor’s interest is a Possibility Of A Reverter ii. Fee Simple Determinable 1. Oprah to Angelina while she is with Brad, then back to Oprah 2. O to A while with B, then back to O 3. A has a fee simple determinable 4. O has a possibility of reverter iii. Fee Simple Subject to condition subsequent (created with but, however, provided that, on the condition) 1. These are words of condition that indicate that on the change of a stated condition the grantor may terminate the prior estate and reclaim the land 2. Grantor’s interest is a Right Of Entry (grantor MAY terminate but does not have to)

iv. Fee simple Subject to Executory Limitation (created by limiting an estate with any of the language above and passing it to a third party) 1. If the limiting event or the condition subsequent takes place then the land automatically passes to a third party 2. O to A, but if B should marry A then to J (Jennifer A) 3. A has a fee simple subject to an executory limitation 4. J has an executory interest (because J is a third party) 5. Executory Interests shift to a 3rd party from the original grantee. These interests cut short the preceding estate. 6. Example a. Dre to Mr. Mathers, provided that “the chronic” is not grown on the property but if it is then to Snoop. 7. This creates: a. A fee simple subject to an executory limitation in M; and an executory interest in S. 8. The fee simple estate is cut short if “the chronic” is grown on the premises. 9. The possessory right to the property then automatically shifts to the third party grantee (Snoop). v. Remainders a. Vested Remainders – follow terms of years and life estates, but not fee simples b. Given to an ascertained person c. Has no condition precedent 2. Vested Remainder a. Oprah to Angelina for Life then to Brad b. or c. O to A for life, then to B 3. Contingent Remainders – are remainders that are not certain to vest for one or two reasons a. They are given to an unascertained person i. O to A for life, then to A’s first child (A is currently childless) ii. or iii. O to A for life, then to A’s second wife iv. (A recently divorced his first wife) b. They are subject to a condition precedent; e.g., i. O to A for 100 years, then to B if he finishes law school ii. Or iii. O to A for life, then to B if B wins a Grammy c. Contingent Remainders may be set up in series or alternatively.

i. O to A for ten years, then to B if he is number 1 in the IU Indy Law class of 2013, or to C if she is number 1 in the IU Indy Law class of 2013, or to D if she is number 1 in the IU Indy Law class of 2013 school class. ii. This creates a “10 year term of years in A, a contingent remainder in B, a contingent remainder in C, a contingent remainder in D, and a reverter in O. iii. O to A for ten years, then to B if he is number 1 in the IU McKinney class of 2018, but if B is not number 1 in the IU McKinney class of 2018 then to C if she is in the top 10% of the IU McKinney class of 2018. iv. Formally, this creates a ten year term of years in A, alternative contingent remainders in B and C, and a reverter in O. d. Traditionally, Contingent Remainders were destroyed if they did not vest prior to the end of the previous estate – common law on destructibility of CRs e. To reiterate, today, a contingent remainder that does not vest prior to the end of the preceding estate can vest at a future date and spring from the grantor to the remainder holder. i. Ex. Oprah to Anna Nicole’s daughter for life, then to Brittney Spears if she becomes President of the United States. ii. Or iii. O to A’s daughter for life, then to B if she becomes President of the United States. 4. Vested Remainders Subject to Open – Remainders subject to division among future born persons. i. Ex. Oscar to Andre for life, then to the daughters of Beyonce. ii. This is a class gift and may be subject to class closing rules such as the rule of convenience that closes the class at the death of the life estate holder. 5. Vested Remainders Subject to Divestment – A vested remainder that can be destroyed by a future occurrence. i. Olivia to Andreas for life, then to Bertrand, however, if Bertrand gets married then reversion in O; ii. or

iii. O to A for life, then to B, however, if B gets married then to O iv. This creates a life estate in A, a vested remainder subject to divestment in B and a reversion in O b. O to A for life, then to B, however, if B gets married then to C i. A’s interest: ii. Life estate iii. B’s interest: iv. Vested Remainder Subject to Divestment v. C’s interest: vi. Executory Interest d. Estates and Future Interests (test will cover applications of USRAP) – uniform statutory rule against perpetuities; put in place to validate interests; USRAP applicable to contingment i. Majority rule 1. No longer follow rule against perpetuates as a general matter. Instead, focus on what the purpose of the rule intended; dead people do not decide how property is used infinitely into the future. ii. In part, the RAP was designed and used to invalidate 1. Executory interests; and 2. Contingent remainders (once they were no longer subject to the rule of destructibility) 3. Which makes property more marketable and alienable iii. **** Fee simple subject to condition subsequent is less restrictive than fee simple determinate and fee simple subject to executor limitation because the grantor MAY enforce future interest but does not have to. Therefore, if there is a question as to what the future interest is, the court will default to the least restrictive, which would be FSSCS. iv. Three main rules 1. Presumption against forfeitures 2. Unreasonable restrain on alienation 3. Rules against perpetuities v. The Rule Against Perpetuities provides that "no interest is good, unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."' (traditional rule) – Subject to open, CR, and EI not vaild under TR 1. Perhaps an easier way to understand the Rule is to recast it as follows: a. A nonvested interest is good (meaning valid) if it is absolutely certain to vest, or fail to vest, not later than twenty-one years after the death of some life in being at the creation of the interest.

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b. If such a life existed at the time the nonvested interest was created, such life would be a "validating life." In part, the Rule Against Perpetuities was designed and used to invalidate: a. executory interests; and b. contingent remainders (once they were no longer subject to the rule of destructibility) c. that might vest or fail to vest in a timely manner. By doing so the rule removed the impediments to alienability created by the interests. Fewer people want to buy or own property that has an unsettled future. The Rule has been used to invalidate nonvested interests which actually vest within the life in being plus twenty-one years period merely because there was the possibility, however remote, that it may vest or fail to vest in a timely manner when viewed from the moment of the nonvested interest's creation. For purposes of the Rule, the nonvested interests are limited to: a. contingent remainders; b. executory interests; and c. vested remainders subject to open Under the Uniform Statutory Rule Against Perpetuities (USRAP) a contingent or open interest is valid in any of the following circumstances (applies to EI and contingent remainders): a. if it would be valid under the original common law rule it is valid ; b. if we can be sure it will either vest and close or fail within 90 years after its creation it is valid; or c. if it actually vests and closes or fails within 90 years after its creation it is valid. i. Note: If an interest is invalid under the USRAP, some jurisdictions will allow the court to reform the conveyance to save it from the Rule under the doctrine of Cy Pres. Most jurisdictions retain some form of the Rule Against Perpetuities, but many jurisdictions have adopted one of two modern variations on the Rule. a. “Wait and See'' whether the interest will vest and close during the common law's permitted time period (21 years after the death of a life in being). b. The "90-year rule“ i. if the nonvested interest that would otherwise violate the common-law rule actually vests within 90 years of its creation it is valid. c. Note:

i. A minority of jurisdictions follow the "cy pres" doctrine. ii. Cy pres means “to reform as nearly as possible to accomplish the grantor's intent.” iii. Under this doctrine, if the terms of a nonvested interest could be reformed (changed) to assure a timely vesting of the interest, a court can reform the terms to validate the gift. 8. For example, suppose a. 0 conveys to A for life, then to A's children who reach age twenty eight. A dies survived by a child, age 5. A’s child cannot reach age twenty-five within twenty-one years of A's death; thus waiting to see if the interest will timely vest serves no purpose. 9. However, if the age contingency were reduced from twenty eight to twenty-six by both reforming the gift over and then using wait and see, then the gift will timely vest or fail to vest within the period. a. So, b. O to A for life, then to A’s children who reach age twenty six. Now, if A dies survived by a 5 year old we can wait and see if the child will reach age 26 to determine if the gift will vest. 10. The primary difference between these modern variations and the original Rule is whether we can wait to see whether the vulnerable interest will vest and close soon enough. 11. For example: a. 0 to A, but if alcohol is sold on the land during the first 90 years, then to B. b. Under the common law Rule: i. A and all other lives in being could die, at which point the clock would start to run toward 21 years. But the contingency would still apply for long beyond 21 years, so B's interest would be invalid. c. Under the 90 year Rule: i. B's interes...