Term
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Definition
Only when objects are captured and converted into possessions are they considered personal property.
Positive - Discourages people from stealing.
Negative - Increases over-consumption of resources. |
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Term
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Definition
What compromises being first to capture?
Majority: Pierson was first because he had control over the fox by killing. Bright line rule that the person who killed first creates certainty and discourages litigation. |
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Term
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Definition
| (Whale case) For first in time, if there is an established custom where the property can be identified, complete control is not necessary. Industry would collapse without this rule. |
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Term
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Definition
| (Duck case) Harming another's capture. Competition is good for society, but malicious interference is bad. |
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Term
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Definition
| Common law view that owners have constructive possession of animals on their land. |
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Term
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Definition
| Animals previously captured by O return to O after roaming. |
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Term
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Definition
| Offspring always go to the mother animal's owner. |
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Term
| Cheney Brothers v. Doris Silk Co. |
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Definition
| (Copying dress case) Designs without copyright can be copied. |
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Term
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Definition
| People have a property claim in themselves. It is assignable in life and inheritable at death. |
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Term
| Moore v. Regents of the University of California |
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Definition
| (Doctors patented a cell line) Moore didn't have possession of the cells after they were removed and there is no law on ownership of cells. No new law was created because the patent created new research that Moore didn't contribute to and because everyone has cells. |
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Term
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Definition
| The right to permit the use or possession of owned property. |
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Term
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Definition
| Basic right to deny use of your property to others. |
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Term
| Jacque v. Steenburg Homes |
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Definition
| Held that a person has a right to exclude another from use in their private land. |
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Term
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Definition
Person's rights in their real property is not absolute.
Federal officials have the right to provide services to migrant workers on the farm. |
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Term
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Definition
| Action for return of the wrongfully taken property itself. |
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Term
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Definition
| Action for damages for the value of the property wrongfully taken (forced sale). |
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Term
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Definition
Relativity of Title: The finder of lost property has a better right to it than anyone except the true owner.
Exceptions:
- A finder who is a tresspasser or someone on the property for a limited purpose must relinquish find to the landowner.
- Objects embedded in the soil belong to the landowner.
- Respondeat Superior: Employee acting for the benefit of their employer must relinquish the find to their employer.
Thieves take no title. |
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Term
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Definition
(Chimney boy/jewel Case; Trover)
True Owner = Bailor
Boy = Bailee
Goldsmith = Wrongdoer
If someone has to be treated unfairly, it should be the wrongdoer. |
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Term
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Definition
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Term
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Definition
| Possessor/borrower of personal property. |
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Term
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Definition
| Giving temporary legitimate possession of an item to provide a service. |
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Term
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Definition
One person takes over the rights or remedies of a creditor against his/her debtor.
The doctrine of subrogation can also pass proprietary rights, i.e. a security interest or claim to ownership of goods. If a work of art is stolen, and the insurance company pays out under a policy of insurance to the owner, if the art is later recovered, then legally it will belong to the insurance company under rights of subrogation. Similarly, if a ship is insured and then sinks, any rights of salvage will pass to the insurer if the claim is paid out as a total loss. |
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Term
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Definition
(Soldier/broach case) Hannah found the broach. Peel owned the house, but he never had possession of the house.
Broach would typically go to homeowner, but the court found for Hannah because the broach was lost, Hannah was meritorious in turning it over to the police, and Peel only found out because of the police. |
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Term
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Definition
(Wallet mislaid in barber shop) Distinction between lost and mislaid property.
Mislaid - Finder must turn it over to the shop keeper who has a duty to return to true owner.
Lost - Finder gets to keep it.
This promotes lying by the finder. |
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Term
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Definition
| (Bonds home run ball) Popov was first in time, but lost control. Court appliet equitable division ordering the ball to be sold and the proceeds divided. |
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Term
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Definition
Elements:
- Entry (Triggers statute of limitations when owner receives notice)
- Open & Notorious (Constructive notice or actual notice. Reasonable person standard)
- Continuous (Used in a manner in which an average owner would use the property)
- Adverse and under a claim of right (Protects an owner who allows a person on their property. 3 Standards: Objective Standard = State of mind is irrelevant, but must be without permission| Good-Faith Standard = The adverse possessor thought the land was his| Aggressive Trespass Standard = Adverse possessor knew it wasn't his but intended to make it his own. |
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Term
| Theories of Adverse Possession |
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Definition
Earning - It is better to recognize title in someone who is productively using the property.
Sleeping - Owners who don't protect their property rights shouldn't be protected.
No adverse possession against the gov't because it owns the land in trust for the people. |
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Term
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Definition
The adverse possessor has a deed, but the deed is somehow defective, usually because the person who deeded the property to them didn't own the property. More lenient rules. Doesn't trump actual possession by the true owner.
Constructive Possession - The adverse possessor can claim all the land that is described in the deed and purports to give them title, even if they aren't on the land. |
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Term
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Definition
| In the case of minor encroachment, there is no presumption of knowledge of the encroachment because this would not be open and notorious. Owner must have actual knowledge. |
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Term
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Definition
Settling who owns the property.
Once the statute of limitation has passed, there must be a conveyance in accordance with the statute of frauds to return title to the original owner |
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Term
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Definition
| Immediate conveyance between time of action and present. |
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Term
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Definition
| Estopped to deny statements about the boundary line if the other neighbor relied on them. |
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Term
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Definition
| A long acquiescence in a boundary line is evidence of agreement. |
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Term
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Definition
| An oral agreement to settle the matter is sufficient if the neighbors subsequently accepted the boundary line for a long period. |
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Term
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Definition
| A second adverse possessor can tack on the time of the previous adverse possessor if there was privity of estate between the parties and a voluntary transaction. |
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Term
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Definition
| (Ownership of lot was shifted over one lot for everyone) Average Use Doctrine - Since this was a vacation home, it wasn't necessary that they lived there. |
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Term
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Definition
| (Stolen paintings, want returned) As long as the owner is exercising due diligence, the statute does not start to tick. It ticks when you find out where they are. |
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Term
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Definition
Fraud or deceit. To receive valid title for BFP, needs to be bought for value.
UCC 2-403 Voidable Title Doctrine: A person with voidable title has power to transfer good title to a good faith purchaser. This protects a good faith purchaser and keeps things in the stream of commerce. |
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Term
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Definition
| Thief; needs adverse action to obtain good title. |
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Term
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Definition
Non-contractual, gratuitous transfer of property made without consideration. Acceptance is typically presumed.
Requires:
Intent
- After death needs will
- Future promise needs consideration to be enforced
Delivery
- Manual Delivery
- Constructive Delivery (e.g. keys to a car)
- Symbolic Delivery (e.g. deed to a house) |
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Term
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Definition
| (Gift of painting in a letter) Painting was a valid inter vivos gift of a remainder interest. He intended to give himself a life estate and presently vest a remainder interest in his son. Symbolic delivery was ok because you can't deliver an intangible right. |
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Term
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Definition
| (Causa Mortis gift case) Title to the insurance policy was not a valid gift because it could have been physically delivered. Bureau and other furniture that could be opened with the key were constructively delivered. Bedroom furniture was an inter vivos gift. If she had been his wife, she would have had delivery. |
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Term
|
Definition
Requires:
- Intent
- Delivery
- Acceptance
- 1 witness
- Imminent donor death
A future gift made in expectation of the donor's imminent death. A gift causa mortis is not effective unless the donor actually dies of the impending peril that he or she had contemplated when making the gift, i.e. these gifts can only be made when the donor is in a terminable condition. |
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Term
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Definition
| Someone always owns the property. Form England. |
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Term
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Definition
| Created by "to A and his heirs. |
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Term
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Definition
| Persons who take property under the decedent's will. |
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Term
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Definition
| Inherit if the decedent dies intestate (without a will); heirs cannot be determined until the decedent dies. Heir apparent until death. |
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Term
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Definition
| Children, but also direct, lineal descendants. |
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Term
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Definition
| Parents are the next takers if there is no issue. Then grandparents. |
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Term
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Definition
| Related by blood to the decedent, but not an issue or ancestor (not lineal). |
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Term
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Definition
| Named as a beneficiary in a will, but don't have an interest until they die. |
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Term
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Definition
| If the decedent dies intestate and without heirs as defined by statute, then the property escheats to the state. Ohio follows this rule. |
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Term
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Definition
"To A and the heirs of his body." Followed by a remainder in fee simple in O. Abolished in Ohio.
Its purpose was to act as a restraint on alienation. |
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Term
|
Definition
- Fee Simple Determinable
- Fee Simple Subject to a Condition Subsequent
- Fee Simple Subject to Executory Interest |
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Term
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Definition
"So long as"
Possibility of Reverter
Title automatically reverts back to O and becomes a fee simple absolute. |
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Term
| Fee Simple Subject to a Condition Subsequent |
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Definition
May divest if breach of condition.
Right of Entry
In order to reenter you must file a cause of action for ejectment. |
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Term
| Fee Simple Subject to Executory Interest |
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Definition
Executory Interest
Vests automatically.
"To A for use as X, but if not then to B"
No Rule Against Perpetuities violation if conveyance is between two charitable organizations. |
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Term
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Definition
"To A for life,"
Always followed by a remainder. |
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Term
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Definition
Life tenant may not use the property in a manner that unreasonably interferes with the remainderman's expectations.
Affirmative Waste - Doing something to deteriorate the property.
Permissive Waste - Contributing to the deterioration by not taking action.
Ameliorative Waste - Increases rather than decrease the value of the land.
In Ohio, only decreasing the value is considered waste. |
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Term
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Definition
| Courts have the ability to sell land that has an attached future interest, but it must be necessary and in the best interest of all of the parties. |
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Term
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Definition
The estate terminates upon the occurrence of a specified event.
Possibility of Reverter is transferable inter vivos in most states. |
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Term
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Definition
(Eminent domain over FSD park) Majority view is that the holder of the fee takes the entire condemnation award, and the holder of the reversionary interest takes nothing.
Contrasted with City of Palm Springs v. Living Desert Reserve where the grantor gets the total value through reversionary interest. |
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Term
|
Definition
Presently existing property interests that aren't presently possessory.
Patterns:
LE, CR, CR, Rev in FS
LE, VR, EI
FSD, PR
FSSCS, RE
FSSEL,EI |
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Term
| Transferor's Future Interests |
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Definition
- Reversion
- Possibility of Reverter
- Right of Entry |
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Term
| Transferee's Future Interests |
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Definition
Vested Remainder
Contingent Remainder
Executory Interest |
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Term
|
Definition
A future interest that waits patiently for the termination of the prior estate.
"To A for life then to B"
Not subject to RAP |
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Term
| Vested Remainder Subject to Open |
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Definition
"To A for life, then to A's children and their heirs."
The remainder is vested, but more people can join the group. Subject to RAP because class is open. |
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Term
| Vested Remainder Subject to Complete Divestment |
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Definition
"To A for life, then to B and her heirs, but if B does not survive A, to C and his heirs."
The difference between this and a CR is that the conditional language comes after the vested interest, not incorporated into the design of it. |
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Term
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Definition
| Either grantor leaves to an unascertained person or there is some condition precedent that must be met before vesting. CR are subject to RAP. |
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Term
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Definition
| Can only become possessory by divesting another's interest (shifting) or by divesting a transferor in the future (springing). Subject to RAP |
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Term
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Definition
| A trustee holds legal title in fee simple. Life and remainder beneficiaries hold equitable title. |
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Term
| Law of Spendthrift Trusts |
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Definition
Can only be created for inherited wealth.
- Unreachable by creditors because the beneficiary can't assign it as he doesn't have legal title. Creditors can reach money once it has been paid out.
- Creditors must do due diligence when lending money. |
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Term
| Rule Against Perpetuities |
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Definition
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. If violated, cross out the problem portion as if it never existed.
Presupposes lifetime fertility.
Mechanics:
1. Classify the interest (must be a CR, EI, or Class gift)
2. Determine if the given interest might not vest within the perspective period for the lives in being plus 21 years.
Some states adopt a wait and see approach to see if the interest will vest. |
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Term
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Definition
| Person who will enable you to prove whether the contingent interest will vest or fail. |
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Term
|
Definition
| When the interest will vest outside the validating life plus 21 year period. |
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Term
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Definition
| Clause that ties the end of the trust to someone who is alive. i.e. at the death of the grandchild. |
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Term
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Definition
| At the time the gift is vested for one member of the class, the class is closed and excludes and after-born members. |
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Term
| The Symphony Space Inc. v. Pergola Properties |
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Definition
| Business Perpetuities Period = 21 years after the contract was made. See outline. |
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Term
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Definition
| Wait to see if all estates vest at the end of the perpetuities period, and if all contingencies are resolved, it passes muster under the RAP. |
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Term
|
Definition
"To A and B." Each has an undivided interest in the property (right to occupy the whole).
No right of survivorship.
Each can sell, devise, lease, or gift without notifying the other.
This is the default. |
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Term
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Definition
"To A and B as joint tenants with a right of survivorship." Must be explicitly stated.
4 Unities:
- Time: Both Estates must vest at the same time.
- Title: Both must acquire title in the same instrument or adversely possess together.
- Interest: Must be equal shares for same duration.
- Possession: Each has the same right to the possession of the whole (Per my et per tout).
When a unity is severed it becomes a TiC |
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Term
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Definition
| A JT is not severed and there will be no conveyance until the redemption period has expired without redemption. |
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Term
| Title Theory of Mortgages |
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Definition
| JT is severed immediately when mortgage is created because it is transferred from morgagee to bank. |
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Term
| Multiple Party Bank Accounts |
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Definition
Generate a lot of litigation because the intent of the decedent is often unclear.
Joint Account - Most common, has right of survivorship. Money goes to the survivor.
Convenience Account - One person provided all the assets, but someone else draws on it to pay bills and such.
Payable on Death Account - Only gives right of survivorship; no rights before death. |
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Term
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Definition
| Equitable action of getting out of a concurrent tenancy or forcing the buyout of the other. |
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Term
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Definition
(Preferred) Physical division of the property.
Owelty - Money paid to even out an inequitable distribution of property. |
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Term
|
Definition
| The property is turned into cash and divided up proportionally. |
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Term
|
Definition
Tests:
- Claim of absolute ownership
- Adverse possession
- Rent not paid |
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Term
|
Definition
| Co-tenant does not have the right to contribution for repairs/improvements. |
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Term
|
Definition
| Requires all 4 unities plus marriage. Divorce severs the TbtE. Property owned as if by one individual. Per tout et non per my - They own the whole thing as one person and can convey interests together. |
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Term
| Modern/Forced Elective Share |
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Definition
| Amount a wife/husband is entitled to at death of spouse. 1/2 to 1/3 depending on children. |
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Term
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Definition
1/3 undivided LE for all inheritable property.
People tend to choose forced elective share because it's larger.
Both husband and wife must sign to release dower. |
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Term
|
Definition
| Abolished now; merged with dower. |
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Term
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Definition
| Tenant holds possessory estate in land for a determinate period or at will by permission of the landlord, who owns an estate of larger duration in the same land. Landlord has reversion. |
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Term
|
Definition
English Rule - Implied covenant of providing physical possession for the first day of term. Tenant could lease and sue for damages. This is gaining favor in the US.
American Rule - Landlord only has to provide legal possession. |
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Term
|
Definition
A transfer of all of the tenant's possessory interest to a new tenant.
- No reversion in tenant 1
- Assignee is in PoE with landlord and PoK with both tenant and LL (PoK only if assignee assumes the covenent).
- Tenant is not in PoE with LL anymore, but still PoK.
- Partial Assignment: The original tenant conveys all his interest in a portion of the premises.
Look at intent to determine whether assignment or sublease (Ernst v. Conditt) |
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Term
|
Definition
There can never be self-help to re-enter property because it encourages violence.
Summary Procedure - Can recover property in as little as 3-10 days. |
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Term
|
Definition
| LL must mitigate damages in connection with a tenant who wants to move out early. |
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Term
|
Definition
A property interest in use (not possessory) given to one person in relation to another's land, which is irrevocable. Subject to Statute of Frauds.
An easement that already exists is removed during the conveyance of the property. |
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Term
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Definition
| Gives the neighbor the right to enter or perform some act on the land. |
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Term
|
Definition
Affect property owner's right to do something on his land.
- Light
- Air
- Support
- Water |
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Term
|
Definition
| Default. Gives the right to whomever owns the dominant estate. Attaches to and benefits the dominant tenement. Usually transferable. |
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Term
|
Definition
| Land benefited by the easement. Transferable to subsequent owners. |
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Term
|
Definition
| The land detrimented by the easement and subject to it. |
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Term
|
Definition
| Benefits a person, not in connection with use of the land. No dominant estate. |
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Term
|
Definition
| Someone reserves a right to pass through the land. Vanishes when the person dies. Not transferable. |
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Term
|
Definition
| A provision in a deed creating some new servitude which did not exist before as an independent interest. |
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Term
|
Definition
| A right to take things off of the land thought of as part of the land (e.g. mining or logging) |
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Term
|
Definition
(Are revocable) Oral or written permission given by the occupant of a land allowing the licensee to do something that would otherwise be considered trespass. Distinguished from an easement because it is revocable and not subject to the statute of frauds.
Exceptions:
- A license coupled with an interest (e.g. a profit) are irrevocable.
- A license may become irrevocable by estoppel if the licensee relies on the license to their detriment. Estoppel Test: 1) Reliance, 2) to detriment, and 3) with owner's awareness. |
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Term
| Implied Easement by Prior Use |
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Definition
Implied on the basis of an apparent or continuous use of a portion of the tract existing when the tract is divided.
Must be:
- Apparent (not necessarily visible i.e. sewer pipes in Van Sandt v. Royster)
- Continuous
- Necessary |
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Term
|
Definition
| When owners use one part of land to help another part of the land, at time of division there is an implied easement. |
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Term
| Implied Easement by Necessity |
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Definition
The easement is necessary to the enjoyment of the use, which arose when the dominant parcel was severed from the serviant parcel.
Test:
1. Must show unity of ownership
2. Necessity (not mere convenience)
3. Necessity existed at the time the serviant and dominant estates were severed.
Extinguished when no longer necessary. |
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Term
|
Definition
Method of acquiring an easement upon another's real property by continued and regular use without permission of the property owner for a period of years required by the law of the state.
Similar to adverse possession except that you get an easement and not title.
If permissive then there is no cause of action for prescription. |
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Term
| Public Trust Doctrine/Public Prescriptive Easements |
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Definition
| Long and continuous use by public under a claim of right, but the owner must be put on notice specifically that it is being claimed by the general public and not by individuals. |
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Term
| Raleigh Avenue Beach Association v. Atlantis Beach Club |
|
Definition
(Who owns the beach) State owns water. Public owns wet sand. Dry sand can be privately owned.
Factors to Determine Public Use (Matthews v. Bayhead Improvement)
- Location in relation to public area
- Extent and Availability of other public area
- Nature and extent of demand
- Usage of sand by owner
Case held that a privately owned beach property with a license from the state, used in the past as a public beach, must give reasonable access to the public. |
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Term
| Miller v. Lutheran Conference & Camp Association |
|
Definition
(Church using lake) Modern Trend - Easements in Gross can be transferred for use in a commercial nature if the intention of the party's was for the instrument to be transferable.
- Restatement: All easements in gross are transferable
See outline. |
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Term
|
Definition
Use of an easement is limited to the dominant estate.
Easement termination/duration is usually built into language. |
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Term
|
Definition
| Court upheld traditional rule stating that an easement cannot be extended to a non-dominant estate, even if they are owned by the same person. |
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Term
|
Definition
1. Release
2. Expiration/Duration
3. Merger
4. Estoppel
5. Abandonment
6. Condemnation
7. Prescription
8. Necessity (must be easement by necessity and the easement must no longer be necessary. |
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Term
| Covenants Running with the Land |
|
Definition
Arise out of contractual obligations that affect property, but do not bind successive owners unless there is privity of estate.
This is a promise to do or not do something on one's land for the benefit of someone who owns another piece of land. |
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Term
| Burden (Covenants Running with the Land) |
|
Definition
Covenantor's promise to do or not do something.
Requires:
- HP
- Strict VP (Need exact same estate)
- Touch and Concern
- Notice |
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Term
| Benefit (Covenants Running with the Land) |
|
Definition
Covenantee's right to performance.
Requires:
- Relaxed VP
- Touch and Concern |
|
|
Term
| Horizontal Privity of Estate |
|
Definition
Between the original parties to the covenant.
- Grantor/grantee relationship |
|
|
Term
| Vertical Privity of Estate |
|
Definition
Between the original owners and the successive owners.
Transfer of property to subsequent purchaser. Burden enforceable only if exact same estate as promisor. Benefit enforceable if equal or lesser state as promisor. |
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Term
|
Definition
Remedy for breach is damages.
Requirements:
- Initial agreement must be in writing.
- Must be intent for covenant to run with the land and be passed on to successive owners and be enforceable by them.
- Notice to the subsequent purchasers
- Horizontal Privity
- Vertical Privity
- Covenant must touch and concern the land |
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Term
|
Definition
| When there is no Horizontal Privity transfer the property to a straw man (third party) and back to get HP. |
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Term
|
Definition
Remedy is injunction. No HP necessary., but there must be intent for the promise to run, actual or constructive notice to subsequent purchasor, and covenant must touch and concern the land.
VP not necessary for the burden to run. |
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Term
|
Definition
Real Covenant - Must be created in a written instrument signed by covenantor because it is subject to the statute of frauds.
Equitable Servitude - Can be implied in equity, but it cannot be obtained by prescription. |
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Term
|
Definition
| Racially restrictive covenants are unenforceable under the Constitution. |
|
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Term
|
Definition
| The covenant must relate to the use or enjoyment of the land. Restrictions on uses of land are almost always held to touch and concern the land. |
|
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Term
|
Definition
| Negative easement created by statute. Established between private owner and gov't or conservation group for environment-related purposes. |
|
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Term
|
Definition
| Enforceable in law and in equity. Forces covenantor to do something. |
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|
Term
| Termination of Running Covenants |
|
Definition
1. Merger
2. Reliance
3. Acquiescence
4. Doctrine of Changed Conditions |
|
|
Term
| Doctrine of Changed Conditions |
|
Definition
Applies only to running covenants.
Factors:
- Changes of properties
- Changes of conduct of persons
- In case of common scheme, the property is no longer suitable for its purpose
- If enfrcement of injunction would diminish the value of other land
- Enforcement, except by money damages, would be inequitable |
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Term
|
Definition
| A memorandum of sale for creation or transfer of a property interest must be signed by the parties, describe the real estate, and state the price to be binding. |
|
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Term
|
Definition
Once the buyer has taken the deed, the contract merges into the deed, which controls.
Courts are reluctant to enforce because language in contract, but not in deed, is unenforceable. |
|
|
Term
| Common Interest Communities |
|
Definition
| Statutes in each state govern establishment, but they are entirely regulated by covenants. Seen most frequently in NY. |
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