Property Outline

CHAPTER 1 TRESPASS: RESOLVING CONFLICTS (RIGHT TO EXCLUDE)

Trespass: intentional, unconsented and unprivileged intrusion on property possessed by another (common law) Intent met if D engaged in a voluntary act (volitional) It is not necessary to show that the trespasser intended to violate the owner's legal rights. The intrusion occurs the moment the non-owner enters the property. If one is forewarned to leave the premises and remains on the property then the trespass becomes criminal. Necessity justifies a trespass when needed to save lives or property. However, if a trespasser damages the property, the law imposes on the trespasser a duty to compensate the owner for the damage. Case State v. Shack (Limitations of an owners property right) Issue Whether ownership of real property includes the right to bar access to governmental services available to migrant workers and deem governmental officials as trespassers upon being forbidden by the owner to leave the premises. Whether the defendants committed trespass by disguising individuals as patients with hidden cameras to gain access to the plaintiff's eye center? Whether the Casino Control Commission has the authority to deny Uston of his right of reasonable access to their property open to the public. Rule A visitor maybe reasonably required to identify himself and state his general purpose if the migrant worker has not already informed the employer for security concerns. However, the employer has no right to deny the worker of his right for from governmental or charitable aid because this right is too fundamental. If the defendant can prove consent, necessity, or public policy to trespass than the trespass is privileged and not wrongful. Majority View (p. 19 text) there is a duty imposed on common carriers (planes, trains, buses, etc.) to serve members of the public without discrimination unless they have a good reason not to provide services to a particular individual. (Uston extended that right of reasonable access to all businesses open to the public.) The most common measures of damages are (1) the value of the property wrongfully trespassed upon, or (2) the diminution in value of the property as a result. When nominal damages are awarded for an intentional trespass to land, punitive damages may be awarded (jurys discretion). Compensatory Damages = Actual inflicted on the Plaintiff.

Desnick v. American Broadcasting Companies, Inc. Uston v. Resorts International Hotel, Inc. (Reasonable Access to Property Open to Public)

Glavin v. Eckman (Trespass Remedies) Jacque v. Steenberg Homes, Inc. (Punitive Damages)

Whether the trial court committed error in determining a reasonable restoration cost damages caused by the defendants to the plaintiff's property. Whether the jury erred when it awarded the plaintiff punitive damages without awarding compensatory damages.

Privileges (Defenses) to Trespass: 1. The entry is done with the consent of the owner; or 2. The entry is justified by the necessity to prevent more serious harm to persons or property; or 3. The entry is otherwise encouraged by public policy. The landowner has both possessory and title rights if he lives on the property. Reversion is an interest where a landlord is able to recover his land after the lease has ended. PUBLIC ACCOMMODATIONS STATUTES Specifically: Civil Rights Act of 1964 (regulated public/private conduct) pg 33 Distinguish prior Civil Rights Act of 1866 (regulated only state conduct) pg 34

CIVIL RIGHTS ACT OF 1866 Regulates race discrimination applies to private conduct as well as legislation passed by the state.

CIVIL RIGHTS ACT OF 1964. (Federal public accommodations law) The public accommodations provisions of Title II of this Act addressed the problem of racial discrimination in motels, restaurants, gas stations, and theatres. However, it does not prohibit sex discrimination in public accommodations. Under the supremacy clause of the Constitution, states must adopt similar laws. State statutes that are inconsistent with federal statutes are preempted and thus, unenforceable. State statutes are permitted to provide greater rights than the Civil Rights Act permits. Protected Classes include race, color, religion, and national origin. Civil Rights (1964) and ADA (1990) are classes that are federally protected. Sexual Orientation and Gender are classes that are state/municipality protected. Distinction between public accommodations and private clubs: Whether the organization is selective in its membership and has limits on the number of persons who can join. Americans With Disabilities Act (1990) Specifically addressed discrimination against people with disabilities. Codified public accommodations exceptions, exemptions for the disabled. ADA require access only to physical places and only applies to internet site to the the extent they impede access to a physical store. Free Speech Rights of Access to Private Property 1st Amendment prohibits Congress from making any law that abridges the freedom of speech. The 1st Amendment is applicable to the states through the 14th Amendment. States may regulate speech by placing time, place, and manner restrictions on the particular type of speech. Free speech rights are constitutionally protected against state action, not private action. Property does not lose its private character merely because the public is generally invited to use it for designated purposes. Beach Access & the Public Trust Public Trust Doctrine: essentially, the state holds ownership, dominion, sovereignty over the publics right to use waterways, etc. (land covered by tidal waters belongs to the sovereign in trust, for the common use of all people.) Case Matthews v. Bay Head Improvement Association Issue Whether, subordinate to the public's right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area owned by a quasipublic body Whether the ordinance was proper under the public trust doctrine when it charged residents and non-residents different. Rule Where an organization is quasi-public, its power to exclude must be reasonably and lawfully exercised in furtherance of the public welfare related to its public characteristics. The purpose of the public trust doctrine was to preserve, for the use of all, the public natural water resources and the lands around them. This included public accessibility to and use of such lands for recreation. A homeless person may not constitutionally be punished for publicly engaging in harmless activities necessary to life, such as sleeping.

(Beach Access and the Public Trust) Borough of Neptune City v. Borough of Avon-by-the-Sea (Beach Access and Right to dry sand area) Pottinger v. City of Miami (Homelessness)

Whether a homeless person has a right to be somewhere and engage in harmless activities

Other Doctrines (besides public trust): 1. Dedication gift of real property from a private owner to the public at large. Requires an offer by the owner and acceptance by the public. Must be made by an unequivocal act by owner showing clear evidence of intent to dedicate for public use. 2. Prescription occurs if the public has used property possessed by another for a particular purpose for a long time (measured by statute), the public can acquire such rights permanently even if they never had them originally or if they had previously been reduced to private ownership. 3. Custom longstanding, uninterrupted, peaceable, reasonable, uniform use of the beachfront by the public for recreational purposes conferred continuing rights of access

CHAPTER 2 FRAMEWORK OF PROPERTY RELATIONS IN A DEMOCRACY (RIGHT TO ALIENATE/TRANSFER)

Escheat reversion back to state, in the absence of legal heirs or claimants Case Issue De Peyster v. Michael Whether a fee simple may be transferred with a condition that requires interest (Democratic Property) paid to the original owner on every subsequent sale of the property. Commonwealth v. Fremont Investment (sub-prime mortgages) Whether a motion for preliminary injunctive relief may be granted on the basis that the defendant originated and serviced subprime mortgage loans.

Rule Where an estate in fee is granted, a condition that the grantee shall not alien (transfer) the land is void.

Fremont states that all property rights have external effects. In addition, contracts have consumer protections laws, which regulate the business. These consumer protection laws are the min. standards.

CHAPTER 3: COMPETING CLAIMS TO PROPERTY (RELATIVE TITLE)

Case Johnson v. M'intosh (Conquest) Issue Whether the American Indians original Indian title is sufficient to warrant a claim of compensable taking. Rule An action of ejectment is only valid when the party has better title than the current possessor of the land. Original Indian title is not true title to land. It is merely a property interest to use the land at the Governments will. Fremont states that all property rights have external effects. In addition, contracts have consumer protections laws, which regulate the business. These consumer protection laws are the min. standards. Because Indian title is split between the fee held by the U.S. and the title of occupancy held by the tribe, the U.S. has sometimes exercised the power to manage tribal property. However, in this case the U.S. did not act in good faith. When the rights or privileges of the one are liable to conflict with those of the other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure that of the other.

Commonwealth v. Fremont Investment (sub-prime mortgages)

Whether a motion for preliminary injunctive relief may be granted on the basis that the defendant originated and serviced subprime mortgage loans.

Unites States v. Sioux Nation of Indians (Indian right to occupancy)

Whether the U.S., as a trustee of land, demonstrated good faith effort to manage tribal property when it took the land of the Sioux Nation.

International News Service v. Associated Press (Labor and Investment)

Whether defendants appropriating for commercial use matter taken from bulletins or early editions of Associated Press publications constitutes unfair competition.

Discovery. Gives an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest. Patent Letter. Used by the federal government to grant titles to parcels of land to individual buyers or settlers. Action for ejectment is used in court by a landowner to remove a possessor off their property. Writ of Certiorari is an appeal to the Supreme Court Court of Claims were the courts back in the day used to settle disputes against the U.S. government Sovereign immunity means that a sovereign cannot be brought into litigation without their permission, ie. Federal govt. Just compensation. If the U.S. takes private property by using its eminent domain power to build roads or government office buildings, it has a constitutional obligation to pay just compensation which is defined as the fair market value of the property taken. Gifts. A gift is a transfer of property from one person to another without payment. The law of gifts require:

1. present intent to transfer title 2. delivery of the property (physical transfer or accomplished through writing) 3. acceptance by the donee Pneumonic: IDA (Intent, Delivery, Acceptance) Types of Gifts. 1. Inter vivos gifts are gift made during the donors life when the donor is not under any threat of impending death. Inter Vivos gifts are irrevocable once they are made. 2. Testamentary transfers are those effectuated at death through a valid will or inheritance. 3. Causa mortis is a gift made during the life of the donor, which is conditional upon the donors death. gift made in the contemplation of immediately approaching death. A gift causa mortis is automatically revoked if the donor recovers from the illness that prompted the gift. Essentially, a gift causa mortis is similar to an oral substitute for a will. Exam Tip Pay attention to the intent of the donor. Did he/she intend for the gift to be irrevocable, or was it made in the contemplation death? Case Bayliss v. Bayliss (Child Support) Issue Do parents of post-minority support children have to pay for the college education of children if the marriage was terminated by divorce, if the parents would have paid for it had they stayed together? Does the mere fact that a person is pursuing a wild animal grant that person a right to the animal? Whether an actor undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of others, does the actor have a legal pre-possessory interest in the property? Rule Children of divorced parents, who are minors at the time of divorce, are given the same right to a college education before and after the reach the age of majority that they probably would have received if their parents had not divorced. The mere fact that a person is pursuing a wild animal does not grant that person a right to the animal. In order to obtain title to a wild animal one must kill and capture the animal. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable prepossessory interest in the property. This prepossessory interest constitutes a qualified right to possession, which can support a cause of action for conversion.

Pierson v. Post (Possession of wild animals) Popov v. Hayashi (Possession to baseball)

Doctrines for Surface water Use. 1. Riparian doctrine (States east of the M. River): allocates water rights to owners of land bordering on a surface water source. 2. Prior appropriation (States west of the M. River): allocates water rights based on parties putting water to beneficial use. FIRST IN TIME IS FIRST IN RIGHT Doctrines for Groundwater Use and Percolating Waters. 1. Absolute Ownership or Free Use (Minority View): states that each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability. 2. Reasonable use (Majority View): owners of land may withdraw water only if they put the water to a reasonable use on their overlying tracts. Liability is imposed for water withdrawals that unreasonably harm other surface owners or exceed a surface owners reasonable share of groundwater. 3. Prior Appropriation (West States): allocates rights according to the point in time when property owners begin withdrawing the water. FIRST IN TIME IS FIRST IN RIGHT Case Elliff v. Texon Drilling Co. (Law of Capture) Issue Will a party be liable for the negligent waste or destruction of anothers oil and gas when that waste and destruction occurred after the minerals had been drained from beneath the persons land? Rule Under the law of capture, there is no liability for reasonable and legitimate drainage from the common pool of minerals. Each owner is given a reasonable opportunity to produce his share of oil and gas from the common pool. But, this immunity does not extend to the negligent waste or destruction of oil and gas.

Willcox v. Stroup (Possession of Property as Title)

Whether Willcoxs possession of certain documents for over a century with no clear determination of ownership constitutes title when there is no superior title. Whether the plaintiffs discovery of burial items grants him ownership of such items?

Charrier v. Bell (Finders)

Where there is no title to documents, one who possesses them is entitled to them. The party not in possession is able to establish superior title by satisfactory evidence, the presumption gives way in favor of this evidence. Such a rule protects interests of longtime possessors and increases social utility. Burial ground items are not abandoned, because they are intentionally buried and are intended to stay with the land.

Lost, mislaid, and abandoned property. Property is lost when the owner accidentally misplaced it; it is mislaid when the owner intentionally left it somewhere and then forgets where she put it; it is abandoned when the owner forms an intent to relinquish all rights in the property. Treasure trove: ownership is given to the finder rather than the owner of the land, as long as the finder was not trespassing at the time it was found. Finder Rights. The finder of lost and mislaid property does not acquire title to that property against the true owner unless it has been abandoned; Many states have law that gets rid of the distinction between lost, mislaid, and abandoned property. Res nullius applies to abandonment of property and gives possession to the first finder. Native American Graves Protection and Repatriation Act of 1990. This federal statute provided that Indian cultural objects found on tribal or federal lands (NOT PRIVATE PROPERTY) belong to the tribe having the strongest connection with them. Case Tapscott v. Lessee of Cobbs (Relativity of Title) Issue Even though a person may not have title to property she possesses, can she still successfully regain possession of the land when another person forces himself onto the land? Whether the Plaintiff retain an ownership interest in the excised cells and matter such that he may prosecute the Defendants for conversion? Rule When a dispute arises over possession of the land, the land will be given to the first possessor. The suit is not about who has title, but about who has a right of possession, so the later possessor cannot defend his claim by showing that title belongs to a third person. To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession. Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.

Moore v. Regents of the University of California

ADVERSE POSSESSION
Adverse Possession when one possesses anothers property in a manner that is exclusive, visible (open and notorious), continuous, and without the owners permission (adverse and hostile) for a period defined by state statute, the rules in force transfer title from the title holder (the true or record holder) to the adverse possessor. Pneumonic: OCEAN HS (Open, Continuous, Exclusive, Actual, Notorious, Hostile, Statutory) One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: 1. That he has held the tract adversely or hostilely (possession of disputed property was against the right of the true owner and inconsistent with the title of the true owner); 2. That the possession has been actual (possession of disputed property was used for enjoyment, cultivation, residence or improvements); 3. That it has been open and notorious (possession of disputed property was in such a manner as to give notice to the true owner that the property is being claimed by another); 4. That possession has been exclusive (possession of disputed property was used only by the occupant and others were not permitted to use it or claim ownership); 5. That possession has been continuous; 6. That possession has been under claim of title or color of title.

Examples: Open and Notorious (fence established ownership), hostile (true owner never gave permission), actual possession (building on the land), exclusive (shown by the fence). Tacking possession by two adverse possessors, one after the other, may be tacked if the two are in privity with each. Privity exists when the possession is passed from one to another by deed, will, decent, written contract, oral contract, mere oral permission, or consent. Tacking is not permitted where one adverse claimant ousts a preceding adverse claimant. Color of Title refers to a claim founded on a written instrument (a deed, a will) or a judgment or decree which, unknown to the claimant, is defective and invalid. 6 Elements of Adverse Pos. 1) Actual Possession 2) Open and Notorious 3) Exclusive 4) Continuous 5) Hostile and Adverse 6) Statutory Period Meaning physical possession visible for everyone, including the owner to see sole physical occupancy without interruption without permission time period for which one must occupy

Rightful Owner brings an action for trespass or ejectment. Adverse Possessor brings an action to quiet title Case Brown v. Gobble (Border Disputes) Issue Whether the defendants can establish adverse possession of plaintiffs land by tackling on the time periods that their predecessors in title claimed to the land to establish the statutory requirement. Whether a deed is insufficient for adverse possession when it fails to describe a specific piece of property. Rule Tacking permits adding together the time period that successive adverse possessors claim property, and if the time period added together is more than ten years, adverse possession may be allowed. Adverse possession must be shown by clear and convincing evidence because the interest at stake is grave. A deed will not be void for want of a proper description if with the deed and extrinsic evidence, a surveyor can ascertain the boundaries of the land intended to be conveyed.

Romero v. Garcia (Color of title)

Boundary Settlements: Oral Agreement courts may uphold oral agreements between neighbors that set the boundary between their properties if: 1. Both parties are uncertain where the true boundary lay or a genuine dispute exists over the location of the boundary; 2. The parties can prove the existence of an agreement setting the boundary, and 3. The parties take (and/or relinquish) possession to the agreed line. Prescriptive Easement same elements as adverse possession, except the claimant must show use rather than possession. Case Issue Rule Somerville v. Jacobs Whether a court of equity may award When a person in good faith mistakenly improves compensation to an improver who makes a the property of another, that person is entitled to (The Improving Trespasser) good faith mistake of building on land that he the value of the improvements. Otherwise, the does not own? landowner would be unjustly enriched by the builders work. Acquiescence even without an oral agreement, the courts may nonetheless recognize longstanding acquiescence by both neighbors in a common boundary, if: 1. The parties are adjoining property owners, 2. Who occupy their respective tracts up to a clear and certain line, 3. Which they mutually recognize and accept as the dividing line between their properties, 4. For a long period of time. Actual Possession.

In the absence of a statute, actual occupancy means the ordinary use to which the land is capable and such as an owner would make it. For example, enclosing the property by a fence and treating it as ones own may show this. In absence of a fence, one must demonstrate actual possession by engaging in significant activities on the land, such as building on the land and/or living or conducting a business there. Other actions that are often sufficient to show actual possession are farming, clearing the land, and planting shrubs. Doctrine of Laches an equitable defense based primarily on circumstances, which render inequitable the granting of relief to a dilatory plaintiff. The doctrine applies when there has been an unexcused or unexplained delay in commencing an action and a corresponding change of material condition, which results in prejudice.

NUISANCE: RESOLVING CONFLICTS BETWEEN FREE USE AND QUIET ENJOYMENT

Water Rights Reasonable Use Doctrine (majority): A surface owner may capture surface ground water only to the extent that the use of the water is reasonable. Example: A neighboring owner can pump water for own use of his own land for reasonable uses, even if neighbor is harmed (must be reasonable). However, a neighbor cannot divert water from his well if another owner within the basin would be harmed. (Same doctrine for Percolating Ground Water) Common Enemy Doctrine (minority): surface water is a common enemy and any owner theoretically has an unqualified right to fend off surface waters by changing drainage or building a dam. Natural Servitude Doctrine (minority): lower lands are servient to the natural flow of surface waters. The owner cannot obstruct or change the flow so as to injure other either above or below. Case Armstrong v. Francis Corp. (Nuisance) Issue Whether the defendant is privileged to make a reasonable use of his land, which alters the flow of surface water and causes harm to the plaintiffs adjoining property. Whether a landowner legal obligation to provide lateral support for an adjoining landowner, land in its natural condition to the extent to include providing support for the weight of the adjoining landowners buildings. Rule The reasonable use doctrine recognizes that a possessor has a privilege to alter the natural flow of surface water where necessary to the normal use and improvement of his land. An adjacent landowner is strictly liable for acts of commission and omission on his part that result in the withdrawal of lateral support to his neighbors property.

Noone v. Price (Lateral Support)

Lateral and Subjacent Support 1. Right to Lateral Support The right of a landowner to have his land supported laterally by the neighboring land is an absolute right inherent in the land itself and a part thereof. a. Support of Land in its Natural Condition. The right of lateral support means the land in its natural condition without any buildings or other artificial structures. One who by excavation or otherwise withdraws lateral support from his neighbors land is absolutely and strictly liable (regardless of negligence). However, there is no obligation to support the added weight of buildings. 2. Right to Subjacent Support The right to subjacent support means support from underneath the surface of the land as distinguished from the sides and the rights involved are substantially the same as those involved in lateral support. a. Natural and Artificial Conditions: Unlike with lateral support, a landowner has an absolute right to subjacent support for land in its natural state, and also for any artificial structures on the land that existed when the right to mine was granted. b. Interference with Underground Waters: If one excavates on his land, and such excavation releases semi-fluid or semi-solid material from under his neighbors land causing the neighbors land to sink, there is liability. However, an adjoining landowner is NOT liable for interfering with underground percolating waters. Retaining Walls: if a retaining was built on Ds land for the purpose of maintain lateral support for Ps land, D has a strict obligation to keep the wall in good repair to avoid loss of lateral support for Ps land. This obligation runs with the land and is binding on subsequent owners of the property. The obligation only extends to such support that is needed to support neighbors land in its natural condition.

Easements and servitudes. An easement is a limited right to do something on, or to control the use of, someone elses property. An affirmative easement is a right to do something on someone elses property. The right to cross someone elses property is called a right of way. A negative easement is a right to prevent someone else from using her own property in a certain way. Easements are confined to affirmative easements. Servitudes are confined to negative easements i.e. lateral support. Case Friendswood Development Co. v. Smith-Southwest Industries, Inc. (Subjacent Support) Issue Whether landowners who withdrew percolating (pass through filters) ground waters from wells located on their own land are liable for subsidence (sinking of land level) of which resulted on lands of others in the same general area. Rule If the landowners manner of withdrawing ground water from his land is negligent, willfully wasteful, of for the purpose of malicious injury, and such conduct is a proximate cause of the subsidence of the land of others, he will be liable for the consequences of his conduct. Encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.

Fancher v. Fagella (Encroaching Trees)

Whether the defendant is liable for nuisance when his tree encroaches onto the plaintiffs land.

Nuisance v. Trespass Trespass is any intentional invasion of the plaintiffs interest in the exclusive possession of his property, whereas nuisance is an unprivileged interference, substantial and unreasonable interference with the plaintiffs use and enjoyment of his property. (freedom from pollution, noise, odors, smoke, etc.). Private Nuisance substantial interference with the private use of land and is either: 1. Intentional and unreasonable, or 2. Unintentional but negligent, reckless, or resulting from an abnormally reckless activity (strict liability). Noxious hurtful; offensive; offensive to smell; also associated with that which causes or tends to cause injury, especially to health or morals. Coming to the Nuisance where Ds conduct was already established when P moved into his/her property. This defense is not absolute, but will be persuasive in arguing that P created the problem his/her self. Right to Farm Statutes protect farmers from liability for nuisance if their farms were established before surrounding residential property was constructed. Nuisance (Questions to Ask): 1. Does P have a possessory interest in the land? 2. Has D done an affirmative act that interferes with Ps use and enjoyment of his/her property? 3. Is the interference substantial and unreasonable in nature? (reasonable person test) Spite Fences When fences serve no purpose other than the builders desire to hurt their neighbors, some states will grant an injunction ordering the fence torn down. In other cases, a spite fence might be deemed a nuisance because the type of harm involved is one that the owners should not have to bear, at least without compensation. Case Issue Rule Fountainebleau Hotel v. Whether a landowner have a right to unobstructed A landowner does not have a legal right to Forty-Five Twenty-Five, light and air from an adjoining land? the free flow of light and air across the Inc. adjoining land of his neighbor. (Right to light and air) Prah v. Maretti (Solar Energy) When a person uses sunlight as a source of energy, will the theory of private nuisance allow him to protect his property interest? Exception: Spite Fences When a landowner uses solar energy, and a new structure will unreasonably interfere with his use and enjoyment of his solarpowered property, the construction of the new structure can be enjoined under the theory of private nuisance.

SERVITUDES & EASEMENTS

A servitude is a legal device that creates a right or an obligation that runs with the land or with an interest in land. If permission is intended to be permanent or irrevocable, it is a type of servitude called an easement or right of way. A. Easement and Profits The distinguishing element between an easement and a profit is that while an easement gives its owner the right to enter or use the land of another (with no right to take anything from such land), a profit gives its owner the right to take either the soil itself or some product of the land. Easements a. Definition: An easement is the right of one person to go onto the land in possession of another and make limited use thereof. It can be extinguished by non-use or abandonment. Ex: A has right to enter or walk across Blackacre, which is in the possession of B. b. Classification: (1) easements appurtenant and (2) easements in gross c. Easement Appurtenant: An easement is appurtenant when it is attached to a piece of land and benefits the owner of such land in his and enjoyment thereof. Ex: A grants to B and his heirs a right of way across a strip of land along the north edge of Blackacre. B thus has an easement appurtenant across Blackacre. (1) The two pieces of land involved in an easement appurtenant are a. the dominant tenement, which is the land whose owner is benefited by the easement. b. The servient tenement, which is the land whose owner is burdened by (or subject to) the easement. (2) Easements appurtenant run with the land: Where the land is transferred, the easement appurtenant will transfer to the new owner of the land. d. Easement in Gross: An easement is in gross when it is intended to benefit the owner of possessor personally rather than in connection with any land the holder owns. Every easement in gross requires only one piece of land, which is owned by a person other than the owner of the easement in gross. The servient tenement is land subject to and burdened by the easement. The owner of the easement in gross is called the dominant tenant. Ex: A conveys to B Utility Company and it assigns the right to install electrical wires along the north edge of Blackacre. B Utility Company, which does not own any land adjacent to Blackacre, has an easement in gross across the servient tenement. Specific to one person and once that person stops using the land, the easement is extinguished. Usually given to Utility Companies. The easement can be exclusive, one party has permission to use it and no licenses may be given, or nonexclusive, the party may share the use by granting licenses to other persons. e. Affirmative vs. Negative Easements 1. Affirmative Easements. Affirmative easements entitle the easement holder or owner to make affirmative use of the servient tenement (e.g. laying and maintaining sewer lines). The dominant tenement owner is privileged to make affirmative use of the servient tenement. 2. Negative Easements. Negative easements prevent the servient tenement owner from doing some act or making a particular use of her own land. Ex: B, the owner of Blackacre which is located between the ocean and As Whiteacre, agrees in writing that no structure will be built on Blackacre that will interfere with As view of the ocean. A thus has a negative easement on Blackacre, the servient tenement that bears the burden of a negative easement. Note: A negative easement does not permit the dominant tenant to engage in any affirmative act on the servient tenement Creation 1. Creation by writing. An easement is an interest in land and requires it to be expressed in writing and signed by the party to be bound or the initial holder of the servient tenement. 2. Creation by Implication An easement, though not expressly in a writing, may be created by implication. Such easement arises when the owner of two or more adjacent parcels sells one of more of them and it is clear that an easement was intended. a. Prescription (Adverse Use): Arises by adverse use of the servient tenement by the dominant tenant through: Open and Notorious, Hostile, Continuous, Actual Use, Exclusive, and Statutory Period.

f.

b.

c. d.

Estoppel: A real property owner may be prevented by the court from revoking a license if the owner grants the licensee the right to invest in improving property or otherwise induces the licensee to act in reasonable reliance on the license. (Owner is estopped from denying continued access to his land) Prior Use: The dominant tenant was permitted by the servient tenant to use the land and no time limit was given for the duration of the use. Necessity: Land was owned by one person and then subdivided and new owner is denied access to enter/exit. The landlocked settingan easement of right-of-way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor's remaining land.

B. Licenses 1. Definition. A license simply permits one person to come onto the land in possession of another without being a trespasser. Unlike an affirmative easement, a license is not an interest in land. It is merely a privilege, revocable at the will of the licensor (unless it is coupled with an interest). 2. Classifications. a. A License or Mere License, which is always revocable. b. A License Coupled with an Interest, which is irrevocable. Ex: A purchases farm equipment from B. A has a license to enter Bs land to take possession of the farm equipment. c. An Executed License (i.e., an oral license acted upon), which is irrevocable. 3. Compare with Lease. A license may be distinguished from a lease since a licensee never has possession of land. A lessee, on the other hand, always has possession of the land. 4. Compare with Easement. An easement is a substantial incorporeal interest in the land of another and is created in most cases by a deed of conveyance. It is an interest in land and requires for its creation a compliance with the Statute of Frauds. On the other hand, a mere license is no such interest in land and requires no formalities for its creation. 5. Compare with a Contract. A contract is always based on a consideration theory. There may or may not be a consideration for a license. Ex: If A permits B to come onto As land to park his car for two hours with no consideration involved, then B has a mere license. A may revoke this license at any time. However, if A permits B to come onto As property to park his car for two hours and B pays A $2.00 for As agreement that B may do so without interruption. Then, B has a license to park on As property, which is revocable, but he also has a contract under which A has promised for a consideration not to revoke the license. Although A has the right to power to revoke the license, he has only the power but no right to breach the contract, and so A would be liable for a breach. C. Covenants Running with the Land 1. Legal Effects: Contract. As a general rule, a contract operates to bind person to person. Thus, only the promisor is bound to perform the promise, and only the promisee has a right to compel performance of the promisor. 2. Legal Effect: Easements. An easement appurtenant operates to bind land to land. The dominant tenant owns an interest in the land of another. If A transfers her dominant tenement to B, the benefit of the easement appurtenant passes to the conveyee. By the same token, a transfer of the servient estate carries with it the burden of the easement appurtenant. The successor in interest to either estate must recognize the easement as an interest in the land. 3. Legal Effect: Covenants Running with the Land. A covenant running with the land is something of a hybrid between a contract and an easement. It is more than just a person contract and less than an easement in the sense that a covenant is not an interest in land. Rather, a covenant running with the land is attached to or connected with the estate since it may be enforced against, or by, someone who is not an original party to the covenant, and they may do so solely by virtue of having succeeded to the ownership of the property to which the covenant referred. 4. Types of Covenants. a. Affirmative Covenant. An affirmative covenant will bind the covenantee or the holder of the servient estate to do some affirmative act. b. Negative Covenant. A negative covenant will prohibit the holder of the serviant tenement from doing something with respect to the land. 5. Requirements for a Covenant to Run with the Land (TWIN P) a. Touch and Concern the land. The covenant must be of a type that touches and concerns the land. The effect of the covenant is to make the land either more valuable (or increase its utility) in the hands of the covenantee or less valuable (or curtail the use or utility of the land) in the hands of the covenantor. In other words, the benefit of the covenant usually touches the land of the covenantee, while the burden touches and concerns the land of the covenantor. b. Writing. There must be a covenant or writing that is signed and complies with the Statute of Frauds. c. Intention. It must be the intent of the grantor that the covenant run with the land. As long as the words assigns or successors are used in the instrument, the intention is usually clear that the covenant is intended to run.

6.

d. Notice. The covenantee must have actual, implied, or constructive notice from the covenantor of the covenant. Actual notice comes in the form of a deed. Constructive or implied notice means that the notice can be inferred because the person had the ability and duty to obtain the notice. e. Privity. There must be privity of estate between the between the original covenanting parties (horizontal privity) and between those parties and succeeding owners (vertical privity). Enforceability. As a general rule, covenants running with the land are enforceable in actions of law (e.g., breach of contract or covenant). In this case, the breaching party is liable for money damages. Note, however, that in certain cases (where the remedy at law is inadequate) the plaintiff can proceed in equity (e.g., injunctive relief). Remedies for violation of a covenant will generally be damages.

D. Equitable Servitudes 1. Definition. An equitable servitude is a restriction on the use of land enforceable in a court of equity. An equitable servitude is more than a covenant running with the land because it is an interest in land. It is important to note that an equitable servitude is broader than an equitable easement because it applies not only to land but also to chattel property, such as a business. 2. Requirements. a. Writing. An equitable servitude may be created by any writing complying with the Statute of Frauds evincing an intention that such servitude exists. b. Intention. The intention of the parties determines who may and who may not enforce an equitable servitude. No particular words are essential to create an equitable servitude, provided that an intention to bind the land, and not merely the person to the transaction, can be found from the instrument and the circumstances surrounding its execution. c. Notice. The transferee must take the land with either actual or constructive notice of the existence of the servitude. On the other hand, an equitable servitude cannot be enforced against a person who gives value and has no notice of the existence of the servitude (namely, a bona fide purchaser). d. Privity Not Required. Unlike in a covenant, privity is not required for an equitable servitude because the servitude is considered to be an equitable property interest in the land and not a right of the owner of the servient tenement. 3. Enforceability. An equitable servitude may be enforced against one of the parties, as to land acquired after the creation of the original relationship between parties. Caveat: A court of equity may refuse to enforce an equitable servitude in the following situations: a. If its purpose is contrary to public policy; b. When the granting of relief would do more harm than good; c. When the granting of the relief prayed for would be futile; or d. The plaintiff is guilty of laches or unclean hands (i.e., the person seeking enforcement is guilty of a similar violation). 4. Implied, Reciprocal, Negative Easement (Arises from one party, the developer) The doctrine of implied reciprocal negative easement applies when an owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive covenants designed to further the owners general plan or scheme of development. Where the developer intends a common scheme for the entire parcel of land, including all of the plots, a landowner whose deed does not contain the restriction may be bound by the restriction if the other deeds of the adjacent properties contain the restriction. a. Common Scheme Required: Only applies where the original landowner intended for all the plots to be bound by the restriction. b. Notice Required. The purchaser of a plot whose deed does not contain the restriction is deemed to be on constructive notice of the contents of the deeds of adjacent properties. However, the purchaser of a plot does not have to be on actual notice of the restriction to be bound by it. 5. Extinguishment & Remedies As a general rule, equitable servitudes may be extinguished by abandonment. The remedy for violation of an equitable servitude will generally be specific performance or an injunction.

Covenant Running with the Land 1. Is more than a mere personal contract, but is less than an easement because technically it is not an interest in land. Requirements: (a) there must be a covenant, (b) an intention that the covenant run with the land, (c) must touch and concern the land, and (d) privity of estate. A covenant touches and concerns the land if it makes the land in the hands of the owner either more usable and more valuable or less usable and less valuable. Legal effect: makes an assignee of the land either benefit or be burdened by the covenant without being a party to the making of the contract. Remedies for breach: standard contract remedies (i.e., money damages or specific performance if appropriate).

Equitable Servitude 1. 2. 3. Is a restriction on the use of the land enforceable in a court of equity. Is more than a covenant running with the land because it is an interest in land. Is broader than an equitable easement because it applies not only to land but also to chattel property, such as a business. Requirements: (a) may be created by a writing complying with the Statute of Frauds, (b) intention of the parties that there be a restriction, and (c) transferee takes the land with either actual or constructive notice of the existence of the servitude. Privity of estate is not required. Remedies: equitable remedies. Extinguished: (a) by doing an act which violates the servitude and continuing for the period of the statute of limitations, (b) release by the dominant tenant, or (c) where the purpose and object of the servitude become impossible to achieve (e.g., change in character of neighborhood from residential to commercial).

2.

3.

4.

4.

5.

5. 6. 7.

ESTATES IN LAND
A. PRESENT POSSESSORY ESTATES Fee Simple Absolute A fee simple absolute is the most extensive estate with a potentially indefinite duration. Grantor has given away all of his interests and it cannot be divested (stripped of). Technical words to look for and his heirs. Ex: O to A and his heirs or O to A. A has a fee absolute. Fee simple determinable (and Possibility of Reverter) A fee simple determinable is a fee simple estate created to continue until some specified event occurs, and with the future interest held by the grantor. The estate terminates automatically when the stated event happens. The grantor has retained part of his interests. The possibility of reverter can be created only in the grantor and if the condition is breached, the fee simple automatically reverts to the grantor. Technical words to look for so long as, during, until, while. Ex: O to A so long as the property is used as a school. A has a fee simple determinable and O has a possibility of reverter. Fee simple subject to a condition subsequent A fee simple subject to a condition subsequent is a fee simple estate that may be terminated upon the happening of a named event by the grantor or his successors in interest. The estate continues until the grantor or the future interest holder exercises his right of re-entry. Grantor must exercise the option to retake by making an entry or bringing an action-right of reentry (NOT Automatic). Technical words to look for on condition that, on condition or but if. Ex: O to A and his heirs, but if the land is not used as a farm, O may re-enter the land. A has a fee simple on condition subsequent and O retains a right of re-entry.

Fee Simple Determinable Followed by a future interest called a possibility of reverter (which means the fee simple estate is subject to a special limitation). Estate terminates automatically by operation of law upon the happening (or non-happening) of a stated event or condition. Grantor has a possibility of reverter. Usually created by the words: until or so long as

Fee Simple Subject to Condition Subsequent Followed by a future interest called a right of re-entry (which means the fee simple estate is subject to being terminated by the re-entry of the grantor). After the happening (or non-happening) of the stated event, or condition, the estate will continue in the grantee or his successors unless and until the grantor exercises his right of re-entry. Usually created by such words: upon condition that, provided that, or but if and coupled with a provision for re-entry.

Fee Simple Subject to Executory Interest A fee simple subject to executory interest is a fee simple estate, whereupon the happening (or non-happening) of a named event or condition, ownership is to pass from the grantee to one other than the grantor. The future interest created in the third party is an executory interest. a. A shifting executory interest is one where the right to possession shifts from one grantee to another grantee. Ex: O to A and his heirs as long as the land if farmed, then to B and his heirs. A has a fee simple with an executory limitation and B has a shifting executory interest. b. A springing executory interest is one where the right to possession springs from the grantor to the grantee. Ex: O to A for life, and one year later, to B and his heirs. A has a life estate, O has a reversion in a fee simple on executory limitation and B has a springing executory interest.

Fee Tail At common law, a fee tail was usually created by the words, to B and the heirs of his body. Inheritance was restricted to lineal descendants of the grantee. a. Inheritance could be restricted to a particular group of lineal descendants of the grantee by proper words of limitation. 1. A grant to a male and the male heirs of his body created a fee tail male. Ex: O to A and the heirs male of her body 2. A grant to a female and the female heirs of her body created a fee tail female. 3. A grant to a donee and the heirs of his or her body by a particular spouse created a fee tail special. 4. A grant to a donee and the heirs of his or her body where no particular spouse was designated created a fee tail general. b. Since the estate may only pass to the lineal heirs, the estate may expire when there are no eligible lineal heirs remaining. c. Today, only a small handful of states still recognize the common law fee tail. Life Estate A life estate is a freehold estate where the duration is measured by the life or lives of one or more human beings. Ex: O to B for life a. A life estate pur autre vie is a freehold estate where the duration is measured by the life of someone other than the grantee. Ex: O to A for the life of B. b. A life tenant is entitled to the beneficial use of the land, but he may not act to impair the value of the estates and interests owned by others in the same land. B. FUTURE INTERESTS Reversion A reversion is the estate remaining in a grantor who has conveyed a lesser estate than the grantor owned. This applies to fee tails and life estates. a. An inter vivos conveyance of a possessory estate followed by a gift to the heirs or the next of kin of the conveyor presumably leaves a reversion in the conveyor. The Doctrine of Worthier Title forbids an owner to make an inter vivos conveyance to his heirs. Ex: O to A for life, remainder to Os heirs. Note that A has a life estate and the reversion is in the grantor. Ex: O to A and the heirs of his body. A has a fee tail estate and O has a reversion. b. The Doctrine of Worthier Title rule has no application to a conveyance to a named person even if that person eventually turns out to be the heir of the grantor. Ex: O to A for life, remainder to my son, Richard. Note that a valid remainder in favor of Richard is created even if Richard is Os heir at Os death.

Possibility of Reverter A possibility of reverter is the interest retained by the grantor of a determinable estate or a fee simple determinable. The possibility of reverter ripens into a possessory estate upon the occurrence of the named event. A change of conditions in the area may nullify the result triggered by the event. Ex: O to A and his heirs as long as the land is farmed. O has conveyed to A a fee simple determinable and O retains the possibility of reverter. Power of Termination (Right of re-entry) A right of re-entry is created in the grantor of a fee simple estate subject to a condition subsequent. Ex: O to A and his heirs, but if the land is not farmed, then O may re-enter and claim the land. Here, O has conveyed a fee simple subject to a condition subsequent and O has a right of re-entry. a. A legal action to recover the land is usually required.

FUTURE INTERESTS IN THE GRANTOR

Reversion How is the interest created? A reversion is created when the grantor conveys an expirable estate and the future interest remains in the grantor, i.e., a fee tail, a life estate, or a contingent remainder that does not vest. Yes Yes Possibility of Reverter A possibility of reverter is created when the grantor conveys a fee simple determinable. Right of Re-entry A right of re-entry is created when the grantor conveys a fee simple subject to condition subsequent.

Is the interest alienable? (Able to be transferred) Is the interest inheritable?

Yes Yes

No Yes

Remainders A remainder is a future interest created in a third person and that is intended to take after the natural termination of a fee tail or a life estate. Ex: O to A for life, then to B and his heirs. O conveys to A a life estate and B has a vested remainder in a fee simple. Ex: O to A for life, then if B survives A, to B and his heirs. O conveys to A a life estate and B has a contingent remainder in a fee simple. a. Creation. In the creation of a reminder the following elements must be present: 1. The remainder must be in favor of a third person, 2. The remainder must be created at the same time and in the same instrument as the prior particular estate which supports it, 3. The remainder must be so limited (described) that it will take effect as a present interest in possession immediately upon the termination of the prior particular estate, and 4. The prior particular estate must be an estate of lesser duration than the interest of the conveyor at the time of the conveyance so that there can be an interest to pass in remainder. b. Nature of Preceding Estate At common law the particular estate which preceded and supported a remainder had to be a freehold estate, that is, either a fee tail or a life estate. c. Types of Remainders 1. Vested Remainders: A vested remainder is a remainder created in an ascertained and existing person that is not subject to any express condition precedent except the normal termination of the preceding estate. Ex: In each case below, Cs remainder is vested: A conveys to B for life, then to C and her heirs; To B and the heirs of her body, then to C and her heirs; To B for life, then to C for life. Note: In the preceding conveyance, Cs remainder is subject to an implied condition precedent: C must survive B. Because Cs remainder is only a life estate, Cs life estate will not become possessory if C predeceases B. But, because the condition is not expressly written in the grant, the remainder is still vested.

Types of vested remainders: i. Remainders absolutely vested. A remainder is absolutely vested when it is limited to an ascertained or identifiable person or persons without words of condition and is not subject to divestment. Ex: A conveys to B for life, then to C and her heirs. C has a remainder absolutely vested. ii. Remainders vested subject to partial divestment. A remainder is vested subject to being partially divested when the remainderman is in existence and ascertained but the amount of her estate is subject to diminution in favor of other members of a class. This type of remainder, as known as remainder vested subject to open, is illustrated by a common kind of class gift. Ex: A conveys land to B for life, then to the children of B in fee. At the time of As death, B has one child, C. Cs remainder is vested because she is in existence, ascertained, and she (or her heirs) is certain to acquire a possessory interest on the expiration of Bs life estate. But Cs remainder is subject to open up and let in afterborn children of B because they also come within the terms of the gift. If after As death two more children are born to B, they take equally with C as remaindermen and Cs interest is reduced to a one-third share. iii. Remainders vested subject to complete divestment. A remainder is vested subject to complete divestment when the remaindermen is in existence and ascertained and her interest is not subject to a condition precedent, but her right to possession or enjoyment on the expiration of the prior interests is subject to termination by reason of (a) an executory interest, (b) power of appointment, or (c) a right of re-entry. Ex: A conveys to B for life, then to C and her heirs, but if C dies leaving no surviving children then to D and his heirs. C has a remainder vested subject to complete divestment on the death of C without surviving children. Ds interest is not a remainder but an executory interest. 2. Contingent Remainders. A contingent remainder is any remainder that: (a) is subject to a condition precedent; (b) is created in favor of an unborn person; or (c) is created in favor of an existing but unascertained person. Ex: A to B for life, remainder to C, and his heirs if C marries before Bs death. C has a remainder contingent upon his marriage before B dies. Ex: A to B for life, remainder to C for life if C survives X. C has a remainder contingent upon Xs predeceasing both B and C because the contingency of Cs surviving X must happen on or before the termination of Bs life estate. (a) Destructibility of contingent remainders. At common law, a contingent remainder had to vest prior to termination of the preceding freehold estate or it was destroyed. Ex: A to B for life, remainder to C and his heirs if C marries X. B has a life estate, C has a contingent remainder and A has a reversion. If C does not marry X before B dies, then the estate will revert to C and Cs contingent remainder is destroyed forever. (b) Destructibility by merger: By this doctrine, whenever successive vested estates are owned by the same person the smaller of the two estates will be absorbed by the larger. Ex: IF A conveys to B for life, then to B and his heirs. B has only one estate, a fee simple. By the doctrine of merger, the life estate merges in, or is swallowed by, the larger estate. If A, owning in fee simple, conveys to B for life, and A later transfers his reversion to B, the latter will have one estate-a fee simple. This is because Bs life estate merges into As reversion in fee simple, leaving B with a fee simple. In order for a merger to take place the two estates must be successive and vested. Therefore, a merger will not be effected where a vested estate intervenes between the two estates. Ex: consider a grant from A to B for life, then to C for life. B has a life estate, C has a vested remainder in life estate, and A has a reversion in fee simple. If A transfers his reversion to B. Merger cannot occur because there is a vested interest-Cs vested remainder-in between Bs life estate and As reversion. (c) Successive remainder: More than one remainder may be designated to follow a freehold estate.

Ex: A to B for life, C for life, D for life, E for life, F for life, G and the heirs of his body. B has a life estate in possession. C has a vested remainder for life as do D, E, F. G has a vested remainder in fee tail. A has a reversion. The estate will pass regularly to those named and who are living and then revert to the grantor, A, or if he be dead the reversion will have descended to his heirs. (d) Rule Against Perpetuities: A vested remainder, being vested, is not subject to the Rule Against Perpetuities; a contingent remainder is subject to the rule. Vested Remainder 1. 2. 3. Is vested. Is not subject to the Rule against Perpetuities. Is limited to an ascertained person who has the right to immediate possession if and when the prior estate is terminated. Remaindermen has right against prior estate owner (e.g., life tenant) for waste. Remaindermen has a right to compel prior estate own to pay taxes and interest on emcumbrances. 1. 2. 3. Contingent Remainder Is not vested. Is subject to the Rule against Perpetuities. Is subject to an express condition precedent; it will not vest until the happening of an event or the ascertainment of a person. Remaindermen has no right against prior estate owner (e.g., life tenant) for waste. Remainder cannot compel estate owner to pay taxes or interest on encumbrances.

4. 5.

4. 5.

Executory Interests An executory interest is a future contingent interest created in favor of a transferee in the form of a springing or shifting use which, on the happening of the contingency described, will be executed into a legal estate, and which cannot be construed as a remainder. 1. Element Essential to Creation of an Executory Interest: 1. It is always in favor of the third party (i.e., a person other than the grantor). 2. It is always contingent and can never become vested, because when it vests whether as a future or present interest, it ceases to be an executory interest. 3. It must take effect either (a) before the natural termination of the preceding estate, therefore in derogation thereof or by divesting it, or (b) after the termination of the preceding estate. 2. Shifting Executory Interests Divest Transferees. A shifting executory interest cuts short or terminates a preceding estate in favor of another grantee. In doing so, the shifting executory interest shifts the right to possession from one grantee to another grantee. st nd Shifting Use: Grantor to 1 Grantee to 2 Grantee. Ex: A conveys to B for life, but if B becomes bankrupt, then to C and his heirs. The state of title is life estate in B subject to an executory (shifting) interest in C, reversion in A. Note that Cs interest is not a remainder because it does not await the natural expiration of Bs life estate, but instead may cut it short. 3. Springing Executory Interests Divest Grantors A spring executory interest is an estate created to begin in futuro and cuts short or terminates a reversion held by the grantor. st nd Springing Use: Grantor to 1 Grantee to Grantor to 2 Grantee Ex: A conveys to B for life, and one year after Bs death to C and his heirs. The state of the title is life estate in B, reversion in fee simple to A subject to an executory (springing) interest in C to take effect in possession one year after Bs death. 4. Distinction Between Executory Interests and Contingent Remainders A contingent remainder cannot follow a fee simple interest of any kind. Therefore, any interest which follows a fee and is held by a third person must be an executory interest. Ex: A conveys to B and his heirs, but if B sells liquor on the premises, then to C and his heirs. C has a shifting executory interest. Cs interest cannot be a contingent remainder because a remainder cannot follow a fee simple and cannot cut short a preceding vested estate. Rule in Shelleys Case (Rule against remainders in Grantees Heirs) If a conveyance or a will gives a freehold estate (usually a life estate) to a grantee and the same conveyance or will gives the remainder to the grantees heirs or to the heirs of the grantees body, then the grantee takes both the freehold estate and the remainder. The effect of the rule is to convert what would otherwise be a remainder in the grantees heirs or heirs of the body into the remainder in the grantee. Note that the Rule does not apply if the grantees heirs or heirs of the body hold an executory interest.

Ex: A conveys land to B for life, and after Bs death to the heirs of B. Apart from the Rule in Shelleys Case, the state of title would be as follows: life estate in B, contingent remainder in fee simple in Bs heirs, reversion of A in fee. But by application of the Rule, the state of title is as such: life estate in B, vested remainder in B in fee simple. The doctrine of merger will thus cause Bs life estate to merge with his remainder so that the ultimate result is the B gets a present estate in fee simple. a. Requirements: In order for the Rule to apply, the following requirements must be satisfied: i. There must be a freehold estate (e.g., life estate) given to the grantee and ii. By the same instrument, a remainder must be limited to the heirs or heirs of the body of the grantee.

The Doctrine of Worthier Title (The Rule against Remainders in Grantors Heirs) A grantor cannot by an inter vivos conveyance limit a fee simple to his own heirs. The heirs of the grantor were not permitted to take as purchasers under the conveyance, and the attempted limitation was void. The doctrine does not apply to fee tails. Ex: A conveys to B for life, then to the heirs of A. The remainder of the heirs of A is void, and they take the reversion by descent. Rule Against Perpetuities The rule applies applies to property that is not vested such as contingent remainders and executory limitations. Definition: 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. a. No interest is good means that any contingent interest (non-vested property) which does not conform to the rule is void. b. Must vest means that the contingent interest must become a vested interest (or fall) within the period of the rule. Ex: If A conveys to B for life, remainder to the heirs of C. C predeceases (dies before) B, the contingent remainder becomes a vested remainder. The rule is satisfied by a vesting in interest even though the possession is postponed. c. If at not means that if the contingent interest is absolutely certain either to vest of fail entirely within the period of the rule, it is valid. d. Not later than 21 years after some life in being includes within the period (1) lives in being, provided they are not so numerous as to prevent practical determination of the time when the last one dies, plus (2) 21 years, plus (3) such actual periods of gestation (9 months) as come within the proper purpose of the rule. e. At the creation of the interest means that in the ordinary case the period of the rule begins when the creating instrument takes effect. f. Time for Vesting is generally calculated from the time the creating instrument takes effect. C. CONCURRENT ESTATES

Joint Tenancy A joint tenancy is a form of co-ownership where each tenant owns an undivided interest in the whole estate, its distinguishing feature is the right of survivorship, which means that upon the death of one joint tenant, the surviving tenant or tenants own the whole of the property and nothing passes to the heirs of the descendent. a. Creation: At common law, four unities were required to create a joint tenancy: TTIP 1. Unity of time (interests vested at the same time); 2. Unity of title (interests acquired by the same instrument); 3. Unity of interest (interests of the same type and duration); and 4. Unity of possession (interests give identical rights of enjoyment). Ex: O executed a deed that conveys the land to A and B as joint tenants with right of survivorship, and not as tenants in common. The four unities exist because A and B received their interests at the same time, in the same deed, and they were conveyed identical interests and right of possession. Thus, A and B have a joint tenancy. b. Requirements 1. Joint tenancy is always created by deed or by will, never by descent. 2. In joint tenancy, there must always be two or more grantees or devisees. Termination 1. Inter vivos conveyance by one joint tenant: A conveyance inter vivos severs the joint tenancy so that the transferee takes the interest as a tenant in common and not as a joint tenant. Ex: A, B, and C own land as joint tenants. A makes an inter vivos conveyance of her interest to D. D holds her interest as a tenant in common with B and C. B and C still hold their interests as joint tenants between the two of them.

c.

2.

Agreement to devise: All joint tenants will enter into an agreement whereby one joint tenant may devise his share. When a joint tenant attempts to devise her interest in property to her heirs through will, such a gift is ineffective until all joint tenants have deceased.

Tenancy by the Entirety A tenancy by the entirety is a form of co-ownership similar to a joint tenancy based upon the common law concept of unity of husband and wife. Tenancy by the entirety is a species of joint tenancy, and like in joint tenancy, each spouse owns the whole estate and not a fractional part thereof. a. Right of Survivorship: Just as in a joint tenancy, the doctrine of survivorship operates in a tenancy by the entirety so that the survivor spouse takes the whole estate and the heirs receive nothing. b. Unities: Five unities are essential in a tenancy by the entirety: 1. Time 2. Title 3. Interest 4. Possession, and 5. Marriage (i.e., unity of husband and wife). c. Severance 1. Both must join an conveyance of the property 2. Death of either spouse. 3. Divorce eliminates the unity of person and destroys the tenancy by entirety. The divorced persons become tenants in common. 4. Mutual Agreement 5. Presumption of Tenancy by the entirety in about 21 jurisdictions. Tenancy in Common A tenancy in common is a concurrent estate in which co-tenants each own an undivided, separate and distinct share of the property. It is important to note that a tenant in common does not own the whole property as in a joint tenancy. Each tenant can dispose of her undivided fractional part of any portion thereof, either by deed or will. The only unity is that of possession inasmuch as each tenant is entitled to possession of the whole estate. a. No right of Survivorship: Upon the death interstate of a tenant in common, her interest descends to her heirs. There is no right of survivorship. b. Destruction 1. Partition: A tenancy in common may be destroyed by partition. 2. Merger: A tenancy in common is destroyed by merger when the entire title vests in one person, either by purchase or otherwise. c. Ouster: An ouster occurs where one co-tenant manages to wrongfully exclude his co-tenants from possession of the property. When one co-tenant ousts from possession her co-tenant, the ousted tenant has a cause of action against the possessor, not to put her out, but to regain possession for herself with the possessor. Where one co-tenant strakes a claim for exclusive possession of any part of the property, the claim alone may amount to an ouster. d. Right to possession: Each co-tenant has an undivided interest in the property, each has a right to possession of the entire property. e. Conveyance: These tenants can convey their interest in the property during their life or at their death through will. f. Purpose: To keep family together.