1. Possession (exclude others and control) a. Discovery (Johnson v. McIntosh) i.

He who discovers chattle owns chattle through possession b. Capture (Pierson v. Post) i. Capture equals ownership through possession c. Find (Armory v. Delamirie) (Clark v. Maloney) 1. He who finds chattle owns chattle through possession 2. Can transfer chattle without transferring possessory rights ii. Where the chattle is found can determine ownerships Place of Find as Determinative (Hannah v. Peel) iii. Property must be lost to constitute new ownership. Nature of the Property as Determinative (McAvory v. Medina) 1. Finder of lost property in a public place belongs to the finder iv. Terms: (Michael v. First Chicago Corp.) 1. Mislaid property: That which is intentionally put in a certain place and later forgotten 2. Lost property: When it is unintentionally separated from the dominion of its owner 3. Abandoned property: When the owner, intending to relinquish all rights to the property, leaves it free to be appropriated by any other person. a. Intent AND (Herron v. Whiteside) i. May be inferred from strong and convincing evidence ii. May be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property b. Act (Herron v. Whiteside) i. Conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. d. Bailment: The rightful possession of goods, chattle, by one who is not the true owner (Three forms of bailment) 1. Must be private property 2. Must have delivery ii. Sole benefit for Bailor 1. Liable only if gross negligence by Bailee iii. Sole benefit for Bailee 1. Liable only if there is slight negligence iv. Mutual benefit for Bailor & Bailee (Godfrey v. City of Flint) 1. One wherein a person gives to another the temporary use and possession of property, other than money, for a reward,

the latter agreeing to return the same to the former at a future time 2. Liable only if ordinary negligence e. Gifts i. Intervivos (Elements): Delivery, Manifestation to pass property interest, and Acceptance a. One in which the donor parts with all present and future dominion over the property given. b. Must be absolute and irrevocable without any reference to taking effect at some future period 2. Actual/Manual delivery (Johnson v. Hilliard) 3. Symbolic Delivery (Johnson v. Hilliard) 4. Constructive Delivery (Carlson v. Bankers Trust Co.) a. Donor gives donee something which unlocks where the property is given. ii. Causa Mortis (Elements) 1. Delivery a. Handing over is not a requirement for this (Scherer v. Hyland) 2. Manifestation to pass property 3. Acceptance 4. Donor in contemplation of imminent death (Scherer v. Hyland) a. Revoked immediately if donor survives. 2. Adverse Possession: New title given to an adverse possessor a. Elements i. Actual possession (Fraley v. Minger) 1. Clearly delieniate what is being possessed and it also starts the clock ticking, for purposes of adverse possession. (Roy v. Kayser) a. Examples: Fence, Cultivation, Building 2. Substantial Improvements (Burkhardt v. Smith) a. How the true owner would use the property (Burkhardt v. Smith) ii. Open, Visible and Notorious possession (Fraley v. Minger) 1. Open: Without attempted concealment (Striefel v. CharlesKeyt-Leaman Partnership) 2. Visible: Capable of being seen (Striefel v. Charles-KeytLeaman Partnership) 3. Notorious: known to some who might reasonably be expected co communicate their knowledge to an owner maintaining a reasonable degree of supervision over his property (Striefel v. Charles-Keyt-Leaman partnership) 4. Clear and Convincing-All elements must be more than 75% satisfied (Barley v. Fisher) 5. Good Faith (Mannillo v. Gorski)

iii. Exclusive possession (Fraley v. Minger) 1. The Adverse Possessor must have full and complete control of the land (Rick v. Grubbs) 2. Agents of the true owner count as negating exclusive possession of the Adverse Possessor. (Rick v. Grubbs) a. True owner also counts (Rick v. Grubbs) iv. Under claim of ownership (Claim of Right) (Fraley v. Minger) 1. Intent to take over the property (Peters v. Gillund) a. Good Faith Standard (Carpenter v. Ruperto) i. Adverse Possessor must not know takeing of someone elses land. 1. Policy: Otherwise we countenance stealing b. Bad Faith Standard (Manillo v. Gorski) i. Even if Adverse Possessor knows it is someone elses property c. Objective Standard (ITT Rayonier, Inc. V. Bell) i. Intent no longer matters. Now we just look at the facts. Both the Good Faith and Bad Faith Standards are not necessary. v. Hostile (Fraley v. Minger): showing that [the] one in possession of the land claims the exclusive right thereto and denies (by word or act) the owners title. (Rorebeck v. Criste) 1. Occupation without the true owners permission (Cluff v. Bonner County) 2. Must occur for the full possession time (Lovejoy v. School Dist. No. 46 of Sedgwick County) vi. Continuous for the Statutory period (Continuity of Possession) (Fraley v. Minger) (20 years) (Purdum v. Sherman) 1. No break in possession (Kash v. Lewis) a. The usual use to which the true owner would make use of the black acre (Anneberg v. Kurtz) b. Tacking i. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title, and such occupant claims title from such prior possessor, then the possession of the occupant may be tacked to that of such prior possessor. (Worm v. Crowell) ii. Color of Title 1. Can transfer ownership of land, through Legal document, but one that is not binding (has no authority). (Waller v. Dansby) (10 years) a. Must be legal title i. Deed ii. Will iii. Trust

b. Good Faith (Karvonen v. Dyer) i. Adverse Possessor must believe he owns legal title ii. Facts all that matter now (Duncan v. Gragg) 2. Looses element of hostility (Territory v. Pai-a) 3. Constructive possession of ALL black acre (Birchfield v. Thiercof) a. If 1/10 of black acre is possessed under Color of Title, all black acre is possessed iii. Payment of taxes (Scott v. Gubler) 1. Some jurisdictions require the payment of taxes as an element of Adverse Possession iv. Disabilities (Abel v. Abel) 1. Adverse Possession cannot begin if person has no way of knowing a. In hospital b. Mentally disabled v. Boundary line dispute 1. Adverse Possession 2. Doctrine of Agreed Boundaries a. Uncertainty b. Agreement of boundary line c. Taking over at said boundary line 3. Boundaries by Acquiescence a. Dispute over boundary line b. Continued occupation & Acquiescence 3. Simultaneous Ownership: Cotenancies a. Tenancies in Common (U.S. v. Craft): No Right of Survivorship i. Each tenant owns a separate fractional part of the whole 1. Can be transferred in lifetime by deed 2. Can be transferred in death by will 3. Can be transferred by succession b. Joint Tenancy (U.S. v. Craft): Implicit is Right of Survivorship i. Each tenant owns an undivided fractional part of the whole 1. Can only transfer during life time ii. Four Unities (Simonich v. Wilt) (BAD LAW) (Taylor v. Canterbury) a. Time: All tenants acquire interest at the same time b. Title: All tenants acquire interest in the same instrument c. Interest: All tenants have the same % interest. d. Possession: All tenants have the right to possess the whole iii. Intent is now focused (Taylor v. Canterbury) 1. Can terminate Joint Tenancy unilaterally a. Livery of Seisin abolished

c. Tenancy by the Entirety (U.S. v. Craft): Ownership through marriage i. Right of survivorship (Each spouse owns the whole) (Grahl v. Davis) ii. Cant be terminated unilaterally iii. Common Law: 1. Four unities plus the unity of marriage (Bad Law) (Beal Bank, SSV v. Almand and Associates) iv. Modern Law 1. Intent 2. In marriage, tenancy by the entirety is presumed. d. Community Property (Smith v. Smith) i. Co-Ownership by married people. 1. Property is presumed to belong to the community 2. Can be overcome by clear and convincing evidence a. Purchased using funds from one or the other ONLY e. Right and Liabilities among Cotenants i. Contribution for Expenditures 1. A is entitled to reimbursement for covering more than As share of the debt (Janik v. Janik) 2. Cotenant is responsible for upkeep and repair if made in good faith & is substantial (Lewis v. Latham) 3. Can offset improvements against rent & profits (Hermance v. Weisner) ii. Rents and Profits from Third Persons 1. Co-tenant who receives money from a 3rd person for the use of common property becomes a trustee for the money (Faust v. Faust) iii. One Tenant in Exclusive Possession 1. Friendly occupancy of the common estate by one tenant does not render him liable to account for rents and profits a. Cant exclude other tenant(s) from the land 2. Cotenant who occupies the entire tenancy is not liable unless specifically stated (Fundaburk v. Cody) 3. Exception: a. Cant impinge on co-tenants rights (Brunscher v. Reagh) iv. Waste (Chosar Corp. v. Owens) 1. Defined a. Destruction or material alteration or deterioration of the freehold, or of the improvements forming a material part thereof, by any person rightfully in possession, but who has not the fee title or the full estate 2. If a tenant in common, joint tenant or parcener commit waste, he shall be liable to his cotenants, jointly or severally for damages

v. Partition (Dewrell v. Lawrence) 1. The object of partition is a division of the property; a sale of the lands is justified only when partition in kind, with or without owelty, is impractical. 2. The court will not be denied the exercise of its equitable powers in partition proceedings by the failure of all parties to agree that its inherent power may be so exercised vi. Ouster 1. Possession of one tenant in common is presumed to be the possession of all; and such possession does not become adverse to the cotenant until he is actually ousted or short of ouster, the adverse character of the possession of one is actually known to the other, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse nature (Howell v. Bradford) 2. In the absence of an agreement to pay rent, or limiting or assigning rights of occupancy, a cotenant in possession who has not ousted or actively excluded the cotenant is not liable for rent based upon his occupancy of the premises (Cummings v. Anderson) a. In order for ouster to exist, there must be an assertion of a right to exclusive possession b. Where the property is not adaptable to double occupancy, the mere occupation of the property by one cotenant may operate to exclude the other 3. Cotenant can use the land and the other tenant(s) are responsible for costs from just basic land use (In re Marriage of Maxfield) 4. There can be no adverse possession by a life tenant against a remainderman (Sims v. Sims) 4. Simultaneous Ownership: Estates and Future Interests a. Introduction i. The meaning of Estates 1. An estate in land is the degree, quantity, nature, or extent of interest which a person has in it (Black v. Sylvania Producing Co.) a. Denotes quantity of interest owned 2. An estate in land may vary in its duration (Liberty Cent. Trust Co. of St. Louis, Mo., v. Gilliland Oil Co.) 3. Owner of an estate has an immediate right to possession of the real estate (In re Estate of Van Den Boom) ii. The meaning of future interest (VESTED OR CONTINGENT) 1. A future interest in property refers to any interest or estate, whether vested or contingent, limited to commence in possession or enjoyment at a future date [right to possess

b.

c.

d.

e.

the land some time in the future] (Commissioner of Internal Revenue v. Wells) a. Thus, while the owner of an estate has a right to possession immediately, the owner of a future interest has no such right; he or she has a right to possess at sometime in the future. (Commissioner of Internal Revenue v. Wells) iii. Future interest distinguished from mere expectancy 1. A mere expectancy is a hope or expectation NOT a property interest (Robinson v. Eagle-Picher Lead Co.) (California Civil Code 700) Freehold Estates i. A freehold is an estate for life or in fee (Matter of Estate of Stroh) ii. Freehold carries title (Pacific Southwest Realty Co. v. County of Los Angeles) iii. Freeholder is seised of land (Pacific Southwest Realty Co. v. County of Los Angeles) iv. A leaseholder, however, is not seised of the land. [A lease holder is considered to be a holder of chattle or personal property, not a holder of real estate] (Pacific Southwest Realty Co. v. County of Los Angeles) The Fee Simple i. Characteristics 1. An absolute title estate or property. It is an estate without end or limitation in the largest estate a person can possibly have (Sterner v. Nelson) 2. A fee simple is the highest right, title and interest that one can have in land (Wray v. Wymer) 3. A fee simple absolute includes all rights (Bryant v. Palmer Coking Coal Co.) 4. It is possible to break up a fee simple, but you must account for the whole fee (Sullivan v. U.S.) ii. Creation 1. Under common law to convey a fee simple must use words to A and his heirs (Penienskice v. Short) 2. Words of limitation are no longer necessary now intent matters (Penienskice v. Short) Defeasible Fees: In General i. Fee simple determinable ii. Fee simple subject to a condition subsequent iii. Fee simple subject to an executory limitation iv. Fee simple determinable subject to an executory limitation Defeasible Fees: The Fee Simple Determinable i. Characteristics and Creation

1. Will terminate automatically upon the happening of the prohibited event (Board of Country Commrs of Van Wert Country v. Consolidated Rail Corp) 2. Must use words of duration (Board of Country Commrs of Van Wert Country v. Consolidated Rail Corp) 3. Future interest is a possibility of REVERTER 4. Mere declaration of purpose of the grant will not transform a fee simple into a fee simple determinable (Riggs v. City of new Castle) ii. Concomitant Future Interest: Possibility of Reverter 1. When O creates a fee simple determinable in A, O retains a Possibility of Reverter (Mount Olivet Cemetery Assn v. Salt Lake City) a. Merely the interest retained by a grantor after conveyance of a determinable fee. (Mount Olivet Cemetery Assn v. Salt Lake City) 2. No specific words needed to create a possibility of reverter because it is the interest that remains in O when O creates a fee simple determinable in A (Elmore v. Austin) a. Common Law (Shelby Contracting Co. v. Pizitz) i. A possibility of reverter was not assignable (Deed) or devisable (will) and could only descend (to original grantors heirs) b. Modern Law i. Possibility of reverter is assignable or devisable (Shelby Contacting Co. v. Pizitz) 3. Some jurisdictions have abolished fee simple determinable and the possibility of reverter (Walton v. City of Red Bluff) a. Fee simple determinable has been changed into a fee simple on condition subsequent b. Possibility of revert has been changed into a power of termination f. Defeasible Fees: The fee simple on condition subsequent i. Characteristics and Creation 1. Ends when a proscribed event happens but is not automatic (Department of Transportations v. Knight) 2. Ends when O re-enters (Department of Transportations v. Knight) 3. Words are conditional not durational (Department of Transportation v. Knight) a. Direct restraint on alienation (Department of Transportation v. Knight) i. Disabling restraint: prohibits the grantee from selling or otherwise transferring the property

ii. Forfeiture restraint: the grantee loses or forfeits the property if the latter even attempts to transfer the property iii. Promissory restraint: the deed provides that the grantee promises or agrees to not transfer the property 1. Express prohibition regarding transferring the fee (Department of Transportation v. Knight) 2. Direct restraints on alienation are said to be repugnant to the fee and unenforceable. (Department of Transportation v. Knight) a. However, is the restriction so great as to be a direct restraint on alienation (Department of Transportation v. Knight) 4. Looks to the intent of the transfer (Skinner v. Shepard) ii. Concomitant Future Interest: Right of Entry 1. Right of entry a. Interest remaining in the grantor when the grantor transfers a Fee simple on condition subsequent [aka Power of Termination] (Ludington & Northern Ry. V. Epworth Assembly) b. Dont need to expressly reserve the right of entry (Gray v. Blanchard) c. You cant transfer a right of entry because it is considered to small to be transferred (Franks v. Sparks) g. Defeasible Fees: The fee simple subject to an executory limitation i. Characteristics and creation 1. Creates an estate in fee simple in a conveyee, or leaves an estate in fee simple in the conveyor or his successor in interest (Slowey v. Jenkins) 2. Provides that the estate subject thereto, upon the occurrence of a stated event is to be divested, before the normal expiration thereof, in favor of another interest in a person other than the convey, or his successor in interest (Slowey v. Jenkins) ii. Concomitant future interest: executory interest 1. An executory interest is a future interest created in one other than the grantor which is not a remainder. An executory interest vests upon the happening of a condition or even and in derogation of a vested freehold estate

(Presbyterian Church of Carlyle v. St. Louis Union Trust Co.) 2. O to A when such and such happens [Springing Executory Interest] [under common law this was not allowed] a. O has a fee simple subject to an executory limitation b. A has a springing executory interest (Miller v. Miller) h. Defeasible Fees: The fee simple determinable subject to an executory limitation i. Characteristics and creation 1. an estate to continue until the happening of a certain event and then to cease automatically (Institution for savings in Roxbury v. Roxbury home for aged women) ii. Concomitant future interest: executory interest 1. PAGE 4-26 (unable to paraphrase) i. The fee tail i. Characteristics and creation (Robins Island Preservation Fund, Inc. v. Southold Development Corp.) 1. To A and the heirs of his body 2. Ownership asses from one heir to another, generation to generation a. A fee that descends to the grantees issue, in perpetuity ii. Concomitant Future Interest: Reversion 1. A reversion is the interest remaining in the grantor, or the successor in interest of a testator, when the grantor or the testator transfers a vested estate of a lesser quantum (Long v. Long) iii. Concomitant Future Interest: Remainder 1. to A and the heirs of his body, and then to B a. B has a REMAINDER j. Remainders i. In General 1. A remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument 2. To arise immediately on the termination of the particular estate by lapse of time or other determinate event, and not in abridgment of it. (Proprietors of Church in Brattle Square v. Grant) a. Must arise immediately b. Must have a natural time/event limit ii. Classification of Remainders (Myers v. Adler) 1. Vested Remainders

iii.

iv.

v.

vi.

vii.

2. Contingent Remainders Contingent Remainders: Creation and Characteristics 1. A contingent remainder is a right to property which may or may not vest in possession at some future date (In re Marriage of Meeks) a. The recipient is unknown (In re Marriage of Meeks) b. Relies on an event that may not happen (In re Marriage of Meeks) 2. May be transferred inter vivos, devised, or be the subject of intestate succession (In re Ferrys Estate) 3. Alternative contingent remainders a. O conveys to A for life, then to B if B is not convicted of a felony before obtaining age 30, but if B is so convicted off a felony, to C (NOTES) Vested Remainders: In General 1. A vested remainder is one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend on the happening of any future event, but whose enjoyment and possession is postponed to some future time (In re Marriage of Meeks) a. A vested remainder is not rendered contingent by the fact that it may never vest in possession Vested Remainders; Classifications, Creation, and Characteristics 1. A remainder can be: (Restatement [First] of Property 157 a. Indefeasibly vested i. O conveys to A for life, then to B b. Vested subject to open i. O conveys to A for life, then to the children of B 1. B has one child BUT could have more c. Vested subject to complete defeasance i. O conveys to A for life, then to B, but if C returns to New York to C d. Subject to a condition precedent/Contingent remainder Distinguishing between conditions subsequent and Precedent 1. Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to, the rermainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. (Baker v. Bates) Distinguishing between vested and contingent remainders: In General

1. Contingent remainders are subject to the Rule Against Perpetuities; vested remainders generally are not 2. Only contingent remainders are subject to the Rule of Destructibility viii. Distinguishing between vested and contingent remainders: Waste 1. Common Law: Waste (Federal Deposit Ins. Corp. v. Mars) a. Any unauthorized destruction or severance of improvements, trees, minerals, or other corporeal hereditaments on or from the land belonging to another by one who did not have title, but who was rightfully in possession b. Must have vested interest in the property to maintain action of waste ix. Distinguishing between vested and contingent remainders: Acceleration 1. Vested remaindermans interest immediately goes into possession upon the death of the testator (Trust Co. of New Jersey v. Lange) 2. Vested remainder will accelerate into possession (Application of Wolfsohn) a. Contingent remainders never accelerate into possession (Application of Wolfsohn) x. Distinguishing between vested and contingent remainders: Creditors Claims 1. Vested remainders can be attached by creditors 2. Contingent remainders cannot k. The Life Estate i. Creation and Characteristics 1. Life Estate (In re Felker) a. An estate whose duration is limited to the life of the party holding it, or some other person (In re Felker) b. Life Tenant Rights i. The holder of a life estate, a life tenant, is entitled to both the possession and the use of the property to the exclusion of the remainderman ii. The right to rent iii. Right to underlease the property for a lesser term iv. Power to transfer the estate c. Duties and Obligations i. Responsible for repairs and maintenance ii. Taxes iii. Municipal assessments for sidewalk paving iv. Mortgage interest accruing during the ownership

v. Must not commit or permit waste d. A life estate is a freehold estate 2. Common Law (White v. Brown) a. Presumes that a life estate was intended unless the intent to pass a fee simple was clearly expressed in the instrument 3. Modern Law (White v. Brown) a. Every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devisor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the instrument. b. A will shall convey all the real estate belonging to (the testator) or in which he had any interest at his decease, unless a contrary intention appear by its words and context c. Presumes that a conveyor intends to transfer his whole interest in the property ii. Concomitant Future Interests: Reversion or Remainder 1. If life estate then reversion remains in transferor, or in the successor in interest to a transferor, unless vested interest in third person. 5. Rules that Impede and Further Market Ability of Property a. Introduction to Trusts i. History of trusts 1. Statute of uses a. Executory interest b. Passive trusts came to an end ii. Modern-Day Trusts 1. A trust is created by a manifestation of intention of the settler to create a trust, trust property, a lawful trust purpose, and an indentifiable beneficiary a. Express Trust (created in two ways) i. Declaration of trust 1. By which the owner of property declares that he holds it as trustee for some beneficiary ii. Transfer in Trust 1. By which the owner transfers to another as trustee for some beneficiary, either by deed or other transfer inter vivos, or by will iii. Spendthrift Trusts

1. A trust where the beneficiary is unable to transfer, assign or alienate his right to future payments of income or principal (Brosamer v. Mark) a. The beneficiarys creditors are unable to subject the beneficiarys interest to the payment of their claims while in the hands of the trustee (Brosamer v. Mark) 2. Trustees are the mere custodians of any income in their hands which should properly be applied to the payment of necessaries furnished to them for the beneficiary, or to the beneficiary himself with their knowledge and consent. (Sherman v. Skuse) b. Destructibility of Contingent Remainders i. The doctrine of destructibility applies only to legal contingent remainders of real property. The doctrine has no application to equitable interests. (Ryan v. Monaghan) 1. Common Law: A contingency that may never happen ii. Doctrine of destructibility applies to (Johnson v. Amstutz) 1. Equitable trusts 2. Legal contingent remainders 3. Modern Law: gets rid of the doctrine of destructibility c. The Rule in Shellys Case (City Bank and Trust Co. in Dixon v. Morrissey) i. If an estate of freehold is granted by any instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heir or heirs of the body of the person taking the freehold as a class, without explanation, the person taking the freehold also takes the remainder, thus vesting him with a fee simple interest 1. Requisites a. A freehold estate must be granted to the ancestor b. A remainder must be limited to his heirs, general or special c. The two estates, freehold and remainder, must both be of the same quality, either legal or equitable. d. The doctrine of worthier title (Bixby v. California Trust Co. i. When the trust instrument specifies that the income shall be paid to the trustor for life and provides that on his death the trust property shall be distributed to his hears at law, it is generally held that no remainder interests are created and that the the trustor is the sole beneficiary and retains a reversionary interest in the trust corpus. 1. Intention of the trustor, unless otherwise manifested 6. The Rule Against Perpetuities a. Statement of the Rule (Pace v. Culpepper) i. 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

b.

c.

d.

e.

1. Vested remainders not subject to the rule against perpetuities a. Applies only to non-vested or contingent future interest i. Reverter ii. Possibility of Reversion iii. Remainder Interests 2. Contingent remainders usually are subject to the rule against perpetuities a. Executory interests Meaning of Vest (Rich, Rich & Nance v. Carolina Const. Corp) i. A future interest is vested when there is either (1) an immediate right of present enjoyment or (2) a present fixed right of future enjoyment ii. A future interest is contingent, or has yet to vest when it is either (1) subject to a condition precedent or (2) owned by unascertainable persons OR BOTH iii. Contingent remainder vests when 1. It becomes a vested remainder 2. It becomes a possessory estate 3. an executory interest becomes possessory Commencement of the perpetuities period and the measuring life i. Transfer by will 1. Must the contingent future interest in question vest (if it ever does vest) within the lifetime of some one or more people who were alive at testaors death (plus the 21 year period and any period of gestation)? (Joyner v. Duncan) a. The life in question is referred to as the measuring life b. Measuring life + 21 years takes place upon testators death ii. Transfer by Deed (Crockett v. Scott) 1. Deed = effective at delivery 2. Will = effective at death 3. Irrevocable Trust = delivery or when trust becomes irrevocable Legal Possibilities, Class Gifts, and Further Elucidation (Jee v. Audley) i. What might happen approach 1. Foresight. Looks to all legal possibilities ii. Class gift 1. A gift to a group 2. All or nothing rule a. If the gift to any member of the class is invalid, the entire class gift is invalid. Effect of violation

i. Anything that violates the Rule against Perpetuities is considered void. (Wedel v. American Elee. Power Service Corp.) ii. When a Fee Simple Determinable Subject to Executory Limitation violates the RAP we strike the executory interest. Testators heirs own possibility of reverter and A owns Fee Simple Determinable. (Brown v. Independent Baptist Church of Woburn) f. Examples of violation of the Rule i. Open-Ended Contingencies 1. We are concerned with ANY legal possibility (Johnson v. Preston) ii. Gifts to Unborn Widows 1. Not on our test at all iii. Options to Purchase Property 1. An option to purchase property cannot violate the RAP or it will be considered void. (Symphony Space, Inc. v. Pergola Properties, Inc.) g. Amelioration i. Presumptions (McKinneys Estate, Powers, and Trust Law (New York) 9-1.3 Perpetuities: Rules of Construction) 1. Presumed the creator intended the estate to be valid 2. Presumed reference is to a life in being 3. Presumed gift is valid within a time limit 4. Presumed irrefutable 5. Presumed limits on age people can have kids 6. Presumed incapable of adopting 7. At common law, anyone is presumed being able to adopt/have kids (California Law Revision Commission Comment [California Probate Code 21201]) ii. Construction 1. Reasonable Time Doctrine a. The court uses the reasonable time doctrine to assume that interest will not violate RAP regardless of ANY possibilities applying a reasonable time for completion. Construction will be completed in a reasonable time (Singer Co. V. Makad, Inc) iii. Wait and See Doctrine (Hansen v. Stroecker) 1. If, in hindsight, the contingent interest in fact did vest or fail within the perpetuities period, the RAP is not violated 2. The events that actually happened are critical, not what might have happened. 3. The downside is that one must wait to actually see what happens iv. Cy Pres 1. The court can re-write the will or deed so that it will vest within the RAP period (In re Chun Quan Yee Hops Estate)

a. Good because the court can solve issues immediately b. Bad because the court actually rewrites someones will/deed 2. Legal in California v. Uniform Statutory Rule Against Perpetuities Act 1. Non vested interest not considered valid unless (California Probate Code 21205) a. Will vest within RAP period b. Interest terminates within 90 years (Wait and See approach) i. Court can use Cy Pres when (California Law Revision Commission, Comment [California Probate Code 21220] 1. Nonvested property interest or a power of appointment becomes invalid under the statutory rule 2. When a class gift might become invalid 3. When an interest can vest but not within the 90 year period 4. Reduce the period no more than is necessary 5. Court can create new interests if necessary. ii. Not required to use Cy Pres vi. Abolition 1. Some jurisdictions have just done away with the RAP [Delaware] (25 Del. Code Annotated) vii. Perpetuities Saving Clauses (Restatement (Second) of Property, Donative Transfers 1.3) 1. Essentially makes violation of RAP impossible a. Any non-vested interest under this instrument which has not vested within 21 years after the death of [here identify a reasonable number of individuals alive when the period of the rule begins to run] shall terminate and the property in which such nonvested interest existed shall vest in [here identify beneficiary or beneficiaries who are to take the property viii. Lawyer Liability 1. Lawyer cannot be sued for violation of the RAP because its to complex for a reasonable attorney to understand (Lucas v. Hamm) 7. Acquisition of Real Property by Gift or Purchase a. Introduction

i. Formalities for a gift of real property 1. Grantor executes a deed that complies with the Statute of Frauds 2. Deed is delivered to the grantee ii. Formalities for the sale of real property 1. Contract complies with the Statute of Frauds 2. Escrow opens a. Usually escrow lasts for 60 days 3. Buyer does a title search for marketable title 4. Buyer secures financing 5. Grantor executes deed and delivered to escrow agent a. Complies with the Statute of Frauds 6. Escrow closes a. Grantee gets deed b. Seller gets money b. Contracts and the Statute of Frauds Requirement (St. 29 Car. II, c. 3, 4 (1667) [English Statute of Frauds]) i. No action shall be brought upon any contract or sale of lands, tenements or hereditaments or any interest in our concerning them unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized 1. Material terms must be in writing 2. Must be signed by the person being sued ii. The material terms and signature can be written on anything as long as has signature and material terms (A.B.C. Auto Parts, Inc. v. Moran) c. Exception to the Statute of Frauds Requirement i. Part performance (Bradshaw v. Ewing) 1. Established by a. Possession plus improvements b. Possession plus payments 2. There must be performance unequivocally referable to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing. (Burns v. McCormick) ii. Estoppel 1. Equitable estoppel is based on the wrongful, fraud or fraudlike conduct of the party sought to be estopped. Equitable estoppel precludes a party from raising an argument or defense that it otherwise would be allowed to raise but for its misleading conduct. Based on the conduct of the bank, it would be unconscionable for the bank to raise the SOF and keep the property (Baliles v. Cities Service Co.)

Part Performance v. Focus is conduct of buyer Conduct substitutes for compliance with SOF Possesion plus improvements, or possession plus payment

Estoppel Focus is conduct of seller Conduct is misleading and would result in unconscionable injury Fraud or fraud-like conduct: active misrepresentation or silence when there is a duty to speak

d. Marketable Title i. Marketable Title Defined (Lohmeyer v. Bower) 1. Free from reasonable doubt a. Free from reasonable doubt when i. The seller establishes that he owns what he purports to sell ii. The property is free from all encumbrances, except those waived in the contract for sale ii. Time for Performance: In General 1. Merchantable title must be furnished on the date required under the contract (Risse v. Thompson) 2. A vendee may not support a breach of contact claim by relying on a defect in a vendors title prior to the closing time provided in the contract (Risse v. Thompson) 3. When there is a delay in delivering marketable title, the remedy typically is not recission but damages (Kimball v. West) iii. Time for Performance: Time is of the Essence Contracts (Grace v. Nappa) 1. Where a contract specifies that time is of the essence, the non-breaching party has a right to rescind the contract. a. Specific performance i. When a buyer breaches a contract for the sale of land, the sellers typical remedy is damages ii. But when a seller breaches a contract for the sale of land and the buyer wants to go ahead with the transaction, the buyer can demand specific performance. Specific performance v. Seller breaches Buyer can sue for out of pocket damages, or Buyer can seek specific performance in equity to force seller to convey property. Why? Damages Buyer breaches Even if a total breach, seller can sue for damages only Specific performance not available

Each parcel of real estate is unique

Money is not unique, hence money damages is an adequate remedy at law

e. Risk of Loss i. Introduction 1. Who bears the risk of loss ii. Theories to Allocate Risk (Ross v. Bumstead) 1. Majority rule: Doctrine of Equitable Conversion a. The risk of loss is on the buyer 2. Minority Rule a. The risk of loss is on the seller f. Deeds i. Introduction 1. When escrow closes the deed must comply with the Statute of Frauds a. The deed must describe the property b. Be signed by the grantor c. Be delivered to the grantee d. Accepted by the grantee ii. Statute of Frauds: Description of the Property (Snyder v. Bridewell) 1. Mother Hubbard Clause a. When the deed describes the property as all land owned by the grantor in X county, 2. It shall be described with sufficient certainty to identify it 3. The deed must make reference to something tangible by which the land can be located iii. Statute of Frauds: Signature of the Grantor (McAbee v. Gerarden) 1. Where a grantor is present and authorized another expressly or impliedly to sign his name to a deed, it is then the deed of the grantor a. Seek real intentions first b. Name doesnt matter, the person does. iv. Delivery: In General 1. A deed is inoperative unless there has been delivery to the grantee and an essential element of a valid delivery is the grantors intention to pass title immediately, thus, giving up dominion and control of the property (Johnson v. Ramsey) v. Delivery: Revocable Deeds (Huber v. Backus) 1. The reserved right to revoke the deeds does not make them invalid. 2. Looks at the intent vi. Delivery: Revocable Escrows (Revocable Escrows) 1. It is the grantors intent at the time the deed is delivered which is of primary and controlling importance 2. Symbolic delivery is not enough vii. Delivery: Oral Conditional Deeds (Sweeney v. Sweeney)

1. Where deeds are formally executed and delivered, these presumptions can be overcome only by evidence that no delivery was in fact intended. 2. A conditional delivery is and can only be made by placing the deed in the hands of a third person to be kept by him until the happening of the event upon the happening of which the deed is to be delivered over by the third person viii. Acceptance 1. Grantee must accept g. Warranty Deeds 1. General Deed 2. Special Deeds ii. Covenants of Title: In General 1. Present Covenants a. Covenant of seisin b. The right to convey are basically the same and mean that the grantor owns the estate which he proposes to convey c. General warranty to defend the title of grantee and his successors against the lawful claim of all persons are in substance those for possession 2. Future covenants a. Quiet enjoyment b. Covenant against encumbrances i. No outstanding rights or interests to the estate conveyed that will diminish the value c. Covenant of further assurances i. Obligates the grantor to execute any other documents that grantee may need to perfect title iii. Covenants of Title: Timing of Breach 1. There can only be breach when there is an actual or constructive eviction of the covenantee by the paramount titleholder (Brown v. Lober) iv. Covenants of Title: suit by Remote Grantees (Schofield v. Iowa Homestead Co.) 1. While future covenants run with the land so that B could sue O for breach of a future covenant present covenants do not run with the land. v. Covenants of Title: Nature of Encumbrances 1. A violation of the law is not an encumbrance vi. Covenants of Title: Merger 1. A deed delivered and accepted as complete performance of a contract for the sale of land merges all prior negotiations and agreements into the deed (Colorado Land & Resources, Inc. v. Credithrift of America, Inc)

vii. General and Special Warranty Deeds 1. IDK h. Quitclaim Deeds (Lodge v. Thorpe) 1. A mere quitclaim deed transfers and is designed to transfer only such title and interest as the grantor had when he delivered the deed i. Estoppel By Deed (Schloeffel v. Kietzman) i. If a grantor having no title, a defective title, or an estate less than that which he assumes to grant, conveys with warranty or covenant of like import, and subsequently acquires the title or estate which he purports to convey, or perfects his title, such after acquired title or after-perfected title will inure to the benefit of the grantee by way of estoppel