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PROPERTY

Stephanie M. Taylor Professor Marty-Nelson 1.

Property bundle of rights; something tangible or intangible and enforceable against a 3rd party
a. Can be owned by one person or several b. Rights can be divvied up over time c. Types of property i. Real property 1. Land and the things attached thereto such as buildings, structures, and natural vegetation 2. Rights can be divided ii. Personal property 1. Defined by exclusion from real property 2. 2 types: a. Tangible i. House, car, etc. b. Intangible i. Will have representations but cannot see ii. Ex. the right to a debt bonds, trademarks, copyrights, patents, stocks, securities c. Rights can be divided with either d. Title to property is relative i. Depends on who is claiming and against whom that person is claiming

2. Wild Animals CL doctrine


a. No true owner because they are wild b. BUT wild animals are considered property if the hunter deprives it of its natural liberty and renders escape impossible c. IF wild animal regains its natural liberty then the animal is no longer the hunters chattel o Hypo: O operates a game farm, an elk escapes and H shoots it; O wants compensation for the elk from H Landowner where elk shot not in suit H argument elk regained natural liberty (wild animal) and was not inclined to return; therefore, H could go after it O argument elk will return to pack/family because game raised elk; domestic animal not wild animal so common law does not apply; Policy elks are an investment to O

3. Found Property (do a relativity of title analysis, who has superior title?)
a. 4 classifications classification of property changes depending on the intent of the true owner i. Abandoned property 1. Possession goes to finder, true owner does not trump 2. Voluntary relinquishment of the property, looking for subjective intent through circumstantial evidence 1

ii. Lost property 1. Possession goes to the finder and ONLY the true owner has a superior title 2. Someone unintentionally and involuntarily parts with the property iii. Misplaced property 1. Possession goes to the owner of the locus 2. Intentionally places property somewhere and is subsequently forgotten or overlooked iv. Treasure trove 1. Possession goes to the finder 2. Usually an element of antiquity dealing with coins or currency 3. Hidden or concealed for such a long time that the owner is probably dead or cannot be found Hypo: leave something on counter to pay bill o Looks MP because prof. put it there on purpose and overlooked it Hypo: leave something on counter to pay bill and then someone else with tons of packages and knocks prof. left package on the ground; another person comes and kicks the package into the corner; several days pass and someone finds it o Looks LP now Hypo: put coat down and something fell out of pocket o LP Hypo: someone comes along and picks up the thing that fell out of pocket and puts it on counter; someone else comes along and finds the thing on the counter o Now MP because just by it being set on the counter it looks like someone left it there purposely even though it was not because those are the only facts in front of the court when the true owner is not the property

b. If the property is embedded in someones property then the found property will go to the owner of the locus i. Ex. Favorite v. Miller c. Public v. Private i. The more public the place go to the finder ii. The more private the place go to the locus owner (prevention of trespassing) d. Policies i. Return of item to true owner 1. Leave property where found it so the owner knows where to begin the search ii. Rewarding luck iii. Rewarding honesty iv. Discouraging trespassing

4. Bailments
a. Transfer possession of goods to another with the understanding express or implied that the goods will be returned to the person that made the transfer i. BR transfers to BE (ees are the ones who have possession) ii. Possession transfers but not legal title 2

b. Elements i. Intent 1. BR intended to create the relationship either expressly or by implication ii. Delivery 1. BR delivers physical control of the property iii. Acceptance 1. BE intended to possess or control the object (accepts) iv. Possible element of reasonably foreseeable! 1. Container Rule: BE normally only liable for reasonably foreseeable contents in bailed item a. Reasonable contents: i. Must look to surrounding circumstances location, event, time, holiday, etc. b. Ex. Shamrock Hilton v. Caranas i. Only reason these 13K worth of jewels deemed reasonably foreseeable contents of a purse is because this aspect was not timely objected to ii. If it was great possibility that this would not have been reasonably foreseeable contents o Hypo: fox scarf left in sleeve of coat that was given to coat check; fox lost Court said not reasonably foreseeable but would have been if in the pocket; maybe reasonably foreseeable if winter season c. Can be expressed or implied i. Express 1. Parties agree to the terms 2. Ex. contract to store property in storage facility ii. Implied in fact 1. Ex. throw keys to buddy to borrow car iii. Constructive 1. Implied in law law turns agreement into a bailment a. Someone deemed to be holding property for someone else b. Finder/true owner relationship because true owners title is stronger relative to the finder c. Ex. Shamrock Hilton v. Caranas i. Intent if BR realized purse gone then she would have expected hotel to keep it ii. Delivery constructive iii. Acceptance mutual benefit, intent to accept by hotel as to maintain patronage d. Types: figure out by who is benefiting from relationship; also defines the degree of liability the law imposes on the BE i. Bailment for sole benefit of BE 1. Hypo: go outside, car not working and ask to borrow my car a. Prof = BE, me = BR; only BE benefiting 2. BE liable for even slight negligence ii. Bailment for sole benefit of BR 1. Hypo: leaving for summer and need place to store books, ask professor to store books in her garage 3

a. Prof = BE; me = BR; BR getting all benefit because only thing prof gets is a garage full of junk 2. BE only liable if grossly negligent a. Hypo: left garage door open during hurricane iii. Bailment for benefit of both 1. Aka bailment for hire a. Ex. dry cleaner, furniture store patronage for payment 2. BE liable for ordinary negligence e. Bailments presume negligence (according to levels of negligence above) i. Often there is no evidence, so the whole case turns on who gets the presumption 1. ONCE bailment found then BR gets the benefit of the presumption ii. Then burden on BE to bring evidence to show no negligence; is BE cannot show that then out of luck iii. Statute gives presumption, if no statute then CL gives the same

5. Gifts
a. Voluntary transfer of possession by one to another without consideration i. Donor (DR) transfers to Donee (DE) b. Elements i. Intent 1. Present donative intent 2. CAN intend to give a present or transfer gift that will become possessory in the future 3. LOOK TO THE INTENT OF THE DONOR AT THE TIME OF DELIVERY a. Intent when dead does not count ii. Delivery 1. Such to divest the owner of dominion and control a. Physical delivery = BEST b. Constructive delivery means for obtaining access i. Ex. keys, financial note c. Symbolic delivery i. Ex. representation of the items letter, picture 2. Has to be more than just words talk is cheap 3. Sometimes have delivery to 3rd party, as long as 3rd party acting agent of donee then probably have sufficient delivery, if acting as agent of donor that probably do not have sufficient delivery iii. Acceptance 1. Presumed for an item of value a. If no evidence of acceptance then DE gets the benefit of the presumption c. Gifts made during ones lifetime i. Inter vivos 1. Irrevocable a. Look to intent of the DR at the time of delivery 2. Ex. bf gives watch to gf for birthday, then they break up a. Too bad, cannot get watch back because present donative intent at the time of delivery ii. Causa mortis 1. Revocable; made because the DR was staving off death 4

a. Donors express revocation b. Donors recovery from peril or illness c. Death of donee prior to donors death Hypo: son at dads house for birthday party; dad, in front of every guest, says to son he is giving painting. o Not a valid gift because no delivery Intent yes, and guests can corroborate Delivery no and intent alone is not enough Acceptance since gift has value then presumed Hypo: Dad gives son painting for birthday (expressed in a series of letters) but retains present possessory interest in a life estate of the painting, gives remainder to son o Valid gift Intent yes, the letters indicate Delivery not actual nor constructive, but symbolic in letters Acceptance presumed because something of value o Gruen v. Gruen

6. Adverse Possession
a. Way to acquire title to property without intent, delivery and acceptance i. Way for owner to regain property (as long as before SOL) is to bring an ejectment action b. Different from adverse use which is prescriptive land easements c. Elements i. Possession of property 1. By the adverse possessor 2. View claimants possession in light of the nature of the land a. Ex. Jarvis v. Gillespie i. Only used land 2x/wk but that was enough because farming land and only needed attention that often ii. Claim of right 1. Not met if by permission 2. If have permission then can NEVER win adverse possession a. Permission also breaks continuous iii. Open and notorious 1. So all the world can know 2. From the facts would a reasonable person know a. KNEW OR SHOULD HAVE KNOWN THROUGH DUE DILIGENCE i. Ex. Marengo Cave v. Ross 1. Even though adverse possession underground (cave) the true owner knew or should have known a. Through survey conducted when cave exploring business began next door 3. If owner actually knew, and still did nothing, then SURELY open and notorious iv. Continuous 1. Not interrupted 5

2. DOES NOT mean present at all times, just means continuous possession in light of the nature of the property a. Ex. Jarvis v. Gillespie v. Must last for required time in jurisdiction 1. SOL or CL a. Tolling of SOL i. Only time SOL will cease to run is: 1. Disabilities set forth in the statute a. Minors in minority b. Incarcerated person while locked up c. Mentally ill ii. Only tolls for the period of time person CANNOT ACT 1. Ex. until minor 18, until jailbird released iii. Tolling statute read narrowly 1. Policy of owner physically incapable of acting, so cannot hold that against them vi. Adverse/hostile to the interest of the owner 1. Some jurisdictions dont need good faith so long as claimant treated it as his own property 2. Blends with claim of right because if permission given by true owner of property then also destroys hostility vii. Possession must be exclusive of others 1. No other person can be in possession but the adverse possessor, NOT EVEN the true owner viii. ACRE COP anagram d. Policy arguments pg 499 consistent policy arguments for everything in property i. Highest and best use of the land 1. Make sure land gets developed by society 2. Environmentalists argue not all land needs to be developed ii. Encourages rejection of stale claims 1. Owners need to bring complaint immediately instead of letting time pass and then bring it up; do something about trespassers 2. Bring actions sooner rather than later 3. Stale claims lead to stale evidence iii. Stop someone else from adverse possession 1. Inspect property 2. Survey and fence it in 3. Encourage owners to be vigil in regard to their land e. Claim of right v. Color of title i. Right against the world without permission v. claim for adverse possession based on defective instrument (deed) ii. If does not say color of title then falls back onto claim of right; court does not distinguish and just says adverse possession claim of right 1. Difference between the two a. In color of title MUST produce the defective instrument b. If can win under color of title then title extends to the land described in the defective instrument i. Could actually be more than he is possessing ii. If document was smaller then make color of title for piece in document and then make a claim of right for all other parts 6

c. In claim of right i. Claimant gets what he was actually possessing Hypo: A received a defective deed to 10 acre lot, moves into lot and builds house on front half of lot, occupies for SOL period and does not develop forest in the back; meets all requirements and good faith that he had a valid deed o In FL need A to record it o CL color of title can get all of the lot as described in defective deed if wins claim Color of title allows constructive possession of land as described in defective instrument o If claim of right case max A could have gotten was front park because it was open and notoriously possessed

f. Claimants subjective intent i. Claim of right 1. Normally the courts do not case 2. Minority: a. Must show good faith b. Must show aggressive possessor i. Absolutely BAD faith ii. Color of title 1. MUST SHOW no bad faith; need to show that thought deed was valid g. Some jurisdictions will also require adverse possessor to pay property taxes i. Ex. FL 1. FL SOL 7 years 2. FL color of title MUST record the defective instrument to give notice to all; requirement of mental element cannot have bad faith h. Tacking time i. When one adverse possessor gets credit for a possessors previous time 1. Combining periods of time with claimant and prior possessor so that time period fulfills the SOL for that state ii. Permitted 1. Need a transfer: a. Conveyance i. NO formal conveyance required, do not need a deed! b. Sale c. Gift d. Death (devise) iii. Not permitted 1. After an ouster 2. After abandonment iv. Tacking = one of permitted types + privity 1. Privity a. Consensual relationship i. Seller/buyer ii. DR/DE b. Legal relationship i. Decedent/heir c. Nonconsensual WILL NOT work ouster or abandonment 7

v. Ex. Carpenter v. Huffman Hypo: SOL = 20 yr for adverse possession; record title owner = O, O purchased but never moved onto property; 1985 A enters property adversely and states to possess; 1995 B forces A out and B stays 2009 O decides to see his land and notices B is there and wants to get rid of him, files an action for ejectment, B claims adverse possession o O wins because B ousted A and did not meet elements o B would meet required time in 2015

i. Adverse possessor will not show up on the record, so MUST inspect before buying i. Normally once adverse possession begins it DOES NOT MATTER if the record owner (true owner of land) changes hands because new owner has duty to inspect 1. This is NOT TACKING (tacking occurs when transfers from adverse possessors to other adverse possessors) 2. Exception: if at the time of entry the land (by APers) is subject of future interest holders, then adverse possession time only runs against present holders o Hypo: wife and kids not living on estate; adverse possessor comes onto property fulfilling all elements of adverse possession Ordinarily adverse possessor would win title but because when he entered land there was a future interest, he only holds adverse possession against wife; kids (future interest holders) could not stop him, only the wife (present holder) could go to court to get adverse possessor out o Hypo: A made the required time in above A would be entitled to possession for wifes life o Hypo: O on record of Blackacre; A steps in year 1 adversely possessing; 5 years later, O gets in trouble and sells Blackacre, he sells to X with perfectly executed deed; X does nothing, never inspects; A continues to live there for SOL A wins against X even though there was a change in record owner All prospective record owners should inspect

7. Concurrent interests
a. Can be concurrent interest in the present and future b. 5 unities (TTIPP) i. Time 1. Tenants take their interest at the same moment in time ii. Title 1. Tenants take title from the same instrument (document) iii. Interest 1. All tenants have an identical share (same percentage of property) iv. Possession 1. Each tenant has possession of the whole (can go from basement to attic; has right o possess the entire thing) 2. No cotenant can exclude another cotenant from any portion of the property 8

v. Person 1. Husband and wife form one person (only found when there is marriage) c. 3 classifications of concurrent interests i. Tenancy in Common (TIC) 1. Only need one unity possession 2. No right of survivorship a. Definition: once a TN dies then his interest merges with all other TNs b. TIC upon death a TN can devise interest, during lifetime TIC can convey i. Only way to stop TIC from giving away interest is by signed contract disallowing that action ii. Joint Tenancy (JT) 1. Need: a. Time b. Title c. Interest d. Possession 2. Has a right to survivorship no interest at death 3. CAN CONVEY a. If convey during lifetime then transforms from JTTIC i. Only that percentage is severed iii. Tenancy by the Entirety (TBE) 1. NEED ALL 5 UNITIES 2. Has right of survivorship a. Neither spouse can devise or transfer without the others permission 3. When one spouse dies then land transforms from TBE FSA in living spouse 4. If divorce, difference in jurisdictions a. Majority (FL) TBETIC in order to be able to pass interest onto children/beneficiaries b. Minority TBEJT; since GR intended TBE and then divorced so unity of person destroyed, the closest concurrent interest to TBE is a JT so that is what the interest becomes i. If parties want to turn TBEJT then must do so with expressed language due to the presumption 1. In JT either divorced spouse can still sever by conveyance d. Modern presumption: when conveyance to 2+ persons there is a presumption that there is a TIC unless evidence brought to show JT i. If want JT then needs to be VERY CLEAR, clear enough to rebut presumption ii. Ex. to A and B as JT with right of survivorship and not as TIC 1. FL Stat 689.15 Hypo: O transfer to A and B as tenants in common o A and B have a present possessory interest in fee simple absolute and does not include right of survivorship Hypo: what happens if A dies? o A successors in interest get As interest Hypo: O owns Blackacre and has title to old family estate but had no kids; O wants to leave it to surviving nephews, A and B; O wants estate to stay in family as much as it can 9

o JT furthers Os interest because when one nephew dies the other gets it Hypo: O to A and B as joint tenants with right of survivorship, not as tenants in common o JT = good way to rebut presumption of TIC o So now A and B have present possessory interest in fee simple absolute with rights of survirorship What happens if A dies? o Goes to B with him now having full title Hypo: if A leaves to heir? o Only keeps JT if during lifetime nothing done to ruin it o If left to heir then JT severed and becomes TIC Hypo: O to A, B and C as JT with rights of survivorship and not as TIC o After conveyance all 3 own present possessory interest as JT with right of survivorship What happens if A dies? o Interest goes to B and C as JT What happens if B dies? o C owns all of blackacre, now no longer concurrent because everyone else died so C owns it with fee simple absolute Hypo: O to H and W as TBE o H and W have present possessory fee simple absolute interest (pp FSA) as TBE with right of survivorship If H dies? o W owns it; non-probate transfer, often referred to as poor mans will because it was automatic, would still need to fix the title to say her name Hypo: A, B and C each owned individual 1/3 FSA interest in a parcel of land as TIC. A died and by will left her interest in the land to X and Y equally. Who owns, what? o X and Y own 1/6, B and C owns 1/3 o A able to transfer by will because TIC Hypo: A, B and C owned FSA land as JT; A died and by will devised all As realty to X and Y equally; who owns what interest in the land at this point o A fell out of owning group so has no interest after death; not a conveyance so only B and C own land o If conveyed then becomes TIC with X,Y,B and C B then died without a will o C owns all land, no longer concurrent estate B only heir is Z o Too bad because right of survivorship Hypo: A owned land of FSA, A conveyed to A and B as JT with the right of survivorship; A died leaving all As realty to X by will; who owns what? o A already had an interest in land through a different instrument so time and title not met; need TTIP unities o Way to fix it: A and B TIC As interest in TIC can be divised so X has claim B and X own as TIC o If all really wanted to create JT then would give land to straw man A would transfer entire deed to trusted 3rd party and then that party would transfer to A and B as JTs 10

Reason jurisdictions have not gotten rid of straw man is because need transfer fee to make it happen $$$$ Could also serve cautionary function, make sure people all doing exactly what they wantsaes Hypo: A,B and C owned land is FSA as JTs; A conveyed As interest in the land to X; who owns? o As portion severed and given to X who is a TIC; X, B and C all own 1/3, B and C are JTs in regard to each other When B dies? o Goes to C = 2/3 o C now only member of JT; becomes TIC with X C dies? o Cs successors in interest get Cs part 2/3 If X dies first? o Xs successors in interest get Xs part 1/3 Problem 1 on page 244: O conveyed to A and B as TBE but they are not married not real TBE o Some states would deem as JT, others would apply presumption of vague deed is TIC What if they later marry? o Not a TBE because need to be married at time of granting

e. What can be reached by creditors i. Creditor can reach anything that debtor alone can alienate 1. Usually creditors CANNOT REACH TBE a. Way around is for bank to get both spouses to sign loan because creditor of both so can reach i. If just creditor of one then cannot reach 2. TIC and JT are free game a. Creditor steps into the shoes of the debtor whatever the debtor can do with the property, so can the creditor ii. Once interest owner aware of creditor then a gratuitous transfer will usually be deemed a fraudulent transfer (trying to get out of losing property) iii. Group 3 states (majority) 1. Attempted conveyance by one spouse is wholly void; the estate may not be subject to one spouses debt iv. Policy 1. TBE meant to protect the family which property law holds in high regard 2. Recognizes possible fraud; if debt arose before property turned into TBE then creditor leant based on what already owned so not counting on TBE property as payment; if extend credit after TBE then creditor on notice that TBE property cannot be used to secure debt a. Ex. Hurd v. Hughes b. Applies to both voluntary and involuntary creditors i. Voluntary property owners seek out 1. Ex. bank loan, mortgage ii. Involuntary property owners forced into 1. Ex. child support, judgment f. Rights and Obligations of Co-TNs 11

i. Income: a. Absent an ouster, a cotenant in sole possession is NOT LIABLE to his non-occupying cotenants for the value he derives from possession of the whole (from basement to attic) b. One in possession does not owe the others not living there anything as long as he did not oust them i. Hypo: Carl and Lenny own equally a farm as TIC (1/2 each); Carl voluntarily moves out, Lenny now in sole possession ii. Lenny does not have to pay Carl any proceeds he derives from the farm 2. Rental income from 3rd party a. If a cotenant obtains rental income from a 3rd party, each cotenant is entitled to his share 3. Tenant in possession after ouster a. Non-occupying tenant was ousted, in that case the tenant in possession must account and pay i. Hypo: Carl was ousted by Lenny from the same farm; Lenny sole possessor and getting $1,000/mo from renter 1. Carl and Lenny each get $500 from the farm proceeds ii. Expenses among cotenants 1. 2 types a. Upkeep expenses: all cotenants responsible for upkeep expenses such as real property taxes and mortgage payments i. Cotenant paying more than fractional share of upkeep expenses can go to court and bring an action or contribution for those expenses 1. Hypo: property left to sisters by parents as JTs; one sister lives in house and the other lives in other states a. The one who lives in house does not have to pay for non-possession to others 2. Hypo: now taxes and insurance start getting up and bills getting higher; one in possession asks others for money for those bills a. The possessing sister can bring an action for upkeep contribution from the non-possessors ii. When one cotenant pays more upkeep then the others there is a presumption that the one paying the extra money is giving a gift to the others (majority); at time paying extra make it clear this is not a gift to be able to rebut the presumption b. Capital improvements: cotenants not responsible for non-authorized capital improvements; ex. pool, new wing, carport, etc. i. Contributions actions do not work here 1. BUT can use partitions used when Co-TNs cannot work together any longer ii. Partition 2 ways ENDS THE Co-tenancy 1. Physical (in kind): works when the property is physically divisible in a way that would be equitable a. Compensate a cotenant that made an improvement by giving the party that made the improvement the land with that improvement on it 12

i. Must be capable of fairly divvying property ii. Ex. house on front lot that butts highway and back lot butts ocean cannot be divided fairly 2. Partition by sale a. Resolution to problem dividing physically b. Sell the property and divvy up the money c. If also dealing with capital improvements: i. Formula: ii. improver gets = fractional portion + (difference between property with and without improvements) g. Severance i. TEST: INTENT 1. Must see if severing or terminating a. Terminating getting rid of concurrent interest altogether i. Ex. partitions b. Severance keeping interest but not in relation to Co-TN i. Ex. transfer through a strawman destroys unity in time and title 1. EXCEPTION: In Colorado, can unilaterally terminate through a strawman ii. JTs can always convey their interest during lifetime to sever JT 1. If only between two people TIC 2. If between 2+ JT between the remaining non-severers and person who severed has TIC with those two JTs iii. Policy: courts worried about fraud 1. Dealing with JT and one TN uses strawman to sever and never tells the other TN a. Problem: i. If sneaky TN dies first then his interest secured because he can devise ii. If other TN dies first then sneaky TN gets his interest; so sneaky TN now gets whole interest to himself b. SOLUTION: sneaky TN must record new deed showing he has TIC iv. Does a giving a mortgage cause severance of JT? 1. 2 theories: a. Title theory states i. Lender gets deed of trust; Lender owns legal title and borrower owns equitable title until note it paid i. Creates severance b. Lien theory states i. Legal title is held by borrower/JT, on deed, during the duration of mortgage; mortgage lender has lien and only obtains legal title after foreclosing ii. No severance v. Does a lease sever a JT? 13

1. Favors lien theory a. JT temporarily severed during time of occupancy of the LE but does not permanently sever the JT vi. Does murder sever a JT? 1. YES, some states even have slayer statutes dealing with this issue specifically

8. Interests in Estates of Land


a. Estates in Land

Fee Simple FSA FSD FSSC S FT

Non-Fee Simple LE Non-Freeholds

All estates other than FSA are defeasible or subject to an executory interest (limitation) Hypo: O to A for as long as A doesnt divorce o O retained something o As life estate is defeasible

Estate for Years Periodic Tenancy

Tenancy at Sufferance

Tenancy at Will b. Fee simple i. FSA lasts indefinitely ii. Defeasible fees 1. Conditional a. FSD i. Magic words: while; until; so long as ii. Terminates automatically if the condition attached is violated 1. Can have multiple conditions iii. GR keeps possibility of reverter b. FSSCS i. Magic words: provided that; on condition that; but if ii. Condition imposed by grantor but will not terminate automatically 14

1. Once condition breached the GR MUST act in order to regain the property iii. GR keeps right of reentry iv. When language of the document is ambiguous but it is definitely conditioned then the courts prefer FSSCS, so that those with right of reentry must take affirmative steps to take property back c. FL limits duration of possibilities of reverter and rights of re-entry 689.18 i. Limit to 21 years; but statute does not apply if FSD or FSSCS was granted to government or non-profit (in those cases the conditions can last forever) ii. If follows condition and more than 21 years then FSD becomes a FSA subject to a covenant (will learn later) iii. Fee tail 1. O to A and the heirs of his body a. This is an example of a present possessory interest in a fee tail 2. Used to keep property in the family line now outdated a. Kept in issue: decedents, heirs; distinguished from successors in interests which is MUCH BROADER b. Can still be created in a hand-full of states but if GR wants to divest estate then FT is disentailed, now falling into modern categories iv. Life Estate 1. Interest measured by the life of the person in possession 2. Pur autre vie possessors life estate measured by the life of another a. If possessor dies and the LE was pur autre vie and the life being measured not dead yet, then possessors successors in interest could possess until the measuring life dies; GR cannot obtain reversion until the measuring life dies b. CANNOT adversely possess because can only adversely possess against present interest holders, not future interest holders Hypo: O to A for the life of B. In real life? O to Caretaker for the life of the mother. o Good example of when would be a life estate pur autre vie, with O retaining a reversion o Matters if Caretaker wants to sell because the difference in her having a life estate and selling it and her having a life estate PAV would drastically change the price Hypo: O to A for life. A conveys his interest in blackacre to B. o Max estate B has is PP interest in life estate PAV (measured according to As life)

c. Non-fee simple i. Tenancy for a fixed term 1. See LL/TN ii. Periodic tenancy 1. See LL/TN iii. Tenancy at sufferance 1. See LL/TN 15

iv. Tenancy at will 1. See LL/TN d. ANALYSIS: i. Words of purchase 1. Ex. to A ii. Classify interest 1. Present possessory or future; if present possessory, move to next step, if future then decide which type of future interest a. Ex. A has present possessory interest 2. Interests a. Present possessory b. c. Future i. GR can have: 1. Possibility of reverter (FSD) 2. Right of reentry (FSSCS) 3. Remainder ii. GE can have: 1. Remainder a. Future interest in someone other than the GR that will become PP estate, if ever, immediately upon the natural expiration of prior non-fee simple estates created simultaneously with this interest b. Types i. Vested, or ii. See remainders iii. Contingent iv. See remainders 2. Executory interest a. Defined by exclusion, any future interest in someone other than the GR that is not a remainder i. MUST go through remainder definition to decide the future interest is EI b. Shifting i. GEGE c. Springing i. GRGE iii. Words of limitation 1. Used to classify estate a. Ex. for life LE 2. and his heirs ALWAYS MEANT AS WORDS OF LIMITATION, very limited when they will be words of purchase 3. Modern interpretation to A A has pp in FSA iv. If more than one purchaser, repeat steps 2-3 until finished all purchasers v. Solve for GR 1. Only possibilities: a. Nothing b. Remainder c. Possibility of reverter 16

d. Right of reentry Problem 1 pg. 230 O conveys to A for life. O dies one year later. o Words of purchase: to A o Interest: A has PP o Words of limitation: for life A has PP interest in life estate o O retains reversion o When he dies, his successors in interest gets reversion and A gets land for his entire life Problem 2 pg. 230 O conveys to A and his heirs so long as the property is not used for commercial purposes. o Words of limitation: and his heirs so long as o A has a PP interest in a FSD with O retaining the possibility of reverter Hypo O conveys to A and his heirs so long as the property is not used for commercial purposes, if it is ever so used then to B. o A still has PP interest in FSD with O retaining possibility of reverter o B has future interest (because A has PP) by EI with FSA Because A has fee simple and non-fee simple is needed for remainder Hypo O to A for life, then to B and his heirs. o A to A; PP interest; for life so A has PP in a life estate o B to B; FI in remainder B has FI and is not the GR because A has PP, B will get it immediately after A dies, As life estate is non-fee simple, and both were created in the same instrument Natural expiration for life estate if when PP holder dies Natural expiration of 10 year lease = 10 years

e. Remainders i. A future interest in someone other than the GR that will become present possessory estate, if ever, immediately after the natural expiration of a prior non-fee simple estate created simultaneously with it (in the same document) ii. 2 types: 1. Vested a. 2 part test: i. No condition precedent, AND 1. Condition precedent a. Something that can stop someone from obtaining b. If/but if distinction i. If = condition precedent 2. Condition subsequent a. Something that can terminate the possession i. Takes away right of possession b. If/but if distinction i. But if = condition subsequent ii. At the time of creation of the interest it is possible to identify at least one person who can take interest b. 3 types of vested remainders i. Indefeasibly vested remainder 17

1. CANNOT be destroyed or diluted 2. Do not need to do anything, not even survive, to obtain it ii. Vested remainder subject to open 1. In a class someone could join the class a. Interest can be diluted 2. Ex. To my daughter for life and then to her children a. So if daughter has more children before she dies then all children share (interest can be diluted) iii. Vested remainder subject to complete divestment 1. Condition subsequent 2. Ex. To A for life but if he starts smoking again then to C 2. Contingent a. Remainder that does not meet the definition of vested i. Definition by exclusion ii. Contingent remainders vest at the time the condition is met b. 3 ways to get there: i. Condition precedent ii. Remainder in an unborn person iii. Remainder in an unascertained person 1. Ex. To Johnny for life then to Johnnys heirs (wont know who the heirs are until Johnnys death) 2. Ex. To X for life then to his spouse; X unmarried at time of instrument c. Rule of convenience: i. If time for possession has arrived and at least one person is ready to take, then the class closes 1. Class DOES NOT CLOSE if cannot name one person yet ii. Policy: highest and best use d. Class closing rule: i. When time for possession has come and at least one member of the class is ready to take then the class closes ii. Property law recognizes a child in the womb Hypo: O to A for life, then if B is alive at As death to B and his heirs o Words of purchase to A, to B o A interest is pp; limitation for life; A has PP interest in a life estate o B interest is future because A has PP interest Now figure out whether remainder or EI B is someone other than the GR B will get possession immediately because he gets it after A dies which is the natural expiration of a life estate Non-fee simple estate yes because life estate Created in one instrument yes because all in the same deed o B has a remainder Now figure out what type of remainder: vested or contingent? It is possible to identify at least one person to step on that land because B can Condition precedent of A needing to die before B gets on the land 18

o Not vested because does not meet 2 part test o B remainder is not vested B has future interest in a contingent remainder Words of limitation for Bs contingent remainder and his heirs Modern trend, do not need and his heirs to be FSA; no words of limitation attached to the interest = FSA o Under feudal times it wouldve only been considered a life estate if didnt have and his heirs o B has a contingent remainder in a FSA o O has not given everything away reversion because if B died before A did then who does the land go to O If B did not meet the condition then B would not get it, so O kept something for himself Dont care if O is dead when reversion kicks in; Os reversion goes to his successors in interest Hypo: O to A for life, then if B graduates law school, to B and his heirs o To A and To B o A interest = PP; limitation = for life A has PP interest in a life estate o B interest = future because A has PP Remainder because meets the definition Can identify B but there is a condition precedent B has a contingent remainder in a FSA FSA because of words of limitation o O keep anything? reversion if A dies and B fails to meet condition Dont care if O lives because can go to his successors in interest Hypo: B graduates law school but dies before A o The contingent remainder was met because B graduates now meets the condition so remainder vested o Just because he did not survive does not matter unless expressed in the document o B has an indefeasibly vested remainder so his heirs gets the property when A dies o Bs interest vests when the condition is met, but possession will not arise until prior estate ends, when A dies Hypo: O to A for 10 years, then to Bs children and their heirs; assume at the time of conveyance B had 2 kids C1 and C2 o To and to Bs children o A PP interest; limitation 10 years estate for years A has PP interest in an estate for years o Bs children future interest Remainder because A has PP, is not O, created in same doc., natural expiration of 10 years and leasehold estate is non-fee simple Can identify at least one child, and children have no condition, not even need to survive o Vested remainder subject to open; can be diluted by more kids o Bs children have vested reminder subject to open in FSA C3 born? 19

o Gets to join the class C4 born 11 years after? o Too late because the rule of convenience cause the class to close at termination of the earlier estate At time of conveyance, B was childless? o Reclassify everything! o A still has PP interest of estate for years o The remainder becomes contingent because no children unborn; cannot name at least one person Now subject to destructibility of contingent remainders and depends on jurisdiction to see whether contingent remainder stricken or converted into springing EI

f. Executory interests i. A future interest in someone other than the GR that is not a remainder 1. Definition by exclusion 2. EI vest at the time of possession ii. 2 types 1. Springing a. EI that in order to become possessory, divest to the GR following a certain period of time during which no other GE is entitled to possession b. Interest goes back to GR and then springs forward to GE c. GR GE 2. Shifting a. EI that in order to become possessory, divest or cut short some interest in another GE b. GE GE Hypo: O to A upon As marriage to B o Words of purchase to A o A future interest Apply definition of remainder; not non-fee simple E.I. Springing because GR GE o The interest is created now, once O created deed; not possessory until married Hypo: O to A for life, but if A remarries, to B for life o Words of purchase to A, to B o A pp interest in a life estate subject to a shifting executory interest because words of limitation for life and B can take it o B future interest, not a remainder because will not terminate at natural expiration of life estate, will stop early Look at both E.I.s Going to GE GE; thus, shifting E.I. Words of limitation life estate B has a shifting executory interest in a life estate o O keeps reversion Hypo: O to A for life, then one year later, to B and his heirs. o Words of purchase to A, to B 20

o A pp in life estate; not subject to anything because A has a perfect life estate o B future interest, E.I. because not upon immediate natural expiration of prior life estate Springing because goes back to O before B B has springing executory interest in a FSA o O has reversion subject to a springing E.I. Hypo: O to A for life, then to B and his heirs, but if B starts smoking again, to C and his heirs. o Words of purchase: to A, to B, to C o A pp interest in a life estate (immediate, for life = LE, not subject to anything because nothing can cut As possession short) o B future interest Remainder subject to a complete divestment because of condition subsequent that can cut short possession B has a vested remainder subject to complete divestment in FSSCS subject to shifting executory interest o C future interest EI (because not upon natural expiration and not non-fee simple) Shifting because from GEGE C has shifting executory interest in a FSA o O retained nothing Hypo: O to A for life, then to B and his heirs, but if B starts smoking again, to O o B would have vested remainder subject to complete divestment in a FSSCS Use magic words Hypo: O to A for life, then to As heirs and their heirs o words of purchase: to A, to As heirs in this case As heirs are words of purchase not words of limitation o A pp interest in a life estate o As heirs future interest Remainder ( because fits the definition) Vested or contingent: apply definition of vested No condition precedent, cannot identify at least one other person because no idea if heirs exist o Can we identify at least one if became possessory? No o Only know heirs when someone dies, so does not matter if already has children because they are likely to be heirs but could pre-decease A o Analyze according to the moment the interest was created! As heirs have contingent remainder in a FSA o O kept nothing Hypo: to X hospital forever, so long as the land is used for hospital purposes, if the land ceases to be used for hospital purposes the conveyance shall be null and void. o Words of purchase: to X hospital (in gift) o Interest: pp o Words of limitation: so long as = magic word for FSD X hospital has pp interest in FSD o O retained possibility of reverter 21

Hypo: to X hospital forever, so long as the land is used for hospital purposes, if the land ceases to be used for hospital purposes to B and his heirs. o Words of purchase: to X, to B o X pp interest in FSD subject to shifting executory interest (from above example) o B future interest Not remainder because FSD is fee simple Shifting EI because from GEGE B has future interest in shifting EI in FSA If B ever gets the land then it will be forever GR gave B his possibility of reverter Hypo: to W for life, then to As children (assume A has C1) o Words of purchase: to W, to As children o W pp interest in a life estate Everything fine, she gets to live there until she dies o As children future interest Vested remainder (apply both remainder and vested definitions) As children have vested remainder subject to open o O keeps nothing What if before W dies A has C2 and C3? o Class opens to include all 3 kids What if W dies before A has C2 and C3? o Class closing rule when time for possession has come, if at least one member is ready to take then the class closes (in order to develop land at highest use and concern is the current members in class would not spend money if their interest would continually be diluted) o Only C1 gets land Rule of convenience: productive use of property

g. Common Law Rules i. After interests in land analysis complete, then check to see if any CL rules in the jurisdiction ii. 5 rules ALL APPLY AT THE MOMENT THE INSTRUMENT IS CREATED 1. Rule in Shelleys Case rule of law, so will apply despite GR intent a. When single instrument creates life estate in GE and also creates a contingent remainder in that GEs heirs, estates are both legal or both equitable (if trustee in document) b. RESULT if all elements met, then the contingent remainder in GEs heirs becomes a remainder in the LE holder i. In WOP MUST say to GE heirs; if GEs heirs not purchasers then this rule does not apply c. Ways to AVOID: i. Give one estate in legal title and one estate in equitable title 1. Ex. to a for life, then to T Trustee for the benefit of As heirs a. Equitable interest = trustee b. A has legal interest and As heirs have equitable interest ii. Create EI instead of CR 22

1. Ex. instead of to A for life, then to As heirs draft: to A for life, then 1 day later to As heirs a. Because it is not a remainder, springing EI, the Shelley rule does not apply iii. Do not use GEs heirs as purchasers 1. Ex. if heirs are not purchasers then immediately does not apply a. to A for life, then to As children b. to A for life, then to As issue i. Way to avoid the term heirs d. FL abolished this rule Hypo: O to A for life, then to As heirs and their heirs. o Words of purchase: to A, to As heirs o A pp interest in life estate o As heirs future interest Contingent remainder (apply vested and remainder definitions) Not vested because cannot identify one taker As heirs have contingent remainder in FSA o After classifying interest and estate, then move onto CL; if instruction say all CL rules abolished or only do the former then done here Told to analyze CL o Shelleys Single instrument yes Life estate A CR in GEs heirs yes Both legal or both equitable both legal Rule in Shelleys case applies o Now A has a life estate and has a remainder in FSA A has pp in life estate and remainder in FSA

2. Merger Rule a. When 2 interests in the same parcel are held by the same person and the 2 interests are not separated by something indestructible, the interests are merged Hypo: to A for life, then to B and his heirs; A then buys Bs remainder; now A has pp interest in life estate and remainder in FSA o Rule of merger allows to merge because nothing in between o A now has pp in FSA Hypo: to A for life, then to As heirs o Rule of merger applies o A has pp in FSA Hypo: to A for life, then to As heirs o After applying rule in Shelleys case A has a life estate and a remainder in FSA 23

o Then apply rule of merger A has pp interest in FSA Hypo: to A for life, then to Bs heirs o Words or purchase: to A, to Bs heirs o A pp interest in life estate o B future interest in contingent remainder in FSA o Apply Shelleys Rule Yes single instrument, GE has life estate and that GEs heirs do not have contingent remainder so rule does not apply o O keeps nothing Hypo: O to A for life, then to B for life, then to As heirs o A pp in life estate o B indefeasibly vested remainder in life estate o As heirs contingent remainder in FSA o Apply Shelleys Rule Single instrument yes Life estate in GE yes CR in that GEs heirs yes Both legal or both equitable yes RULE APPLIES o A now has life estate and remainder in FSA o Apply merger rule Nothing can be in between DOES NOT APPLY o A has life estate and remainder in FSA (assumed vested remainder because what made it contingent [not knowing who the heirs were] no longer exists) o B has indefeasibly vested remainder in life estate 3. Doctrine of Worthier Title rule of construction, so comply with GRs intent a. GR conveys a life estate to a GE with a contingent remainder in the GRs heirs, the remainder is void and the GR has a reversion i. Looking for GRs heirs in WOP b. Problem usually no language of GRs intent (rule of law that will only be used if furthers GRs intent) i. Presumption that GRs intent will be implied wherever the rule applies 1. if need to rebut presumption then need to produce concrete evidence to the contrary c. Ways to AVOID: i. Devise the property through a will ii. Do not have GRs heirs as purchasers iii. Put in sufficient evidence to rebut DWT in drafting d. FL abolished this rule Hypo: O conveys to A for life, then to Os heirs o First classify the interest and the estate o WOP: to A, to Os heirs o A A has pp interest in a life estate o Os heirs future interest in a contingent remainder in FSA

24

Contingent because do not know Os heirs because he is still alive o Apply CL DWT fits so Os heirs CR void and O keeps reversion after As life estate Hypo: O to my mother, Ann for life, then to my heirs ( assume at time of conveyance he is a widower and Os only living relatives are mother and 3 daughters, C1, C2 and C3) o WOP: to A, to my heirs o A A has pp interest in life estate o Os heirs future interest in contingent remainder in FSA Mother, C1, C2 and C3 maybe his heirs but could also all predecease him, or he could get married Do not know heirs until person dead o CL CR in GRs heirs so DWT applies and GR has reversion after As life estate Hypo: assume 5 years after conveyance, O dies leaving a will that devises his interest in land to girlfriend Bambi (DWT does not apply in this jurisdiction) o If DWT no longer applies then A has pp interest in life estate and Os heirs have contingent remainder Not Bambi because O was devising something he did not have because gave away life estate and gave away remainder to his heirs Hypo: if married Bambi o Then Bambi by statute as intestate heir would be heir and she would get some too Hypo: Bambi as girlfriend in jurisdiction that does apply DWT with same facts o O keeps reversion after applying DWT; O can convey, sell or devise the reversion so Os reversion is devised to Bambi

4. Destructibility of Contingent Remainders a. Unless a contingent remainder shall vest at or before the termination of all estates prior to it in possession, it shall be destroyed; time for possession has arrived and it is still contingent remainder then it is destroyed i. Minority above (FL) ii. Majority modified DCR contingent remainder becomes a springing EI b. Ways to AVOID: i. No CR, instead VRSTCD ii. Give it to a trustee Hypo: O devises to A for life, then if B marries C to B o WOP: to A, to B o A pp interest in a life estate o B future interest in contingent remainder in FSA o O keep reversion because B may never meet that condition Now assume that at As death, B has yet to marry C and jurisdiction has DCR rule 25

o Under DCR, Bs CR is destroyed and O now owns the land when A dies Os successors in interest get the land if O is dead before A dies Assume DCR does not apply o In jurisdiction that modified DCR, then converts CR to springing EI Land will go back to O for a bit, until B meets condition O has land in FSA subject to springing interest B has future interest in springing EI Hypo: O to A for life, then if B graduates college, to B and his heirs o WOP: to A, to B o A pp interest in life estate o B future interest in CR in FSA In jurisdiction of DCR; A dies unexpectedly before B graduates o Land goes to O because Bs CR is destroyed o O now has FSA In jurisdiction of modified DCR o B has future interest in springing EI o O has land in FSA subject to springing EI If O dead, then Os successors get it Hypo: O to A for life, then to the children of B (assume that at time interest is created B does not have children) o WOP: to A, to the children of B o A pp interest in life estate o Children of B future interest in CR At As death, B has yet to have a child o In jurisdiction of DCR: O gets land in FSA o In jurisdiction of modified DCR: O gets land in FSA subject to springing EI and children of B have future interest in springing EI Hypo: O to A for life, then to As children (assume A is childless at time of conveyance o Rule in Shelleys case does not apply because heirs are not purchasers Hypo: O to A for life, then to As heirs o Rule in Shelleys case applies o A would get land in pp FSA Hypo: O to my wife for life, then to Os children o DWT does not apply because not GRs heirs are not purchasers

5. Rule Against Perpetuities APPLY THIS LAST a. Only future interests are vulnerable and therefore all must be tested i. All EIs ii. All CRs iii. VRSTO iv. Any class gift 1. CR in class, EI in class, VRSTO, VRSTCD if a class b. NOT ALLOWED TO BE TOUCHED i. All future interest in GR 1. Reversion, possibility of reverter, right of re-entry ii. Indefeasibly Vested Remainder 26

c. Perpetuity period i. Lives in being + 21 years + relevant periods of gestation (only if fact pattern says someone is pregnant) 1. 21 years to wait for children to reach majority and gestation period only if fact pattern says someone is pregnant ii. CALCULATED FROM THE TIME THE INTEREST WAS CREATED 1. By conveyance, OR a. Test at time conveyed 2. Devise a. Test at time of GR death d. Vulnerable interest does not violate RAP, if this can be true: i. IT IS IMPOSSIBLE FOR _____________ MORE THAN 21 YEARS AFTER ____________S DEATH 1. 1st blank = condition or someone joining the class (what is making it a vulnerable) a. Anyone can have child until death because can adopt b. After dead, no more kids (regardless of frozen sperm, etc.) 2. 2nd blank = lives in being at time the interest was created a. 1st person to test = GR, if living i. Must be by conveyance because devise means he is dead ii. If GR makes statement true then done because does not violate RAP; only go to second level if first level does not work nd b. 2 person to test = purchasers in the order in which they appear in the instrument i. Again, once make statement true then proven it does not violate RAP ii. A then B then C c. 3rd person to test = intervening generation i. Many instances there is not one ii. Someone not named in instrument but makes sense iii. Ex. to A for life then to Bs children iv. Test B even though he is not a purchaser th d. 4 person to test = anyone else mentioned as relevant in the document i. Not a purchaser because already in second level ii. Not going to get there in this class but be aware for practice e. KEY CANNOT USE A CLASS AS A VALIDATING LIFE UNLESS AT THE MOMENT THE INTEREST WAS CREATED THE CLASS IS ALREADY CLOSED i. Closed naturally 27

ii. Ex. to A for life then to Bs children iii. Cannot use Bs children unless class already closed; can only be closed if B is dead at the time of conveyance f. RESULT: If exhausted search and vulnerable interest flunks test then it becomes void and strike it g. Infectious invalidity applies when the entire gift is terminated i. GR, had he known one part would be void he would want entire interest to be gone Hypo: O conveys to A for life, then if B graduates to B; this jurisdiction has RAP o WOP: to A, to B o A pp interest in life estate o B future interest CR in a FSA o Apply RAP It is impossible for B to graduate more than 21 years after Os death. Not true so must continue; O could die tomorrow It is impossible for B to graduate more than 21 years after As death. Not true for same reason as O It is impossible for B to graduate more than 21 years after Bs death. YES does not violate RAP B gets to keep CR in FSA; do not need to strike because does not violate the rule Hypo: O devises to A and his heirs provided that liquor is not sold on blackacre, if liquid is sold, to B and his heirs o WOP: to A, to B o A pp interest in FSSCS subject to shifting EI o B future interest in shifting EI in FSA o Apply RAP It is impossible for liquor to be sold on blackacre more than 21 years after As death. Not true It is impossible for liquor to be sold on blackacre more than 21 years after Bs death. Not true NO LIFE CAN MAKE STATEMENT TRUE MUST STRIKE the EI o Becomes: O devises to A and his heirs provided that liquor is not sold on blackacre, if liquor is sold. o O keeps right to re-entry Hypo: O devises to A for life, then to Bs children (B has one child at the time of Os death) o WOP: to A, to Bs children o A pp interest in life estate o B future interest in VRSTO o Apply RAP It is impossible for more kids to be born more than 21 years after As death. Not true It is impossible for more kids to be born more than 21 years after Bs childrens death. Class must be closed when interest created for it to validate o Cannot use it; REMEMBER THE KEY 28

It is impossible for more kids to be born more than 21 years after Bs death. TRUE! Hypo: O devises to my wife Anne for life, then to our son Bill for life, but if Bill divorces, to Charles and his heirs. (each of CL rules applies) o WOP: to A, to B, to C o A pp interest in life estate o B future interest in VRSTCD in life estate subject to shifting EI o C future interest in shifting EI in a FSA o Apply CL rules in lesser rules first Shelley, DWT, merger, DCR and after all those RAP o Apply Shelley Life estate in GE yes CR in that GEs heirs No CR and no ones heirs purchasers here Needs to say to As heirs Both are legal o Apply DWT Only applies if by conveyance Life estate in GE yes CR in GRs heirs No CR and GRs heirs not purchasers o Apply DCR No CR so does not apply o Apply Merger Nothing can come together o Apply RAP A is safe because her interest is not future It is impossible for B to divorce more than 21 years after As death. Not true It is impossible for B to divorce more than 21 years after Bs death. TRUE! o Therefore, Cs shifting EI is kept

o Hypo: O conveys blackacre to my daughter A for life, then to As children for life, then to As grandchildren and their heirs (A is 60, has one son S who is 30, S has no kids); classify interest in estates and address whether any of them would be affected by CL rules, all CL rules apply with modified DCR o WOP: to A, to As children, to As grandchildren o A pp interest in life estate o As children future interest in VRSTO in a life estate o As grandchildren future interest in CR in FSA o Apply CL Rules Shelleys Someones children are not heirs Need to have to their heirs as WOP Modified DCR If when As children die and no grandchildren are born then become springing EI; will go to the GR and then to grandchildren when she can DWT 29

RAP

No GRs heirs as purchasers even though all family; think they will be his heirs but do not know Find in WOP As children o It is impossible for A to have more children more than 21 years after O dies. Not true o It is impossible for A to have more children more than 21 years after A dies. TRUE As children VRSTO kept As grandchildren o It is impossible for As children to have more children more than 21 years after O dies. Not true o It is impossible for As children to have more children more than 21 years after A dies. Not true o It is impossible for As children to have more children more than 21 years after As children die. cannot test class if not closed at the time the interest is created o Cannot use As grandchildren because open class o As grandchildrens CR is gone, have to strike it As grandchildrens interest stricken. O gets reversion Life estate, then life estate then back to O; if O dead then successors in interest

9. Condominiums and Co-ops


Income tax very similar Physical characteristics very similar Property law standards very different Condo i. Real property interest + undivided interest in common areas as TIC + individual loans + few internal controls + mortgages ii. Real property interest + undivided interest in common areas as TIC 1. Owner has a real property interest a. Present possessory and can give away future interest (go through interest in estates in land analysis) iii. Individual loans 1. Individual owners obtain individual loans to finance condos iv. Few internal controls 1. Hard to restrict the alienability of condos; owners free to buy/sell v. Mortgages 1. Used to finance; BANKS LOVE because they are familiar with mortgages e. Co-op i. Personal property (stock) + proprietary lease + blanket loan + more restrictive + share loans a. b. c. d. 30

ii. Personal property 1. The property itself is owned by the co-op association and each individual owner has personal property in stock of that association 2. Unit owner owns intangible personal property iii. Proprietary lease 1. Each owner has a proprietary lease which lets him occupy that unit 2. Aka occupancy agreement iv. Blanket loans 1. Co-op association gets ONE BIG blanket loan from lender and then distributes the debt among the owners a. Way for low-income people to own an estate in land b. Bank accesses loan differently because evaluating the association instead of individual owners c. If one member fails to pay then their default is felt by everyone v. More restrictive 1. More internal controls on prospective purchasers because they must be reviewed and accepted by the board a. Prospective owners that are denied can challenge denial based on civil rights but that is it vi. Share loans 1. Instead of getting mortgage, the security interest given to the bank is the shares the owner has in the association 2. Banks less familiar with and do not prefer

10.Marital Interests
a. Two jurisdictions of states describing how property owned in a marriage i. Separate property states 1. Aka: title states or CL states 2. During ongoing marriage the existence of marriage does not affect title to property 3. Each spouse owns separately what he/she earns during the marriage 4. Issues regarding dissolution of marriage a. Divorce try to follow equitable dissolution i. Each gets spouse gets (just like community property states) b. Death i. Dower wife gets life estate in 1/3 of all real property the husband ever had 1. When source of wealth become stuff other than real property then problem arose a. Why many states abolished dower i. Ex. 99 year leasehold non-freehold so no seisin ii. Ex. trust non-freehold so no seisin ii. Dower replaced with spousal elective share 1. If spouse does not like what got in will, then can get percentage a. Often 1/3 of the assets; FL is 30% i. Can be more or less than what spouse should get 31

b. Some states sliding scale percentage depending on length of marriage but never exceeds 50% ii. Community property states 1. Partnership theory of marriage a. Whatever earned by the partnership is equally divided among both spouses b. EXCEPTIONS: i. Property either spouse had before the marriage remains separate property ii. Property, even if received during marriage, received as gift or inheritance remains separate 2. 9 states a. CA, AZ, TX, Idaho, Louisiana, NM, NV, WA, Wisconsin 3. No issue with marriage dissolution by divorce or death because already divided in half

11.Homestead
a. Protection from creditors for principle residence i. Way of making sure the people that live in the state get to live in their home b. FL has NO DOLLAR CAP i. Article X, 4: protects from forced sale by creditors and also restricts owner from transfers or disinheritances under certain circumstances and from devising it outside of the family c. Elements: i. Must be FL resident ii. And actual intent to remain in FL indefinitely iii. Size limits: 1. Can protect 160 acres outside municipality 2. Within municipality only acre can be protected iv. Do now have certain restrictions in regard to federal bankruptcy v. EXCEPTIONS: 3 exceptions of super-creditors that can force a sale: 1. Government a. Federal, state and local taxes 2. Mortgage lender or home equity lender 3. Mechanics lien holders a. Someone who does construction on house and does not get paid

12.Easements RIGHT TO USE


a. Using someone elses land for a long period of time and then get right to continue using it (like adverse possession but do not get possession just get right to continued use) b. Policy: highest and best use of the land c. Look for SOF problem d. Creation i. Expressly: MUST COMPLY with SOF (in writing and signed by the party to be bound) 1. Grant a. When someone transfers to another an easement i. Because transfer of land, need: 1. Intent 32

2. Delivery 3. Acceptance b. Common owner grants land with no accessible right of way to the GE except over GR land c. When language ambiguous: i. Appurtenant easement presumed because it is more typical and appurtenant easements transfer automatically with the transfer of the dominant estate 2. Reservation a. Person who originally had the parcel conveys that parcel to another but retains and reserves for himself an easement ii. Implied 1. Strict necessity a. Elements: i. Land in common ownership ii. Severed into 2+ parcels iii. Severance creates the strict need for the easement b. Essentially asking the court to add language to the deed because as is the deed contains no language regarding an easement i. Clearly, from circumstances, the parties MUST HAVE intended there to be a deed MUST HAVE NECESSITY c. Policy: highest and best use of the land 2. Quasi easement a. Elements: i. Single owner who burdened one parcel for the benefit of another ii. Must prove that the benefit is reasonably necessary for the benefited parcel 1. Some jurisdictions want more than reasonably necessary iii. The burden was apparent at the time of the severance 1. ***Making or breaking point for most cases*** 2. Severance can occur: a. Change in owner 1. Transfer property b. Change in possession 1. Ex. leased the property i. The single owner transferred one parcel and retained the other b. If arguing for this, MUST PROVE to the court this is OBVIOUSLY what the parties INTENDED iii. Prescription CANNOT OBTAIN A NEGATIVE EASEMENT BY PERSCRIPTION 1. Lost grant (very rare) a. Fiction that deed once existed then was lost; at some point and time a grant existed but it has been so long that it disappeared i. Parties have been behaving as if there must have been a grant ii. In connection with SOF b. Elements: i. Used the land ii. Claim of right (without permission) iii. Open and notorious manner iv. Continuously 33

1. Can tack previous time 2. Can tack when privity 3. Cannot tack: a. Abandonment b. Ouster v. Required time (check jurisdiction) 1. FL CL 20 year time period vi. With acquiescence of the owner of the servient estate (submission, passive) 1. Ex. see guy crossing the path and kind like oh man to yourself but let him keep doing, submission to letting him do it a. Owner of servient estate, feel like you cannot stop the person from doing what they are doing so submit to the behavior 2. Focus on owner of servient estate owner and see whether servient owner is submissive, acquiesced 2. Adverse use no SOF issue a. Elements: i. Used the land ii. Claim of right (cannot be permissive) iii. Open and notorious manner 1. KNEW OR SHOULD HAVE KNOWN a. 3 types of notice i. Actual notice ii. Constructive record notice iii. one is deemed to know that which has been duly recorded; policy so that we can rely on title searches iv. Inquiry notice v. Something from the facts that should have made you ask iv. Continuous v. Required time (check statute) vi. Use was adverse (hostile) to the interests of the servient owner 1. Focus on the CLAIMANT a. Is he proceeding without recognizing anyones right to block him? i. Need to put up impregnable barrier vii. *exclusivity not normally mentioned, but if it does it is not the same as adverse possession 1. Means you alone must meet the elements 2. In FL must overcome the presumption of permissive use viii. If admit to obtaining permission then lose on claim of right AND adverse use Page 324 Note 2 o Servient estate owner demands, in letter, that the adverse user (not certain which of two theories) stops his use before the required time has run? Is that good enough? 34

Appurtenant, affirmative, specific, nonexclusive (presumption) easement If lost grant then not submissive and the letter is good enough If adverse use then not good enough because needs to put up and impregnable barrier The term adverse use applies to both theories o Now in adverse use jurisdiction; owner of servient estate walks into my office and says neighbor keeps walking over and that is okay but I do not want him to have a legal right to do this forever; how prevent? Grant permission Negates claim of right and acquiescence o Now do not want him crossing over land at all? Must physically stop the trespasser If all that does not work then file an action in court, injunction Here against trespasser, not ejectment If just get tort trespassing verdict then that is good enough because then can take actions of enforcement e. Characteristics i. Appurtenant v. In Gross 1. Appurtenant a. Benefits the land owned by the holder of the easement; increase the use, utility or value of a parcel of land; both a dominant and servient estate i. Dominant estate parcel that benefits ii. Servient estate parcel that is burdened by the easement 2. In Gross a. Personally benefits the easement holder b. No other parcel benefits i. Only have servient estate, no dominant estate because no land benefitting only the one burdened ii. Affirmative v. Negative 1. Affirmative a. Gives the easement holder the right to perform an act on or use the servient estate owners land i. Profit type of affirmative easement allows the holder to enter the land and appropriate something of value 1. Ex. right to remove timber, right to fish, right to remove citrus 2. Negative a. Gives the easement holder the right to prevent the servient estate owner from doing something on his/her land i. Ex. X has west lot and 2 stories, Y has lot on water with on one story; X can see the ocean because higher than Y and does not want to lose view because Y could build up 1. X can ask for negative easement iii. Specific v. General 1. Specific a. Gives the easement holder only the right to use a particular part of the servient land 35

i. Geographically limited 2. General a. Does not specify where the rights may be exercised on the servient land iv. Exclusive v. Non-exclusive 1. Exclusive a. If that easement prohibits similar easements from existing concurrently i. Presumption against ii. Very rare 1. Ex. where it would be dangerous to society to allow other easements at the same time; high voltage places, high speed rail 2. Non-exclusive a. There could be other similar easements concurrently i. Presumption for Hypo: A conveys 100 acres of woods to B but A retains right to hunt and fish on Bs land o A has not retained an estate in land, only an IN GROSS easement o Not profit a prendre because nothing stating A took animals off the land o General Hypo: X wants right to use Ys roadway to get a new highway; Y owns north lot, X owns south lot; New public highway on north border of Ys lot, X wants easement through Ys property to get to new street o X will ask for easement from Y Appurtenant, affirmative, general, nonexclusive easement Created by Y expressly granting to X

f. Scope i. Easement is created by grant or reservation and the instrument creating the easement does not limit the use to be made of it, the easement may be used for any purpose to which the dominant estate may then, or in the future, reasonably be devoted 1. Need to draft easement with limitations in order to stop this from happening 2. If easement is not limited/restrictive than anyone can use it as long as it is reasonable 3. Ex. Hayes v. Aquia Marina, Inc g. Transferability i. Both appurtenant and in gross easements are transferrable, MORE LIKELY that appurtenant is transferrable compared to in gross because in gross is personal to the person 1. Appurtenant PRESUMED TRANSFERRABLE a. Presumed to transfer with the transfer of title of the dominant estate regardless of whether the deed mentions the easement b. Policy: highest and best use, protects GE of dominant estate from GR if he forgot to transfer easement with the grant 2. In Gross FIND EVIDENCE TO PROVE TRANSFERRED a. Transferrable if and only if: i. The parties clearly intended to make it assignable, or 36

ii. It is a commercial easement in gross (presumed transferable/assignable and does not have to be a profit commercial easement, anything commercial) iii. Common Stock Rule 1. Even though transferrable, MUST be used together, cannot be divided, all transferees must handle easement together 2. MUST FOLLOW for both easements in gross intentions and commercial iv. Ex. Miller v. Lutheran 1. In gross commercial lease that looks transferable because the language of his heirs and assigns forever ii. RULE: heirs, successors and assigns language to show completely transferrable and indefinite h. Termination i. 11 ways to terminate 1. Express easement can terminate by agreement of the parties a. Look at language of easement b. Could say date, could say time period or could say upon some event 2. Easement implied by strict necessity will end when the need ends a. Whenever strict needs disappears so does the easement 3. Holder of easement releases the easement to owner of the servient estate 4. By merger when the title to both the servient estate and dominate estate comes into the same hands a. End up owning both properties then no longer an easement, just using his own property to help his own property 5. Easement ends by prescription a. If the owner of the servient tenement obstructs the easement area in an open notorious way (with an impregnable barrier) or otherwise interferes with the rights of the easement holder for the prescriptive period, the easement is extinguished 6. Easement can terminate if it has been abandoned a. Need to show intent to abandon b. Mere non-use, even for a long period of time is not good enough 7. Easement extinguished by estoppel a. Expenditure of sums in reasonable reliance to the detriment of the person that relied thereon, then easement does not exist anymore (estopped from continuing easement); equity and fairness i. Did something to show a reasonable reliance to own detriment ii. Reasonably relied on facts and took action based on that reliance then can make an estoppel argument 8. Easement ends by destruction of building that serves as the dominant or servient estate a. Ex. Corbett; if apartment building is gone then no need for parking lot 9. Easement ends if holder of dominant estate misuses his easement in such a way that it is impossible for a court to enjoin the misuse a. Just trying to prevent the misuse is not good enough b. Hypo: X and Y own own land in FSA with roads on each side; Y wants to cross Xs land to get to lower street; express easement that X gives to Y to drive through property. 37

i. Expressly by grant, appurtenant, affirmative, specific and nonexclusive c. Hypo: now Y gets dedicates new road on his land to the public, that connects with Ys easement through Xs land; public starts using the dedicated portion and then keep going through Xs lot; X does not want who public using it i. THIS IS EXAMPLE OF MISUSE TERMINATION because there is no way to allow Ys use to continue and stop the public from driving through 10. Easement ends if servient estate conveyed to a bona fide purchaser and purchaser without actual/constructive-record/inquiry notice about the easement a. Hypo: guy who purchased Mr. Woodlands land; W kept easement to hunt and fish; guy sold to purchaser, purchaser did not know about W easement. i. Easement terminates b. If W recorded easement? i. Easement upheld c. If purchaser told purchaser? i. Easement upheld d. Hypo: get easement by prescription, do not go to court and record and then title changes hands i. Easement by prescription owners loses easement because bona fide purchaser did not know 1. GO TO COURT AND RECORD EASEMENT ONCE OBTAINED BY PRESCRIPTION ii. If title changes hand while attempted to get prescription, still during required time, then that is ok 11. Easement ends if servient estate is condemned by the government

13.Licenses
a. Permission by the title owner permitting someone to use the property i. Since a license is not an interest in land, it does not have to comply with SOF b. General rule: licenses are freely terminable i. EXCEPTIONS 1. Licensee must have reasonable time to remove himself and his effects 2. License coupled with an interest is irrevocable during term of interest a. Where licensee has interest in licensors property i. Hypo: LE buying cows from LR; does not say how to get them, LE goes onto farm and gets tagged animals 1. LE can go onto property to get cows but once gets off property then license becomes revocable 3. Estoppel Theory a. Licensee expended sums upon reasonable reliance of licensors representations regarding duration of the license b. At that time, license becomes irrevocable for that particular time since LR sends signals of duration even though at law can revoke at any time

38

14.Covenants real and equitable servitudes


a. Real covenants i. Can get legal damages, enforced by the law ii. Covenant that runs with the land at law 1. Purchaser of the burdened property MUST have notice of the covenant 2. If no notice, then not burdened iii. Elements: 1. Covenant must be enforceable a. Cannot be unreasonable as a matter of public policy i. Ex. promise to kill someone (unreasonable) b. Cannot be too vague (must be able to discern the parties intent) i. Court may read into it a reasonableness standard so not unenforceable for vagueness c. In a writing that complies with the SOF (interest in land) i. A writing that is signed by the party to be bound thereby 2. Original covenanting parties must intent that the covenant run with the land a. Intent is relevant at the time of the agreement i. Look to language of document 1. Language to bind people farther in the future a. Ex. and his heirs, assigns, successors in interest to the land 3. Covenant must touch and concern the land a. Affect the relationship of the parties as landowners and either increase the use/utility value of covenantees land or decrease the use/utility/value of covenantors land b. Caveat: if benefit of promise is only in gross then covenant does not touch and concern 4. Must have horizontal and vertical privity (NEED BOTH) a. Horizontal: privity of estate between original covenanting parties i. Either: mutual or GR/GE 1. Mutual in addition to the covenant, the original covenanting parties had a continuing simultaneous interest in the land covered by the covenant 2. Created simultaneously with interest in property a. LL/TN b. Mortgagor/Mortgagee c. Co-TN d. Easement relationship 3. GR/GE a. Instantaneous b. Looking for a conveyance of land from one of the original covenanting party to another and at that very moment they enter into a covenant c. Conveyance by sale, gift or death b. Vertical: privity between such parties and their respective successors in title i. Looking a CTE then only need to show an estate in land 1. CTE with FSA could transfer only a LE and transferee could enforce 39

ii. Looking at CTR then successor must have gotten the entire estate in land analyzed by time dimension 1. Successor must get exactly what they had 2. Time dimension, burdened proportionately a. Ask whether successor got the entire estate under the time dimension; ex. started FSA, must give FSA; start with LE then must give LE i. Time dimension is getting the same future interest GR had b. Equitable servitudes MAIN QUESTION, will the promise between the original covenanting parties stick with the land? i. Aka: reciprocal negative easement ii. Enforceable in equity (remedies, specific performance, injunction) iii. Elements: 1. Covenant must be enforceable a. Cannot be unreasonable b. Cannot be too vague so cannot discern intent of the parties c. In writing that complies with SOF or if claiming party can show equitable principles (estoppel or part performance) or if implied covenant is found from a common grantor with a common scheme (common idea of how to use each parcel in development) i. If not in writing check for other equitable principles 2. Intent with the original covenanting parties that it run with the land a. Look for words used in the document heirs, successors, assigns 3. Covenant must touch and concern the land a. Cannot only be a personal promise b. Affect the relationship of the parties as landowners c. Caveat: if benefit of promise is only in gross then covenant does not touch and concern i. Willing to let someone burden land as long as some land benefited ii. Benefit has to deal with land, cannot be a benefit that only affects a person 4. Notice actual, constructive on record and inquiry c. Termination of covenants: i. By expiration of the specific duration expressed in the covenant 1. Ex. Runyon v. Paley ii. If released by the benefited party iii. If the benefited and burdened parcel merged then covenant terminated by merger iv. By prescription v. If abandoned; need intent to do so and an addition, habitual and substantial violations of the covenant 1. Western Land v. Truskolaski a. Violations must be general, habitual and substantial as to frustrate the original purpose of the restrictive covenant vi. By estoppel vii. If burdened property is conveyed to a bona fide purchaser without any of the 3 types of notice; actual, constructive, inquiry 1. Recall for a covenant to run with the land either at law or equity the purchaser of the burdened property must have notice viii. Covenant terminates if property condemned by government 40

ix. Covenant terminates under doctrine of changed conditions 1. Ex. Western Land v. Truskolaski a. How much change is enough? i. Need fundamental changes inside and outside the property 1. Need change that is so great as to make enforcement of the covenant inequitable or oppressive 2. Covenant will stand even if the subject property has greater value as a commercial property 3. Zoning ordinance cannot override a privately placed restrictive covenant a. Each acts independent of the other; can have a private covenant that is more restrictive i. Rezoning is evidence to show substantial changes but not determinative

15.Recordings
a. All interests in land are subject to recording acts b. Recording is not a prerequisite for title to transfer c. CL is that the first GE to have obtained intent, delivery and acceptance of a deed wins i. Only way someone to prevail over CL winner is if that person meets the exact terms of the states recording statute 1. To beat CL: a. Be subsequent purchaser and meet state statute standard to win b. If do not trump then state reverts to CL standard (first to come wins) d. 2 types of recording indexes i. GR/GE 1. Lists GRs name alphabetically 2. Same with GE a. Very tedious 3. Go backward through GE, then forward through GR ii. Track system 1. All necessary is the lot number Hypo: D wants to sell property to X o First check to see if D ever had title to property only way to see if he obtained title is by him being a GE Go through GE index, beginning with today and go backward Find him in 1987 Deed from C to D o Then see if C had title to transfer to D Now running Cs name backward in GE index beginning with 1987 Find B to C in 1972 o Then see if B had title to transfer to C Run Bs name in GE index Find A to B o Find that A received it from the government (stop anytime the GR is government); some jurisdictions stop at 60 years, others at 47 years o If cannot find it under this system, then even if document that is filed If can find it under a proper GR/GE search then wild deed (happens when not filed correctly) 41

o Go forward through GR index to make sure they did not give title to anyone else Government, A, B, C At C, find that he gave a mortgage to a bank sometime after 1972 C to Bank then C to D Should have been cleared and taken off the title records (would see payoff letter), should be concerned if mortgage has been paid off security interest to bank; also possible that was paid in full, but also possible it had not Could also find C gave easement or covenant Could have also found C to Y o Under CL Y would prevail over D (CL = first in time)

e. 3 recording statutes i. Race 1. Subsequent purchaser who records first, to prevail over prior purchaser a. Subsequent purchaser i. For valuable consideration, not necessarily equal consideration just cannot be nominal ii. Obtaining through gift IS NEVER a subsequent purchaser ii. Notice 1. Subsequent purchaser without notice prevails over prior purchaser iii. Race-notice 1. Subsequent purchaser without notice at the time of conveyance to you, who records first; then will prevail over prior purchaser 2. In good faith no notice 3. Prior recording void race a. this is a race-notice jurisdiction Hypo: O to A, A does not record; O to B for valuable consideration and B is without notice; A records A at CL because was the first in time to have intent, delivery and acceptance B in notice jurisdiction A wins in race-notice Now A records, B records? A at CL A at race B at notice A at race-notice O to A, O to B, B records, A records B at race-notice

Hypo: O to A, A did not record; O to B (paid valuable consideration) who knew of conveyance to A, B recorded o A at CL o B at race o B does not win at notice so the CL stands o B does not win at race-notice so CL stands 42

f. Shelter Rule i. If a person takes from a bona fide purchaser who is protected by the recording statute, the person who takes has the same rights as the bona fide purchaser had 1. Protects the bona fide purchaser by allowing him to transfer (convey to some 3rd party) Hypo: O to A, A does not record; O to B for valuable consideration, B is without notice; A now records; B to X, can B transfer? o A and X are staking a claim to blackacre o No idea, need to know jurisdiction, lets say in FL (notice jurisdiction) A at CL because first to get intent, delivery and acceptance in time B at notice because he is subsequent purchaser without notice B trumps A Under shelter rule, X prevails because B was a bona fide purchaser protected under the notice recording act Hypo: same as above, move into a race-notice jurisdiction? o A at CL o B does not win at race-notice o So reverts back to CL o Therefore, X does not get land; shelter rule does not apply Only get the benefit of the shelter rule is buying from someone protected under the recording act; that did not happen here Hypo: notice jurisdiction; O to A, a does not record; O to B, B is without notice; B to X; O to C, C is without notice o 3 people staking a claim: A, X and C o A at CL because intent, delivery and acceptance first in time o B at notice prevails over CL; X can apply the shelter rule and step into the shoes of B; X prevails over A o C is a subsequent purchaser without notice that prevails over prior purchaser at notice o X does not prevail over C because B would not prevail over C Hypo: notice jurisdiction; O to A, A does not record 2002; O to B for valuable consideration and is without notice in 2003; A records in 2004; B to X in 2005; O to C, C is without actual notice in 2009 o A at CL because first with intent, delivery and acceptance o B at notice and it trumps A; X is prevailing over A because of the shelter rule o C is not without all 3 types of notice, had constructive record notice To find constructive record notice go through GR/GE indexing system C needs to check the recorder of deeds office and courts assume they check that of which has been duly recorded GE first look for O, found N to O in 1999 GR next look for O and see what he did o Only going to find O to A, as recorded in 2004 What if X knew about recording of A? o Shelter rule does not care what X knows; X would still win because shelter rule protects bona fide purchasers ability to transfer (Bs ability to transfer) 43

Hypo: O to A, A did not record; O to B with valuable consideration and had no notice; A now records o A at CL o B at notice o A at CL stands since B does not meet race-notice o A at CL stands since B does not meet race Same as above except B records, not A? o A at CL o B meets race-notice Hypo: O to A, A does not record; O to B by gift without notice, B records; in a race-notice jurisdiction? o A at CL o In order for B to win at race-notice subsequent purchaser, without notice and first to record Not a subsequent purchaser because by gift A at CL remains Hypo: O to A, A does not record; O to B for valuable consideration and without notice; B to X; A records; in race-notice jurisdiction o X and A are staking a claim o A at CL because valid deed first in time to get intent, delivery and acceptance o B does not win at race-notice so X cannot prevail o As CL wins Hypo: O to A, A does not record 2002; O to B, B is without notice 2003; A recorded in 2004; B to X in 2005; O to C, C is without actual notice in 2009; in notice jurisdiction? o A at CL o C should have known by constructive record notice Backwards by GE Forward by GR Only thing that would show up on a title search is O to A because that was the only title properly recorded o X prevails over all Assume A did not record, instead X recorded when he got the property from B (B to X) in the last hypo? o X, C and A all staking claims over land o A at CL o X prevails over A because B would prevail over A o C prevails over X because when go backwards in GE and then forward in GR would not see O to B or B to X o WILD DEED (B to X) X should have done a title search because then would have found that B does not have anything; X should have made B record, and then he would be fully protected

g. Wild deeds i. Deed which is outside the chain of title 1. Will NOT find it in the GR/GE index system ii. Ex. Sabo v. Horvath 44

16.Deeds
a. Written document that transfers an interest in real property to another person b. Elements: i. Intent ii. Delivery 1. Presumption deed delivered when: a. Deed found with GE b. Deed notarized c. Deed recorded 2. If there are conditions attached to delivery and 3rd party is only the GRs agent then probably not delivery a. GR needs to divest himself of dominion and control in order to complete delivery; GR agent administering the condition does not qualify as complete divestment 3. If no real condition attached to delivery and the 3rd party is the GEs agent the probably has delivery iii. Acceptance c. Requirements of a deed: i. GR and GE name ii. Some sort of words of conveyance 1. convey; transfer iii. Valid description of land 1. Address not good enough because do not know the boundaries 2. Can use: a. Metes and bounds b. Government survey c. Plats iv. GR signature 1. In writing and signed by the party to be bound thereby 2. GE is benefiting, he is not being bound v. Any other state requirements 1. Ex. 2 witnesses, notarized for recording 2. FL = 689.01 d. Covenants of title i. GR warranties of title which promise and protect GE from certain things ii. Types: 1. General warranty deed a. Contains 6 covenants of title (1st three are present, last three are future) b. Present covenants i. Run with the land and if breached they are breached the minute the deed is delivered (SOL begins at delivery) c. Future covenants i. Begin to run later and only affected by someone with paramount title 1. Covenant of seisin GR warrants that he holds legal title; he has been seized with the land a. If O grants FSA and only has FSD then broke the seisin 45

2.

3.

4.

5.

6.

b. Damages = purchase price + interest Covenant of right to convey GR warrants that he has authority to convey a. Someone can have legal title but no authority to convey i. Ex. trustee holds legal title for benefit of beneficiary ii. TE has legal title (covenant of seisin) but no right to convey (no authority to convey) iii. Ex. breach covenant of seisin but not right to convey power of attorney Covenant against encumbrances GR warrants the land is not burden by encumbrances (mortgages, leins, easements, restrictive covenants) a. Need expert to prove and estimate damages b. If there are encumbrances on the land then expressed exception i. Ex. FPL has right to land, then just state that in the deed as an exception to the covenant against encumbrances ii. Ex. if O sells land to A; land has a mortgage; part of deed is that A will assume mortgage iii. O should have made an expressed exception because this is still an exception c. Violations to a city ordinance = encumbrance i. The mere existence of a city ordinance does not create an encumbrance Covenant of quiet enjoyment GR warrants that buyer will not be evicted by someone with paramount title to the GR a. Ex. someone who had a better title than the GR; not just a trespasser Covenant of warranty GR warrants to defend against lawful claims by someones assertion of paramount title a. Broader than CQE because protects from any lawful claim, not just eviction Covenant of further assurance GR warrants that he will assist the buyer in perfecting the title a. Ex. signing or turning over papers

2. Special warranty deed a. Contains all 6 but GR only warrants that no defects arose while GR had the land b. GR will only warrant to what he knows about c. Can be redressed from a title insurance, etc. 3. Quitclaim deed a. Give without any warranty, no covenant of title b. GR could know there is clean title and still give by quitclaim simply because GR does not want to warrant it c. STILL PROTECTED BY THE RECORDING ACTS 46

e. Merger depends on INTENT i. Buyers interest in the real estate contract disappears and merges with his interest in the deed 1. Really more of a waiver than a merger; by accepting the deed the buyer is waiving whatever he might have gotten in the prior real estate contract 2. Deed is the final act and is deemed to be the expressed agreement of the parties 3. Law assumes that is there is something in the contract that is not in the deed then it was negotiated away 4. If the deed was not what the buyer wants it to be then he should reject the closing 5. Law presumes that if deed accepted then negotiated (if take less than what was going to take, it is buyers fault) ii. EXCEPTION: 1. Collateral obligation a. If intended obligation (not the sort of promise that would be included in the merger doctrine) is not intended to be extinguished by the closing (deed) b. Do so by EXPRESSED writing c. Covenants are good example because usually not included but parties still obligated i. Ex. AC, heating, plumbing, electrical, improvements, build bridge, basement habitable d. Ex. look at house and something wrong with the roof; real estate contract says to fix roof i. Say in real estate contract the roof issue is a collateral agreement that survives the closing ii. Put EXPRESSED LANGUAGE in original real estate contract or in a new contract the same day of the closing e. f. Estoppel by deed aka: after acquired title doctrine i. Equitable doctrine enforced in equity ii. If a GR claims to convey property that he does not own and subsequently obtains that title, GR cannot deny title to the GE he has already given it to Hypo: L conveyed by warranty deed to H before L received patent from the government; then L gets the patent? o Estoppel by deed the land goes automatically from L to H L cannot deny H claim to land Hypo: Jr thinks he will get land from Sr by will; Jr transfers before Sr dies; Jr gets loads of money by warranty deed from A o At the time of the transfer to A, Jr does not have land o When Sr dies: Doctrine of estoppel by deed property goes automatically from Jr to A right after he gets deed from Sr

17.Landlord/Tenant
a. Interest in property needs to be in writing and signed by the party to be bound in order to satisfy the SOF 47

i. Unless lease will not be performed one year from the making thereof 1. making thereof what does this mean? a. Majority uses the strict/narrow interpretation of SOF running from time of making of the agreement (date signing lease) as opposed to date taking occupancy b. Minority uses date taking occupancy ii. If original agreement oral modifications can be oral iii. If original agreement in writing modifications must be in writing 1. If a rescission, then not a modification but a termination does not need to be in writing so long as still some unexpired lease term less than a year L orally agreed to rent T a house on May 18, 2007 for one year term beginning on July 1 and ending on June 30 the next year; violate the SOF? Depends on the interpretation of making thereof o Narrow reading that violates SOF because longer than one year o Broad reading does not violate because occupancy begins on July 1 Hypo: lease in writing for one year, in jurisdiction that requires writing; when TN wants to leave, 3 months left; LL tells him not to leave and negotiates orally to allow TN to pay $800 instead of $1000/ mo. Courts will not accept modification because oral TN says I need to move because having trouble paying rent; LL says orally, that he will let him out Since rescission then allowed orally POLICY: courts allow oral rescission and not oral modification because modification continues an ongoing contractual relationship

b. Classification by Duration i. Tenancy for a fixed term, aka: estate for years 1. Created expressly by the parties in writing or orally 2. Non-freehold estates in land 3. Certainty of the duration 4. Terminates automatically at the end of the term o Death of LL or TN will not terminate, only the time will terminate it 1. Do not need notice to terminate ii. Periodic tenancy 1. Created expressly by the parties in writing or orally 2. Lease for identical periods 3. Will continue for successive periods unless one of the parties gives notice of termination a. Ex. year to year; month to month 4. If notice is not given, it automatically extends to another period a. Tons of litigation as to whether or not proper notice given iii. Tenancy at will 1. Not an expressed relationship, the law tells the parties they are in this relationship 2. No period of duration 3. Terminates at will of either party (modern statutes require some notice) a. Almost seems to change TAW to something more than what CL intends it to be iv. Tenancy at sufferance holdover TN 48

1. Not an expressed relationship, the law tells the parties they are in this relationship 2. Had a TN that was in lawful possession at one point and has decided to stay beyond the written or oral period a. Ex. TN originally had estate for 3 years and the 3 year date comes up, no notice; once the date runs then the TN becomes a holdover b. Ex. TN originally has periodic tenancy, no notice and TN stays; TN is not a holdover c. Ex. TN originally has a periodic tenancy, LL asks TN to leave; if TN stays then has holdover d. Ex. TN originally at TAW, LL notices TN to leave; TN becomes a holdover i. LL could bring action to evict or elect to extend for another term c. LL duty to deliver right of possession only imply either rule when not expressed i. LL IMPLIED COVENANT ii. Lease uses both contract and property theories of law iii. 2 views 1. American Rule a. LL only required to give legal right to possession i. Documentation saying TN owns b. In holdover situation sue the holdover 2. English Rule a. LL required to give both legal and actual physical possession i. Need document and physical taking b. In holdover situation sue the LL c. Justification: TN would not have contracted if he thought someone would interrupt possession; LL in better position to know what is going on with his property; easier for LL to evict through summary judgment proceedings iv. In modern residential leases, the English rule is more appropriate because by the time one gets to court the lease term is up v. Some jurisdiction have summary judgment proceedings that LL can use when dealing with a holdover TN 1. Before summary judgment proceeding, LL used self-help (throwing stuff out and changing the locks) a. Courts discouraged vi. Damages formula: 1. Used when negotiated English rule and LL does not deliver actual physical possession 2. Damages = (FMV Rent Rent in lease) + special damages a. Hypo: TN entered into contract with LL, TN to pay $1,000/mo in rent, the FMV is $1,200; TN did not get actual possession i. TN would get $200/mo + any special damages; gets that money until occupancy can start b. Hypo: if FMV went down i. ii. Then damages will primarily be special damages d. Covenant of Quiet Enjoyment i. LL IMPLIED COVENANT

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ii. Absent a reservation by the LL the TN has the sole and exclusive right to undisturbed possession during the term of the lease and the LL has no right to take possession of a part of the demised premises to the exclusion of the TN 1. Lease viewed as a conveyance of estate in land and TN has the right to undisturbed possession of the leased area for the lease term and the LL cannot interfere 2. When breached, it happens after TN has already obtained possession a. Can be breached with total or partial possession lost iii. 2 theories: 1. Conveyance theory a. Covenants independent i. If LL breaches a covenant that does not meant the TN is relieved from his obligations ii. Based on idea that TN received an estate in land that carries both the benefits and burdens of that responsibility b. ONLY EXCEPTION: i. TN does not have to pay rent if denied actual physical possession 1. Actual partial rent abated/suspended, a few states apportion 2. Actual total do not pay rent until can possess a. Damages = (FMV for remainder of lease Rent for rest of lease) + any special damages b. Hypo: LL warrants in lease to make repairs to sewer system; TN covenants to pay 10K in rent; LL breaches repairs obligation, TN still in possession i. TN can sue (LL will have to pay damages) but must still pay rent c. If TN denied actual or legal possession i. TN does not have to pay rent 2. Contract theory a. Covenants dependent i. If LL breaches his covenants the TN is relieved from continuing his obligations b. If TN denied actual legal possession no responsibility to pay rent because dependent i. If LL breaches, then TN relieved of obligations Page 40 Note 2 o LL actually bulldozed part of leased premises and moved the wall in, LL did not have authority to do so in the contract o If LL does actually interfere with part of leased property, must the TN continue to pay rent? (if LL took all possession, then under all theories the TN does not have to pay rent) Partial actual eviction Smith v. McEnany actual partial eviction the TN does not have to pay any rent at all until the encroachment is removed; then must pay rent again o = the MAJORITY, because do not want to encourage the LL to change the contract 50

o MINORITY will apportion, but if the encroachment is substantial enough then they do not apportion Hypo: TN leasing industrial park, 100 sq ft, $1,000/mo; LL blocks of it o Majority TN does not have to pay anything; rent suspended until the blockage removed o Minority apportionment, so TN still needs to pay $750 When apportion, have to look into subjective value of part of premises taken away

e. Implied Warranty of Habitability ONLY APPLIES TO RESIDENTIAL LEASES i. Because of problems with constructive eviction, courts have moved more toward IWH 1. If cannot meet the heavy burden of constructive eviction, then use IWH ii. When dealing with a commercial lease MUST USE caveat emptor because IWH does not apply 1. Caveat emptor TN takes property as is must expressly negotiate everything because nothing included! a. Comes from theory that lease is a conveyance of land which the TN gets both the benefits and burdens of that land b. Assumed LE was a handyman that could fix anything c. Also idea of necessity for TN to inspect d. LL warrants NOTHING, no repairs i. EXCEPTIONS: 1. Short-term leased of furnished dwelling a. No time to inspect, if furnished then not really using it for the land only using for the structure 2. Lease of buildings under construction a. Could not inspect if still building 3. LL fraudulently conceals the problem or condition a. Even if did inspect the LL is hiding it so will not see problem 4. LL still responsible for the common areas because he maintains control of them iii. EXCEPTION: (to caveat emptor being used in commercial leases) 1. Davidow a. In rare case, IWH, in form of implied warranty of suitability applies to commercial leases b. Policies same as in IWH c. Ways to AVOID i. Expressly state who should be making repairs in the lease contract 1. CAN WAIVE by TN agreeing to make these repairs 2. Always warrant and make sure that LL lack of repair is connected to relieving TNs obligation to pay rent iv. Policies for moving from caveat emptor to IWH (in residential leases) 1. LL has better bargaining power 2. LL has better knowledge of the property and its defects 3. Modern TNs are no longer handymen; lack the ability to repair or inspect 4. Moving more toward consumer protection 5. Private Attorney General Theory 51

a. Need extra eyes and ears at the locations because the code inspectors cannot do it all by themselves v. IWH elements NOT WAIVABLE 1. Premises not in a habitable condition a. Ways to prove: i. Substantial violations of the housing code ii. Health and safety of TN threatened 2. LL must have notice of the problem a. If at outset, TN can show notice met by LL should have known i. If problem already existed before the TN got possession then TN can prove second element MUCH EASIER ii. TN might be able to show notice through fines or code violations by the city or inspectors b. If after TN had possession, LL MUST have actual notice from TN (the TN now has possession so no reason for the LL to should have known) 3. LL must have a reasonable time after notice to repair the problem vi. Remedies for IWH 1. TN can continuing paying rent and then make an IWH case and get some money back 2. TN can withhold rent a. Provides incentive for LL to make repairs in order to get rent payments b. When withholding rent most jurisdictions make the TN pay full rent into escrow i. Proves TN actually had the money and not just bringing case as stall tactic ii. Protects TN in case of judgment for LL, because do not need to come up with all that money instantly iii. Protects LL in case of judgment for LL, because money tucked away and will be his if he wins 3. Sometimes statutory remedy TN can repair and then deduct from rent a. Risks: TN doing lousy repair, improving things that do not need repair, repair costing more than what the LL would pay for it vii. Damages for IWH 1. TN can always get: a. Rent reduction b. Special damages i. Depends on facts and circumstances of the case 2. 3 damages formulas a. $$ = (Contract rent the fair rental value of the premises in the unrepaired condition) i. NARROW damages formula 1. 1st number: found on lease 2. 2nd number: found through expert 1. Ex. $500 rent in lease, expert said apartment worth $300 in current bad condition a. TN can offset rent by $200 2. Because society does not want people living in terrible conditions; if rent a defective apartment (dangerous 52

conditions) then still want TN to get damages even if FMV is only $300 and TN already paying $300 a. established the broad theory b. $$ = (Fair rental value of premises as warranted fair rental value in unrepaired condition) i. BROAD damages formula 1. LL only allowed to lease premises if they are up to housing code (not always the case) a. 1st number: what the property is worth at minimum habitable, housing code conditions i. Get value from expert ii. Can consider contract as evidence of value of premises as warrented b. 2nd number: expert needs to decipher from dilapidated conditions of premises 2. Ex. expert testifies that $500 if up to code; $300 in current bad condition; rent for TN is $300 a. $300 $200 (set off difference) = $100 what TN has to pay for rent c. ***Percentage diminution*** i. Reduction in rent is based on percentage reduction for the defect(s) 1. Ex. rat 10%, no A/C in FL 40% ii. Easier than the above two, because reduces costs needed for experts but the risk is the discretion allotted to the judges 1. Case law should help to alleviate the difference in judges iii. Facts and circumstances different; case-by-case analysis f. Constructive eviction i. When acts by the LL amount to actual eviction 1. Not an easy burden to prove ii. If constructively evicted then TN is in the same scenario as if actually evicted 1. Lease terminates and TN does not have an obligation to pay rent iii. Elements: (burden on the TN to make a case) 1. LL breached an expressed particular duty or covenant in the lease a. Must find an express duty of the LL, in the lease, that has been breached 2. Breach must be substantial (grave and permanent) a. Minor breach, changing blinds will not work b. Check circumstances to see if breach enough i. Ex. Automotible Supply Co v. Scene-In Action Corp. ii. No heat in the Illinois winter is a substantial breach 3. TN actually has to vacate the premises within a reasonable time a. Reasonable time is KEY b. If LL breaches one month and TN stays TN waived that breach c. LL breaches again, TN has another opportunity to make case for constructive eviction, TN stays TN waived that breach i. Just because it is the same violation, does not mean ANY FUTURE VIOLATION IS WAIVED ii. Each time a violation happens, the TN has a new opportunity to bring a constructive eviction case 53

d. If TN takes longer than the court would expect to vacate the premises, then TN must introduce evidence of why it would take so long or TN will lose this factor i. Ex. Automobile Supply Co. v. Scene-In-Action 4. TN gave notice to LL (some courts only have 3 elements, others have this notice element) iv. LL is NOT liable for acts of 3rd party strangers 1. LL liable for persons of paramount title and his own agents but NOT STRANGERS v. LL generally NOT RESPONSIBLE for actions of other TNs 1. EXCEPTION: (when 2 part test met) a. LL knew or should have known when entered lease with offending TN that new TN could offend prior TNs a. LL had right to control the problem i. Ex. Blackett v. Olanoff g. Assignments and Sublease i. 3rd party via and assignment or sublease, question of whether 3rd party is subject to promises even though not in privity? ii. Ways to determine whether assignee or subTN: 1. Look at language (not dispositive) 2. Assignment: when TN transfers right to possession for duration of term left on lease (TN no longer has the right to come back in) a. Deemed to have received entire estate as original TN and is bound by the covenants of the original TN b. When conditions change (ex. conversion to condos) ONLY need to notice the assignee 3. Sublease: when TN transfers anything less than entire remaining duration on the lease (TN has the right to come back in, even if for one day) a. When conditions change (ex. conversion to condos) NEED to notice both the subleasee and original TN b. Ex. lease term 1/1/09 12/31/09, TN going home for the summer and allows someone to come in from June Aug but TN gets it back i. sublease iii. REGARDLESS OF WHETHER TENANT ASSIGNS OR SUBLEASES STILL LIABLE UNDER SURETY TO GUARANTEE PERFORMANCE iv. Privity: (USE BOTH THEORIES IF NECESSARY) 1. Of contract a. between LL and original TN, in writing or oral (if less than a year, if oral but too long then SOF defense) b. between TN and AE c. between TN and Subleasee 2. Conveyance of an estate in land (non-freehold) Privity of Estate a. Between LL and original TN until TN no longer has right to possess i. both parties have an interest in the same parcel of land 1. LL has ownership 2. TN has possessory interest b. Between LL and AE (once A obtains right to possession) i. Property burdened by obligation to pay rent; TN has the burden; in order for that obligation to transfer the successor to the original TN 54

must obtain same estate in land in the time dimension (same as covenants) ii. AE is in privity of estate at the time of possession up until the right of possession is changed 1. Ex. First Am. National Bank of Nashville v. Chicken System of Am. 3. NO PRIVITY BETWEEN LL AND SUBLEASEE EVER a. For burden to run to successor, the successor must have received the ENTIRE dimension does not happen with subleasee Hypo: TN assigns remainder of lease term to 3rd party because no time left = assignment; LL entered into k with original TN, TN assigns; LL not getting rent anymore because AE not paying rent o LL does not have privity of contract o LL does have privity of estate allows LL to sue AE and original TN because he is in privity of contract, surety to guarantee performance LL can only get one satisfaction but LL can sue either Same as above but sublease for 6 months o LL must sue the original TN because no privity of contract or estate with subleasee o TN can sue subleasee because in privity of contract with each other To avoid all the LL can add provision that if not paid the lease terminates then everyone out of luck because LL terminates head lease LL better of with AE because can sue directly; with subleasee then has to sue TN to get indirect compensation

v. When lease silent regarding TNs ability to assign or sublease 1. Traditionally courts promote free alienability for highest and best use 2. General Rule: absent a restrictive clause, TN MAY assign or sublease a. Courts generally HATE to imply restrictions b. EXCEPTION: i. Imply a restriction on assignments and subleases when LL specifies negotiations with a specific TN because of TNs talents, abilities and if rent collected via TNs profits; TN expertise needed for LL to get rent 1. Ex. Nassau Hotel v. Barnett a. No base rent, only rent came from how well the TN performed; came from profits which was direct reflection of TNs talents 3. Silent consent clause a. Originally is a no assignments or subleases without LLs prior written consent clause then LL could withhold consent to sublease/assign for a good reason and for an arbitrary reason but not for a bad reason b. SILENT regarding the way a LL can terminate, not because clause does not exist in contract; contract includes a no assignments or subleases clause i. Modern trend: LL can withhold consent if it is commercially reasonable reason 55

1. Ex. if new TN cannot reach same percentage for percentage clause 2. Ex. if new TN cannot pay rent (credit report) 3. Ex. financial instability or irresponsibility of proposed transferee 4. Ex. unsuitability of intended use by transferee a. If building set for retail sales and new TN wants to put in a health clinic 5. h. Termination of LL/TN relationship i. Ways to terminate 1. On-time when the lease is supposed to, notice if needed a. Ex. tenancy for a fixed term requires no notice b. Ex. tenancy at will under CL c. Ex. periodic tenancy upon proper notice 2. Holdover TN stays too long a. Tenancy at sufferance i. Fixed term and stays ii. Noticed to leave a stays b. LL options when TN stays too long: i. Evict ii. Consent and force TN to pay for another full year 1. Ex. Clairton Corp v. Geo-Con a. LL can force TN into another lease term: i. Multi-year LL gets one year ii. One year LL gets 6 months iii. Month-to-month LL gets one month b. In the evidence of showing contrary intent, the lease extends for another year i. Based on INTENT of the parties ii. In this case, not the intent because negotiations on new lease in the making 3. Abandonment TN leaves too soon 4. Once Retaliatory Eviction dissipates a. Retaliatory non-renewal i. LL is stuck with TN for duration of the lease term but does not have to renew 1. LL can choose not to renew for: a. Good reason b. No reason c. Arbitrary reason d. NOT FOR retaliatory reason i. If we have all these housing codes then TNs cannot be afraid to call because they will be evicted b. TN right not to be evicted for a retaliatory reason remains until retaliatory reason dissipates because TN is not entitled to stay in the leased unit forever 56

i. ONCE that point the LL can then invoke any legitimate reason, or no reason at all or arbitrary reason ii. BUT LL cannot chose to evict during the tenancy of a lease contract except because of those reasons stipulated in the lease iii. Presumption of 6 months dissipation period 1. LL must wait 6 months after incident to evict TN 5. Illegal activities a. When there is clearly an illegal activity and a clear clause permitting eviction for illegal activities on the premises open and shut case b. Gray area when LL only has suspicion of legal activity c. Illegal activity clauses necessary i. Protect other TNs ii. Lower insurance iii. Establish complex as safe, healthy place for people to live Hypo: not conceded that there is illegal activity, what is alleged illegal activity (LL only suspects TN doing drugs); what if not signatory, young daughter alleged to be doing illegal activity on the premises but not in the apartment? o Public policy only want people kicked out of apartment when Some ordinances are fairly broad Ex. LL could evict upon suspected activity. Too loosey goosey?? This case was easy because cut and dry, but when more of a gray area need to be very careful; keep in mind the continuum of guilt

i. Abandonment and Surrender i. Abandonment 1. LL has 3 options under conveyance theory jurisdiction a. Do nothing and continue collecting rent b. Retake possession for account of TN i. LL gets difference between old and new rent ii. Good faith to mitigate 1. Why would LL mitigate if he is not in this type of jurisdiction? a. LL wants new TN in because TN abandoned since going bankrupt b. If commercial retail then looks dark and could ruin the entire mall i. If time for other TNs to renew, the TNs will be in a better marketing position c. Might want to put someone in there to prevent vandalism or deterioration of the property c. Treat lease as terminated accept the surrender i. Basically letting TN off the hook 1. May want to do this if long waiting list and can put someone in premises same day 2. May want to do this if FMV rent increased and can charge more 57

2. LL has 2 options under contract theory jurisdiction a. Can good faith mitigate b. Accept the surrender ii. FL is part contract theory and part conveyance theory 1. Has a statute: 83.595 a. If TN abandoned: i. Treat lease as terminated accept to surrender ii. Mitigation iii. Do nothing and make TN pay damages iii. Acceleration clause LL can make all rent due in the future due now, occurs when there is a default 1. If already a couple months default then TN will have to pay rent for all time left on lease a. Public policy so that LL does not have to wait to collect until the end of the lease term when the TN may only have two cents left 2. Note pg. 130 a. If LL does have an acceleration clause and exercises that option then LL cannot also demand possession of the premises; TN has the right to possession for the entire duration of the lease term i. Any releasing of premises after an acceleration is for the benefit of the TN because the TN has paid for the right of possession for the duration of the rent ii. TN or LL could now put someone in there and get rent to substitute what he already had to pay 1. Helps TN make up loss because TN had to pay a lump sum earlier to LL 3. If LL says in clause that he gets to keep money from new TN after acceleration clause collection then viewed as a penalty clause which the courts do not like

18. Miscellaneous
a. Heirs do not have a property interest until death, only have expectancy until then b. Alienable: capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another c. Divisible: divvied up in a will d. Inheritance: by death intestate the state will give via inheritance e. Conveyance: transfer of land during ones life f. Reversion: name for any future interest for GR that is not the possibility of reverter or right of re-entry g. Waste arises anytime someone is possessing and someone else has an interest i. Can the person who is not in possession be compensated for the damages the person in possession made to the property? ii. Even if the material change is arguably nicer, possessor still subject to waste iii. Slight change to law ameliorating waste 1. Life TN is not liable for changes when: a. Changes because of surrounding circumstances b. Changes actually enhance (must be proven) the value of the remaindermans property iv. To get around ejectment for waste, draft that into the document 58

h.

i.

j.

k.

l.

m.

n.

1. life TN is without impeachment for waste" Rule for construction of survivorship i. Unless survivorship to the time of possession is expressly required by the instrument, it is NOT a condition 1. Hypo: O to A for life, then to B and his heirs a. If B dies before A, Bs heirs still have a remainder; B does not have to survive A in order to get property b. If O only wanted B to get property after A, then EXPRESSLY require SURVIVORSHIP Rule of law, not a rule of construction which means that when it applies it will apply in spite of the GRs intent i. Rule of construction is meant to further the GR intent In easements: i. Cannot have benefit and burden on the same person 1. Corbett v. Ruben Public trust doctrine: some resources (beaches, lakes) that they are held in trust by the State for the public and that private ownership of those important resources is allowed by subject to publics right to use it i. Does not work here because these lands held by federal government and then went into private use ii. FL Constitution Art X 11, includes public trust doctrine that permits public trust for area below high water mark Implied dedication: private property is deemed given over to the public because private owners intended to do it i. Need evidence of intent to dedicate ii. FL private property owner must have expressly presented some sort of intention to appropriate his lands for public use Custom: time immemorial, uninterrupted; been in use for such a lost period of time that the memory of man cannot run counter i. FL has custom; use is ancient, without interruption, free from dispute, specific parcel If LL wants to evict TN in middle of lease term without justification then TN can sue for damages i. FMV stipulated lease term + special damages

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