PROPERTY OUTLINE

I. Natural deposits to the soil are not movable objects, but part of the soil, and thus belong to the owner of the soil. o Doctrine of Accretion- The gradual addition to land by natural causes, as a river adds soil to riverbank. o Occupancy-The taking possession of a thing that belongs to nobody with the intention of becoming its owner. II. Occupation or possession of lost or abandoned property requires the actual taking of the property by the finder with the intent to possess it. o To acquire occupancy over a thing, a person must both intend to exert exclusive control over it and actually do so. o Intent and actual possession must occur together. Intent to possess (using buoys to mark the wreck) is not an act of possession) III. The finder of lost property has a title superior to all but true owner (Armory) Establishes Prior Possessor Rule- achieves several social goals 1. It protects an owner who cannot prove that he is the true owner. 2. It protects the individuals who entrust goods to others which promotes social welfare 3. It protects the expectations of prior possessors, who expect to prevail. 4. It promotes peaceable possession (were prior possession not to prevail, individuals might begin to steal property hoping the law would protect them) A. When lost property is found in a shop that is open to the public, the finders claim to the property is still greater than that of all but the true owner, including the shop owner

B. However, where a person has possession of land with a manifest intent to exercise control over it and the things on it, he has possession of anything found on that land, and thus has a claim superior to that of the finder Detinue- Action to recover an item from a person who acquired it lawfully, as by finding, but who then kept it without right. Ownership of a house does not include possession of lost property found there if the owner has not occupied or had prior control over the house. IV. The finder has no title to property that is mislaid. The right of possession of mislaid property belongs to the owner of the premises where the property is found, and that right is superior to all but that of the true owner When mislaid, the shop owner has a duty to safeguard the property until the true owner returns, therefore the finder can never gain title. A. The classification of property as lost or mislaid depends on what the facts and circumstances of the case indicate about the intent of the owner and how the property came to be where it was found Five types of personal property: 1) Abandoned- The owner has intentionally discarded it 2) Lost Property- Property which the true owner has unintentionally left in some location unknown to him. 3) Mislaid Property- Property which the owner intentionally placed where he could return for it, but then forgot where that was 4) Embedded Property- it has become part of the earth (like pottery) 5) Treasure Trove- Treasure Found; money, coin, gold, silver, plate, or bullion that was hidden by an unknown owner and later found The court merged treasure trove into lost, and embedded into mislaid. 2

A. A bailment is created when the owner of a thing allows another to lawfully possess it for a time. I. Control and Possession, a Matter of Degree A. The degree of control and possession a customer delivers to the operator of an enclosed, attended parking garage and the expectations of the parties suffice to create a bailment. A bailment relationship makes the bailee responsible for delivering the thing bailed to the bailor undamaged A bailment for hire was created and proof of nondelivery therefore entitled the P to the statutory presumption of negligence To overcome this presumption, the bailee must prove that the lost did not result from his negligence and even if he does, the bailee only succeeds in removing the presumption and shifting the burden back to the bailor. Bailments may be voluntary or involuntary and voluntary bailments may be for hire, otherwise coupled with an interest, or gratuitous A voluntary bailee, whether for compensation or gratuitous, has an absolute duty to deliver the thing bailed to the right person. Good faith or innocent mistake will not excuse delivery to the wrong person Involuntary bailee, has no duty to care for the thing bailed or to deliver it to the right person as long as he does not exercise any dominion over it and in good faith Bailment- The transfer of possession of personal property, without a transfer of ownership, from one person (bailor) to another (bailee) for a particular purpose, which leaves the bailee responsible for returning the thing bailed in good condition When two non-owners are competing against one another for control of an item of property, some courts hold that the one who first acquired possession has a right to retain that possession against the other. 1) This is true even if the property is wrongfully obtained (such as when it is obtained while trespassing, though there is dispute as to whether the rule applies to thieves 3

Possession is 9/10 of the law B. A handful of other courts have ruled differently, holding that in order to

recover the value of personal property from a party who unlawfully converts it for his own benefit, a suing party must show both title to possession of the property. In other words, a non-owner will not be able to recover, even if she was the first to have possession of the property. An action for trover can only succeed if the P has good title to the converted property Trover-A common law c/a through which damages are sought for the wrongful conversion of personal property; the usual measure of damages in an action for trover is the value of the converted property Trover allows the recovery of value of the property as if the converter had purchased it from the original owner Yhe doctrine of adverse possession allows a person who has long-term possession of real or personal property to gain a title to the property that is good against the true owner. 1)To gain title by adverse possession (called limitation title), certain elements must be present HAVEC 1.) Continuous- possession that is more than sporadic, though not necessarily constant depending on the circumstances 2.) Actual- a person cant simply claim that property belongs to her, but she must actually possess it 3.) Hostile-possession taken without permission of the true owner 4.) Visible (notorious)- possession that is visible to the true owner if he or she takes the time to look. 5.) Exclusive- APer must act as the true owner and exclude all those who do not have his permission to enter the land All of these must be present for the duration of a period of time established by the statute of limitations 4

In replevin actions involving the conversion of art the discovery rule is more appropriate means of determining ownership than the doctrine of adverse possession. Bona Fide Purchaser- A person who buys something for value w/o notice that another person has a legitimate claim to the property and/or that the sellers title is defective Discovery Rule- A rule of law under which a c/a for replevin does not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of the c/a o Tacking- the accumulation of consecutive periods of possession by parties in privity to each other. In the majority of cases, adverse possession is used to gain title to real property. The doctrine is occasionally used in cases involving chattels, and at least one court has held that title to intangible interests, such as rights to a song, can be acquired by adverse possession When the SOL for an action for replevin of property has run, the original owner of the property cannot circumvent the statute by physically repossessing the converted or taken property. One could not determine where the cave extended by entering alone (only a survey can) and is therefore not notorious o quiet (to make secure or unassailable by removing disturbing causes or disputes) his title Customarily use now satisfies the requirement of continuity and there need be only a reasonable connection between successive occupants to tack Claim of Title- In the law of AP, possession of land while claiming it as ones own. One way of expressing the requirement of histile or claim of right. o Color of Title- The appearance of title. A claim founded on a written instrument, or a judgment, or a decree that is for some reason defective and invalidresults in shorter SOL 5

o Constructive AP under Color of Title- if a claimant goes into actual possession of some portion of prop under color of title, he is deemed to be in Ap of the entire property described in the instrument. o Predecessor in Interest- The person who has possessed or owned land before the current occupant or owner o Privity- a relationship between two people of quality so as to have legal consequences o Privity of Estate- In the law of AP, that relationship between successors in interest that is required for tacking o Squatter- one who has possession Doctrine of Color of title helps you create a shorter title If I have a deed and your only ap 5 acres color of title can give you full title we want to clear the title of all 10 acres State of mind as an element? Majority view = irrelevant 4) Color of Title: what is it? How does it affect AP? (2 ways)

The doctrine of title by accession (equitable doctrine) holds that a person who either converts anothers personal property or performs labor on another persons real property which benefits the owner can gain title to the converted property if certain requirements are met The doctrine applies where the trespasser has, in good faith, expended his own labor on the property and the circumstances are such that it would be grossly unjust to permit the other party to receive the full benefit of that labor with nothing being paid to the laborer 1) The nature of the converted property was different enough from that of the original property that the original timber could not simply be retaken 2) There was such a great disparity in value between the standing timber and the hoops that D had made that it would have been unfair to allow the p to take the hoops in payment for his lost timber

A. When it would be not grossly unjust to permit the other party to receive the full benefit of the labor, such as when there is no great disparity in value between the pre-conversion and post-conversion property, the doctrine of accession does not apply II. Improvements Built Upon Anothers Land A. Where an occupant has, in good faith, made improvements to real property prior to eviction (such as the building of a building on the land), he is permitted to sue in equity for the value of those improvements o According to some, an occupants right in equity to compensation for improvements made prior to eviction applies only when he is a D in a lawsuit, and therefore does not give him the right to reimbursement by way of direct suit against the owner unless the owner has engaged in some type of fraud Doctrine of Confusion of Goods: Note p. 196 -fungible means everything looks the same, (marbles, grain, guns sometimes)I mixed my grain with your grain. Does accession work? -no you do not lose title, we are going to put the burden on you to determine how much goes to each person. We put the burden on the commingler if it was in bad faith (strict rule) I. A bona fide purchaser is a person who buys property from a seller with no notice that a third person, not the seller owns the property A. B. The general rule is that the title remains in the true owner, not the bona fide purchaser, since no one can convey better title than he has. There are, however, many exceptions to this rule. Title to property sold to a bona fide purchaser will shift from the true owner to the BFP where: a. The owners conduct estops him from asserting title against the bona fide purchaser (entrusts something to a normal seller)

b. The owner is a beneficiary of the property which held in trust, such that the owner has only equitable title, and the trustee had legal title, which he conveyed to the BFP c. The owner was fraudulently induced to sell his property to a person who then sold it to a BFP, since the owner conveyed voidable title to the defrauder and that the title became absolute when the defrauder sold it to the BFP and d. The transaction falls under the UCC which gives good title to a good faith purchaser for value even if the seller has only voidable title II. A. Equitable estoppel and statutory estoppel are defenses available to a BFP confronting a claim by the true owner. Equitable estoppel precludes a party from denying any material fact which he has induced another to rely upon a. Thus, if an owner clothes another with indica of ownership or apparent authority to sell his property, equitable estoppel will preclude him from denying the others ownership or authority to sell, and he will not be able to recover against the BFP b. However, merely transferring possession of property to another, without more, is insufficient to induce reliance by a BFP and therefore does not create estoppel. B. Statutory estoppel may arise under the UCCs entrustment provision. When an owner entrusts his goods to a merchant who deals in goods of that kind, this gives the merchant power to transfer all of the owners rights to a buyer in the ordinary course of business a. A buyer in the ordinary course of business is a purchaser in good faith who buys from a merchant dealing in goods of that kind. A purchaser of a work of art is not purchaser in good faith if he is indifferent as to the sellers status as an art merchant and his authority to sell the work of art. III.
Voidable Title

A. The UCC allows a person with voidable title to pass good title to a BFP for value even if that person acquired the goods through a bad check or through fraud criminally punishable as larceny. B. However, more particularized statutes may impose other requirements that prevent good title from passing to a BFP. For example, under a certificate of title statute, a person with only voidable title cannot pass good title to a motor vehicle to a BFP if he does not have a title certificate because until he has the certificate, his voidable title is not perfected Sheridan Suzuki Inc. v. Caruso Auto Sales o Buyers Beware: State law may prevent a BFP from taking good title to a car if the seller has no title certificate o Abrogate- To annul or set aside o Perfect- To make valid and effective, free from legal defects Chapter 12. Donative Transfers (Gift Law) I. II. Future Gifts Invalid: The intent, or promise, to donate (give) a gift later is invalid without more. Gift Requirements: A gift is valid if: A. Accompanied by an instrument of gift, and B. Made with (proven) intent to make a gift. (The property need not be delivered at that time, if there is a reasonable and satisfactory excuse.) In re Cohn o A dying mans birthday gift locked in his companys vault is valid o Promises to give gifts later are usually unenforceable o Executrix: Female executor (person who administers a dead or bankrupt persons estate, or remaining possessions)

o In Re: In the matter of. Used to introduce cases in certain specialty courts o Probate: Matter of handling a dead persons will and estate o Surrogate: the judge in probate court o Testator: Person who leaves a will, or otherwise transfers property, usually after death. III. Gifts Effective After Donors Death: Donors may make living gifts while reserving the right to keep the item during their lifetime Gruen v. Gruen o Gift of painting only after donors death is valid o Donors may give an item now, but keep it for their lifetime o Inter Vivos [Gift]- between the living Gift made while the person is still alive o Life Estate: Right to property for the persons lifetime o Remainder: Right to acquire property after its current owner dies. o Special Term: An extra session of court, outside its normal schedule o Testamentary: By will, i.e., after the donors death.. The issue here is that, if this gift is ruled testamentary (as opposed to inter vivos), then it is invalid for failure to follow a wills formalities. IV. Deathbed Gifts Valid Without Will: A gift causa mortis (gift in contemplation of death) is usually made by a dying person. It is valid without a formal will, but only if it meets strict requirements. A. A gift causa mortis is valid if it is: 1. A gift 2. Of personal property 3. Made in imminent expectation of death, 4. By a competent donor, 10

5. With the intent 6. And upon the condition that the property should belong to the donee if: 1. The donor dies, 2. The donee accepts, 3. The delivery is actual, unequivocal, and complete during the donors lifetime, wholly divesting the owner of control, AND 4. The donor dies of the anticipated peril. B. The gift must be returned to the donor if: 1. The donor survives, 2. The donor changes his mind before dying, OR 3. The donee dies before the donor. Foster v Reiss Dying womans note to ex-husband to take property she stashed in the house they share is not valid delivery (overruled in part) Courts recognize gifts made in anticipation of imminent death without formal wills. Defeasible: For property, that which will not necessarily pass to another, or which may not pass if certain conditions arise Donatio Causa Mortis: Same as gift causa mortis, the slightly more modern term Gift Causa Mortis: Transfer of chattels by a person expecting to die soon, which may be valid without a formal will. Legacy: Gift by will C. Imperfect Delivery: Some courts impute constructive delivery if: 1. Donative intent is proven by concrete, undisputed evidence,

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2. The donor intended to transfer possession immediately, AND 3. The donor took steps he believed sufficient to effectuate transfer Scherer v. Hyland (N.J) o Suicidal womans endorsement of check to boyfriend is valid under circumstances o Some Jxs allow constructive delivery for a gift causa mortis o Ad Litem: For the litigation o Administrator: Person appointed by the court to represent the estate of people who die leaving without leaving wills o Per Curiam: By the court Collective court opinion not ascribed to any single judge. o But See: Woo v. Smart (VA) o Dying mans personal check is not valid gift causa mortis until accepted by bank V. Engagement Rings: What happens when a suitor gives a wedding ring, but the wedding is called off? A. Fault-Based: Some jurisdictions courts decide the issue based on who was responsible for the engagement failing B. Modified No-Fault: In others, the groom is entitled to his ring back only if he did not break off the wedding C. No-Fault Approach: In some states, engagement rings must be returned to the donor anytime the marriage does not occur Lindh v. Surman o No fault approach in PN Chapter 13: Historical Development of Estates Doctrine -tenure- land that residents owed various specified services to the king

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-Escheat- reversion of uninherited land to the state -State and federal law provides that, if a landowner dies without suitable heirs, his property escheat (reverts to ownership of) the state or federal government. (So if you own land, make a will -Usually in such cases the state need not pay inheritance tax on the land In re OConnors Estate o Nebraska inheritance tax laws inapplicable to escheat o When landowners die without heirs, their land reverts to the government o Escheat: To [have land] revert back to the state, if its owner does not leave it to capable heirs o Fee: the ownership in land o Probated: Litigation in probate (will/inheritance) court o Reversion: Right to reclaim property, granted to another for his lifetime, upon the holders death o Tenure: [archaic] Duties required of vassals (landholders) in old England as a condition of keeping land granted to them by the Crown (e.g. providing soldiers or money for the army, harvesting crops, doing housework for the king/lord) o But see: In re Estate of OBrine o When personal property escheats to federal government, the state can first collect inheritance taxes Chapter 14: Freehold Estates I. The greatest estate in land is the fee simple absolute, which may last indefinitely, and which, if not sold or passed by will, passes to the owners heirs. A. Traditionally, to create a fee simple under common law, a deed or conveyance used words to A and his heirs

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1. In modern practice, almost all state have statutes that favor fee simple title and give fee simple effect to any conveyance that expresses the grantors intention to pass a fee simple 2. In a common law jurisdiction, the lack of the words and his heirs in a deed in the chain of title is sufficient to make title unmarketable. Cole v. Steinlauf o Fee Simple Absolute: The greatest estate in land someone can have and it can potentially last forever; it passes to the heirs of the owner if he dies without a will 3. As used in the law of wills and estates, the word heirs is a term of art that refers to persons who take property under relevant statutes of descent (usually when a person dies without a valid will); individuals who take property under a will are not heirs B. Prior to the passage of the Statute of Wills (1540), English law did not usually allow freehold estates in land, unlike personalty, to be passed by will. 1. The differences between the treatment of real and personal properties was accentuated by the jx of the Ecclesiastical Courts over probate 2. Primogeniture, the idea that a person had only one legal heir (usually the oldest male descendent), was the primary rule of inheritance developed in England. 3. The development of primogeniture tended to prefer passing property to successors rather than wives or ancestors, even if the latter were closer relations than the successors. C. Under modern statutes, if a person dies intestate (without a will), the property will usually be divided by giving half of the estate to a surviving spouse and dividing the other half between the surviving descendants per stripes.

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1. When there is a surviving spouse but no descendants, the entire estate goes to the spouse; when there are descendants, but no surviving spouse, the entire estate goes to the descendants per stripes 2. When there is neither a surviving spouse nor descendants, the property passes to the collaterals or ancestors through a statutorily determined calculation of degrees of relatedness to the deceased 3. Most state statutes provide that someone causing a wrongful death cannot inherit from the deceased D. At common law, illegitimate children inherited nothing if their natural parent died intestate, but modern statutes usually include illegitimate children to inherit from their mothers and fathers, where the father has acknowledged paternity or paternity has been proved II. Although it gives the owner the right to enjoy his or her land and to reap the profits of its use, the life estate is not inheritable, and upon the death of the life tenant either reverts to the grantor or passes to the remaindermen named in the deed. A. The common law required no special words to create the life estate. 1. A will creates a fee simple estate absent express language limiting the devise to a life estate, since the law (often due to statute) disfavors forfeitures. Lewis v Searles o Life Estate: An estate in land that lasts for the duration of a specific persons life; the holder of the life estate has a duty to maintain the property in good condition for the remainderman, the person to whom the property will pass at the end of the life estate o Fee Simple Determinable: A fee simple estate in land that in the event of a certain, specified occurrence or action automatically ends and reverts to the grantor

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o Condition: A condition attached to a conveyance of land is language stating that in the even of a certain occurrence the size, extent or nature of the estate conveyed will change. o Limitation: Words of limitation in a will create an estate less extensive than a fee simple o Testator/Testatrix: Person who has died leaving a will. Testatrix is the female version 2. A will may make a devise contingent upon the devisees marital status for legitimate reason, such as the devisees support or protection Lewis v Searles B. A life tenant has a fiduciary duty to reasonably maintain her property for the benefit of the remainderman, so, absent prejudice to the life tenant, laches will not bar the remaindermans suit for waste Moore v. Phillips o Waste: Damage to a property beyond normal depreciation due to a tenants affirmative acts (Commissive Waste) or neglect of upkeep o (Permissive Waste) o Remainderman: The person who has the right to a future interest in land, typically, the person to whom the land will pass upon the death of a life tenant. C. In the past, under common law, life tenancies were not inheritable, but now, a life estate pur autre vie (where the estate terminates upon the death of someone other than the holder) may be inherited in some cases. III. Defeasible Estates A. There are two important defeasible estates: 1. The fee simple determinable, which will automatically revert to the grantor upon the occurrence of a certain event

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2. The fee simple subject to a condition subsequent, which gives the grantor the right to reenter and terminate the estate upon the occurrence of a certain event B. Generally, a court will look at the language of the will or deed to determine the intention of the parties to create a particular defeasible fee. 1. Where the intent of the parties is unclear from the language of a deed, the court will look to the circumstances to determine the type of defeasible fee created by the deed. 2. Because of the principle that forfeitures are disfavored, courts generally prefer to interpret an unclear deed as creating FSSCS rather than an FSD Oldfield v. Stoeco Homes, Inc. o Fee Simple Subject to a Condition Subsequent: This is a fee estate under which the grantor may take affirmative action to have the land forfeited back to him if a certain condition occurs; it is usually created by using language such as To A on the condition that. Or To A provided that C. By itself, a clause providing that a conveyance is made for certain purposes will not create a limited estate in a grant of land Roberts. v. Rhodes D. The passage of time alone does not terminate grantors rights or grantees obligation to perform under a FSSCS Martin v. City of Seattle o Impossibility: Impossibility of performance may be advanced as a defense for failure to perform under a K or deed when a material change in the circumstances outside the control of the non-performing party or a change in the law makes it impossible to perform the terms of the K

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E. A statute of limitations may bar grantors untimely lawsuit to reenter lands under an FSSCS Johnson v. City of Wheat Ridge F. A governmental entity that holds a defeasible fee cannot condemn the grantors reversionary interest and pay merely nominal damages Leeco Gas & Oil Co. v. County of Nueces

IV. At common law after the year 1285, a conveyance to A and the heirs of his body created a fee tail estate, which may be inherited only by specified natural decedents of the grantee; the fee tail lasts until the holder dies without issue A. Most state have statutes which abolish the fee tail and make conveyance to A and his heirs into a fee simple in A B. Where a will conferred a fee simple with the qualification that if grantee died without issue, then the land passed to another, grantee received a fee tail. Caccomo v. Banning o Fee Tail: Title to land that can pass only to certain natural descendants of the grantor; if the grantee dies without having had natural issue, the title will pass to the heirs of another (no illegal) o Disentailment: The process usually created by statute, allowing a person to bar a fee tail and prevent another person from asserting his rights under the fee tail; disentailment usually resulted in the creation of a fee simple absolute in the grantee o Issue: In the law of wills and property, issue refers to the natural offspring; in many cases, the term issue is interpreted to exclude adopted children.. Chapter 16: Concurrent Ownership

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I. Concurrent Ownership in the legal sense refers to two or more persons who concurrently have equal rights in real or personal property. II. Types of Concurrent Ownership A. Tenants In Common 1. Tenants in Common are individuals each owning a fractional undivided interest--equal or unequal 2. Undivided Interest refers to an ownership interest where none own an identifiable segment of the property, and none can assert a paramount right of possession of any segment. 3. When Disputes arise among tenants in common, available legal remedies include partition, leasing and apportioning the rent, or purchase by one cotenant of the others interest B. Joint Tenancy 1. Joint Tenancy means individuals comprising a single legal entity which owns the property. 2. JT involves right of survivorshipupon the death of a JT, the surviving JTs own the property. 3. Prior to the 19th century, JT existed, unless there was evidence of a clear intent by the transferor to create a tenancy in common. Today, statutes often declare that a tenancy in common will be created uncles there is an intent to create a JT. 4. It is often said that JTs are seised pur my et pur touteach JT is an owner of an undivided interest and an owner of the whole as well. 5. JTs may compel partition, either in kindthrough physically dividing the propertyby salewith proceeds of the sale paid to the JT 6. JTs may effect a severance of their interestby conveying the interest by deed to another. The grantee becomes a tenant in common, with no right of survivorship. 7. Four Unities of Joint Tenancy

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1. Unity of Interesteach has equal undivided interest in the property 2. Unity of Titleeach has derived their interest in the property through the same event, such as a single will or conveyance 3. Unity of Timethe interests vest as the same time (a limitation to a class will create a JT even if the members of the class come into being at different times.) 4. Unity of Possessioneach is seised of the whole estate, not just an undivided interest therein. C. Tenancy by the Entirety 1. Tenancy by the entirety is concurrent ownership available only to a married couple. 2. At common law, a married woman was subject to the husbands control and power of disposal of the property of the marital estate. Now, through legislation and judicial action, husband and wife have equal rights in the control and enjoyment of their property. 3. Husband and wife are seised pur tout et not pur myneither is an individual owning an undivided interest. Thus, neither can effect a severance by conveying an undivided interest and neither can compel a partition. III. General Aspects of Concurrent Ownership A. At common law, JTs were favored. The courts in the US, however, favor the presumption of all tenants holding jointly as tenants in common, unless there is a clear showing of an intention to create a JT with the right of survivorship. In re Estate of Michael 1. Where one seeks the courts assistance in interpreting a deed, the court will only look to the deed, and will not consider any other evidence, such as language from a will, to determine the intention of the party.

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B.

Cotenants who have mortgage obligations concerning their real property are obligated to pay their pro rata share of the expenses. However, if one cotenant does not pay, and the other prevents the property from being lost through sale, the nonpaying cotenant retains a right of redemption. 1. A co-tenant who pays more than his share of a debt secured by a mortgage or other lien on the common property is entitled to reimbursement (contribution) from his cotenants to the extent to which he paid their shares of the indebtedness. Laura v. Christian Constructive Trust: Involuntary trust created by operation of law where one gains a thing by fraud, accident, mistake, undue influence, etc., and imposed by a court of equity to prevent unjust enrichment Mortgagee: The creditor who possesses the mortgage on property, as a lien to secure payment of an obligation by the mortgagor Perfect on Appeal: Exercising all steps necessary to pursue an appeal. 2. A cotenant who pays a mortgage or taxes to avoid a foreclosure sale usually cannot obtain a personal judgment for contribution from the nonpaying cotenant because the nonpaying cotenant is not personally liable for the nonpaymente.g., a mortgagee obtains the property through foreclosure proceedings, rather than obtaining personal liability against e nonpaying mortgagor.

C. D.

The right to compel partition is an inherent right of JT and TnC If a partition suit is filed to terminate a co-tenancy, there must be accounting.

IV. Creation of Concurrent Estates and Severance Thereof

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A. B.

If two JTs exist, and one transfers his interest to a third person, the JT is severed and a TnC is created between the grantee and the former JT If there are three JTS, and one conveys his interest to a third party, the JT is destroyed as to the part conveyed, and the third party becomes a TnC with the other two JTs; however, the latter still holds the remaining twothirds as JTs.

C.

If three or more JTs exist, the conveyance by one JT to another joint tenant does not sever the entire joint tenancy; the grantee remains a JT as to his original interest but becomes a TnC as to the interest conveyed by the grantor JT. Jackson v. OConnell Master: A quasi judicial officer who has been appointed to help the judge and court, by acting as a referee, hearing officer, person who resolves discover issues, or makes calculations, etc. Quitclaim Deed: a deed that conveys real property but without warranty of title and without covenants Severance of JT: conduct by a JT that destroys the JT and converts it into a TnC without right of survivorship

D.

In an action for reformation of the deed (as opposed to judicial interpretation of a deed), if clear and convincing evidence exists showing that the grantor intended for a deed conveying real property to contain language concerning JT with right of survivorship, but such language was absent due to the scriveners negligence, the deed can be reformed to include the omitted language. Matter of Estate of Vadney Reform a Deed: Referring to reformation of a legal document wherein the court orders the document modified according to the parties intent, usually based upon fraud or mistake

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Clear and Convincing Evidence: Evidence that proves something by more than a preponderance of the evidence but less proof than beyond a reasonable doubt.

E.

The express language often used to create JT estates is: as joint tenants and not as tenants in common. 1. Some courts hold that a deed from the grantor to two grantees containing the phrase, as joint tenants, and not as tenants in common, to them and their assigns and to the survivor, and the heirs and assigns of the survivor forever conveys a JT, and not a joint life estate to the grantees with a contingent remainder in fee to the survivor. Palmer v. Flint Bill of Complaint: a written petition submitted to the court requesting certain relief from the defendant Granting Clause: The language in a deed or other document that expresses the transfer of an interest Habendum Clause: Also called a to have and to hold clause, and referring to that portion of a deed that describes the interest granted and any conditions relating thereto 2. However, other courts hold that a deed conveying property as joint tenants with full rights of survivorship and not as tenants in common does not create a JT, but instead joint life estates followed by a contingent remainder in fee to the survivor. Jones v. Green Inter Alia: Latin for among other things Moiety: A small segment of an interest, half or less than half Per Contra: Latin for by contrast

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Per Curiam: an opinion by the whole court, rather than one judge Reversible Error: An error that is significant enough to possibly cause prejudice to a party so as to require the reversal of a judgment

F.

Whether a mortgage severs a joint tenancy depends upon the particular jurisdiction 1. If a jurisdiction treats a mortgage as a lien, the execution of a mortgage by one of two JTs will not sever the JT 1. However, if the jurisdiction treats a mortgage as a conveyance of title, then a severance will result 2. In those jurisdictions that treat mortgages as a lien, a mortgage upon real property executed by one of two JTs in not enforceable after the death of that JT. People v. Nogarr Condemnation: An action by the government to determine if property should be declared for public use upon reasonable compensation to the owners of the property Doctrine of Equitable Conversion: Where equity acts to make that which ought to be done; for example, real property will be treated as personal property in order to acknowledge transfer of real property based upon written agreement to sell, but where party dies before title is transferred Justice Pro Tem: Pro tem is the abbreviation for pro temporeLatin, for the time beingand as applied to justice refers to appointing one to act temporarily as a justice

G.

A divorce alone does not sever a JT estate

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1. The provisions of a divorce property settlement agreement may, however, convert a JT into a TnC H. Murder 1. In some states, murder by one JT of another JT severs a JT Duncan v. Vassaur Bona Fide Innocent Purchaser for Valuable Consideration: One who purchases property in good faith, for valuable consideration and without notice of any defect in title Judgment of the Pleadings: Deciding the case as a matter of law based upon the allegations contained in the complaint 2.Other states have contrary views, such as: a. A murderer is deprived of the entire interest except for a life interest in one-half; b. A murderer is entitled to keep all the property; c. A murderer holds upon a constructive trust to the extent of the computed value of one-half of the property as of the date of the victims death for the period of the victims expectancy; d. A murderer is chargeable as constructive trustee of the entire property for the benefit of the victims estate; e. A murderer is chargeable as constructive trustee of one-half of the property for the benefit of the victims estate; f. By the murder, the JT has separated and terminated and on-half of the property should go to the heirs of the murdered person and the other one-half to the murderer, or to his heirs, when deceased Mann v. Bradley Administratrix: A female administrator who is appointed to handle the estate of one who dies intestate Sin Qua Non: without which not

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V. Condominiums ( she said dont worry about condos for the exam) Bonus Material Support of Land Under theories of strict liability and negligence, adjoining landowners have a duty to provide lateral support to each others land Noone v. Price

o Strict Liability for removal of lateral support is limited to land that would be subside while in its natural state If the land subsides from removal of lateral weight of a building, the adjacent landowner is only liable in cases of negligence o Adjacent lateral support may be removed provided that artificial support, such as a retaining wall, is provided to replace such support o The duty to maintain the artificial support becomes a covenant that runs with the land Drainage. Courts apply three different rules: (Armstrong v. Francis Corp): 1) Common Enemy Rule: A landowner has the unrestricted right to rid his lands of surface waters, without liability for harm it may cause others 2) Civil Law Rule: A landowner who interferes with the natural flow of surface waters so as to cause an invasion of a neighbors interests in the use and enjoyment of his land is subject to liability to the other 3) Reasonable Use Rule: A landowner is legally privileged to make alterations to the natural flow of surface water until there is an unreasonable interference with a neighbors use of his land. Courts look a the following factors: a. The utility o the possessors use of his land

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b. The degree of harm that results c. The foreseeability of harm that results d. The feasibility of alternatives Damnum Absque Injuria: A loss or damage without injury Surface Water: Water coming from rain, snow, and streams that spreads over the ground or collects in pons as opposed to stream water that runs in defined channels Rights to Water 1) Water in Watercourses a. A riparian landowner may use all the water in a stream to satisfy natural needs for water, such as thirst. But for artificial needs for water, such as manufacturing and irrigation, it is up to a jury to decide on a case-by-case basis how the water should be divided b. In Colorado and other western states, the first appropriator of water from a natural stream for a beneficial purpose has a prior right to the water to the extent of the appropriation 2) Groundwater a. Under the rule of capture, landowners may pump as much groundwater as they want without liability to neighbors who claim that the pumping depleted their wells. Sipriano v. Great Spring Waters of America Inc. Groundwater: Water that has percolated through the soil and does not flow in an underground stream or a defined channel. b. In western states, where the ground is more arid, courts usually apply the reasonable use doctrine or an appropriation rule Coffin v. Left Hand Ditch Co. Patent: A grant of government land, including the official certificate granting the land.

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