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#Post#: 57--------------------------------------------------
Property 1 -Outline2
By: SunsetSailor Date: February 17, 2011, 9:33 pm
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Property Outline
I. Acquisition of Property
A. Wild Animals and the Rules of Capture
1. Title to wild animals is initially acquired by taking
possession of the wild animal.
2. The mere chasing of an animal, although in hot pursuit, does
not give the pursuer a right to possession against another who
captures it by intervening.
3. If an animal is mortally wounded, or caught in a trap so that
its capture is certain, the hunter acquires right to possession
and title which may not be defeated by another’s intervention.
4. Title acquired by possession can be lost if the wild escapes
and returns to its natural habitat.
B. Finders
1. A finder is a person who rightfully acquires possession of
the property of another that has been lost, misplaced, abandoned
or hidden so as to be classified as treasure trove.
2. Lost property
1. personal property whose possession has been parted with
casually, involuntarily or unconsciously
3. Misplaced property
1. personal property which has been intentionally placed
somewhere and then unintentionally relinquished, given up, or
released the property
4. Abandoned property
1. property that is no longer in the possession of the prior
possessor who has intentionally relinquished, given up, or
released the property
5. Treasure trove consists of coin or money concealed in the
earth or another private place, with the owner presently
unknown.
C. Rights of finder at common law:
1. Finder of lost property acquires title to the property as
against all but the true owner. The rights of the true owner,
of course, are superior to the rights of the finder. Since the
concept of title is relative, for this purpose a true owner
could include a prior possessor.
2. The prevailing rule is that if a person finds personal
property on the land of another, the finder is entitled to the
personal property unless the finder is a trespasser.
3. The finder is in a relationship with the true owner similar
to that of a bailor-bailee. Therefore, a finder can be guilty
of conversion if the finder appropriates the property to his own
use, or if he is reasonably able to discover the true owner and
fails to do so.
4. The finder of misplaced property is not entitled to retain
the possession of the property as against the owner of the land
on which the property was found. Rather, the owner of the locus
in quo is deemed to be the bailee of the goods for the true
owner.
5. The finder of abandoned property generally is entitled not
only to possession but also to ownership as against all others.
6. Treasure trove, in the United States, is treated as lost
property and belongs to the finder.
II. Bailments
A. Rightful possession of goods by one who is not the true
owner. The goods must be specific and distinguishable. Thus,
ordinarily one cannot bail fungible items such as cash or grain.
B. Bailor - person who creates the bailment
C. Bailee - person to whom goods are bailed
D. Classification and Standard of Care:
1. Sole Benefit of Bailor (lost watch in a movie theater)
1. bailee is liable only for gross negligence and is responsible
for exercising slight care over the bailed goods
2. Sole Benefit of Bailee (dry cleaners)
1. bailee is liable for even slight negligence and is
responsible for exercising great care over the bailed goods
3. Mutual Benefit of bailor and bailee
1. bailee is liable for ordinary negligence and is responsible
for exercising ordinary care over the bailed goods
4. Ordinary care is the trend for this standard in all cases
III. Gifts
1. Donor - person who makes the gift
2. Donee - person to whom the gift is made
B. Requires 3 elements
1. Intent
1. determined primarily by the words of the donor
2. In doubtful cases, court will consider: surrounding
circumstances, relationship of the parties, size of the gift in
relation to the total amount of the donor’s property, and the
conduct of the donor toward the property after the purported
gift
2. Delivery
1. Must divest the donor of dominion and control over the
property.
2. If the subject matter of the gift is already in the hands of
the donee, delivery is not necessary.
3. Manual delivery (handing over a ring)
a. Literal “handing over” of the property from donor to donee.
b. Most certain method - no question of intent.
4. Constructive delivery (keys to a car)
a. Something other than the subject matter of the gift is
delivered to the donee.
b. Transfer to the donee of the means of obtaining possession
and control of the gifted property
5. Symbolic delivery
a. Something is transferred to the donee in place of the subject
matter of the gift
b. Most uncertain method - not certain what the substitute was
supposed to represent
6. Delivery to a third person on behalf of the donee is a
sufficient delivery to satisfy the delivery requirement if the
third person is acting as a trustee for the donee and not an
agent of the donor.
3. Acceptance
1. Presumed if gift has any value or is beneficial to the donee.
C. Inter Vivos
1. Irrevocable transfer of property made to the donee during the
donor’s lifetime
D. Causa Mortis
1. Made in contemplation of the donor’s imminent death
2. Revocable by the donor at any time before the donor dies and
is automatically revoked if the donor does not die from the
anticipated peril.
3. Becomes absolute on the donor’s death from the anticipated
peril if:
1. Donee survives the donor
2. Donor has not revoked the gift
4. Gift is a present interest in property. The gifted interest
can be either a present interest or a future interest.
5. If the transfer is intended only to be effective in the
future and to create no rights in another at the present time,
it is a mere promise to make a gift and unenforceable in the
absence of consideration.
E. Wills
1. Does not take effect when the will is signed. It takes
effect when the person dies unless between the time the will was
signed and the person’s death the will was revoked. The
recipient of the gift in the will has no property right in the
subject matter of the gift until the testator dies.
IV. Joint Bank Accounts
A. Permit either party to exercise control over the deposited
funds during their lifetimes
B. Death of one party - balance belongs to the survivor
C. Contract Theory
1. Survivor is entitled to the proceeds of the account simply
because the contact between the deceased depositor and the bank
so provides
D. Gift Theory
1. Noncontributing survivor is entitled to the account if he can
establish that a gift was effected by which he acquired an
interest in the account when it was created
2. Intent, delivery and acceptance must be proved
3. Gift in the interest in the account during the joint lives of
the depositors and not the entire proceeds of the account
4. Finding of a gift is facilitated when both parties make
deposits and withdrawals during the joint lives
E. Rebutted by a finding that an account was created in both
names merely for the convenience of the principal depositor and
that there was no intent to make a gift
V. Adverse Possession
A. Possession of real property
1. Requires dominion and control over the property with the
intent to exclude others
2. Prior possessor of real property has title against the whole
world except the rightful owner
3. Rightful owner may be merely a prior peaceful possessor
4. Possessory interest can be conveyed by deed or devised by
will
5. If possessor dies without a will, land passes to the
possessor’s heirs
6. Ejectment - prior possessor sues to recover possession from
another person who is in possession of the land
B. Policy Reasons
1. Suppress dormant claims
2. Quiet titles
3. Require diligence on the part of the owner and penalize those
who sit on their rights too long
4. Reward the economic activities of a possessor who is
utilizing land more efficiently than the true owner
C. Elements
1. Actual and exclusive possession
1. Sole physical occupancy
2. Trigger cause of action for trespass, delimit extent of claim
3. Claimant must act in a fashion that reflects the claimant's
exercise of dominion and control over the land in question to
the exclusion of the true owner and others
2. Open, visible and notorious
1. Occupy for all the world to see
2. So attentive landowner has reasonable likelihood of learning
about it, so SOL can run
3. Continuous for statutory period
1. Unbroken continuity of possession
2. Assure claimant was not in possession subordinate to the
owner, but claimed it himself - assure true owner not lulled
into inaction by assurances
4. Hostile and under claim of right
1. Possession that is permissive --- that is, with the true
owner's permission --- is not "hostile" and thus cannot ripen
into title by adverse possession
2. There is no reason for true owner to be alarmed by another
possessing the land that he gave permission to do
3. The overwhelming majority of courts take the opposite view,
and instead would presume that Key's unexplained and unknowing
occupation of Easton's land was hostile (nonpermissive)
4. A's possession is treated as hostile unless B presents
evidence to rebut the presumption of hostility; to do so, B
would have to present evidence that he had in fact granted A
permission to occupy that portion of his land.
5. By presuming that unexplained possession of another's land is
hostile, the law of adverse possession places the burden upon
the true owner to be vigilant to the possibility of
encroachments. As a result, possessory encroachments are more
likely to be identified and resolved promptly.
6. Possessor claims to be the owner whether or not there is any
justification for her claim
D. Majority View
1. Sleeping theory - the adverse possessor's state of mind ---
what they subjectively know --- is irrelevant to the question of
whether their possession is hostile and under claim of right.
E. Minority View
1. The possessor must also prove that their possession was
carried out with a sufficient "intent" or state of mind
regarding their desire to claim ownership of the land in
question.
2. Cannot mistakenly have hostile element – must know that they
are taking land
3. State of mind is difficult to show
4. Good faith belief in ownership required
5. Possessor must believe he does not own it and aggressively
assert control
VI. Van Valkenburgh v. Lutz
A. Issue
1. Where Lutz has used property for 25+ years to varying
extents, including growing and providing crops to neighbors, has
built a shack on the property despite knowing the property
wasn’t his, has built his garage on part of the property
thinking he owned that portion, and has acknowledged ownership
in prescriptive right lawsuit, does Lutz have title by adverse
possession?
B. VV – Rules
1. statute - actual occupation, “usually cultivated and
improved”
2. “clear and convincing proof”
3. statute - “under a claim of title”, get what you actually
occupy
4. may not disavow effect of prior litigation - declarations
against interest available to show intent
C. VV - Why
1. cultivated and improved
2. earning theory generally
3. plain meaning
4. insist on a lot when taking title from someone
5. improve certainty that true owner would have known -
consistent with sleeping theory
6. claim of title
7. “claim of title” should mean some claim of legitimacy -
otherwise adverse possession rewards wrongdoers - particularly
if you rely upon an earning theory, shouldn’t do that
8. don’t’ reward knowing trespassers
9. knowing trespasser won’t take care as well as one who
believes it is his - personal theory, earning theory
D. Sub-issues
1. “usually cultivated and improved”
2. actual and exclusive element?
E. Open and notorious element?
1. “under claim of right”
2. hostile and under claim of right element?
3. “continuous”
4. effect of statements in prior litigation?
F. Lutz - rules
1. usually cultivated or improved
2. means improved enough to give good notice to owner, to be
productive economic activity
3. w/out written instrument, but under claim of title, you get
what you actually occupy?
4. means that AP acts as if he owns it - state of mind is
irrelevant
G. Lutz – Why - Cultivated and improved
1. Underlying purpose is to assure notice to owner - sleeping
theory
2. Also to assure productive use, so that should be test -
earning theory
3. Strict interpretation serves no discernible purpose
4. Enough for notice to owner also assures earning theory met
H. Why - claim of title
1. Key is purpose of adverse possession - sleeping theory and
quiet title theory would both ignore state of mind
2. State of mind complicates proof and creates incentives to lie
3. Earning theory can be met by use and productivity - esp.
investment of time and effort and resources
VII. Manillo v. Gorski
A. Issue
1. Whether  has adverse possession where she encroached
by 15” under mistaken belief of ownership and w/ intending to
take it?
2. Whether an entry and continuance of possession under the
mistaken belief that the possessor has title to the lands
involved exhibits the requisite hostile possession to sustain
the obtaining of title by adverse possession?
3. Whether ’s acts meet the necessary standard of “open
and notorious”?
B. Rule - Hostility
1. Any entry and possession for the required time which is
exclusive, continuous, uninterrupted, visible and notorious,
even though under the mistaken claim of title, is sufficient to
support a claim of title by adverse possession.
C. Why - hostility
1. Maine doctrine rewards intentional wrongdoer and disfavors
honest, mistaken entrant
2. Authority in other states - very nature of act asserts title
- mistake irrelevant
3. The “intention” is nonexistent and confusing - Tiffany
4. incentives to lie about what you intended - corrupts the good
faith adverse possessor
5. “cause of action” begins at entry, regardless of intent - SOL
reflects interest in repose after that amount of time from claim
6. quiet title interests
D. Rule - Open and Notorious
1. No presumption arises from a minor encroachment along a
common boundary - only where the true owner has actual knowledge
thereof may it be said that the possession is open and
notorious.”
2. If undue hardship to possessor, equity might force conveyance
by owner paying fair value (as long as owner won’t be hurt by
it).
E. Why - Open and Notorious
1. Normally, mere visibility enough for O & N
2. presumption not justified with small area where intrusion not
clear
3. so require actual knowledge (survey)
4. costly
VIII. Howard v. Kunto
A. Issues
1. Is a claim of adverse possession defeated because the
physical use of the premises is restricted to summer occupancy?
2. May a person who receives record title to tract A under the
mistaken belief that he has title to tract B (immediately
contiguous to tract A) and who subsequently occupies tract B,
for the purpose of establishing title to tract B by adverse
possession, use the periods of possession of tract B by his
immediate predecessors, who also had record title to tract A?
B. Rule - Summer Use
1. requisite possession requires such possession and dominion as
ordinarily marks the conduct of owners in general in holding,
managing and caring for property of like nature and condition
2. If the land is occupied during the period of time during the
year it is capable of use, there is sufficient continuity.”
C. Why - Summer Use
1. No real reasons given - just citation to prior authorities
2. practical open and notorious test - that’s when true owner
would see it
3. Sleeping theory - it’s good notice to owner
4. Earning theory - it’s when most people use the land
D. How relate to AP purposes?
1. Sleeping Theory
1. True owner should see it during time of normal use
2. Earning theory
1. AP doing what most owners are doing
3. Personality
1. AP developing same attachment as others
4. Quiet Title
1. Others will think AP is owner
E. Application - Summer Use
1. normal use here is summer use
2. here, it includes the continued existence of the improvements
(the house)
F. Rule - Tacking
1. “privity” necessary to allow tacking is really just
recognition of need for reasonable connection between successive
occupants - to raise claims above that of trespasser or
wrongdoer
G. Why - Tacking
1. don’t reward successive trespassers
2. folks like this not really trespassers
3. don’t let technicalities defeat good faith purchasers
4. need certainty
5. don’t want expensive surveys
H. How relate to AP purposes?
1. Sleeping theory
1. Wouldn’t even require privity
2. Earning theory
1. Good faith purchaser “earns” by purchasing prior earned time
3. Quiet title
1. Everyone thinks this is a good purchase
I. Application - Tacking
1. everyone in line acted in good faith belief they had or were
purchasing good title
J. Howard - Summer Use
1. rule - require actual continuity
2. why? - in order to provide adequate protection to true owners
3. rule - interpret the rule narrowly - to require use when
capable of use
4. why? - tends to provide greater assurance of both earning and
sleeping purposes
K. Howard - Tacking
1. rule - require grantor to have some legal title to convey
2. why? - assure legitimacy of transaction
3. rule - require deed to include adversely possessed land
4. why? - clarity of title records
L. Howard - Application
1. Summer Use - not used year-round; not used entire time land
is “capable of use”
2. Tacking
1. Deed doesn’t identify land in question
2. No connection to land that is actually owned
I. Possession under mistaken belief is irrelevant in the
majority view.
II. Burden of proof is on the adverse possessor
III. Title is good against the whole world
IV. Cannot acquire a larger estate or interest in the land than
that which was claimed throughout the entire period of his
adverse possession.
V. Once title is acquired, true owner can have no other causes
of action against the possessor for acts relating to the land on
which the statute has not yet run.
VI. Adverse possessor takes the title and estate free of all
claims which could have been asserted against the former owner
during the statutory period
VII. Statutory period begins when a possessor without right
enters into clearly visible possession of another’s land
claiming adversely.
VIII. Tacking
i. Period of adverse possession of one possessor can be tacked
to the period of adverse possession of another possessor
ii. Possessors must be in privity with each other
iii. Privity exists
1. Possession is passed from one to the other by:
a. Deed
b. Will
c. Descent
d. Written Contract
e. Oral Contract
f. Mere oral consent
g. Permission
B. If occupants are in privity with each other, the period
within which a cause of action can be brought by one person is
tacked to the period the cause of action can be brought by
another
IX. Improvements
1. Improvements to real estate made by a wrongdoer belong to the
owner of the real estate
2. Where improvements were made by one who mistakenly believed
that he owned the land - true owner might have to “sell”
improved land to innocent improver
IX. Freehold Estates
A. Fee Simple Absolute
1. Most unrestricted estate
2. Infinite Duration
3. “and his heirs”
B. Fee Simple Determinable
1. Automatic reentry
2. Limitation occurs  estate terminates and property
reverts grantor who retained the possibility of reverter
3. “so long as”, “while”, “during” or “until”
C. Fee Simple subject to condition subsequent
1. Terminated by exercise of power of termination or right of
re-entry for condition broken
2. Only ends if holder of the power of termination or right of
entry for condition broken exercised the power or right
3. Not automatic - if right not exercised, holder continued to
possess the estates
4. “on condition that”, “provided that” or “but if”
D. Fee Simple subject to executory limitation
1. Cut off possessory interest
2. Condition occurs  fee shifts automatically to someone
other than grantor
3. “on condition that”, “provided that” or “but if”
E. Fee Tail
1. Automatically descended to the heirs of the estate owner upon
his or her death and continued so descending to the lineal
descendants until the entire line died off
2. Person who created the fee tail retained a reversion which
could become possessory only when that grantee and his entire
line of lineal descendants became extinct
3. “and the heirs of his body”
F. Life Estate for the life of the tenant
1. Lasted as long as the grantee was alive - terminated when
grantee died
2. Then - property either reverted to the grantor or passed to
some other person who had either a remainder or an executory
interest
G. Life estate for the life of one other than the tenant
1. Lasted for the life of someone other than the current owner
of the estate
X. Non-Freehold Estates
A. Estate for years
1. Begins and ends on a fixed date set forth in the lease
B. Periodic Tenancy
1. Year-to-year or month-to-month
2. Month-to-month
1. Termination - 1 month notice is required
3. Year-to-year
1. Termination - 6 months notice is required
C. Tenancy at will
1. Ends whenever landlord or tenant decide to terminate tenancy
2. No notice is required
3. Language is ambiguous - courts favor periodic tenancy
D. Tenancy by sufferance
1. Tenant remains in possession beyond the date fixed in the
lease for the term of years to end
2. Landlord has the option to treat the “holdover tenant”
1. Sufferance
2. Trespasser
3. Terminable by giving 6 months notice at common law
XI. Future Interests
A. Reversions
1. When a person owns an estate and conveys less than the estate
that they own, there is undisposed residue  reversion
2. No Reversions – transferor has disposed of his entire estate
1. “O, who owns Blackacre in fee simple absolute, conveys
Blackacre to B and his heirs”
2. “O who owns a life estate in Blackacre, conveys to B “my life
estate in Blackacre”
3. Reversions which cannot be divested
1. “O conveys to Blackacre to B for life”
2. ….to B for 10 years
3. …to B for the life of B
4. Reversions which are subject to being completely divested
1. “to B for life and, if C pays B $100 before B’s death, to C
and his heirs”
a. O has a reversion which is subject to complete divestment if
and when C pays B $100
2. “to B for life, and two years after B’s death, to C and his
heirs”
a. O has a reversion for two years after B’s death. This
reversion will then be divested by the executory interest in C
B. Possibilities of reverter
1. Interest left in a transferor who conveys a fee simple
determinable
2. Retained in favor of the transferor or the transferor’s
successor in interest
3. When the estate granted to grantee automatically comes to an
end and automatically reverts to the grantor upon the happening
of the event named in the conveyance
4. “so long as”, “until”, “while”, during”
5. “O to B and his heirs so long as Blackacre is used for
courthouse purposes”
C. Right of Reentry
1. Future interest retained by the transferor who conveys an
estate subject to a condition subsequent
2. Two things must happen:
1. Transferor must elect to exercise the power
2. Transferor must do some affirmative act to terminate the
estate in the transferee
3. “provided that”, “but if it should happen that”, “but if”,
“subject to the condition that”, “in the event that”
D. Remainders
1. Vested
1. A remainder is vested if the following two conditions are met
a. No condition precedent attached to it
b. The person holding has already been born, or his identity is
ascertained
2. In all events will become possessory when the preceding
estate terminates
3. Three types
a. Indefeasibly vested
i. Certain to become vested at some point in the future
b. Vested subject to partial divestment or subject to open
i.
c. Vested subject to total divestment
4. Not subject to the RAP
5. Example – “O to A for life, remainder to B and his heirs.”
a. B has a vested reminder since his identity is ascertained,
and there is no condition subsequent
2. Contingent
1. All reminders that are not vested. The reminder will be
contingent rather than vested if
a. it is subject to condition subsequent, OR
b. it is created in favor of a person who is either unborn or
unascertained
2. Example – “O to A for life, then to children of B who survive
B”
a. B must meet the condition precedent of surviving
b. A, before his remainder can become possessory
3. Look for the words “but if”
3. Alternative Contingent Remainders
1. Example – “to A for life, then to B and his heirs if B
survives A, otherwise to C and his heirs.”
a. B’s remainder is upon surviving A
b. C’s remainder is contingent upon B’s not surviving
c. Therefore, B and C have alternative contingent remainders
4. If an instrument can be construed to be a contingent
remainder or an executory interest – contingent remainder is
preferred
E. Executory Interests
1. Springing
1. FI limited in favor of a transferee that in order to become
possessory must divest the transferor of a retained interest
after some period of time during which there is no other
transferee entitled to a present freehold interest
2. Example – “to A and his heirs from and after the day of A’s
marriage to B”
a. A’s interest is springing
2. Shifting
1. FI created in a transferee that in order to become possessory
must, upon the occurrence or non-occurrence of an event, divest
a present interest of another transferee or a vested interest of
another transferee
2. Example – “to A and his heirs, but if the premises are ever
used for other than residential purposes, then to B and his
heirs”
a. B has a shifting executory interest in fee simple
F. Remainder vs. Executory Interest
1. Remainder – waits for the prior interest’s natural
termination
2. Executory – “cuts off” a prior interest
G. Classification
1. Alienability
1. Vested and contingent remainders are alienable
2. Inheritability
1. Vested and contingent remainders are inheritable
3. Acceleration
1. The possession of a vested remainder accelerates if the
preceding life estate prematurely terminates, whereas a
contingent remainder will ordinarily not accelerate upon the
premature termination of the preceding estate
2. Example – O conveys to A for life and upon A’s death to B and
his heirs, and prior to her death A renounces the LE, B’s vested
remainder interest will accelerate and become possessor
XII. Rule Against Perpetuities
A. Common Law Rule
1. “No interest is good unless it must vest, if at all, not
later than 21 years after some life in being at the creation of
the interest.”
B. Who is covered
1. Not subject to RAP
1. Indefeasibly vested remainders
2. Vested remainders in an individual or in a class which is
closed from the moment of its creation or which are subject to
complete divestment
3. Present possessory interests
4. Reversionary interests
5. Vested remainders in an individual
2. Subject to RAP
1. Vested remainders subject to open
2. Contingent remainders
3. Executory interests
C. “No interest is good”
D. “must vest”
1. contingent interest must become a vested interest or fail
within the period of the RAP  lives in being plus 21
years
E. “if at all”
1. if the contingent interest is absolutely certain either to
“vest” or “fail” entirely within the RAP, it is valid
F. “not later than 21 years after some life in being”
1. includes with the period: all relevant lives in being plus 21
years
G. “at the creation of the interest”
1. means that in the ordinary case the period of the RAP begins
when the creating instrument takes effect
H. Lives in Being
1. These can be measuring lives (their death +21 years)
1. Any person alive on the date of the conveyance
2. Any child conceived and not yet born
I. “Might-have-been” Rule
1. Looks for failure
2. If at the time an interest is created there is any
possibility that it might vest beyond the maximum period
permitted by the RAP, it is void even though in fact the
interest actually vests within the period allowed by the RAP.
J. Wait-and-See Doctrine
1. Looks for passage
2. If a nonvested interest actually vests or fails to vest in a
timely manner, the interest is good under the RAP.
K. Unborn Widow
1. If an interest is created which will flow through the “widow”
of X, the common law view is that the interest must fail. The
“widow” is not necessarily the person who is married to X when
the interest was created; X could later marry someone born after
the interest was created, who would not be a relevant life in
being for the purposes of the vesting of the interest in
question
XIII. Concurrent Estates
A. Joint tenancy
1. An estate in two or more persons with each entitled to
possession of the property. Each tenant owns a single unified
interest. Each JT has exactly the same rights in the property
1. Right of survivorship
a. Two JTs and one dies, the other becomes the sole survivor of
the interest that the two of them held jointly
2. Right of possession
a. Each JT is entitled to occupy the entire premises, subject
only to the rights of others
2. Co-tenants had to acquire their interest - 4 unities:
1. at the same time
a. Each JTs interest must vest at the same time
2. under the same instrument (title)
a. JTs must acquire title by the same deed or will
3. have the same interest
a. JTs must have identical interests (ex. – all life estates)
and to the same duration. Thus, one tenant cannot have 80%
interest while the other has 20%.
4. have equal rights to possession
a. All JTs have a right to possess and enjoy the property
3. Survivor of the co-tenants held the title in fee simple as
there were no other claimants to the property
4. Interest of the co-tenants who were not the survivor was:
1. not devisable or descendible
2. alienable, BUT
a. alienation would sever the right of survivorship and convert
the tenancy into a tenancy in common
5. Creditors – a creditor of one of the JTs does not have rights
against the interest of the other JT. The surviving tenant
takes the property free and clear of the deceased tenants
creditor.
6. The modern view allows direct creation, without the use of a
straw man.
B. Severing the Joint Tenancy
1. Severance of the JT will result in a Tenancy in Common
2. Conveyance by one JT
1. JT may convey his interest to a third party
2. Breaks the unity of time
3. If there are more than two JTs, the TIC will remain between
the two who still have the four unities
3. Granting of a mortgage
1. The severance of a mortgage depends on the state in which it
takes place. There are two theories
a. Title theory – granting of the mortgage is a severance of the
unities
b. Lien theory – deemed merely a security for repayment (does
not sever)
4. One tenant grants a lease
1. Most courts hold that such a lease is not a severance
(Sampson), holding that where the lessee was in sole possession
of the premises, the non-lessor JT could not have the lease
judicially rescinded.
5. Partition
1. Dividing up and distribution of the land or the sale of the
land and distribution of the proceeds
2. Court will either divide up the land or sell the land and
divide up the proceeds
a. Partition in Kind
i. Some cases there is a fair way to divide the property, so
that each tenant can be given a parcel proportional to his
interest
b. Partition by Sale
i. Where partition in kind is not possible, or would be unfair
to one party, the court will order the property sold and the
proceeds divided
c. Preference to partition in Kind
C. Tenancy in common
1. An estate shared by two or more people in the same property
at the same time. Each tenant in common has a separate
“undivided” interest. The most important difference is that
there is no right of survivorship.
2. Only one unity is required – possession. Each tenant in
common is entitled to possession of the whole property, subject
to the same rights in the other tenants. BUT, the tenants may
receive their interests at different times and through different
conveyances.
1. They may have unequal shares
2. Language ambiguous – presumption is equal interest among TICs
3. TIC may convey his undivided interest, or lease it to a third
party. If he leases it, he may have the duty to share rent with
his cotenant.
4. Presumption favoring TIC  preferred over JT
D. Tenancy by the entirety
1. special form of joint tenancy - adds unity of marriage to the
4 unities
2. not severable unilaterally by either spouse
interest of a spouse was not reachable by the spouse’s creditors
3. only divorce can sever
E. Relations between co-tenants (applies to all concurrent)
1. Each co-tenant has the right to occupy the entire premises
1. parties are free to change this equal right by agreement
2. Occupying tenant normally has no duty to account for the
value of his possession. He has no duty to calculate the
reasonable rental value of his sole possession
2. Ouster
1. If the occupying tenant refuses to permit the other tenant
equal occupancy, then he must account to his co-tenant for the
latter’s share of the rental value of the premises.
2. What constitutes ouster?
a. Most courts hold that ouster occurs only when the
out-of-possession tenant physically attempts to occupy the
premises, and the occupying tenant refuses to allow this access
b. Most courts hold that ouster does not occur when the one out
of possession merely demands that the other pay rent or vacate
3. Depletion
1. Occupying tenant will have a duty to account if he depletes
the land, or otherwise lessons its value.
2. Example – If he takes away and sells its mineral resources,
such as gas, oil or coal
4. Premises rented to a third party
1. If the co-tenant leases the property, once he does this and
collects the rent he must share the rent with the other
co-tenant
5. Payments made by one tenant
1. Sometimes a tenant will make certain payments, and then wish
to recover from the other co-tenants their share of the
expenditure
a. Taxes and mortgages
i. Since for the benefit of all, the tenant who pays can deduct
the amount paid from the rents he has collected form third
persons
b. Repairs
i. Handled in a similar way as mortgage. Courts allow that
co-tenant who paid, to deduct that amount from any portion of
their rent before turning it over.
c. Improvements
i. If one tenant makes improvements to the property that the
other tenants don’t agree to, the one who made them is NEVER
permitted to recover contribution in a direct suit. And he is
not normally allowed to recover the cost of improvements from
the rents he collects.
Riddle v. Harmon
Issue
May a joint tenant sever by conveying her interest to herself?
Held – Yes
Mr. Riddle’s Argument
Rule - Disallow - or Require some sort of notice to replace
obsolete conventions that provided some protection.
Why: possible fraud with hidden, torn up deed
allowing her to act alone, with no one else is different - it
opens up door to fraud
unfair - no notice of change of law, on which I relied, and no
notice of the action itself
no notice to anyone (3d party) who might be affected
"wrench of delivery" concept - symbolic value of straw
straw increases likelihood of notice
no recordation to show the world
- Since all of those things are true today, don't make it any
easier to cause that result. See the hidden deed in Problem 1,
p. 350 - kept in the drawer.
Estate’s Argument
Rule – same as above
Why - you can do this, anyway, without notice to joint tenant.
so not really hurt by lack of notice of law change or lack of
notice of what happened.
requiring notice to joint tenant confuses record title
my approach simply avoids artifice of strawman, etc.
statutory preference for TIC
old rule based on obsolete livery of seisin
I. Why require lifetime severance – why not sever with will?
((1) – Technical point – the property passes automatically, so
as of her death, there’s no property left to convey by will.
But that’s just theory – and we could equally well say the will
speaks as of the moment of death, and the property rights
survive that long. Question is how should we decide which to
do?
(2) – Probably don’t let this happen because it complicates
matters a lot. Is JT property devised by residuary clause, for
example? This would threaten to drag JT property into probate
when it is generally created specifically to avoid that result.
Also, more generally, it introduces uncertainty unnecessarily.)
Harms v. Sprague
Issue
Is joint tenancy severed by mortgage granted by one of the joint
tenants?
Does mortgage survive death of mortgagor as lien on property?
Rule - p. 335 – “joint tenancy is not severed when one joint
tenant executes a mortgage of his interest on the property.”
Held - No and no.
II. Court’s Reasoning
Precedent – cases on liens and saying mortgage is just a lien.
P. 353 - Purpose of mortgage – limited to protecting interests –
title of mortgagee is anomalous.
III. Other reasons for court?
No intent to sever
Lender responsibility to search title, - have both JTs sign
Don’t destroy all JTS
Tax payment
Importance of survivorship – mortgage probably not intended to
destroy it.
Result protects surv. while allowing mort.
Let lenders protect themselves – have both JTs sign – then
everyone will know.
Not really a conveyance - really leverage
IV. Argument vs result?
Lenders lose out – reluctant to lend
Don’t mislead lenders – adds burdens on lenders to search titles
– fraud dangers
(Formalism - one of unities is breached
(1) hinders alienability because makes mortgagees reluctant to
lend on these vanishing mortgages. (2) Particularly harmful to
individual lenders, as in this case, even if you reasonably
expect institutional lenders to protect themselves. (3) Lenders
are innocent, while perhaps should make other joint tenant
responsible for actions of his mortgaging joint tenant - if one
innocent party is to be harmed, he's a bit less innocent because
already dealing with the guilty party. (4) Lien and judgment
creditors are even more innocent, and now they're forced to sue
even earlier to attach and force sale of property.
- if the outcome is good policy for big lenders, fine -
legislate it, but protect little lenders.)
Delfino v. Valencis
Issue
Where T’s hold 2/3 and 1/3 interests, one T lives on land and
operates business, and business interferes with other T’s plan
to develop, should court order partition by sale?
Held – No
Delfino Rule
p. 360-61 - 52-495 - statute – court may order physical
partition - but order sale only if it "will better promote the
interests of the owners." - favor partition in kind
p. 362 – partition in by sale only if two conditions are
satisfied:
1.physical attributes of land make partition in kind
impracticable or inequitable, and
2. interests of owners better promoted by sale
Why this outcome?
Partition in kind physically practicable.
As to “best interests” -
Evidence rulings against plaintiffs.
Not fair to kick off business, possessor home – reliance
interests - livelihood
Best interests of parties collectively.
- p. 362 - forcing sale is an "extreme exercise of power"
-
Held? - Partition in kind
Why?
(- physical partition practicable
- insufficient showing of problems with the subdivision if she
remained, and
her interests in the home and business outweighed - balancing -
apparent greater economic gain to P if the whole could be sold
and the business shut down)
Spiller v. Mackereth
Dispute
Where one co-t took over possession, installed new locks, and
refused demand to vacate half or pay rent, is other co-t
entitled to fair market rents?
Issues
Whether ouster is required before nonpossessory tenant can
require payment of rent?
Whether rent demand and refusal are enough to constitute ouster?
Mackereth Argument
Rules – 1 -T in possess must pay rent
2 – simple demand + refusal enough for ouster
Why – 1 – equal shares – so both should get profit/benefit
Clarity
2 – being in poss of whole denies other
Reduces level of dispute – no face-to-face
Avoids wasteful requirement given refusal
Might be impractical to oust physically
More econ viable uses promoted – prod
Tends to delay partition – good – large pieces $ - value impact
Rules that should be adopted -
- should generally have to pay rent to co-tenants, as in Ohio -
Cohen v. Cohen - n. 1, p. 372
- if ouster required, should be low threshold - demand and
refusal
Why
- as to no need for ouster:
- this is fair to other cotenants, who are not benefiting from
use of space
- as to low threshold if ouster is required:
- makes ouster easy to establish, so avoids litigation about
what constitutes ouster
- likely to forestall partition (both)
- consistent with expectations in commercial holding (both)
M Application
1 – you’re there, so pay
2 – demand made – refusal made
Spiller Argument
Rules – 1 – no rent w/out ouster
2 – high threshold for ouster
Why –
1 – already paid for
2 – to be conclusive that entry not allowed
Possessor has right to full possession – expectation of use, not
vacancy
Assure actual use – tends to have both tenants involved
Tends to encourage partition – more efficient – less litigation
Rules to follow
ouster required for rental liability
high ouster threshold - actual denial
Why
- this encourages use of the property
- if rent were charged, co-tenant may not use the property in
order to avoid paying rent
- this tends to force other co-tenant to demand partition -
which puts the property on the market - and is better than
continuing co-ownership
- consistent with typical family expectations - kid left at home
caring for mom or dad probably was not expected to have to pay
rent upon mere demand - so equity is a concern, too.
- majority rule on rent better, so don't broaden ouster to back
into the min. rule that way
Spiller Application
2 – locks – just to protect – no effort to get in
Swartzbaugh v. Sampson
Issue
Where one JT rents part of parcel to someone without consent of
other JT, can other JT cancel the lease?
Held - No
- What were the estates prior to the lease? (Joint tenancy
between Mr. and Mrs. Swartzbaugh)
- What happened?
(lease of part by one JT to Sampson – who took possession and
built ring)
- Brief it - what estates do they all have w/ lease in place?
(- Mrs. S. is still JT with husband in fee simple with right of
survivorship,
- Mrs. S is a TIC with S for 10 years (subject to H's living
that long - really a determinable tenancy under the
circumstances).
- S is TIC with Mrs. S for 10 years (subject to H's living).
- Mr. S is JT with wife in fee simple with right of survivorship
and holds right of reversion after the leasehold estate.)
- Issue - Can JT cancel leases by other JT?
- What did court hold? Why?
1. - lease didn't sever unity, so JT remains - p. 374
2. - one co-tenant can't eject another - due to unity of
possession. - 375
3. - can't get rents or profits, but may compel accounting for
payment from 3d parties. - 375
What interests do Mr. and Mrs. Sw and Mr. S have after lease?
Mr. And Mrs. are still JTs with right of survivorship as to the
entire parcel.
Mrs and Sampson are TICs as to the leasehold interest.
(- Mrs. S. is still JT with husband in fee simple with right of
survivorship,
- Mrs. S is a TIC with S for 10 years (subject to H's living
that long - really a determinable tenancy under the
circumstances).
- S is TIC with Mrs. S for 10 years (subject to H's living).
- Mr. S is JT with wife in fee simple with right of survivorship
and holds right of reversion after the leasehold estate.)
Why does Mrs. S. lose? – Rules
General Principles
p. 375 - JT out of pos. cannot recover exclusive possession,
only the right to joint possession –
normally can’t get rent for occupancy,
but can get accounting of rents collected
the act of one JT without express or implied authority or the
consent of his cotenant cannot bind or prejudicially affect the
rights of the latter.
Rules Specific to Leasing
p. 376 – JT not joining in lease of whole premises is not bound
by terms –
can recover reas. value if tenant under lease refuses entry
p. 376 – a lease to all of the joint property by one joint
tenant is not a nullity but is a valid and supportable contract
in so far as the interest of the lessor in the joint property is
concerned.
What are her remedies? - Which should she pursue?
Partition
physical partition of JT
problem - she loses survivorship rights in Mr. S's half
partition sale
essentially the same (loses survivorship interest), and loses
the land.
Remedies, continued
Partition (cont.)
physical partition of the 4 acres
problem is that if S gets pavilion, Mr. S gets it later and gets
greater value - maybe give her more land to balance value -
still loses survivorship.
partition sale of the 10 year term if physical partition of 4
acres not feasible,
S gets some to account for the improvements. The rest,
discounted present value of the rents, are split, half to Mrs.
S, half to S, who must still pay rent to Mr. S.
probably bad due to limited market for it.
danger - S could do this, too!
Accounting - sue Mr. S. for accounting for 1/2 of the actual
rents - OK if he made a good deal.
Ouster and Mesne Rents - achieve ouster and sue for 1/2 full
rental value
XIV. Landlord-Tenant Law
1. Types of Estates
1. Term for years
a. Commercial leases, residential tenancies
b. Fixed period, can be determinable
2. Periodic tenancy
a. Year-to-year, month-to-month, week-to-week
b. Periodic tenancy for year-to-year is terminable by either
party by giving 6 months notice
c. Express or implied
3. Tenancy at will
a. Terminated by either party without notice
4. Tenancy at sufferance
a. No tenancy – mere possession of land without right
2. Problem – T leases a place “at an annual rental of $2400
payable $200 per month on the first of each month?” What if T
gave notice on August 31, when could T move out?
1. Arguments
a. Landlord - $2400 annual means period is a year, so T can’t
move out for 6 months after giving notice
b. Tenant - $200 monthly means month-to-month periodic tenancy.
And since instrument is unclear, prefer the shorter term to free
up property and economic actors. Put the onus of clarity on the
person seeking the longer term.
3. Problem – T, month-to-month tenant, notified L on November
16, 2001, that she would vacate as of November 30, 2001. T
vacated and paid no further rent to L. L, after reasonable
efforts, finally relet the premises beginning April 1, 2002.
Jurisdiction has no statute governing method of termination. L
sues for unpaid rent for months of Dec thru March 2002. Who
wins?
1. Issue
a. Whether notice that is too late, or that seeks to end tenancy
at date other than end of period (where that’s not permitted),
will be effective at end of next period?
2. Tenant
a. Position – notice effective as of December 31
3. Rule
a. Bad notice is effective as of end of next period
4. Why
a. Don’t penalize T when purposes of notice served
i. Hurts folks who don’t know the law and reasonably expect
notice will be enough at least for end of December
ii. Reduces incentives to put property back in market – and
increases likelihood of vandalism
iii. Mitigation principles
iv. Give LLs incentives to use property
v. Make the rule clear at end of next period – and binding on
both parties – puts burden on knowledgeable LL to clarify
situation before reletting and penalizes T only if he doesn’t
move out at time both parties might reasonably expect
5. Application
a. Notice - 1 ½ months OK
6. Landlord - Rule
a. Such notice completely ineffective
7. Landlord - Why
a. T can easily submit new notice
b. LL shouldn’t have to guess what T is doing
c. LL takes risk of reletting at end of December and then having
T stay put, claiming the notice of November 30 didn’t apply –
make T bear that risk since he created lack of clarity
B. Tenancy at Will
1. Garner v. Garrish
1. Issue
a. Where lease grants tenant the right to terminate at a date of
his choosing, may successors to LL evict T at LL’s death?
b. Does this instrument create a determinable life tenancy or
merely establish a tenancy at will?
c. Held – LE successors may not evict
2. Garner – Executor
a. Rule
i. Traditional common law rule
ii. T at will of one is at will of both
iii. Presume inheritable land is to go to heirs on death
b. Why
i. Expectations based upon common law
ii. Stick to old rule – avoid litigation and simplify probate
iii. Impacts of change to freehold – taxes may apply, LL-T
protections may not apply (warranty of habitability, etc.)
iv. Tends to put land on the market
c. Application
i. Intent emphasis OK, nut applied incorrectly here, this is
inheritable land, should assume intended to go unencumbered
unless clear otherwise
ii. Should presume action taken in light of the-existing laws,
so intent would have been to have tenancy at will at death
iii. Language suggests a lease form was used, so not transfer of
a freehold estate
3. Gerrish
a. Rule
i. Construe according to intent
b. Why
i. Intent is real goal
ii. Seisin outmoded – LE can be given up
iii. No indication of reliance on traditional common law
position
c. Application
i. Intent clear from language
ii. Don’t give so much protection to heirs in face of apparent
interest of their devisior – and heirs do still get disinherited
iii. Can’t assume parties knew prior law – more likely that
language and friendships were accurate indicator of intent
iv. Rule such that protections still apply, if need be, don’t be
pigeonholed
v. Livery of seisin reasoning obsolete
C. Tenancy at Sufferance – Holdovers
1. Arises when tenant overstays lease
2. LL can evict T as trespasser of hold as “holdover”
3. But it might be seen as a new tenancy by implication
4. Crechale & Polles v. Smith
1. Issue
a. Could LL hold T for a year under these facts?
i. What is the nature of the relationship?
2. Held – LL could not hold over – it’s a new month-to-month
tenancy, ended with notice
3. Landlord
a. Rule
i. Basic rule is OK, but need to recognize that LL can reject
some types of continuing tenancies, but not others – emphasis on
“absent evidence to show a contrary intent on the part of the
LL”
ii. Result of election of holdover should reflect LL intent in
making election
b. Why
i. To reflect complexities and legitimize LL needs
1. when T is wrongdoer
c. Application
i. Court’s decision doesn’t make sense
1. Says I rejected holdover, but was not concerned about a
year-to-year or full term holdover – that wouldn’t harm my
interest in selling the building
2. My letter of Feb. 6 is consistent with this position – I
rejected the proposed month-to-month, but said that if he did
stay as a holdover, he would pay double
4. Tenant
a. Rule
i. Accepting rent constitutes renewal or extension of lease
1. no change after exercise options
2. holdover is determined by rental payment periods
3. no long holdovers unless LL is clear in option
b. Why
i. Don’t encumber
ii. Amount of damage award no real indication of what court did
– after all, rent in lease would be evidence of the fair market
value
iii. Court’s decision did make sense – it rejected holdover,
then found a periodic tenancy by implication arising from the
acceptance of my rental payments – that’s sensible on the facts
iv. Policy – court should disfavor long holdovers – tends to tie
up property unnecessarily, particularly when LL is in the best
position to put that property to good use
v. At a minimum, a LL who wants a long holdover should have to
be very clear in making that choice which this LL failed to do
c. Application
i. LL should have to mitigate anyway under K principles, so
should enhance his incentive to do so by having minimal
holdovers
ii. Don’t let him change decision, chaos would result
iii. Even if you allow him to change his option, the rule of the
short holdover would give the same result – a periodic tenancy
from month to month
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