Property I Outline

Property 1 Kathleen Kilbride
Property Outline 1 Pre-Midterm

Property is rights among people concerning things
Defined by Government ~ Not absolute ~ Can be divided ~ Evolve as laws change
THEORIES (important lenses in which to evaluate cases)
First Possession Theory: first come first serve. Depends on plentiful resources.
Explains how property rights came about, but not why we should protect the first
owner
Labor Theory: (John Locke) You are entitled to what you work for. When you mix
your own labor with something that is un-owned (i.e. natural resources), you gain
property rights as a result
Utilitarian Theory: recognize property in order to maximize the overall happiness of
society, promotes the welfare of all members, NOT individual happiness
Liberty Theory: a stake in society, has important & salutary effect on citizens
relationship with the state, facilitates democracy, provides economic stability
Personhood Theory: property is necessary for an individuals personal
development. Property over time becomes a part of your self.
o 1 of the justifications of Adverse Possession
Legal Positivism: property exists only to the extent that it is recognized by the
government (fairness is irrelevant)
o Johnson v MIntosh ~ Johnson unable to obtain rights of land traded from Indians
because the government said so)
Natural Law Theory: idea that certain rights naturally exist as a matter of
fundamental justice (little impact on modern PL)
ACQUIRING PROPERTY RIGHTS

Rule of Capture:
Property rights can arise from the first possession of an un-owned thing
o Pierson v Post: Mere pursuit of a wild animal on uninhabited land does NOT give
the pursuer a right to, or a property right in, the wild animal. animal property
rights require occupancy
Hypo 1: Post shoots a deer and grazes its ear. The deer is stunned but not
hurt.. Pierson grabs the deer and puts it in a sack. Post arrives while the deer
is still stunned. Who is correct? Pierson is entitled to the deer.
Hypo 2: Posts dogs chase a fox into a cave. Before Post gets there, Pierson
shoots the fox and mortally wounds it. Post arrives minutes later. Which is
correct? Pierson is entitled to the fox.
Hypo 3: Post nets a wild rabbit, paints Property of Post on it, and sets it free.
Pierson shoots and kills the rabbit. Which is correct? Pierson is entitled to the
rabbit.
Hypo 4: Post owns a pet macaw. Post allows the bird to fly in the uninhabited
woods near his home and the bird always returns home to Post. Pierson sees
the bird in the woods, and captures it. Who gets it? Post. The animal is not
wild
Hypo 5: Post keeps a pet fox that he has raise since it was a cub. Post allows
the fox to roam, but it always returns to Post. Pierson captures Posts fox. Who
gets it? Piersonfoxes are wild animals.
Hypo 6: Clarisse and Percy both are hunting raccoons in a dense, wooded
forest. Percys hunting dogs have scented a raccoon, and they pursue it over
the course of a mile as the raccoon races through underbrush, climbs trees,
and leaps from limb to limb. Before Percy can kill the raccoon, Clarisse arrives
and shoots the raccoon, killing it. Under what circumstances would Percy be
most likely prevail in a claim to recover the raccoon?
o a. Percys hunting dogs have chased the raccoon up a tree.
o b. Percys dogs have wounded the raccoon, laming it so that it is
unable to walk.
o c. Percy has shot the raccoon, injuring its tail
o d. Percys first shot has injured the raccoons tail and, at the moment
Clarisse arrives, Percy has sighted the raccoon, and is on the point of pulling
the trigger.
Rule of Creation: law vests title in the person who creates an entirely new thing
o White v Samsung ~ Samsung ran an ad that had a robot resembling Vanna
White. She claimed they violated her intellectual property rights. Samsung used
her identity. We want to protect this (Labor, Personhood)
o Right of Publicity: Common Law~ may be pleaded by alleging (1) the
defendants use of the plaintiffs identity; (2) the appropriate of the plaintiffs
name or likeness to defendants advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.
Hypo 1: Mellow Mushroom wants to hire Blake Bortles to promote its
restaurants. Due to his recent selection as a first round draft pick for the
Jaguars, Mr. Bortles agent informs Mellow Mushroom that Mr. Bortless fee for
product promotion is $1 million. Mellow Mushroom is not willing to pay that
amount. Instead, Mellow Mushroom hires a tall, lean actor with an athletic build
who resembles Mr. Bortles. The television commercial features the actor
throwing a football, driving an Audi (the car company Mr. Bortles endorses),
and posing wearing teal and black. Mr. Bortles brings an action seeking an
injunction to prevent Mellow Mushroom from airing the commercial. Based on
these facts, and presuming Mr. Bortles brings his suit in a jurisdiction with
common law right of publicity identical to Californias common law rule, how
should the court rule? A. The injunction should be granted because the
television commercial is designed to associate Mellow Mushroom with Mr.
Bortles in violation of Mr. Bortless right of publicity
BUNDLE OF STICKS
~Property law is a dynamic process, not a static set of rules!
~Do not have to be consolidated, not an indivisible bundle!
RIGHT TO TRANSFER:
o Majority Approach: Property is freely alienable. But the law can restrict who,
what, how much, and the way you transfer property. The scope is sometimes
limited due to public policy.
Johnson v MIntosh ~ Johnson unable to obtain property rights of land he

traded from the Indians because Indians were deemed as occupants and
therefore unable to transfer title. A party can hold less than all rights to a
particular party. The Native Americans had the right to occupy, use and
possess, but NOT the right to transfer.
chain of title ~ succession of ownership over time. If people have competing
interest in possession of property, the person with the better chain of title will
prevail
MIntosh bought land from government, so better chain of title
RIGHT TO EXCLUDE:
o Majority Approach: If you hold title, you may exclude anyone from
entering upon it. Want to avoid self-help.
Jacque v Steenberg Homes, Inc. ~ Steenberg uses road through Jacques
property w/o Jacques consent. Even though there was no measurable harm to
property, Jacques harm was that his right to exclude was violated.
Punitive damages awarded.
o Trespass Doctrine ~ used to bring an action by a property owner when a party
enters property
(a) intentionally/voluntarily
(b) without privilege/consent/invitation
(c) damage NOT necessary to be liable
Common Law ~ any unwarranted entry is trespass, intent is not necessary to
prove
o EXCEPTION: NOT absolute! There are exceptions, i.e. necessity, visitors
State v Shack ~ Farmer barred visitors of the migrant workers. Fundamental
human rights cannot be denied on the basis of property law
Hypo 1: Several migrant workers living on a farm decide to hold a
birthday part for their co-workers. They invite a few friends over from a
nearby town.
o (a) the farmer can prevent the friends from entering, and if they do, it
is trespass
o (b) the farmer cannot prevent the friends from entering
Hypo 2: Donald Trump owns a vacant apartment building in Jacksonville.
A group of homeless people enter the building and being living there as
squatters. Under State v Shack, are the homeless people guilty of
trespass? The homeless people are trespassers. Even if it is
January and freezing outside.
Hypo 3: Trader Joe owns a coffee bean farm in the hypothetical
jurisdiction of Beantown. Trader Joe employs workers on his farm. Three
labor union representatives seek to enter Trader Joes property to
convince the workers to unionize to improve their working conditions.
Trader Joe is opposed to labor unions. Based on the holding in State v.
Shack (the migrant worker case), which is the best answer?
o a. The union representatives have an implied statutory right of access
to enter the property.
o b. The union representatives have a right of necessity to enter the

property.
o c. The union representatives have the absolute right to enter anyones
property.
o d. Trader Joe may exclude the union representatives from the
property.
not a necessity or emergency, they dont have a right to enter,
Trader Joe can exclude them!
RIGHT TO USE/POSSESS:
o Traditional Rule: Absolute right to use your prop in any manner. You have the
right to the sky above & land below.
o American Rule: Use your own property in a manner that does not injure another
persons property. Regulated by ordinances, statutes, easements.
o Exceptions:
Spite Fence Doctrine ~ landowners cannot erect an unusually high
fence/structure along property line for the sole purpose of annoying his
neighbor. Not recognized in all states!
Must show that acted out of malice and that the structure is actually
useless
Sundowner, Inc. v King ~ Motel built useless structure to get back at
neighboring motel. Sign had little to no value and cost them more than it
was worth. Cast shadows on neighboring hotel.
Nuisance Doctrine ~ A way to balance competing landowners rights; used to
resolve land conflicts. MUCH broader than spite fence; no malice requirement,
may restrict useful conduct. Five elements:
1. Intentional
2. Nontrespassory
3. Unreasonable (gravity of harm outweighs utility)
4. Substantial interference w/
5. The use and enjoyment of the plaintiffs land
Prah v Maretti ~ solar panels interfered w/ by neighbor building home. Old
rule was pro-development, didnt place value on sun. New standards:
promote general welfare, sunlight more prized, policy of unhindered
development no longer in harmony with needs of society
VERY FACT SPECIFIC! BE CAREFUL!
Comparing Prah case v Sundowner: Prah did not build home out of
malice, King did!
Doctrine of Prior Appropriation ~ the first user to appropriate the
resource has the right of continued use to the exclusion of others
Hypo 1: In 2010, Carrie Underwood built a new home located across the street from
the ocean in Jacksonville Beach, Florida. Large windows provide beautiful ocean
views from every room in the house. Tim McGraw now decides to build an oceanfront
home in Jacksonville Beach, his hometown. He purchases a lot on the ocean that is
directly across the street from Carries house. Tims home will partially block Carries
ocean view. Based on these facts, which of the following is correct?
o a. Carrie can prohibit Tim from building a home that will block Carries
ocean view because Carries home predates Tims home.
o b. Carrie can prohibit Tim from building a home that will block Carries
ocean view only if Tim is locating the home in such a manner as to
block the view because of spite. (doesnt apply, no malice)
o c. Carrie cannot prohibit Tim from building a home that will block
Carries ocean view unless Carries ocean view is completely blocked
o d. Carrie cannot prohibit Tim from building a home that will
block Carries ocean view unless Carrie can prove Tims home
is a nuisance.
RIGHT TO DESTROY:
o Majority Approach: Scope is unclear. The law rarely intervenes, except

instances where the property has substantial value to society
o Eyerman v Mercantile Trust ~ Owner v Society. Lady had no real reason to
instruct her survivors to tear down her home when she died, it would
negatively affect neighborhood (lower value of estate, depreciate property
values and safety of neighborhood)
EXCEPTION ~ she was (1) deceased, (2) left no valid reason, and (3) the
home had historic value (if she were alive, there would have been a
different outcome granted she was a rationale human being)
o Hypo 1: Sandy Jones owns 50 acres of land in central Florida that are used as
an orange grove. For three generations, the Jones family has harvested the
oranges and sold them to Tropicana for its orange juice products. Sandy is tired
of the hard work involved in harvesting the oranges. She wants to cut down all
of the orange trees and convert the land to a nature preserve. Assume that the
use of Sandys land as a nature preserve is permitted under local law. Sandys
land is surrounded on all sides by orange groves owned by other people. The
neighbors are also orange farmers who sell their oranges to Tropicana. The
neighbors believe their property values will decrease if Sandy stops using her
land as an orange grove. The neighbors are also concerned that the animals
Sandy intends to keep on her land will damage their orange crops and that the
nature preserve will attract bugs and pests that will reduce the volume of
oranges that grow on their lands. If the neighboring owners sue Sandy and
seek an injunction to prevent Sandy from cutting down her orange trees.
a. The court should rule in favor of Sandy because she has the absolute
right to destroy her property, regardless of the impact it may have on any
neighboring properties
b. The court should rule in favor of Sandy because she has the
right to destroy her property subject to limited exceptions, and
none of those exceptions exist here
c. The court should rule in favor of the neighbors because the destruction
of trees on Sandys land constitutes a nuisance
d. The court should rule in favor of the neighbors because the use of
Sandys land as a nature preserve would result in decreased property
values for the neighbors, thus Sandys right to use her land should be
restricted
ADVERSE POSSESSION
REAL PROPERTY: rights in lands and things attached (i.e. buildings, fences, trees)
An occupant obtains title to real property through adverse possession if the
occupants possession is (1) actual, (2) exclusive, (3) open and notorious, (4) adverse
and hostile, and (5) continuous (6) for the statutory period.
A occupies Bs land for a long enough period of time while meeting certain
conditions, A acquires title to Bs land without his consent.
~REQUIRED ELEMENTS TO BE PROVEN:
(1) ACTUAL: physical use in the same way a reasonable owner would
o Differs on the character, nature, and location of the land

o Majority Approach: Adverse possessor must take actual possession in the
same manner that a reasonable owner would. You get ONLY what you are
ACTUALLY possessing
Exception ~ Claimant with color of title who takes actual possession of
a part of the land gains constructive possession of additional property
described in the deed or other instrument
o Minority Approach: Statutes specify conduct that constitutes actual
possession
claim of right: claimant must cultivate, improve or substantially enclose
the property
color of title: only need to perform minor activities
o Van Valkenburghs v Lutz ~ Lutz used a vacant lot as a walkway, planted a
garden. Statute provided APer must establish a substantial enclosure or
cultivate/improve the land. Majority ruled he did not ACTUALLY possess
gardens did not utilize all land and hardly improved (shed, junk), nor was he
hostilehe thought his garage encroachment was on his property. No AP.
(2) EXCLUSIVE: cannot be shared with true owner OR general public; guests are
allowed (even if its the owner)

o Hypo 1: A is not the record owner of Pondacre, but is adjacent to As estate,
Greenacre. A regularly fishes on the pond in Pondacare, grows vegetables on
Pondacre, and gather firewood on Pondacre. A also invites his friends B & C, to
fish in the pond and to gather firewood on Pondacre. T, who lives nearby,
occasionally walks across Pondacre when he drinks too much and gets lost on
his way home to Discheveledacre. Does the use of Pondacre by B, C, and T
disrupt As exclusive possession? No.
o Hypo 2: What if, instead, O, the true owner of Pondacre, fishes in the pond
once per week, and hunts birds on the land when they are in season? Yes.
o Hypo 3: Carol and Dana owned neighboring homes in a rural subdivision. The
backyards were unfenced and covered by wild grass. Over a 10 year period,
Dana watered and mowed a 20 foot wide strip that was actually part of Carols
lot. Carols children played on the strip occasionally. Should Dana prevail on a
claim of adverse possession? No, because the use was not exclusive Carols
children continued to play on the disputed parcel
(3) OPEN/NOTORIOUS: Possession must be sufficiently visible and obvious

(cannot be hiding) so that the true owner would realize someone else is using the land.
Puts true owner on notice.
o Hypo 1: O owns Bleakacre, a tract of land in the desert. A visits Bleakacre
once a month at night to observe the stars. A enters the property on foot,
dresses in black, never turns on any light, and does not leave a trace when he
visits Bleakacre. O has not visited Bleakacre during the statutory period for
adverse possession. Can A claim title by adverse possession? No.
(4) ADVERSE/HOSTILE: three different approaches
o Majority Approach (OBJECTIVE): State of mind is irrelevant. Your conduct

demonstrates your claim of right
Policy reasons: determining mental state is too difficult to determine,
favors the use of land, clarity and ease in administration by having a
bright line rule
Tioga Coal v Supermarkets General Corp. ~ Tioga owned/operated a
gate on a road for 21 years, thought it belonged to city but actually
belonged to neighbormindset irrelevantall elements met
o Minority Approaches (SUBJECTIVE):
Good faith: You mistakenly believe its yours
Gurwitt v Kannatzer ~ bought land that they believed to include a
17 acre tract.
Bad faith: You know its not yours and take it anyway
Land Piracy
Fulkerson v Van Buren ~ squatter church case, reverend only knew
the true owner (and therefore only adversely possessed in bad faith)
for 2 years instead of statutory period of 7
o BRIGHT LINE RULE: Permissive use ALWAYS defeats adverse & hostile
element
(5) CONTINUOUS: evaluated based on the nature, character & location
o Does NOT mean constant

o Howard v Kunto ~ Summer usage of house constituted continuous use as a
reasonable owner would
o Hypo 1: Amy held title to a 200 acre tract of remote and unimproved desert
land, which she never visited. Brad noticed that rare and valuable cacti grow
on the land. Brad spent 20 minutes digging out 4 small cacti and does so 5
more times over the next 10 years. Should Brad prevail in a claim of adverse
possession? No, Brads acts most likely do not satisfy open and notorious
possession or continuous possession
(6) FOR THE STATUTORY PERIOD: established by statute; typically 5-40 years.
JUSTIFICATIONS FOR ADVERSE POSSESSION
Preventing frivolous claims ~ SOL bars lawsuits & protects occupants

Correcting title defects ~ protects the title of the person who actually occupies
Encouraging development ~ legal tool used to encourage economic development;
maximizes economic efficiency by shifting title from the current owner who is
idle and places low value on the land to the industrious squatter who
places a high value on the land
Protecting personhood ~ a thing in which you have enjoyed over time takes root in
your being
Misc. Adverse Possession
Claims typically arise from

o a quiet title action (Gurwit)
o APer raises the doctrine as a defense to an owners lawsuit (Van Valkenburgh v
Lutz)
Tacking: when 2 or more successive occupants meeting the statutory period, the
latter occupant can add the two time periods together most jurisdictions require
privity: when one occupant transfers his rights by deed
o Do not confuse this with a succession of trespassers! There is a
difference between a squatter and a person who obtains color of title
o Howard v Kunto ~ Kunto purchased land from previous owners, all thought he
land & house was Kuntos. Kunto tacked on prior owners length of possession
with his to meet the 10 year statutory requirement.
o Hypo 1: Ann occupies Olivers land for 6 years. Ann then tells her friend Beth:
You can be here if you want, but Im leaving. Beth occupies the land for 5
more years. Assume the required statutory period for adverse possession is 10
years. Can Beth tack her possession onto Anns possession to meet the 10 year
requirement? No, because there is no reasonable connection between Ann
and Beth under Howard v. Kunto. There is no privity between Ann and Beth
they are merely successive trespassers
o Hypo 2: Alex works for AP Corp. and, as an employee, occupies land for 5
years. Alex quits, and is replaced by a new employee, Taylor. Taylor occupies the
land for an additional 5 years in the capacity of an employee of AP Corp. In a
state with a 10-year period, has AP Corp. acquired title by adverse possession?
Most likely yes. An entity most likely can adversely possess land through its
agents. Alex and Taylor both are adversely possession the land as agents of AP
Corp.
o Hypo 3: Carl occupies Olivers land for 2 years. Carl then tries to convey the
and to his sister, Dana, but the deed Carl uses is invalid. Dana occupies the land
for 9 more years. Assume the required statutory period for adverse possession
is 10 years. Can Dana tack her possession onto Carls possession to meet the
10 year requirement? Yes, because there is privity between Carl and Dana
(the deed). A technical defect in a deed should make no difference in the
outcome
o Hypo 4: In Howard v. Kunto, how would the Court have ruled if the Kuntos and
their predecessors had occupied the beach cottage for only 6 summers in 10
years?
a. The Kuntos would prevail because they used the property as
a reasonable owner of a beach cottage would use it
Disabilities: Statutory period for AP is tolled (paused) when the owner is not
capable of protecting his interests due to a disability. The period for AP can be
extended for disabilities!
o ex. imprisonment, lack of mental capacity, minority (under 18), out of state
residency, military service
o Majority Approach: States provide a limited period of time after the
disability ends (i.e. 5 years after disability ends)
o Majority Rule: A disability extends the statutory period ONLY IF the
disability existed at the time the adverse possession began.
o Minority Approach: the statutory period does not begin to run until the
disability ends
o Hypo 1: Charlie bought a beach house in 2000. By 2010, Charlie was no
longer residing there. In 2011, his estranged brother Alan began adversely
possessing the beach house. The statutory period is 10 years. Assuming
Alan meets all other elements, when is the earliest time that Alan can claim
title by adverse possession? 2011 + 10 year SOL = 2021
o Hypo 2: Assume the same facts as Problem 1. Also assume Charlie is
declared mentally incompetent in 2010 and remains so until 2020. The
statutory period is 10 years, but an owner under a disability may bring suit
within 5 years after his or her disability ends. What is the earliest year in
which Alan claim title by adverse possession? 2020 (disability ended) + 5 =
2025
o Hypo 3: Assume the same facts as Problem 1 except also assume that
Charlie remains in the mental health facility and incompetent indefinitely.
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What is the earliest year in which Alan can claim title by adverse
possession? Never!
o Hypo 4: Assume the same facts as Problem 1. Also assume Charlie is
sentenced to serve 15 years in prison starting in 2010. In 2012, while in
prison, Charlie is declared mentally incompetent. He is released from prison
in 2025 and is declared competent in 2026. In what year can Alan claim title
to the beach house by adverse possession? 2025 (when FIRST disability
ended) + 5 = 2030
o Hypo 5: Owner C is 10 years old in 2000. D begins adversely possessing Cs
land in 2000. C dies in 2003. H inherits the land. The normal period for
adverse possession is 10 years, but an owner under a disability may bring
suit within 5 years after the disability is removed. What is the earliest time
that D can claim title by adverse possession? 2010 (death ends all
disabilities)
o Hypo 6: Owner C is 10 years old in 2000. D begins adversely possessing Cs
and in 2000. C dies in 2003. H (who has been mentally incompetent since
2002) inherits the land. The normal period for adverse possession is 10
years but an owner under a disability can bring suit within 5 years after the
disability is removed. When is the earliest time that D can claim title? 2010
(Hs disability doesnt matter, cannot tack disabilities, Cs death ended all
disabilities)
FINDERS
First person to take possession of lost, mislaid or abandoned property

Requires (1) Intent to control the property; and (1) an act of control
Rights of the finder depend on:

EXCEPTION )
o Presumed intent of original owner
o Where the item is found
landowner
o Identity of the finder
(
Finder vs. Landowner
typically awarded to
Majority Approach to Finders: a finder beats out everyone except the true owner
AND any prior possessor
o Hypo 1: I drop my ring, Michelle finds it and puts it in her pocket. Unfortunately,
Michelles pocket has a hole, so the ring falls out and lands in the elevator. Later,
Andrew gets in the elevator and finds the ring. If Michelle sues Andrew, does
Andrew have to give the ring back to Michelle? Yes!
o Hypo 2: Peyton is out jogging through Metropolitan Park. While he is jogging, he
loses his Rolex. Eli, while walking through the park the next day, spots the Rolex
and, seeing no one around, puts it in his pocket. After wearing the watch for about
a week, Eli is robbed at gunpoint by Tim, who takes the watch from him. A month
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later, Tim loses the watch, and Archie finds it. Please list who has a claim to the
watch, from strongest to weakest: Peyton, Eli, Tim, Archie
Four categories of found chattels (personal possession; property other than real
estate)
o (1) LOST
o (2) MISLAID
o (3) ABANDONED
o (4) TREASURE TROVE
(1) LOST: owner unintentionally & involuntarily parts with it; doesnt know where it is
Finder acquires only the right of possession, hold property for the benefit of true
owner
GENERAL RULE: Finder is entitled to Possession Except Against True Owner
EXCEPTIONS:
o 1) Trespasser: trespasser-finder does not secure possession, goes to
locus in quo
o 2) Highly Private Locus: owner of locus in quo would acquire
possession, i.e. a home
o 3) Employer-Employee: surrenders rights of possession to the
employer
Armory v Delamire ~ young chimney sweep found jewel in chimney, brought

it to jeweler. Jeweler tried to keep the jewel, court gave possession to the boy as
first finder. The courts task is to determine the rights of the parties before
them, not to determine the ultimate owner.
Hypo 1: Emily was planning to host a study group at Coastal Caf. As she was
walking in, she noticed a Gucci purse lying on the floor near the door. Emily
picked up the purse, and opened it so see if she could find anything identifying
the owner, but the purse was empty. Emily showed the purse to the Coastal
Caf manager and asked him to advertise for the true owner. The Coastal Caf
manager posted a flyer with a picture of the purse on the daily specials board.
At the end of the semester, Emily learned that no one ever came forward to
claim the purse. Emily asked the Coastal Caf manager to return the purse to
her, but he informed her that he had sold the purse on Ebay for $500. The purse
was actually worth $2000. Based on these facts, under the common law rules, it
is most likely that Emily can: Recover $500 from the Coastal Caf manager, but
not the purse from the Ebay purchaser.
(2) MISLAID: owner voluntarily and knowingly places it somewhere, but then
unintentionally forgets it
GENERAL RULE: Chattel belongs to the owner of the locus in quo, NOT the
finder!
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McAvoy v Medina ~ mislaid pocket-book in barber shop case. Lady found

pocket-book on a table (!!!important!!!) Mislaid property in a public place goes
to the locus in quo, barber shop keeps it.
Benjamin v Linder Aviation, Inc. ~ Plane was repossessed by bank. Bank
stored it at s location. Worker of found $18,000 when he opened the panel
of the wing. Court determined the money was MISLAID (based on the nature,
character and location of the property) and gave property rights to the owner of
the plane, the bank.
(3) ABANDONED: owner knowingly relinquishes all right, title, and interest to it
****This is the only way a finder can obtain ownership!****

Haslem v Lockwood ~ Guy hired people to pick up abandoned poop. Worked
to pile it up. Someone came behind him and took the poop his hired help had
worked for. Workers were first finders, they get the poop.
(4) TREASURE TROVE: owner concealed it in a hidden location long ago; usually
limited to gold, silver, coins, currency
Majority Approach: Most jurisdictions reject the treasure trove doctrine
entirely and give such property to the owner of the land where it was found
Law of Shipwrecks: Discovery of sunken ships filled with treasure ~ salvage
law or finder law applies.
Salvage Law: provides finder with a reward, NOT ownership
Finders Law: provides finder with ownership
Applies only when the ship is abandoned!
o Trover: a common law action where the seeks damages for the wrongful taking
of personal property ( these are
o Replevin: lawsuit to recover possession of personal property
obsolete today!)
Liability to the Rightful Owner:

o Majority Approach: a subsequent possessors full payment to the finder bars
any later action by the true owner against the possessor. True owner can compel
the finder to transfer the payment to her (what was paid, not its worth!)
Landowners vs. Finders
o Majority Approach: Landowner is going to prevail over the finder. i.e. found in
house or embedded in soil
o Exception: homeowner who never has physical possession of the home.
Also, if the item is found in a public part of the property not under the owners
control with the intent to exclude, the finder of lost property can claim it
Hannah v Peel ~ temporary resident of a house and found a lost brooch. The
homeowner had never been to the house and did not have an expectation of
ownership. Finder awarded brooch.
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BAILMENTS
o Finder of LOST or MISLAID property does not have unqualified ownership, but is a
bailee
o Law of Bailments: the rightful possession of goods by one who is not the owner
o Three basic types of bailments
(1) Bailment for Mutual Benefit ~ those for the mutual benefit of both the
bailor and bailee
i.e. restaurant guests hands key to valet, etc.
bailee has a duty to take reasonable care of the property (i.e.
responsible for damages)
(2) Bailment of Sole Benefit of Bailee ~ those for the primary benefit of the
bailee
i.e. neighbor borrows farmers tractor
bailee has extraordinary duty of care (i.e. returning in the same
condition he received it in)
(3) Bailment for the Benefit of the Bailor ~ those for the primary benefit of
the bailor
i.e. homeowner leaves dog with neighbor to watch
bailee is only liable if the property is damaged because of gross
negligence or bad faith
o Under Law of Bailments, finder is obligated to:
(1) keep the chattel safe (#2 above)
(2) return it to the prior possessor on demand
GIFTS
Gift: the immediate transfer of property rights from the donor to the donee without
any payment/consideration
4 Types:
o (1)
o (2)
o (3)
o (4)
Inter Vivos Gifts

Testamentary Gifts
Conditional Gifts
Gifts Causa Mortis
1) Inter Vivos Gifts: ordinary gift of personal property that one living person makes
to another (birthday gift) I will give you the painting but I want to keep it until I die
IMMEDIATELY EFFECTIVE
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IRREVOCABLE
Elements: (conjunctive test ~ must have ALL)

(1) Donative Intent: the donor must intend to make an immediate
transfer
(2) Delivery: wrench of delivery -- Property must be delivered so that

the donor parts with dominion and control over the chattel.
o Why does the law insist on delivery? helps to solidify the donors
subjective intent by their objective manifestations; courts generally
require that for an act to constitute an effective delivery, the act
must divest the donor of dominion and control over the subject
matter of the gift in a demonstrable way.
Prevents fraudulent claims
i.e. a check; NO GIFT OCCURS until the check is cashed, and
the money is no longer under the D/C of the donor
o Three types:
o Manual Delivery: REQUIRED unless impractical/impossible,
donor physically departs with dominion/control; i.e. handing
over a pen
o Constructive Delivery: when manual delivery is impossible,
donor transfers an object that provides access to the gift; i.e.
car keys
o Symbolic Delivery: donor transfers an object that
represents or symbolizes the gifted item; i.e. a letter, deed
to a house
(3) Acceptance: donee must accept the property, acceptance is

presumed when the gift is of great value
Gruen v Gruen ~ Father wrote son letter gifting him a painting, but wanted to
hold onto it (life estate). Father died, mother wanted painting. Rule: As long
as the evidence establishes an intent to make a present and
irrevocable transfer of title or the right of ownership, there is a
present transfer of some interest and the gift is effective immediately.
Hypo 1: Oscar calls Paul into bedroom, points to gold pen on desk. Oscar
declares, I give you my pen. Has Oscar made a valid inter vivos gift? NO.
Oscar did not deliver the pen. When manual delivery is practical, delivery must
be physically transferred from donor to donee to establish donors departure of
dominion and control over the pen.
Hypo 2: Pointing to his bedside drawer, Oscar declares, I want you to have
my drawer and everything inside it. Oscar hands Paul a key that unlocks the
drawer. Inside are a diamond ring and the title to Oscars brand new Ferrari.
What items were delivered to Paul? Drawer only. Constructive delivery (i.e.
giving the key to the drawer) is only permissible when actual delivery in
impossible. Drawer was right there, could have delivered manually.
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Hypo 3: Oscar declares, Paul, I want you to have my Van Gogh. It is in my

office in Rome, Italy. Pick it up whenever you want. In this situation: The
attempted gift fails because no delivery has occurred.
Hypo 4: Taking 200 shares of Google stock from his safe and handing them to
Paul, Oscar declares, I want you to have these shares of Google when I die.
Keep them safe. In this situation: Oscars attempted testamentary gift has
failed.
Hypo 5: O lends a book to his neighbor, P, who takes it home. Several days
later, O finds that he has a second copy of the book. O calls P and declares,
Keep that book I lent you. Its yours! In this situation: O has made a valid gift
because he actually delivered the book to P.
2) Testamentary Gifts: neither title nor possession vests immediatelyonly in the

future when donor dies; I will give you this painting when I die
Must satisfy the Statute of Wills
THEY ARE REVOCABLE!
3) Conditional Gifts: a gift that is conditioned on the occurrence of an action or

event
Not recognized in all states
Engagement Rings:
MAJORITY: conditional gift
MINORITY: inter vivos gift (non-revocable)
Elements:
o Donative Intent based on the contemplation of marriage
o Voluntary delivery
o Acceptance
o Revocable if the condition (marriage) is not satisfied
Jurisdictional Approaches:
o Fault: Courts will consider whos at fault before returning the ring
o No Fault: Ring is returned to the donor regardless of fault
Albinger v Harris ~ & D had troubling relationship, P wanted ring back and D
refused to give it. EXCEPTION RULE: A gift is a transfer of personal property
made voluntarily and without consideration. When clear and convincing
evidence demonstrates the presence of the essential elements of donative
intent, voluntary delivery and acceptance, the gift is complete and the
Montana Supreme Court will not void the transfer when the giver experiences a
change of heart.
4) Causa Mortis: A gift of personal property made by a living person in
contemplation of death
Elements:
(1) Donative Intent (made in contemplation/fear of death)
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(2) Delivery
(3) Acceptance
(4) Donors anticipation of imminent death and ACTUAL death
from the peril anticipated
o REVOCABLE anytime before death, AND if donor does not die from
anticipated peril
o Most states automatically revoke if donor does not die
Brind v International Trust Co ~ Old lady thought she would die from
surgery, wrote letter giving property in anticipation of death from surgery. Did
not die from surgery and did not rewrite letter. Not an effective gift causa
mortis. Rule: A gift causa mortis is subject to the conditions (1) that it
must be made in contemplation, fear or peril of death; (2) the donor
must die of the illness or peril which he then fears or contemplates,
and (3), the delivery must be made with the intent that the title shall
vest only in case of death
^^This was the old view
MODERN VIEW: Gift is effective at the time it is made, but may be revoked
depending on the circumstances and, in most states, is automatically
revoked if the donors does not die!
Hypo 1: Ernestine started a jewelry business, and made various styles of

earrings, bracelets, necklaces, and rings using gold, silver, and semiprecious stones. Typically, Ernestine sold her jewelry at jewelry shows and
in boutiques. Ernestine wanted to give a bracelet and a pair of earrings
made of amethysts and 14k gold to her friend Brittney who was traveling
abroad on a semester at sea program. Ernestine called Lizzie, invited her
to her home, and gave the bracelet and earrings to Lizzie. Ernestine, who
had a cold, but tended to be a bit dramatic, told Lizzie she wanted to be
sure that Brittney got the bracelet and earrings, but Brittney would be
gone for so long she wasnt sure shed ever see her again. Ernestine
made Lizzie promise to give the bracelet and earrings to Brittney. Lizzie
took the bracelet and earrings home, and put them in a drawer. Six
months later, Ernestine died in a freak sky-diving accident. She is survived
by her mother, her only heir, and she left no will. Brittney came to
Ernestines funeral, and Lizzie gave the bracelet and earrings to Brittney.
If Ernestines mother sues Brittney to recover the bracelet and earrings:
a. Ernestines mother should recover the bracelet and earrings
because there was no completed gift.
b. Ernestines mother should not recover the bracelet
and earrings because there was a completed gift.
c. Even if the gift was complete, Ernestines mother should
recover the bracelet and earrings because the gift was causa
mortis.
d. Ernestines mother should not recover the bracelet and
earrings because Ernestines intent was clear.
Hypo 2: J.R. Ewing is on his deathbed, and is surrounded by his family. His
faithful assistant, Louella Lee, also is by his side. In the presence of his
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family, J.R. says, Louella, I want you to have my antique desk and all the
money in the top drawer. J.R. died the next day. Under traditional
common law principles, to what is Louella entitled?
a. nothing.
b. the desk, but not the money.
c. the money, but not the desk.
d. both the desk and the money
Suicide: Can a person contemplating suicide make a valid gift causa mortis?
Earlier cases held no, citing public policy reasons
Modern trend is that a gift causa mortis will be upheld if the gift is made
in contemplation of suicide and the donor completes the act
ESTATES
o Estate: One does not own Blackacre. They merely hold an estate in Blackacre.
o Can have a present possessory interest in the estate OR
o Can have a future interest in the estate
o Hypo 1: O grants his parcel of land to A for life, then B. A has the right to
possess the land during her lifetime (an ESTATE), and B has the right to possess
it once A dies (a FUTURE INTEREST). Both have legally enforceable rights in the
land, just possession at different times.
o How to transfer an estate or future interest?
o Transfer by Deed: a living person may transfer real property by deed
Transfer is called a conveyance (to convey)
Terminology: Grantor conveys the interest to the Grantee
o Transfer by Will: Property of the decedent may be transferred by will.
Does NOT convey property until death!!!
Terminology: Testator/Testatrix devises the interest to the devisee
o Transfer by Intestate Succession: Person who dies without a will, property
will be distributed according to state statutes, usually to closest living relatives
Transfer is called intestate succession
Terminology: Property descends by intestate succession to the heir
State will typically distribute property in order as follows:
(1) Issue & Surviving Spouse
o Issue: lineal descendants (children, grandchildren)
o If surviving spouse, split equally between issue & spouse
(2) Parents & their issue (aka siblings)
(3) Ancestors & Collaterals
o Ancestors: grandparents
o Collaterals: aunts, uncles, nieces, nephews
(4) Escheat no living relatives, property belongs to the state
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o Rules of Construction:
If the language of a deed or will is ambiguous, the court will interpret
it in accordance with the transferors INTENT
If the intent cannot be determine, the court will apply the rule of
construction: legal principle that breaks the tie
o Two types of estates:
o (1) FREEHOLD ESTATES
Fee Simple
Absolute
Determinable
Life Estate
Fee Tail
o (2) NON-FREEHOLD ESTATES
Term of Years
Must look at the words of purchase

and the words of limitation to determine
Fee Simple Absolute O to A and his heirs

o Largest possible estate
o NO limitations
o Alienable: can be sold during the owners lifetime
o Devisable: can be transferred by will at death
o Descendible: can pass by the laws of intestate succession if owner dies w/o a
will
o Language:
o Common Law: O to A and her heirs
O conveys to A for ever and ever
O Conveys to Google, Inc., its successors, and assigns
o Modern Trend: O to A.
Modern law favors FSA, so FSA unless words of limitation create a
different estate
Fee Tail O to A and the heirs of her body

o Abolished in most jurisdictions
o Limitations:
Alienable: A can only alienate his right to possession until his death
Descendible: Once A is dead, the land simply passes/descends to As
issues, regardless of whether A has a will or not!
NOT Devisable: A cannot devise the fee tail in a will. Interest automatically
passes to As issues
o Language:
Common Law: O to A and the heirs of her body
o O has a reversion
Modern Trend: A has a FSA, and O retains nothing.
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Minority (Florida included): A has a life estate, As descendants have a

remainder in FSA. O has nothing.
Life Estate O to A for life

o Interest which lasts for the lifetime of a person
o Generally, MUST have a corresponding future interest
Does it revert back to the grantor (O)? Or remain to a third party?
o Limitations:
Alienable: A can sell the interest, but will only be valid for As life
NOT devisable: A only has an interest while he is alive, cant put in a will
NOT descendible
o Language:
Common Law: O to A
This was presumed to convey just for life in the common law
Modern Trend: O to A for life

Must include the words of limitation
Also, forever, until A dies, while he is alive, to live in forever
o Life Estate Pur Autre Vie: Life estate measured by the life of someone other
than the person who is in possession
In the conveyance: O to A for the life of C.
When life tenant conveys her interest: O to A for life. Then A conveys her
interest in the property to B. Now B has a life estate pur autre vie
measured by As life. When A dies, Bs interest ends.
What are the duties of the life tenant?
Law wants to balance the interests of the life tenant and the future possessor
o Open Mines Doctrine: Life tenant may NOT extract minerals/resources from
the land unless those materials were being harvested at the time the life
estate began
o Doctrine of Waste: Imposes a duty on the life tenant to use the property in a
manner that does not significantly injure the rights of the future interest
holder!
Common Law: ANYTHING which in any way altered the identity of the
land was considered to be waste (either beneficial or detrimental)
Modern View: 3 types

(1) Voluntary Waste: results from an affirmative act that
significantly reduces the value of the property
o Demolishing a home, clear-cutting timber
o Depleting resources (refer to Open Mines Doctrine)
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(2) Permissive Waste: failure to take reasonable care to protect

the property
o Failure to make minor repairs, letting a dog dig holes
(3) Ameliorative Waste: results from an affirmative act that
leads to a substantial change in the property and increases the
value
o Remodeling a kitchen, adding a pool
o Most states do NOT recognize this
Woodrick v Wood ~ Wife & son wanted to destroy
old barn on property. Daughter had a future interest
and did not want to tear it down, filed an injunction.
Rule: The court found that the removal of the barn
would actually improve the value of the property, so
its removal did not constitute waste.
Hypo 1: A has a life estate in a home that has a pool. A wants to
replace the old pool with a new saltwater pool. Ameliorative
waste.
Hypo 2: The Nichols family gets a cute puppy!!!! He gets really,

really big! He chews up everything, including the front door, the
interior door jams, and the kitchen cabinets. Permissive waste.
Hypo 3: O owns a 2,000 acre tract of land in Hilliard, Florida, that

currently is operated as a timber farm. In Os will, O devises the
property to my children for life, then to my grandchildren. The
children cut down valuable timber on the property. Not waste!
Timber was cut down before the children received the life
estate.
Fee Simple Defeasible

These have the POTENTIAL to last forever, but the grant contains additional limitations!
aka they are capable of being defeased
o NO limitations: Alienable, devisable, and descendable
o Three types:
o (1) Fee Simple Determinable
o (2) Fee Simple Subject to Condition Subsequent
o (3) Fee Simple Subject to Executory Limitation
(1) Fee Simple Determinable O to A so long as

o ENDS AUTOMATICALLY when the limitation happens
o The limitation is the durational marker of the estate
o Hypo 1: O to A and her heirs so long as A does not divorce.
A can potentially have the interest forever.
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BUT if A divorces, O has a possibility of reverter (reversion)
o Magic Words: durational limitation contained within the description of As

estate
So long as
^ before the comma!
During
Until
While
o Future Interest: Possibility of Reverter (will discuss in detail below)
(2) Fee Simple Subject to Condition Subsequent O to A, but if

(Courts prefer this to FSD if ambiguous, will assume FSSCS)
o DOES NOT END AUTOMATICALLY the grantor has to take action to reclaim it!
o The limitation is an express condition
o Hypo 1: O to A, provided that A does not get divorced.
A can potentially have the interest forever.
BUT if A divorces, O has the right of entry to reclaim the property
o Magic Words: conditional words contained within the description of Os estate
o But if (and just if)
^ after the comma!
o Provided that
o However
o On condition that
o Future Interest: Right of Entry
(3) Fee Simple Subject to Executory Limitation O to A, then to C

o PASSES TO A THIRD PARTY upon the happening of the limiting event
o could have temporal limitations OR conditions
o But a third party gets it instead of the grantor
o Hypo 1: O to A and his heirs, but if A dies without children, then to B and
his heirs.
There is a condition subsequent, but if A dies without children
So, if A fails to meet that condition (by not having children), then B
gets possession
o Magic Words: then to - indicate a third party will get it
o Future Interest: Executory Interest
How do you determine which defeasible fee has been conveyed?
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FSD vs. FSSCS

o (1) Look at the punctuation
o FSD: comma is after the defeasing event
o FSSCS: comma is before the defeasing event
o (2) Look for the magic words
o FSD: so long as, until, while, during
o FSSCS: provided, however, but if, on condition
FSSEL vs. FSD/FSSCS
o Look ahead to see who will interest when As limiting or conditional event occurs
o If grantor: FSD/FSSCS
o If a third party: FSSEL
o If silent: automatically reverts back to grantor, so must be a FSD or FSSCS
FUTURE INTERESTS
A future interest is a nonpossessory property right that may become possessory in
the future NO immediate right to possession However, has a present, legal right
o FIVE future interests
o In the Grantor:
(1) Reversion
(2) Possibility of Reverter
(3) Right of Entry
o In a Third Party:
(4) Remainder
Vested, Subject to Divestment, Subject to Open, Contingent
(5) Executory Interest
In the Grantor:
(1) Reversion Follows an estate that ends naturally
o A grantors future interest following an estate that ends naturally (life estate, fee
tail, and term of years)
o Hypo 1: O to A for life.
A has a possessory interest in life estate
O has a future interest because he did not convey everything he owns,
so O has a reversion
o Reversions are freely alienable, descendible and devisable
(2) Possibility of Reverter Follows a Fee Simple Determinable
o Always follows a Fee Simple Determinable

o When the grantee triggers the event that will automatically terminate the
conveyance, then O gets the interest back.
o Hypo 1: O to A and her heirs so long as the land is used for a library
A has a possessory estate in FSD (so long as)
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O did not originally convey all of his interests, therefore he retains a

future interest that is triggered as soon as the land is not used for a
library
Should A not use the land for a library, O gets it.
(3) Right of Entry Follows a Fee Simple Subject to Condition Subsequent

o Always follows a Fee Simple Subject to Condition Subsequent
o Remember, in a FSSCS, the limiting event is placed within the description of Os
estate, NOT As. So O CAN interrupt, if it they chose to
o O must take some sort of action to get it back, does NOT automatically revert
o Hypo 1: O to A and her heirs, however, if the land is not used for a library,
then to O.
A has a possessory interest in FSSCS (however)
If A does not use the land for a library, O has the right of entry to
interrupt As estate and reclaim the land.
Possessory Estate
Grantors Future Interest
Fee Simple Absolute- -NONE

Fee Tail- -Reversion
Life Estate- -Reversion
Term of Years- -Reversion
Fee Simple Determinable- -Possibility of Reverter
(until, while, so long as, during)
Fee Simple Subject to Cond. -Right of Entry
Sub.(on condition that, but if,
however, provided that)
In a Third Party:
(4) Remainder Waits patiently for the prior estate to end naturally
o When a grantor conveys an inherently limited estate (fee tail, life estate, term of
years) and ALSO conveys the future interest that follows it!
o Any future interest that only can come into present possession
immediately upon the natural termination of the prior interest
o Hypo 1: O to A for life, then to B.
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Now, does the future interest go to grantor or third person?
Third person, B
We know that a life estate ends naturally, so when A dies, B has the
remainder interest in fee simple absolute
o FOUR TYPES OF REMAINDERS:

o (1) Vested Remainder
certain to become
possessory
o (2) Vested Remainder Subject to Open
certain to become
possessory
o (3) Vested Remainder Subject to Divestment
certain to become
possessory
o (4) Contingent Remainder
NOT certain to become
possessory
o (1) Vested Remainder- certain to become possessory
Certain to become possessory! Just waits patiently until prior estate ends
Two requirements:
Must be given to an ascertained (born & identified) person
Words creating the remainder do NOT include a condition
precedent
Hypo 1: O to A for life, then to B.
A has a possessory interest for the duration of her life.
B has a vested remainder because B is an ascertained person and
there are no conditions that need to be met before B gets it. B will
automatically gain possession once As life estate ends naturally.
Hypo 2: O conveys to A for life, then to the heirs of B. Assume B is

alive.
This is NOT a vested remainder. The heirs are not ascertainable until
B dies.
o (2) Vested Remainder Subject to Open

When the remainder is created in a class of future interest holders whose
members may increase in number before the future interest comes
into present possession
At least ONE member must already be ascertained
Hypo 1: O to A for life, then to Bs children and their heirs. B has 1 kid.
Since B has one child who is already ascertained, then it can be said
that B1 (Bs child) has a vested remainder subject to open. This
is because B could have more children which would make B1s slice
of the pie smaller.
o (3) Vested Remainder Subject to Divestment condition subsequent!
When the grant contains a condition subsequent that may totally
divest B of the remainder interest
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Hypo 1: O to A for life, then to B and his heirs, but if B fails to turn
21, then to C and his heirs. B is 18 years old.
o then to B and his heirs creates a remainder. But what kind?
o B will DEFINITELY get the possession when A dies. So the
remainder is vested.
o But there is a condition subsequent that may allow Bs
remainder interest to be divested by C.
o So B has a vested remainder subject to divestment
MUST remember to identify the state of the future interests title once it
becomes possessory (i.e. remainder in FSA, FSSCS, FSSEL, etc.)
Hypo 2: O conveys to B for life, then to D, but if D does not
survive B, then to E.
o B has a life estate
o D has a vested remainder subject to divestment
But what kind of VRSTD?
then to indicates an executory limitation
o D has a vest remainder subject to divestment in fee simple
subject to executory limitation
o E has an executory interest
o (4) Contingent Remainder condition precedent!

NOT certain to become possessory! This is because
1) the person is unborn or unascertained (i.e. an heir)
o Hypo 1: O to A for life, then to Bs children and their heirs.
B has no children.
Bs children have a contingent remainder in FSA
because they have to be born first!
2) there is a condition precedent
o Condition precedent: a condition that is set out in the
description of a particular estate and must be met BEFORE
the remainder could possibly become possessory!
o Hypo 1: O to A for life, then, if B is living at As death, to B
in fee simple.
B has a remainder (because he is a third party)
But what kind of remainder?
There is a condition that must be met BEFORE Bs
interest can become possessory (B must be alive at As
death)
Which means it is a condition precedent
So B has a contingent remainder in FSA
o Hypo 2: O to A for life, then to B if B has reached 21.
B has a remainder what kind?
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It is not CERTAIN to happen, because B could not be 21

at the time of As death.
Therefore, there is a condition that must be met
BEFORE B can gain possessory interest, he must be 21
at the time of As death. That makes Bs interest a
contingent remainder in FSA.
(5) Executory Interest Cuts short another estate

A future interest in a grantee (not the grantor) that must divest or cut short another
estate to become possessory
o NO limitations: freely alienable, devisable and descendable
o Magic Words: then to another person other than the grantor
o Hypo 1: O to A and her heirs; however if B marries, then to B.
o A has a possessory estate in fee simple subject to executory limitation
o B has an executory interest because when B gets married, his interest will
divest As interest
o Two types of Executory Interests:
o (1) Shifting Executory Interest
o (2) Springing Executory Interest
o (1) Shifting Executory Interest divests the grantee
FOLLOWS the estate in a grantee
If the prior interest can be extinguished prior to its natural
termination, then its a shifting executory interest NOT a
remainder
Hypo 1: O to A, provided that if A ever allows the timber to be cut,
then to B.
A has a possessory estate in fee simple subject to executory
limitation (because future interest is in a third party, not O)
B has a shifting executory interest in FSA, because Bs future
interest can cut short As interest
o (2) Springing Executory Interest divests the grantors interest
DIVESTS an estate in the grantor
Hypo 1: O to A when she turns 21.
o O still has the possessory estate
o O has a possessory estate in fee simple subject to
executory limitation
o A has a springing executory interest, because her
interest would DIVEST the original grantors interest
Sometimes, a grantor conveys a possessory estate in such a way that
there is a GAP created between the interests
Hypo 2: O to A for life, then to B five years after As death.
o A has a possessory estate in life estate
o Who gets possession when A dies? NOT B!
o So O retains a reversion in fee simple subject to executory
limitation (because a third party still has a future interest)
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o A has a springing executory interest, because her

possessory interest in 5 years will divest the grantors
interest
RULES FURTHERING MARKETABILITY

Rule Against Perpetuities
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
Analysis Approach:
o Step 1: Identify the Interest
RAP applies ONLY to future interests in a 3rd party!
(1) Contingent Remainders
(2) Executory Interests
(3) Vested Remainders Subject Open
o Step 2: What event triggers the vesting of that contingent future
interest?
o Step 3: Must that triggering event occur within the perpetuities period
(21 years), if it is to occur at all?
Is there a measuring life which will provide a guaranty that the future
interest will either vest or not vest within that persons life + 21
years?
o Step 4: If the triggering event can occur outside of the perpetuities period,
strike the future interest
Strike that future interest and restate the title AFTER striking it
Hypo 1: O to Johnson and his heirs so long as the land is used for agricultural
purposes, and if not so used, then to Wilson and his heirs.
o 1-Is the future interest a CR, EI, or VRSO?
Yes, executory interest
o 2-What event triggers the vesting of Ws remainder?
When the land stops being used for agricultural purposes
o 3-Must J stop using the land for agr. purposes within 21 yrs, or at all?
Is there a measuring life (someone mentioned in the grant) which
provide a guaranty that the future interest will vest or not within that
persons life + 21 years?
NO. This conveyance is invalid! It violates the RAP.
o 4-Strike the future interest and restate the title
Johnson has a possessory estate in fee simple determinable
O has a possibility of reverter in fee simple absolute
Alternate Approach to Analyzing RAP:
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Ask whether there is ANY possibility that the future interest could vest outside
the 21 years
If you can identify a scenario where the interest could vest after 21 years of a life
in being, then RAP has been violated!
To do this, Create, Kill and Count
o (1) Create someone in whom the interest could vest
By creating this person after the conveyance, he cannot qualify as a
life in being for purposes for the perpetuities time period
o (2) Kill everyone who was alive at the time the interest was created
By killing everybody who was alive at the time the interest was
created, we take care of all the possible lives in being so we do not
have to worry about identifying the right measuring life
o (3) Count 21 years
If it is possible (no matter how outlandish) that the future interest
could vest, but only after the 21 year period, then RAP has been
violated
o Hypo 1: O to A for life, then to As first child to reach age 25. A has 2
children, B (age 23) and C (age 20).
State the title: A has a life estate. As first child to reach 25 has a
contingent remainder. O has a reversion.
Which is subject to RAP?: As first child to reach 25s cont. remainder
Create: X, new child of A
Kill: Kill everyone else, O, A, B and C
Count: Count 21 years. Is it possible that Xs future interest will
vest, but only after the 21 year period?
o Yes, X could reach 25 AFTER the 21 year period, so this
conveyance violates the RAP!!!!
Strike and restate title: A has a life estate in FSA. O has a reversion.
o Hypo 2: O to A and his heirs so long as alcohol is not sold on the land, then
to B and his heirs.
Title: A has a fee simple subject to an executory limitation. B has a
shifting executory interest
What is subject to RAP?: B getting the land when alcohol is sold on
land
Create: X, an heir of A; and Y, and heir for B
Kill: Kill A, O and B
Count: Is it possible that Ys interest could vest after 21 years?
o Yes, A could die and As heirs could sell alcohol after 21
years, so this violates the RAP!!!
Strike and restate title: A has a possessory interest in FSD. O has
possibility of reverter.
o Hypo 3: O to A for life, then to B and her heirs if B reaches age 25.
Title: A has a life estate. B has a contingent remainder
What is subject to RAP? B reaching 25.
29
Create: we CANNOT create a new life because the condition is

attached to Bs life. Meaning Bs interest can only vest when B
turns 25.
o Therefore, this does NOT violate the RAP!
RULE: If the condition upon which the vesting of the future interest is predicated is
expressly tied to a named and living person, then the interest will not violate RAP
Things to watch out for when analyzing whether RAP applies:

o 1. The condition is not personal to someone
Void: Olivia conveys to Alex for life, then to Brad, but if the land is
ever used for a tavern, then to Charlie.
Valid: Olivia conveys to Alex for life, then to Brad, but if Brad uses
the land for a tavern, then to Charlie.
o 2. The stated time period is more than 21 years

Void: Olivia conveys to Alex for life, then to Alexs children who
reach 30 years of age. Alex has 1 child named Brad who is 29.
Valid: Olivia conveys to Alex for life, then to Alexs children who
reach 18 years of age.
o 3. The interest is given to a generation after the next

(grandchildren)
Void: Olivia conveys to Alex for life, then to Alexs grandchildren.
Alex has 1 child named Brad and 1 grandchild named Charlie.
Valid: Olivia conveys to Alex for life, then to Alexs children.
o 4. Conveyance requires the holder to survive someone who is

merely described but not named
Void: Olivia conveys to Alex for life, then to Alexs widow for life,
then to Alexs children then living.
Valid: Olivia conveys to Alex for life, then to Bonnie for life, then to
Alexs children then living.
o 5. An identified event would normally happen within 21 years - but

it is possible it may not
Void: Olivia conveys to Alex for life, then to Brad for 20 years, then
to the person who has received Alexs land in the distribution of Alexs
estate.
Valid: Olivia conveys to Alex for life, then to Brad for 20 years, then
to the person Alex has named in his will to receive Alexs residence.
30
o 6. The holder will not be identified until the death of someone merely
described but not named
Void: Olivia conveys to Alex for life, then to Alexs first child for life,
then to whoever is the President of the United States. Alex has no
children.
Valid: Olivia conveys to Alex for life, then to Brad (who is Alexs first
child) for life, then to whoever is the President of the United States.
BASICALLY:
o A future interest is VOID if:
1. It is in a 3rd party grantee, and
2. It is a contingent remainder, an executory interest, or a vested
remainder subject to open, and
3. It might still exist and still be contingent or open longer than 21
years after the death of the last person alive at the time of the
conveyance
o An interest is VALID if:
We know for sure that it will do one of the following within the
perpetuity period (within 21 years after the death of everyone alive at
the time of the conveyance):
Vest and close, or
Fail
Concurrent Ownership & Marital Property

Concurrent Ownership
property co-owned by multiple persons, each of whom holds an undivided, fractional interest
each co-owner or cotenant has the right to use and possess the entire property
1) Modern Concurrent Estates

o Three basic types
1. Tenancy in Common
2. Joint Tenancy
3. Tenancy by the Entirety
o Tenancy in Common: Unity of Possession ONLY
O conveys to A and B as tenants in common
Each tenant in has an undivided, fractional interest in the property
Each may transfer his interest in another person
Freely alienable, devisable and descendible
31
Each has right to use and possess the whole parcel even if his fractional interest is
smaller than the interests of the others
i.e. O to A, B and C.
o B conveys her interest in A
o A now has 2/3, C has 1/3
o C has as much right to use the land as A
Modern trend: presumes that a grant to multiple transferees creates a tenancy in
common unless the instrument indicates otherwise
FAVORS MARKETABILITY
Words of Conveyance: and
to Martin and Ryan
to Martin, a undivided interest in my home
to Martin, Ryan, and Greg as tenants in common
o each own an undivided 1/3 interest, unless otherwise state, law presumes
equal shares
o If Martin dies, his devisee or heir would step in and own Martins 1/3
interest
o Joint Tenancy: 4 Unities- time, title, possession, interest
O to A and B as joint tenants with right of survivorship
Both have undivided right to use and possess the whole prop.
BUT each joint tenant also has a right of survivorship
When A dies, As interest in the estate is removed, and B automatically becomes
the SOLE OWNER
This makes the estate unable to be devisable or descendible
Common Law: Joint Tenancy is created only when 4 unities are present
Time: all JT must acquire tenancy at the same time
o If A and B obtain interest on different days, the unity of time is absent
Title: Must acquire title by the same instrument
o If A and B receive their interests by different deeds, unity of title is missing
Interest: Must have the same shares in the estate, equal in size and duration
o If A receives an undivided 2/3 interest, and B an undivided 1/3 interest,
theres no unity of interest
Possession: Must have an equal right to possess, use and enjoy the whole
property
IF ANY OF THE UNITIES ARE MISSING, A TENANCY IN COMMON IS CREATED
Hypo 1: O attempts to create a joint tenancy in A, B and C by conveying interest
to A one day, and the next day conveying a 3/8 interest to B and a 1/8 interest to C.
The unities of time, title and interest are missing. Therefore, the conveyance of a
joint tenancy has failed and A, B and C are tenants in common
Transferring Interest
32
If one joint tenant transfers her interest, the JT is severed

o Transfer BREAKS the unities of time and title, the right of survivorship is
destroyed
o The grantee becomes a tenant in common with the other concurrent
owners!
o Hypo 1: A, B and C are joint tenants. A sells her interest to D. D has an
undivided 1/3 interest as a tenant in common with B and C. B and C,
within themselves, remain joint tenants with a right of survivorship. If D
now dies, his tenancy in common interest will go to his devisees or heirs;
but if B dies, her interest in the joint tenancy is removed, and C now has
an undivided 2/3 interest!
* You do not need the permission of your joint tenant to transfer your interest *
o Tenancy by the entirety: 5 unities-time, possession, title, interest, marriage
O conveys to A and B, husband and wife, as tenants by the entirety
ONLY MARRIED COUPLES CAN HOLD PROPERTY BY TENANCY BY THE
ENTIRETY
Each tenant has an undivided right to use and possess the whole property
Each tenant has a right of survivorship
CANNOT BE SEVERED UNILATERALLY
*Can only be ended by death, divorce or agreement of both spouses (protects
expectations)
CL: viewed husband and wife as a unity; one flesh
So no individual parts to the cotenancy could be owned separately by either
spouse
o Thus, no spouse can transfer or encumber his interest
James v Taylor
Court of Appeals of Ark 1998 (p. 378)
Parties
Facts
-: Euras grandchildren
-: Euras last surviving child
-Eura Mae Redmon conveyed her three children jointly and
severally, and unto their heirs, assigns and successors forever
with the grantor retaining a life estate
- 2 of the children died
- the remaining child filed a complaint asserting that her mother
intended to convey the property to the grantees as joint
tenants, so that if one dies, the remaining children get the
33
property
-This would make appellee sole owner by virtue of her brothers
deaths
-the s opposed the complaint stating that the language
conveyed a tenancy in common among the grantees, which
would leave 2/3 of the property to them
-s state that the language is ambiguous and absent
expressed intent to convey a joint tenancy, a tenancy in
common is presumed
History
Issue
Rule of Law
Holding
Judgment
Reasoning
Does the deed conveying property to the grantors children

jointly and severally create a joint tenancy or a tenancy in
common?
Under Arkansas law, a deed to two or more persons
presumptively creates a tenancy in common unless the
deed expressly creates a joint tenancy
jointly and severely creates a tenancy in common, since that
is presumed unless otherwise specifically stated
jointly and severely is ambiguousit is tort language, no
meaning in property law. Looking at the four corners of the
deed, nothing appears to indicated that her intent was to
convey a survivorship interest. Evidence of the grantors
intent will not prevail over the statue.
COMMON LAW: favored joint tenancy b/c right of survivorship helped eliminate fractional interests
MODERN: law presumes tenancy in common, absent express language to the contrary
COMMON LAW: If wording is unclear, court may ignore evidence of the grantors actual intent and
focuses on the actual language
MODERN TREND: focuses more on the grantors intent and less on formulaic language
2) Severance
A joint tenant can end the tenancy simply by conveying her interest to a third party
o Ex. if A and B are joint tenants, and A conveys her interest to C, the joint tenancy is
severed; B and C are now tenants in common
Do leases or mortgages severe the joint tenancy??
34
Tenhet v Boswell
Supreme Court of California
Parties
Facts
History
Issue
Rule of Law
Holding
: Hazel Tenhet
: Boswell
-Raymond Johnson and owned a parcel of property as
joint tenants
-W/o s knowledge or consent, RJ leased the property to
for 10 years
-RJ died shortly after the execution of the lease
- is seeking to establish her SOLE right to possession of
the property as the surviving joint tenant
-Dismissed, appeals
(1)Whether the partial alienation (lease) of RJs interest in
the property effected a severance of the joint tenancy?
(2) Whether takes the property unencumbered by the
lease?
A lease is not so inherently inconsistent with joint
tenancy as to create a severance, either temporary or
permanent.
A joint tenant may, during his lifetime, grant certain
rights in the joint property without severing the
tenancy. But when such a joint tenant dies, his
interest dies with him.
(1) The lease here did not operate to severe the joint
tenancy, and sole ownership of the property is therefore
vested in upon her joint tenants death by operation of
her right of survivorship
(2) The lease of the joint tenancy property expires when
the lessor dies
Judgment
Reasoning
Recall that if an essential unity is destroyed, the joint

tenancy is severed and a tenancy in common results! One
of the two join tenants may unilaterally terminate the joint
tenancy by conveying his interest to a third person,
destroying the right of survivorship. RJ really conveyed a
35
life estate pur autre via rather than a term of years.

A least is a temporary severance
So what can sever a joint tenancy? ~must act in a manner that clearly expresses an intent
to sever
o Conveyances: JT is severed when one JT conveys his interest to a third party
o Leases: In most jurisdictions, a lease entered into by one JT does NOT sever the lease
and the other JT is NOT bound by the lease
3) Partition
Conflicts often arise between cotenants

o i.e. A and B are cotenants in a farm, and disagree about how the farm should be
managed
if their dispute cannot be resolved, they may agree to sell the farm and share the
proceeds. Or A might purchase Bs interest
But what if A and B cannot agree on how to end the cotenancy?
Any tenant in common or joint tenant has the right to sue for partition of the property OR
voluntarily agree to partition
Partition judgment ENDS the cotenancy and distributes the assets
Ark Land Co. v Harper

Supreme Court of Appeals of West Virginia
Parties
Facts
: Ark Land
: Harper (Caudills)
-s owned land for nearly 100 years
-Prior to 2001, the land was owned exclusively by Caudills
-in 2001, purchased some property interests from
several Caudill family members, now having a 67.5%
undivided interest
- wanted to purchase the rest of the land so that they
could extract coal from the land
-s did not want to sell, so filed a complaint seeking to
History
Issue
Rule of Law
36
have the land partitioned and sold

-TC ordered the land to be partitioned and sold, s appeal
Whether the evidence supported the circuit courts
conclusion that the property could not be conveniently
partitioned in kind, thus warranting a partition by sale?
Partition means the division of the land held in
cotenancy into the cotenants respective fractional
shares. If the land cannot be fairly divided, then the
entire estate may be sold and the proceeds
appropriately divided.
In a partition proceeding in which a party opposes the
sale of the property, the economic value of the
property is not the exclusive test for deciding whether
to partition in kind or by sale. Evidence of
longstanding ownership, coupled with sentimental or
emotional interests in the property may also be
considered---EVEN IF IT MAY SHOW SOME
ECONOMIC INCONVENIENCE TO THE PARTY
SEEKING A SALE!
Holding
Judgment
Reasoning
Reversed and remanded with directions to enter an order

requiring the property to be partitioned in kind
We do NOT support the conclusion that the economic
value of the property is the exclusive test for determining
whether to partition-in-kind or to partition-by-sale. There
are many other considerations, other than monetary, that
attach to the ownership of land and courts should always
be slow to take away from owners of real estate their
common-law right to have the same set aside to them in
kind. It is the interest of all of the tenants in common
that the court must consider, not merely the
economic gain of one tenant.
o Two types:
Partition in kind: physically divide the land up based on their shares
preferred method
Policies favoring partition-in-kind:
o
Partition in sale: sell the land and divide the proceeds up by their respective shares
37
can be a harsh result for the cotenant(s) who oppose the sale
these statutes should be used narrowly and sparingly because they interfere with
property rights
o Common Law PREFERRED partition-in-kind
o Modern trend: partition-by-sale
*start on page 392-415*
Cotenants and Liability for Rent

o Each cotenant has the right to use and occupy the entire property
General Rule: Cotenant not in possession MUST pay rent
Cotenants Liability for Expenses

o General Rule: each cotenant is responsible for paying his pro-rata share of operating
expenses such as mortgage payments, taxes and insurance
occupancy is irrelevant
Quiz:
C
B; Katniss conveyance severs the JT
C; if missing a unity, makes it a tenancy in common; doesnt destroy it
A; jointly and severally is ambiguous, so makes it a TIC
C;
D; bank can get to them because it is BOTH of their debts
Ten years ago, Harry, Eve, Ronald, and Lela became owners of Greenacre as joint tenants.
Greenacre consisted of a four-bedroom house on a two acre lot on a hill overlooking the ocean.
Harry and Eve were a married couple, as were Ronald and Lela. Harry and Eve gained their
interests in Greenacre with the idea that it would be their retirement residence. They worked
and lived in a neighboring state and have not visited Greenacre these past ten years. Ronald
and Lela immediately took up exclusive possession of Greenacre and have remained there ever
since. Five years ago, Harry conveyed all his interest in Greenacre to his mistress, Matilda. Early
last year, Eve died in a car accident and Lela mortgaged her interest to her brother, John. This
jurisdiction has a five year statutory period for adverse possession of land and follows the lien
theory of mortgages. Who owns Greenacre?
A
B
RonaldandLelaasjointtenants.
MatildawithanundividedinterestasatenantincommonwithRonaldandLela;andRonaldandLelawithan
undividedinterestastenantsincommonwithMatildaandasjointtenantswiththemselves.
Correct.Harry'sintervivosconveyancetoMatildaseveredhisinterestinthejointtenancy.Matildabecameatenant
incommon(ofHarry'sinterest)withtheotherconcurrenttenantsbecausetheunitiesoftimeandtitlewere
destroyed.Eve,Ronald,andLela'sjointtenancywitheachothercontinuedsincetheirunitieswerenotdisturbed.
WhenEvedied,herparticipatoryinterestinthejointtenancywithRonaldandEvewasremoved;RonaldandEve
38
Ten years ago, Harry, Eve, Ronald, and Lela became owners of Greenacre as joint tenants.
Greenacre consisted of a four-bedroom house on a two acre lot on a hill overlooking the ocean.
Harry and Eve were a married couple, as were Ronald and Lela. Harry and Eve gained their
interests in Greenacre with the idea that it would be their retirement residence. They worked
and lived in a neighboring state and have not visited Greenacre these past ten years. Ronald
and Lela immediately took up exclusive possession of Greenacre and have remained there ever
since. Five years ago, Harry conveyed all his interest in Greenacre to his mistress, Matilda. Early
last year, Eve died in a car accident and Lela mortgaged her interest to her brother, John. This
jurisdiction has a five year statutory period for adverse possession of land and follows the lien
theory of mortgages. Who owns Greenacre?
nowholdajointtenancywitheachother.Therefore,Matildahasanundividedinterestasatenantincommon
withRonaldandLela;andRonaldandLelahaveanundividedtenancyincommonwithMatildaandanundivided
ajointtenancywiththemselves.
C
Matilda,Ronald,andJohnastenantsincommon,eachwithanundivided1/3interest.
Matildawithanundivided1/3interestasatenantincommonwithRonaldandLela;andRonaldandLelawithan
undivided2/3interestastenantsincommonwithMatildaandasjointtenantswiththemselves.
Landlord/Tenant Law
A) Creating the Tenancy
39
Selecting the Tenant

General Rule: Landlords have a strong right to exclude and may refuse to rent to a
person based on a good faith reason, a frivolous reason, or no reason at all
Limitations: discrimination!
o Federal Statutes
o State Statutes
o Retaliatory eviction
Fair Housing Act of 1968
It is unlawful to discriminate in the sale, rental, or financing of housing on the basis
of one of the following protected classes:
Race
Color
National Origin
Religion
Sex
Disability (handicap)
Familial Status
Blindness & Ancestry (WV law)
****APPLIES ONLY TO DWELLINGS!***
Cannot refuse to sell

Cannot discriminate in the terms and conditions of the sale or rental
Cannot make, publish or advertise any preference or limitations
Cannot refuse to make modifications to accommodate a handicap tenant
EXEMPTIONS ~ FHA does NOT apply to

o Single Family Homes
Owner must own less than 3 single-family houses
Owner must not use a real estate broker or agent in the sale
Owner cannot violate the advertising rules
o Religious organizations
o Dorms, Frats, Sororities
o Senior Housing
o Rooming Houses
Neithamer v Brenneman ~ HIV Positive Tenant Case

o FHA does not protect against sexual orientation however, in this
case, was HIV positive which was treated as a handicap
Civil Rights Act of 1866: Difference between this and the FHA is that CRA
covers only racial discrimination and is NOT LIMITED to just dwellings!
You can potentially violate these separately or at the same time
How do you PROVE discrimination?

o Direct Evidence
o Indirect Evidence ~ the Burden Shifting Analysis
Step 1: Plaintiff must prove a prima facie case:
(1) is a member of a protected class and knew it
(2) applied for AND was qualified to rent
(3) rejected s application
(4) Unit remained unavailable
Step 2: Burden shifts to to provide a legitimate non-discriminatory
reason for his conduct
Step 3: If meets this burden, must then show that the reason is a
mere pretext
Selecting the Estate
Term of Years L to T for the period of Jan. 1, 2014 to Dec. 31,
2014
Fixed duration that is agreed upon in advance

DOES NOT HAVE TO BE FOR YEARS, could be for months
Once term ends, right of possession automatically terminates
Common in residential & commercial leases
Periodic Tenancy L to T from month-to-month, beginning on Jan. 1,
2014
Automatically renewed for successive periods until the landlord or tenant

terminates by giving advance notice
State statute usually governs how much notice must be given
Can be year-to-year, month-to-month, week-to-week
Sometimes in residential leases, rarely in commercial
Uniform Residential Landlord & Tenant Act:
A residential lease is presumed to be month-to-month unless another term
is specified
Example: $12,000 per year, payable $1,000 each month
per year indicates no fixed end
but is it yearly or monthly?
Majority would say year-to-year with $1,000 each month as the
method of payment
Tenancy at Will Usually when there is no written lease at all

NO FIXED END!
Tenancy continues until 1 party provides notice of termination to the other party
notice requirement governed by state statutes
Automatically terminates if:
1) Tenant OR landlord die
2) Tenant abandons the premises
3) Either party breaches the lease
4) Landlord sells the property
Tenancy at Sufferance Label given to a wrongful occupancy
Created when a tenant who rightfully took possession of the premises

continues beyond the term of his lease
o Squatters can NEVER have tenancy at sufferance, because they never
rightfully had possession
State statutes govern how the estate is terminated and whether rent may be
increased
Holdover tenant: one who remains on the premises beyond the term of his lease
o Common Law: Landlord can do 1 of two things:
(1) Treat holdover tenant as a trespasser and evict him; or
(2) Renew Ts tenancy for another term
o Modern Trend: Most have abolished (2) in order to avoid unfairness to
tenant
Lease/License
License: A personal privilege to use the land of another for some specific
purpose
Minimal rights
Lease: Transfers the exclusive right of possession to the tenant
Extensive rights
Delivering Possession
o English (Majority) Rule:

o When the lease is silent on the point, the landlord deliver actual
possession of the premises at the beginning of the term
o If the lessee cannot take possession because of a holdover tenant, the
landlord is in breach of his obligation.
o Remedies: Tenant may
(1) terminate the lease and sue landlord for damages
(2) affirm the lease, pay no rent until the premises are vacated, sue
LL
Policy reasons:
landlord should know status of possession, can evict
landlord should know whether prior possessor is there properly or
improperly
tenant receives less than he bargained for if he must go forward with the
lease and bear the costs of legal proceedings to get them
Keydata Corp. v United States ~ had not vacated the premises by specified
date, s sent letter terminated the lease due to failure to surrender property
o American (Minority) Rule:

o Landlord is not obligated to secure his tenant in possession when the
premises are occupied by a third party at the commencement of the lease
term.
o Remedies: Tenant may sue the holdover tenant in an eviction action to
recover possession and damagesNO CLAIM against landlord!
Policy reasons:
T has sufficient legal and equitable remedies
LL should not be held accountable for the wrongful act of a third party
English rule might prevent LL from leasing the premises until the prior
tenant has moved out; this would lead to increased rent to all tenants to
account fo the lost rent for the downtime between tenants
o Hypo 1: LL and T enter into a lease for a parcel of vacant land. T pays the
security deposit and first months rent when the lease is signed. T then discovers
the land is landlocked and T has NO access to the land. Which of the following
statements is true in a jurisdiction that follows the English Rule? T can
successfully sue LL for the return of the security deposit and first months rent
because under the English Rule, LL is required to deliver actual possession.
B) Condition of the Premises
Historical Approach: Caveat Emptor ~ Let the buyer beware

o
o
o
o
Leases = conveyances of an interest in land

Common law remedies = limited
Landlord generally had no duty to repair
Doctrine of Waste: Tenant had a duty to maintain the premises
Independent Lease Covenants: Lease clauses were treated as independent

covenants
o Meaning that a breach of an independent covenant does not relieve the
tenant of the duty to pay rent
Quiet Enjoyment A promise that the tenants possession will not be

disrupted
Common Law: Implied Covenant of Quiet Enjoyment

o Can also be an express clause in the lease
o LL (or someone with paramount title) cannot wrongfully interfere with the Ts
possession
o Hypo 1: Grantor conveys the premises to L for life, then to A and his heirs.
Landlord has a life estate, A has a vested remainder in FSA. L leases the
premises to T for 5 years. Two years later, L dies. A has a right of possession
(L could not convey/lease more than he has, so T can no longer lease
property w/o As consent). A evicts T. Is the Landlords estate liable to T for
breach of the covenant of quiet enjoyment?
Yes! T was evicted by A, who has a paramount title to T.
o Covenant is breached when:

o (1) Actual Eviction
o (2) Constructive Eviction
o Actual Eviction: when LL or holdover tenant excludes the tenant from the entire
leased premises. Actual eviction terminates the tenants obligation to pay rent
o Constructive Eviction: A tenants remedy against the landlord!

o Usually raised as a defense to a LLs suit for damages/rent
o Elements Tenant must prove:
(1) Wrongful conduct (an act or omission)
(2) By the landlord or landlords agent
(3) That substantially or materially interferes with the tenants use
and enjoyment of the premises
(4) Tenant then abandons the premises within a reasonable time
(1) When is an omission wrongful?
LL fails to perform an obligation in the lease

LL fails to make required repairs
LL fails to adequately maintain and control the common area
LL breaches a statutory duty owed to T
LL allows nuisance-like acts to continue without any action by LL
(2) What about when third parties interfere with the enjoyment?
o General Rule: A tenant cannot base an action for a breach of the
covenant of quiet enjoyment on the actions of third parties
o Exception: Landlord may be held responsible if the Ls inaction

permits or fails to stop the third partys action, or if LL has a legal
obligation to control the third party (i.e. stated in the lease)
Fidelity Mutual Life Ins. v Kaminsky ~ The Anti-Abortion
Protestors Case ~ Lease required LL to provide security on
Saturdays, LL didnt do it. LL instructed agents to provide
trespassing notices to protestors, agent did not do so. Tenant
doctor vacated premises with 6 months left in lease. LL sued to
recover the remaining rent.
(3) What constitutes substantial/material interference?

o No clear bright line rule
o Minor interfere is NOT enough, however
o It is not necessary for the conduct to completely prevent tenant
from occupying the premises
Reasonable Person Standard: would a reasonable person
consider the interference as so serious that the premises could
no longer be used in the normal manner for its intended
purpose?
(4) What is a reasonable time?

o No bright line rule juries usually consider facts & circumstances
o JMP Properties v Paolucci ~ Jewelry Store next to Stereo Store Case
~ Jewelry store complained of excessive noise from stereo store next
door. Never left, remained on premises for 4 years after made
complain. Stereo store left, then Jewelry store left. LL sued Jewelry
store and they raised the defense of constructive eviction.
Rule: If a tenant fails to vacate within a reasonable time after
the substantial interference/untenantable condition begins, the
tenant is considered to have waived the constructive eviction
claim
o
o
o
o
o
Implied Warranty of Habitability Aimed at protecting tenants from

defects
Rule: Landlord is obligated to maintain the premises in a habitable condition fit

for human occupation
Does NOT required the landlord to ensure that leased premises are perfect
Requires that the bare living requirements must be maintained

Recognized in almost all states
Usually a defense to an eviction for failure to pay rent
Majority Rule: Applies only to residential leases
What is habitability?
Some states apply a general standard: LL must maintain the premises in a clean,
safe, and fit condition suitable for human habitation
Others look to substantial compliance with local/housing codes

o This provides clear guidelines, easy to administer, put on notice of req.
o HOWEVER, not as comprehensive, may allow substandard conditions to
persist
Majority approach/Modern trend: REQUIRES BOTH!

o (1) Substantial compliance with local building and housing codes
o (2) General standard of habitability
Code compliance is NOT dispositive!!!

It is possible for a LL to be in compliance with codes and STILL breach
the IWH
And even if there is no code violation, a breach may occur if the defect
in the property has an impact on the health or safety of a tenant
Key Points:
o IWH is implied in every residential lease
Does not have to be expressly stated
o IWH CANNOT BE WAIVED BY THE TENANT!!
If a lease contains a provision stating that the tenant waives the IWH,
the provision is void against public policy
Revisiting Pre-IWH Common Law Obligations: (Historical Approach

above)
Unless it was expressly stated in the lease, LLs had NO obligation to make repairs
Doctrine of Waste required the tenant to maintain the premises/make repairs
Even if the least included express covenants requiring the LL to make repairs,
lease clauses were treated as separate from rent obligation
o So if LL failed to make repairs, Tenant NOT relieved of duty to pay rent
The IWH has been breached when:

(1) the LLs failure to act or failure to remedy a problem substantially interferes
with Ts use and enjoyment of the premises; and
(2) the condition is a substantial threat to the health or safety of the occupants
OR the premises cannot be used for its normal purpose as a residence
To invoke the Implied Warranty of Habitability

Tenant must notify Landlord of the defects
Tenant must allow Landlord a reasonable time to cure
Tenant is NOT required to vacate the premises
<-- Different from a breach
o Instead, the remedies available are:
of the Covenant of
Quiet
(1) Terminate the lease
Enjoyment where T MUST
(2) Withhold rent
vacate the premises within
(3) Sue for damages
a reasonable time period
(4) Repair and deduct
(5) Injunction or specific performance
Wade v Jobe ~ Basement Sewage Case ~ Jobe was mother of 3 kids, faulty
plumbing led sewage and water buildup in basement, foul odors & no hot water.
o Rule: Tenants obligation to pay rent is conditioned upon Landlord fulfilling
his part of the bargain
o Payment of rent by T and Landlords duty to provide habitable premises are
dependent covenants
Damages:
o Special available when, as a foreseeable result of LLs breach of IWH, T
suffers personal injury, property damage, relocation expenses, or other
injury
o General recovery in the form of:
rent abatement or reimbursement to T
calculation of fair market value as warranted vs. fair market value of
unit in present condition
percentage diminution
C) Transferring the Tenants Interest
Tenants Rights: Absent an express restriction in the lease, a tenant may

FREELY transfer his leasehold interest, in whole (assignment) or in part
(sublease)
o Covenants prohibiting transfers are considered to be restraints on alienation
(which are highly disfavored by the courts)
o Covenants prohibiting transfers are strictly construed
o If covenant is against assignment, subleases are allowed
o If covenant is against subleases, assignments are allowed
Assignment: A triangular relationship
Occurs whenever a tenant transfers the right of possession to all the premises for
the full time remaining on the terms of the lease
Sublease: Two separate LL/T relationships
Occurs whenever a tenant transfers the right of possession to all or a portion of

the premises for a time that is less than the full time remaining on the term of
the lease
Privity
General Rule: Remember every lease has a dual character!

It is both a conveyance (privity of estate)
and a contract (privity of contract)
Privity of Estate: Real Covenants

o Relationship between person who currently occupies and owner
o Each party has rights and duties under property law
o These rights & duties run with the land
o Rights & duties also called real covenants, which include most lease terms
Real Covenants:
Term of the lease
Conditions on the use of premises
Obligation of T to pay rent
Obligation of LL to make repairs, provide services
o Allows both parties to enforce all real covenants in lease under
prop law
Privity of Contract: Personal Covenants

o Rights & duties include all the ones set forth in the actual lease
o Each party has personal covenants under contract law
Personal Covenants:
Obligation to pay the other partys atty fees if litigation occurs
Payments for equipment or other personal property
o Allows both parties to enforce the personal covenants under
contract law
How to determine if it is an assignment or a sublease?

Traditional Rule/Majority Approach: Objective test
Modern Rule/Minority Approach: Subjective test
o Depends on the intent of the parties
o The layman appreciates the common sense distinction between a sublease
and an assignment . . .
Assignment
Assignor transfers ALL rights

and obligations to assignee
Assignor retains NO RIGHTS

to any portion of the premises
Assignee steps into the

assignors shoes and has a
direct relationship with the
landlord
Assignors liability is limited to

surety
Sublease
Sublessor transfers less

than entire interest in
property to sublessee
Sublessor retains either a

reversion or the right to
occupy some part of the
premises
Creates a subsidiary lease

agreement:
o Lease between LL and
sublessor remains intact
o New sublease
agreement between
sublessor and sublessee
Consent Requirement
o Most modern leaseholds expressly restrict the tenants right to transfer

o OR it may permit a transfer only if Landlord consents to the transfer
o If a lease requires the Landlords consent, the following governs Ls decision

o (1) Sole Discretion Clause: Lease might provide that L may refuse
consent for ANY reason whatsoever in his sole discretion
o (2) Reasonableness Clause: Lease might provide that L may refuse

consent only on a commercially reasonable basis.
i.e. If Z has bad credit
Kendall case Standard! ~ When silent, use reasonableness
o (3) Silent Consent Clause: Lease might require Ls consent, but contain
no standard to guide Ls decision.
If Silent:
Majority Rule: Sole Discretion standard applies
Minority Rule: Commercially reasonable standard applies
o ANALYSIS STEPS:
o Step 1: Does the lease address the tenants right to assign/sublease? Lease
will:
Say Tenant cannot assign/sublease
Say Tenant needs LLs consent first
Be silent in which case the default rule will apply (free to do
whichever)
o Step 2: If lease says LLs consent is required, what standard must LL use?
Sole discretion standard: LL can deny consent for whatever reason
Majority Approach
Reasonableness standard: LL may refuse consent only if
commercially reasonable
Silent standard: Consent required but clause is silent as to the
standard
Majority at this point says use Sole Discretion
Liability After Assignment or Sublease
o Assignment:
o Original tenant/assignor is no longer liable to LL under privity of estate
o Assignee is directly liable to LL under privity of estate
o Original tenant (assignor) will remain liable under privity of contract
Novation: When landlord releases the original tenant from liability
o Sublease
o Original tenant/sublessor is still liable to LL under POC AND POE
o Sublessee is liable to the Sublessor under POC and POE
o Sublessee and LL have NO privity whatsoever
o Sublessee NOT directly liable to LL ONLY liable to Original Tenant
D) Ending the Tenancy
Abandonment:
A tenant is consider to have abandoned this premises if he:
(1) vacates the premises
(2) without justification
(3) without intent to return; and
(4) defaults in the payment of rent
Common Law remedies:

o Enforce the lease and sue
Keep the premises vacant until the lease term expires, enforce the
lease in accordance with its terms, and sue T for all unpaid rent
o Terminate the lease
accept Ts surrender, which terminates Ts liability for rent
o Mitigate and sue
refused to accept Ts surrender of the lease, re-enter the premises, release the premises to a replacement tenant, then sue T for the
difference between the rent due under the lease and the amount
actually collected
Sommer v Kridel ~ Law Student Lease Case ~ T (law student)
never took possession and attempted to surrender premises &
terminate lease. LL kept apartment vacant, refused to show it to
anyone. LL waited until end of lease then sued T for accrued
rent. T won. Rule: Where a residential tenant abandons the
premises, LL has an obligation to make a reasonable effort to
mitigate LLs damages
Majority Rule remedies:

o (1) Terminate the lease
o (2) Mitigate and sue
LL has the burden of proving that he used reasonable diligence to relet the abandoned premises
No bright line rule, but consider the facts (i.e. showing the
premises to potential tenants, advertising in the paper, hiring a
realtor)
NOT required to accept below-market rent or substantially alter other
lease terms in order to mitigate
Duty to mitigate applies to residential leases AND commercial leases
What can LL recover from T?

o Difference between rent that T would have paid and the rent actually
received
o All reasonable expenses incurred by LL in attempting to re-let the
premises

Security Deposits
Most states have adopted laws or administrative rules that regular residential
security deposits
Surrender: Landlord AND tenant mutually agree to terminate the lease prior to
the expiration date
Eviction:
Landlord seeks to retake possession of the premises due to a default by T
Retaliatory Eviction: If a tenant exercises the legal right to report housing or

building code violations, or complains to the LL, the landlord is NOT permitted to
terminate the least in retaliation. Landlord is also barred from retaliating in other
ways, like raising the rent or reducing tenant services
Proving Retaliatory Eviction:

o (1) Presumption of Retaliation if LLs action takes place within 6
months of Ts complaint
o (2) Landlord must produce evidence of a legitimate nonretaliatory reason for
the eviction
o (3) Tenant burden to demonstrate pretext
Good Faith Eviction

Not generally recognized
Provides LL give good cause as to the eviction
Self-Help Eviction ~ Law disfavors self-help!

Only available when two conditions are met:
o (1) LL is legally entitled to possession
Ex. where a tenant holds over after the lease term ends
Ex. where tenant breaches a lease containing a reentry clause
o (2) LLs means of reentry are peaceable
**Typically, the only remedy available to the LL is to evict through judicial process

Property I Outline

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Property 1 Kathleen Kilbride

Property Outline 1 Pre-Midterm

THEORIES (important lenses in which to evaluate cases)

ACQUIRING PROPERTY RIGHTS

Property 1 Kathleen Kilbride

Property 1 Kathleen Kilbride

Johnson v MIntosh ~ Johnson unable to obtain property rights of land he

Property 1 Kathleen Kilbride

o b. The union representatives have a right of necessity to enter the

Property 1 Kathleen Kilbride

o Majority Approach: Scope is unclear. The law rarely intervenes, except

Property 1 Kathleen Kilbride

o Differs on the character, nature, and location of the land

allowed (even if its the owner)

Property 1 Kathleen Kilbride

(3) OPEN/NOTORIOUS: Possession must be sufficiently visible and obvious

(4) ADVERSE/HOSTILE: three different approaches

o Majority Approach (OBJECTIVE): State of mind is irrelevant. Your conduct

(5) CONTINUOUS: evaluated based on the nature, character & location

Property 1 Kathleen Kilbride

o Does NOT mean constant

JUSTIFICATIONS FOR ADVERSE POSSESSION

Preventing frivolous claims ~ SOL bars lawsuits & protects occupants

Misc. Adverse Possession

Claims typically arise from

Property 1 Kathleen Kilbride

Property 1 Kathleen Kilbride

First person to take possession of lost, mislaid or abandoned property

Rights of the finder depend on:

Property 1 Kathleen Kilbride

GENERAL RULE: Finder is entitled to Possession Except Against True Owner

Armory v Delamire ~ young chimney sweep found jewel in chimney, brought

Property 1 Kathleen Kilbride

McAvoy v Medina ~ mislaid pocket-book in barber shop case. Lady found

****This is the only way a finder can obtain ownership!****

Liability to the Rightful Owner:

Property 1 Kathleen Kilbride

Inter Vivos Gifts

Property 1 Kathleen Kilbride

Elements: (conjunctive test ~ must have ALL)

(2) Delivery: wrench of delivery -- Property must be delivered so that

(3) Acceptance: donee must accept the property, acceptance is

Property 1 Kathleen Kilbride

Hypo 3: Oscar declares, Paul, I want you to have my Van Gogh. It is in my

2) Testamentary Gifts: neither title nor possession vests immediatelyonly in the

3) Conditional Gifts: a gift that is conditioned on the occurrence of an action or

Not recognized in all states

Property 1 Kathleen Kilbride

Hypo 1: Ernestine started a jewelry business, and made various styles of

Property 1 Kathleen Kilbride

Property 1 Kathleen Kilbride

Must look at the words of purchase

Fee Simple Absolute O to A and his heirs

Fee Tail O to A and the heirs of her body

Modern Trend: A has a FSA, and O retains nothing.

Property 1 Kathleen Kilbride

Minority (Florida included): A has a life estate, As descendants have a

Life Estate O to A for life

Modern Trend: O to A for life

Modern View: 3 types

Property 1 Kathleen Kilbride

(2) Permissive Waste: failure to take reasonable care to protect

Hypo 2: The Nichols family gets a cute puppy!!!! He gets really,

Hypo 3: O owns a 2,000 acre tract of land in Hilliard, Florida, that

This is the only way a finder can obtain ownership!

start on page 392-415

**APPLIES ONLY TO DWELLINGS!*