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Su Property 2020

Prof. Su
What is Property?
a. Goals of Property Law
i. Rights:
1. this focuses on the litigants
2. justice and fairness
3. counterargument is a counter right
ii. Utility:
1. this focuses away from the litigants and focuses on society as a whole
2. what do you want to maximize and does this rule actually maximize it?
iii. Administrability:
1. is this the appropriate forum to be deciding the issue? should the court be deciding
2. rule v standard
a. rule – something like a speed limit, very straightforward with no discretion
b. standard – uses the reasonable person standard
c. Which one do you apply? And which one promotes social welfare?
i. Think of the bad man scenario. Standards may sometimes deter
society from bad conduct because the uncertainty of how a
standard will be applied. A rule provides a firm line and may
promote bad conduct because the bad man knows exactly where to
stop before getting in trouble
ii. Alternatively, rules provide predictability. Standards may also
promote bad conduct because the offender thinks a jury will find
their actions reasonable.
b. Recurring Themes
i. First in time, first in right
ii. Pig in a Parlor
iii. You can only convey what you actually possess
iv. Alienability
v. Justified Expectations
c. Normative Approaches
i. Positivism + Legal Realism
ii. Justice and Fairness
iii. Utilitarianism, social welfare, and efficiency
iv. Social relations
v. Human Flourishing
vi. Libertarian approach – minimize government regulation of property
vii. Progressive approach – hope to promote more equal opportunities to acquire property
d. Statutory Interpretation
i. Intent of the Legislature
ii. Plain language of the statute
iii. Evidence/argument about the intent
1. legislative history
2. committee
3. floor debate
4. other things the sponsor has proposed
5. rejected amendments
e. Bundle of Rights Associated with Property
i. right to possess
ii. right to exclude
iii. right to use and enjoy
iv. right to control
v. right to alienate (aka give away)
vi. right to destroy
vii. each right is relative to other rights and the rights of others. SO, what happens when
there is conflict between rights?
f. What Can Be Property?
i. Personal Property: tangible movable things
ii. Real Property: land and the structures erected on top of the land.
iii. Intellectual Property: products of the mind, inventions, ideas, patents, trademarks,
iv. What can be owned?
1. are body parts property
2. are professional licenses property?
3. what role should labor and investment play in claims of property?
v. Case Examples:
1. O’Brien v. O’Brien:
2. Moore v. Regents:
3. INS v. AP:
4. Feist v. Rural
g. Hohfeldian Terminology + Rights
i. legal rights are jural relations among people. there is some form of government
involvement as well because someone has to recognize those rights
ii. Legal Entitlements
1. Rights: claims enforceable by state power, that others act in a certain manner in
relation to the rightsholder
2. Privileges: permissions to act in a certain manner without being liable for
damages to others and without state being able to prevent those acts (think of this
as the opposite of a right, no one can stop you)
3. Powers: state enforced abilities to change legal entitlements
4. Immunities: security from having one’s own entitlements changed by others
iii. Opposites
1. No-rights: no power to summon the aid of the state or control the behavior of
2. Duties: absence of permission to act a certain way
3. Disabilities: absence of power to alter legal entitlements
4. Liabilities: the absence of immunity from having one’s own entitlement changed
iv. You have to have a legal entitlement or the opposite. There is no such thing as a free
night, there is always a correlative. There is always something being taken away.
Access to Property
a. Trespass
i. a violation of the right to exclude
ii. property rights v. other rights
iii. an unprivileged intentional intrusion on property possessed by another
1. unprivileged
a. to get privilege. . .
i. permission/license (revokable, can be explicit or implicit)
ii. necessity (more harm would come without trespass)
iii. public policy (injury to society v injury to owner)
2. intent = a voluntary act.
a. DO NOT get this confused with culpability. you do not need culpability,
just the intent to take the action that results in the trespass.
b. criminal trespass is when you trespass with the intent
3. intrusion occurs as soon as the non-owner enters the property
a. doesn’t have to be a person who is trespassing, think of the tree example
with the branching hanging over the property line
b. trespass can be above or below the surface
4. possessed – you can still trespass against a possessor, doesn’t necessarily have to
be against the owner. i.e., trespassing against someone with relativity of title
iv. Right to exclude is balanced against other interests – BUT how does the right to exclude
balance with other rights outside of property law?
v. Exceptions:
1. First Amendment – free speech, but only applied against the government, private
actors can mostly still limit
2. Public Trust Doctrine – land owned by the state for the benefit of the public, can
regulate but must be equitable to everyone
a. Traditionally – for use to navigate/fishing
b. Now – public beach access rights
b. Defense of Necessity
i. harm of complying is greater than noncompliance
ii. Four Elements:
1. clear danger
2. defendant’s actions will abate the danger
3. there was no other legal alternative
4. defense not precluded by legislature
iii. Case Example: Commonwealth v Magadini: homeless man repeatedly trespassed
against a business park. he raised the defense of necessity. important rule to come out of
this is that no other legal alternative does not mean exhausting all options, just doing
what a reasonable person in that situation would have done
iv. Case Example: State v Shack: this is an example of criminal trespass. attorney was
asked to leave the farm while visiting migrant workers – he refused. this was not a
criminal trespass for public policy reasons. have to weigh the rights of the migrant
workers against the rights of the property owner.
c. Is There a Right to Exclude? Reasonable Access & Public Policy
i. Public Accommodation
1. Applicable to property that is open to the public at some point of another
2. Common Law has adopted this policy to limit it to innkeepers and common
carriers (they are considered necessities)
ii. Think of the Utson v. Resorts case here… Casino refusing to let in a card counter even
though there are no rules or regulations prohibiting card counting. The court held that
there is no right to exclude unreasonably. (you can exclude for disorderly conduct,
dangerous behavior etc.) This case was an outlier though.
1. Balancing the rights of the property owner against the rights of the one wanting
2. Is this really an argument for the courts? If the Casino doesn’t like card counting,
they can make their own rules, or the commission can change their rules
3. Do you really need to regulate businesses? The goal of a business is to make
money, so we don’t really need to worry about business owners unnecessarily
iii. How do you factor in harm?
1. It is one thing to say no one can come in
2. It is another thing to say everyone can come in except you
d. Remedies
i. Once it has been determined that there is a trespass, you then move to damages. When
thinking about damages think about what the goals are.
ii. Case Examples:
1. Glavin v. Eckman: Neighbor cuts down the trees. But traditional methods of
damages, did not cover the “harm” or sufficiently deter. So, the court went to
alternate method – restoration damages.
2. Jacque v. Steenberg Homes, Inc.: Trailer company cut through plaintiff’s yard.
Court awarded $100K in punitive damages despite no property damage.
Otherwise, the state would not be protecting the plaintiff’s right to exclude.
e. Adverse Possession
i. Elements – once satisfied, title is transferred from owner to trespasser – this
happens automatically
1. Actual: you have to take some action; possession cannot be symbolic. actions of
what a true owner would do – this may vary context/type of property.
2. Exclusive: excluding owners as a true owner would – doesn’t mean that no one
else uses the property
3. Visible: sometimes “open and notorious” using it a way an owner would, i.e., not
sneaking around. should be detectable by true owner. not required that the true
owner actually sees you
4. Continuous: could depend on context or type. doesn’t necessarily mean you are
on the property 24/7. just act as the true owner
5. Hostile: non-permissive use. usually using an objective standard to determine
this. “do you have permission?” if not, then it is assumed you have acquired it
adversely or hostilely.
a. two types to note here:
i. innocent trespass (mistake)
ii. land pirate (intentionally trespassing)
b. some jurisdictions care about the type, some don’t
6. Statutory Period: different for each state. have to do all the above for a
prescribed period of time.
ii. Important Doctrines Related to Adverse Possession
1. Color of Title: you have a deed, but you are actually not the owner because of
some defect w/the deed or sale/transfer process
a. how does this affect Adverse Possession?
i. Scope – extend beyond the scope of what typical adverse
possession would get you. AP would only give you a portion (the
portion actually used). Color of title will give the whole parcel.
ii. Statutory Period – sometimes allows for a shorter statutory period
2. Tacking: allows to count the actions of the previous owner of the property.
a. not allowed for squatter to squatter
b. have to have privity of estates – deed showing previous possessor
transferred it to you.
iii. Case Examples
1. Brown v. Gobble
2. Romero v. Garcia
3. Nome 2000 v. Fagerstrom
Relations Among Neighbors
a. Nuisance
i. property rights v property rights (contrast this to trespass)
ii. my right to use and enjoy conflicts with my neighbors
1. you don’t want to think about this in terms of culpability – both parties are acting
perfectly legally
2. there is nothing wrong with the use per se, the uses are just incompatible
iii. definition: unreasonable harm to the use and enjoyment of the land
1. harm: has to be substantial; objective criteria (this excludes the “ultrasensitive”
person or use)
2. unreasonable: most of the argument comes down to this
a. Two Categories:
i. Balancing
1. utility – usefulness
2. suitability – is your use suitable for the area? pig in the
3. priority – which use came first? (assumption of risk)
4. avoidance – who is in a better position to avoid the
5. distributional fairness – even if all the above leans one way,
and this can pull it to the other. Who should bear the cost?
ii. Nuisance Per Se: criminally or socially undesirable
iv. Remedies
1. In General: see chart on p. 358
a. injunction/specific performance – property rule – absolute entitlement to
your “thing”
b. damages – contract/torts rule – $$ for losing your entitlement
2. you balance to determine who is entitled to a remedy, and you balance to
determine what kind of remedy should be imposed
a. its not about winning or losing; it is who is entitled to what
i. is Dobbs entitled to quiet enjoyment? OR is Wiggins entitled to
dog breeding?
b. choosing between property and liability based on:
i. how easy it is to value
ii. how easy it is to negotiate
3. How do you measure damages?
a. Some things are hard to value
b. there is a way to figure out the subjective value
i. the injured can tell you
ii. selling your entitlement through the market system (think of the
hotel example – how much is it worth to you)
4. Note the law and economics discussion… ?
b. Easement
i. taking a certain right to use and giving it to another person or property
1. transferring a property interest, not the property itself
2. this can be exclusive or non-exclusive
3. easements can be restricted when it creates a greater burden on the burdened
ii. why is this preferred over permission?
1. permission = right to exclude waived
2. permission is revocable
iii. why can’t this be done through contracts?
1. only binding to the parties involved in the contract – if ownership changes, you
are no longer bound to the original contract
2. only a temporary fix; easement is permanent and more secure
iv. Important Vocabulary
1. exclusive: original owner can no longer use that property for that purpose
2. non-exclusive: original owner still has rights to use that property for that purpose
3. burden: property burdened by the easement
4. benefit: property or person that benefits from the easement
5. in-gross: benefit runs with the person
6. appurtenant: benefit runs with the land
v. Types of Easements
1. express easement: created by the parties
a. must be in writing – an easement is an interest in the property which falls
under statute of frauds.
b. notice – the burdened party has to have either actual notice, inquiry notice
or constructive notice
c. intent – was the intent for the benefit to be in gross or appurtenant?
2. in gross easement and apportionability
a. often an issue with corporations, not individuals
i. with corporations and commercial easements apportionability is
also often presumed
b. if it is explicitly stated then it’s a non-issue; if it’s not stated then the court
looks to circumstances:
i. is it exclusive? if yes, then courts often presume its apportionable
ii. if it is not exclusive then it is presumed its not apportionable
c. these are not hard and fast rules, courts will still look at the totality of the
circumstances make an equitable decision
3. implied easement: not created by the parties, but by the actions of the parties
a. estoppel
i. a license was given to use land
ii. this induced detrimental reliance on an individual
iii. inequitable to revoke the permission
iv. owner is estopped from revoking permission
b. prescriptive easement
i. same test as adverse possession
c. prior use
i. burdened parcel & benefitted parcel were at one time under
common ownership
ii. if at time of common ownership, you can show that there was a
part of the property being used and after division it is reasonably
necessary to continue
d. necessity
i. common ownership
ii. land locked properties after division
vi. Purpose of Easements?
1. fixing a technical mistake – what was the true intent of the parties?
2. fraud
3. equitable or policy rationale
c. Covenant
i. How are covenants different from easements?
1. you can force someone else to do something on their land (affirmative)
2. or you can say someone cannot do something on their land (negative)
3. burden and the benefit run with the land
ii. How are covenants different from contracts?
1. contracts are only between individuals and don’t run with the land – same issue
with easements
2. covenant is more powerful
iii. How are covenants used?
1. social organization/public policy objective
a. for example – racially restrictive covenants
2. common with HOA’s and COA’s
iv. Elements of an Express Covenant
1. Writing (Statute of Frauds)
2. Intent to Run with the Land (burden and usually benefit)
3. Privity of Estates
a. legal fiction of two property interests making an agreement instead of two
can a covenant be created? i. horizontal: relationship between the properties
1. simultaneous privity: property interests are overlapping at
the same time
a. landlord has ownership interest; tenant has
leasehold interest
2. instantaneous privity: privity can be established at the
moment the property interest is transferred
3. mutual privity: easements in each property
did the existing covenant transfer? ii. vertical: relationship/transfer to future owners – does the benefit
run with the land? or with the person?
4. Touch + Concern the Land
a. the agreement itself has to be about property interests, not people. if it is
about people, then it would be more appropriate to handle it with a
b. This evolved over time into a broader test of reasonableness
v. Implied Covenants – Implied Reciprocal Negative Servitudes
1. Some properties within a community have restrictions and others don’t. Do the
restrictions apply to the community as a whole?
a. if there was an intent to develop a common plan or scheme, then yes
b. some lots may not have been restricted due to mistake, fraud or a change
in circumstance
c. strict horizontal privity won’t work here, so this is just another work
2. How do we know what is included in a common plan or scheme?
a. well defined and similarly situated
b. what was the intent of the developer – can be inferred from uniformity
c. here, think of the Evans v. Pollock case. All of the similar in size,
lakefront lots were part of the common plan. The outlier properties were
not intended to be included in the restrictions.
vi. Limits to Covenants
1. Can amendments be made?
a. Yes, but they are subject to a reasonableness test. (Deference will usually
be given to the covenants present in the original deed because the buyer
had adequate notice and often relied on these covenants)
2. Reasonableness
a. to pass this test, the covenant cannot be arbitrary and must be rationally
related to the objective/interest it is designed to achieve
b. use the balancing test – does the burden outweigh the benefit? weigh the
importance of the rule’s objective against the importance of the interest
infringed upon
3. Constitutional Rights
a. The U.S. Constitution restricts governmental action, but CIC’s are private
entities. Thus, a CIC’s covenants are typically not subject to constitutional
restraints. The major exception is that covenants based on race are
4. Restraint on Alienation
a. Sometimes communities include covenants that restrict the sale of units.
these covenants may require that the community association approve the
sale or give the association a right of first refusal. these covenants are
restraints on alienation, and thus they can invite judicial scrutiny. the
courts tend to uphold covenants requiring approval so long as approval is
for a reasonable purpose and is not withheld arbitrarily or in a
discriminatory manner.
5. Anti-competitive
a. Anti-competitive Covenants are permitted only if they are reasonable. To
determine this:
i. is it reasonably limited in time and space and consonant with the
public interest?
ii. does it serve a purpose of facilitating orderly and harmonious
development for commercial use?
b. Things to consider when determining reasonableness:
i. possible economic justifications
ii. availability of suitable alternative locations in the relevant market
iii. the strength of the remaining competition
iv. certain policy justifications such as that it may be necessary to
include such a clause in a shopping center lease in order to attract
to the center a certain type of store which might be unwilling to
commit itself to a lease with high rentals if it knows that a
competing store might be present in the same center.
vii. Ways in Which a Covenant Can be Terminated – here we are dealing with a
covenant that may have been permissible, but things have changed, and it might
need to be terminated
1. Changed Circumstances – covenants will not be enforced if conditions have
changed so drastically inside the neighborhood restricted by the covenants that
enforcement will be of no substantial benefit to the dominant estates
a. change must be so radical as to defeat the essential purpose of the
covenant or render the covenant valueless to the parties
b. may also apply when substantial changes have occurred outside the
restricted subdivision – think of the beach community v. restaurant case
c. if CIC doctrine applies, you don’t necessarily have to completely
invalidate the covenant. instead, you could allow violation of the covenant
to occur upon the payment of compensatory damages.
2. Relative Hardships – a covenant will not be enforced if the harm caused by the
enforcement, that is, the hardship to the owner of the servient estate, will be
greater by a considerable magnitude than the benefit to the owner of the dominant
estate. If the benefit of the covenant is substantial, the courts are unlikely to apply
the doctrine even if the hardship to the servient estate is substantial.
3. Acquiescence – has the plaintiff tolerated previous violations of the covenant by
the owner of the servient estate?
4. Abandonment – has the plaintiff tolerated violations of the covenant by owners
of other restricted parcels in the neighborhood covered by the covenant
5. Unclean Hands – has the plaintiff himself violated the covenant?
6. Estoppel – an owner of a dominant estate who orally represents to the owner of a
servient estate that she will not enforce the covenant may be estopped from
asserting her interest in enforcing the covenant if the owner of the servient estate
changes his position in reliance on the oral statement
7. Laches – If the covenant has been ignored or breached for a substantial period
of time – but less than the time necessary to establish prescriptive rights – the
court may find that unexcused delay in enforcing the covenant prompted
investment in reliance on the failure to object to the violation and that
enforcement of the covenant would be unconscionable.
8. Merger – if the burdened and benefited estates come under the ownership of the
same person, the covenants will terminate
9. Release – all parties affected by the covenant – both burdened and benefitted
estates – may agree in writing to terminate the covenant or release the property
from it
10. Express Termination what is this???
11. Prescription – open and notorious violation of the covenant without permission
for the statutory period may terminate the covenant by operation of the statute of
12. Marketable Title Act – many states have statutes that terminate restrictive
covenants if they are not re-recorded after a specified period of time
13. Other Statutory Regs – is there an actual and substantial benefit to the person
claiming the rights of enforcement?
Common and Future Interest
a. Concurrent Ownership
i. Overview
1. how do we handle the bundle of rights when they are owned by multiple parties?
2. every concurrent owner possesses all of the rights. for example, you may have
50% ownership, but you have 100% of the property rights
3. there are specific instances where the fractional interest makes a difference or
a. Accounting: benefits (profits) and burdens (taxes and maintenance) the
amount you receive or are responsible for paying is directly based off % of
b. Termination or Dissolution: dividing the proceeds based off % of
ownership. partitioning the property based off % of ownership
ii. Three Basic Types
1. Tenancy in Common (least restrictive)
a. the default way of creating tenancy in common
b. least number of restrictions on the right to alienate – you don’t need the
other tenant’s consent to sell your portion
i. think of timeshares or vacation homes – you all have the same
rights. but you can sell your share to someone else.
2. Joint Tenancy
a. the mean difference between joint tenancy and tenancy in common is the
right of survivorship. when a joint tenant dies, her property interest is
immediately transferred to the remaining joint tenants in equal shares
b. sometimes referred to as a “poor mans will” because property interest
transfers without the need for probate
c. Need the Four Unities:
i. Unity in Time – all tenants became joint tenants at the same time
ii. Unity in Title – the document conveying title must be done in one
iii. Unity in Interest – all joint tenants must have the same % of
iv. Unity in Possession – all joint tenants must possess all the same
d. This type is severable – a joint tenant can sell or give their interest. If they
interest is sold it reverts back to tenancy in common (only that % interest)
3. Tenancy by the Entirety
a. Requires the four unities plus marriage
b. Each spouse has a life interest and a right of survivorship
c. This can’t be dissolved unless there is a death or a divorce
d. Additional restrictions on the right to alienate and states differ on this:
i. Some sates raise the wife’s rights to the level of the husband – full
right to alienate and control interest (this essentially abolishes
tenant by the entirety and is just joint tenants)
ii. Some states lowered the husband’s rights to the level of the wife –
neither can control or alienate individually and the other spouse’s
consent to do so
iii. Some states “split the baby” and either spouse has the ability to
alienate their life interest but not the right of survivorship
1. once you die the encumbrance expires
2. if your spouse dies the encumbrance attaches to their
iv. Some states say the opposite
1. while everyone is alive, no one can come after the property
2. if you die first, then the bank gets nothing because your
interest disappears when you die. but if your spouse dies,
then the bank can take it all
iii. Partitions
1. Partition in kind – physical partitioning – strongly presumed
2. Partition by sale – forced sale
3. To overcome the presumption of partition in kind, you can consider the
economics but that is not controlling
a. cannot be conveniently partitioned in kind
b. interest of one or more parties will be promoted by the sale
c. the interest of the other parties will not be prejudiced
d. this essentially gives private parties the power of eminent domain and this
can be a slippery slope to allow this
iv. Ouster – you have the right to use the property but are being denied this right through:
1. actual ouster – physically depriving of the right
2. constructive ouster – more of an emotional way of depriving someone of this
a. the character of the home/property must be such as to make such joint
occupancy impossible or impracticable
i. doesn’t necessarily mean that parties don’t like each other
1. ex. three people jointly own a tiny home; only one can live
there so the other two are entitled to rent
ii. can also be emotionally impossible due to the nature of the
1. ex. during a divorce
v. Marital Property Doctrines
1. Separate Property States: property is separate property unless special steps are
taken to suggest concurrent ownership
2. Community Property States: presumption that all property acquired during the
marriage is jointly owned regardless of what the title or deed says. property
acquired prior to the marriage remains separate property
3. Equitable Distribution: judge can distribute property regardless of who owns it.
this is up to the judge’s discretion on certain factors:
a. duration of marriage
b. prior marriages
c. vocational skills
d. employability.
e. estate
f. liabilities
g. needs of each of the parties
h. age
i. health
j. occupation
k. income
l. custodial provisions
4. Forced Share – only applicable to separate property – regardless of the law or the
will, a widow may be entitled to the share of the property
5. SPS and CPS are functionally the same – but CPS divides property prior to
dissolution and SPS divides after dissolution
6. What Happens if Cohabitants are Unmarried?
a. May have a claim to property through:
i. an express or implied contract
ii. unjust enrichment
iii. implied concurrent ownership or partnership
b. Present and Future Interests
i. Overview
1. deciding right now how ownership will change over time
2. note how covenants work the same as conditions for creation of a future interest
3. designating and creating property interests
4. assigning a name to present interest and assigning a name to the future interest
ii. Present Interests
1. Fee simple absolute – there are no future interests and no conditions imposed
upon the property that would result in you losing your property interest
iii. Future Interests
1. Inquiry
a. Is it based on someone’s life (life estate), or some other condition
(defeasible fees)
b. Who holds the future interest? Is it held by the grantor, or someone else?
i. if it doesn’t explicitly say, it is presumed that it is held by the
2. Types
a. Defeasible Fees
i. Fee Simple Determinable – created by describing the present
interest with words of duration (such as so long as, during, while,
1. Possibility of Reverter – does not need to explicitly state
the possibility of reverter – it will automatically revert if
the FSD condition is no longer met
ii. Fee Simple Subject to a Condition Subsequent 1. Right of Entry
iii. Fee Simple Subject to Executory Limitation
1. Executory Interest
b. Life Estates
i. Life Estate
1. Reversion
2. Remainder
a. Contingent Remainders
i. Class Gifts
b. Vested Remainders
i. Absolutely vested remainders
ii. Subject to open
iii. Subject to divestment
Based on a condition
Based on someone’s life
Fee simple determinable – auto
transfer – presumed –
possibility of reverter
Fee simple subject to executory
interest – auto transfer –
executory interest
Fee simple subject to a
condition subsequent – notauto transfer – must be
explicitly stated – right of
3. How are they applied?
a. Trying to carry out the intent of the grantor – normally, you look at the
language to determine intent BUT what if there is a conflict between the
two? Or the language is ambiguous?
i. The presumption is in favor of fee simple absolute. Strictly
1. Language must clearly state the grantor’s intent to create a
possibility of reverter:
a. “upon express condition that”
b. “upon condition that”
c. “provided that”
d. “if”
2. Case Example: Wood v. Board
ii. Sometimes the court will prefer the intent of the grantor vs. the
actual language of the conveyer
1. Case Example: Edwards v. Bradley
iii. Cy Pres: only applies to charitable gifts of trusts and only applies
1. Is the condition impossible, impracticable, wasteful,
2. Is there a general charitable intent that can still be served?
3. If so, then the cy pres doctrine can be applied
4. Restrictions Future Interests – balancing the dead hand control against the
grantor’s intent and his right to alienate
a. Limitations
i. Can’t create a new type of estate
ii. Cannot unreasonably restrain alienation
iii. If the condition doesn’t adjust with the time, the court might adjust
it for you (cy pres)
iv. Can’t restrain marriage – it’s a fundamental right
v. Other policy rationale
b. Rules Against Perpetuities
i. Rule: no interest in property is good, unless it must vest, if at all,
no later than 21 years after the death of the lives in being at the
time of creation
1. lives in being: anyone who is alive at the time the future
interest is created
2. vest: will the vesting decision happen within 21 years of
their death?
ii. How to Apply:
1. Identify is there, and what is, the future interest
2. Determine what is the condition that determines if that
future interest vests or not
a. exclude all future interest held by grantor – RAP
doesn’t apply because it is considered automatically
3. What is the vesting condition?
a. life estates are guaranteed to happen, so this is
absolutely vested, (remainders) and RAP doesn’t
b. contingent remainders RAP does apply
4. Identify all the lives in being
5. Storytime – come up with a story where it is possible where
the vesting decision happens 21 years after all the lives in
being have died.
iii. Tips:
1. Kill off everyone – imagine everyone dies – but sometimes
you want to keep certain people alive
2. Watch out for conditions not connected to a person – this
usually means there is a RAP issue (when it is connected to
a specifically named person then there usually isn’t a RAP
3. Watch out for an open class i.e., “A’s children” – the
people that might be added might not be lives in being
4. Watch out for the use of titles such as: spouse, wife widow,
widower, children, grandchildren
iv. Hypos:
1. O  A as long as it is a hospital
2. O  A as long as hospital, if not then to B
3. O  A for life, then to B
4. O  A for life, then to B if B graduate laws school
5. O  A for life, then to the first child of B to graduate
from high school
a. B is alive and has five children
b. B is dead and has five children
6. O  A for life then to A’s wife then to A’s surviving
a. History
i. FSD Traditional Future Interest [A steeped into the shoes of O, O no longer has rights]
ii. Landlord and renters decided they wanted more of a relationship/connection
iii. Contractual component  O’s control/connection was continuous
1. Add rent
2. Add Expectations
3. Add Rights
iv. Landlord/Tenant Regulations
Real Estate Transactions