Vocabulary
Limited Purpose: there is no transfer of title
Bailment: Given for a limited time and the property is returned
ACQUISITION BY FIND, ADVERSE POSSESSION AND GIFT
A. ACQUISITION BY FIND
1. What is Property?
a. Real Property is immovable property and consists of land, things fixed to the land,
and things incidental and appurtenant to the land.
b. Personal property is movable property, which includes every kind that is not real
property.
c. Real property can be converted into personalty by SEVERANCE
d. Personalty can be converted into real property by ANNEXATION intended to be
permanent.
2. Right To Exclude & Limitations
This is protected by both the law of trespass and the law of conversion
a. Remedies of possessor:
i. (tort) Trespass if the land is invaded by a TANGIBLE physical object that
interferes with the right of exclusive possession, there is a trespass.
ii. (tort) Private Nuisance If the land is invaded by INTANGIBLES (odors,
noises) that substantially and unreasonably interfere with a private
individuals use or enjoyment of her property, the possessor may bring an
action for private nuisance.
iii. (tort) Continuing Trespass If the land is repeatedly invaded by a trespasser
(i.e. the invader repeatedly swings a crane over the property), the
possessor may sue for either trespass or nuisance.
iv. Law or Equity If a possessor wants to force an invader to stop the
invasion of property, the remedy is an injunction in equity. If the possessor
wants damages, the remedy is an action at law.
1. Ejectment àThe remedy at common law to remove a trespasser
from the property is ejectment.
2. Unlawful Detainer à The remedy in a landlord-tenant situation to
force the tenant to vacate the property is the statutory remedy of
unlawful detainer. The action may be joined with money damages
for rent due.
b. Limits on the right to exclude:
i. No right is absolute, including the right to exclude
ii. Defense to criminal trespass= necessity. See Commonwealth v.
Magadini:Hood
iii. Privilege under state law
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iv.
v.
vi.
vii.
viii.
Civil rights legislation forbidding various forms of discrimination
Rent control/other limitations on landlords right to evict
The law of adverse possession
Bodies of doctrine granting rights of public access to private beaches.
Legislation protecting homeowners who have defaulted on mortgage
payments
3. Property Torts
à unlawful interference by a tortfeasor with the enjoyment of another’s private property.
a. TRESPASS TO LAND
o Intentional and unlawful intrusion or entry (or causes something to
unlawfully intrude/enter) onto the property of another without consent
o Need not cause damage
b. TRESPASS TO CHATTEL
o Intentional interference with another’s lawful possession of personal
property
o Plaintiff must show that tortfeasor had intentional physical contact with
chattel and that contact caused some kind of harm or damage
o This tort addresses interference, not taking the chattel completely
c. CONVERSION
o Intentional taking the chattel property of another with the intent to deprive
the owner of it
o Conversion focuses on “possession”
o Civil equivalent of criminal theft
d. NUISANCE
o Unreasonable interference with the use and enjoyment of property
o Public nuisance is the interference with a property
right that the general public shares (e.g., clean air)
4. Takings Law
a. 5th Amendment “nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation”
b. The denial of one traditional property right does not always amount to a taking.
At least where an owner possesses a full “bundle” of property rights, the
destruction of one “strand” of the bundle is not a taking, because the aggregate
must be viewed in its entirety. [See Andrus v. Allard]
c. Reduction in market value can play a role in a takings clause analysis, but they are
not necessarily equated.
5. Subsequent Ownership of Property (Find)
Finder’s Law
• “The title of the finder is good as against the whole world but the true owner”
• Title/ownership is RELATIVE
o True owner depends upon who the other claimants are: B can have title
against C but not against A.
• Policy à Chain of ownership must be clear. Without that, there would be
endless disputes, and endless re-claiming of items that people know to be found.
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We don’t want to encourage people to go onto lands owned by others and take the
fruits of the land and claim ownership of it.
•
Possession vs. Ownership
1. The fact that the owner has either lost or mislaid his property does not lead to
the divestiture of his TITLE. Title to such property persists despite the fact that it
has been lost of mislaid. The owner relinquishes TITLE when the abandons the
property.
2. Finder of lost property/owner of locus in quo where property is mislaid only
have POSSESSORY RIGHTS
b. Jus Tertii Defense à A defense where the “finder” asserts the rights of the absent
true owner as a defense. Latin for “rights of a third party”. Courts usually reject
this defense. They require that defendant stand on his own rights rather than those
of a third party.
c. LOST PROPERTY
Definition: Property is lost when the owner has accidentally and
involuntarily parted with his possession and does not know where to find
it.
§ Where was it found?
àTo determine whether property is lost, the key factor is where it
is found: judging from the place where found, would a reasonable
person conclude that the owner had accidentally and involuntarily
parted with possession of it and does not know where to find it?
d. BAILMENT
àYou are ENTRUSTING the item for a certain time and certain purpose and you
expect to get it back.
Definition: A bailment is the relationship created by the transfer of possession of
an item of personal property by one called the bailor to another called the bailee
for the accomplishment of a certain purpose.
1. No transfer of title
a. The bailment relationship involves the transfer of possession of personal
property to the bailee without transfer of title. Bailee acquires the right to
possess the property in accordance with the terms of the bailment. The
bailment obliges the bailee to return the item of personal property to the
bailor or otherwise dispose of it according to the terms of the bailment.
2. Contract Aspect
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a. The bailment arises where one possess the property of another. This
relationship may be part of an express contractual agreement between the
parties; however, an express agreement is not necessary.
i. Example: if one finds a lost article and takes it into possession, she is a
bailee for the unknown owner, although shes made no contact with the
owner.
3. Constituting bailment:
a. Bailment only formed if bailee obtains physical custody over the
property coupled with an intent to exercise control.
b. Bailees consent required—mere custody of chattel without
“acceptance” or it is not enough. (Example: someone tries to return goods
to seller, seller refuses to accept, buyer leaves them with seller, no
acceptance so no bailment.)
c. Bailee must have knowledge of the presence of the item/bailee not
responsible for concealed items in bailments. (Example: hidden jewel in
pocket of coat.. coat check person not responsible for even though they
were in possession of coat.)
4. Bailee has LAWFUL POSSESSION:
a. Bailee has exclusive right of possession over the property during the
bailment, provided acting within the terms of the bailment.
b. The right is operative not only against third persons, but also against the
owner of the property.
c. Bailee may maintain action in trover, trespass, or replevin against a
third party interfering with possession, or even against a bailor (unless
gratuitous bailment)
d. Bailee has cause of action of conversion against Bailor if they repossess
a bailed item wrongfully.
5. Termination of bailment
a. By agreement—mere lapse of a specified time or accomplishment of the
purpose terminates the bailment
b. By conduct of the parties—notice to the other party, repossession by the
bailor, mutual agreement, destruction of property, or misconduct by bailee
will terminate a bailment.
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6. Bona Fide purchaser of goods that bailee wrongfully sells: has the defense of
being a bona fide purchaser. Bailor does not have a cause of action to bring
against the purchaser.
iii. Kinds of Bailment:
1. Voluntary bailmentà Most common. Bailor voluntarily transfers
possession to bailee. Example: taking clothes to the dry cleaner; valet
parking.
2. Involuntary bailment/Constructive Bailment àLess common. Bailor
involuntarily transfers possession to bailee. Finder of lost or mislaid
chattel is an involuntary bailee because the bailor has not voluntarily
transferred possession to him.
iv. Types of Bailment:
1. Benefit solely for the bailor (“gratuitous bailment”)
a. Duties: Bailee is liable if damage occurs by gross negligence.
i. Bailee must exercise care to avoid gross negligence
2. Mutual benefit bailment (e.g. car rental)
a. Duties: Bailee is liable if damage occurs by ordinary negligence
i. Bailee must exercise reasonable care.
3. Benefit solely for the bailee (e.g. bailee borrows property without
paying)
a. Duties: Bailee is liable if damage occurs by slight negligence
i. Bailee must exercise extraordinary care
Jacque v. Steenberg Homes
FACTS: [The defendant insisted on delivering a mobile home by plowing a path across
the plaintiffs’ land rather than using the town road, which was curvy and covered with
snow, even though the plaintiffs insisted that the defendant use the town road and stay off
their property; the plaintiffs sued for trespass and were awarded nominal and punitive
damages, but the court set aside the punitive damages award]
à The private landowner’s right to exclude others from his or her land is one of
the most essential sticks in the bundle of rights that are commonly characterized as
property. PUNITIVE DAMAGES MAY BE APPROPRIATE EVEN WHEN ONLY
NOMINAL DAMAGES ARE AWARDED.
àPolicy: don’t want people to get away with trespassing intentionally and
thinking they can
Commonwealth v. Magadini
FACTS: homeless man sleeps inside by heater on really cold day, even though business
had banned him
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à Defense of necessity exonerates one who commits a crime under the pressure of
circumstances if the harm that would have resulted from compliance with the law
exceeds the harm actually resulting from the defendants violation of the law
• This is an affirmative defense to TRESPASS
• For a defendant to be entitled to a necessity defense instruction, he or she
must present “some evidence on each of the four underlying conditions
of the defense,”
(1) a clear and imminent danger, not one which is debatable or
speculative”.
(2) [a reasonable expectation that his or her action] will be effective as
the direct cause of abating the danger.
(3) there is [no] legal alternative which will be effective in abating the
danger; and
(4) the Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue.
Andrus v. Allard
FACTS: [Bird artifact owners can no longer sell their artifacts due to new law. They
argue this is a taking because their right to transfer has been taken]
1. Rule: Just because a certain property right has been taken away, it doesn’t necessarily
take away the owners entire property right. The diminution of one right does not
necessarily take away all of someone's ownership.
àCounter argument: It might not be a full taking, but it’s a partial taking and a
partial taking requires compensation
2. Ownership vs. Market Value:
Reduction in market value plays a role in the takings analysis, but they are not necessarily
equated. Should that be the case?
Eyerman. Mercantile
FACTS: [ Neighbors of a deceased woman sought the court’s help in preventing the
demolition of the decedent’s home, despite a provision in the decedent’s will asking that
the home be razed and the empty lot sold]
àTHE COURT CAN STEP IN TO STOP A DIRECTIVE IN A WILL IF ENFORCING
IT WOULD VIOLATE PUBLIC POLICY (Ehrman doesn’t like the holding of this case)
1. This case involved a real covenant that ran with the land, and was part of the
correlative rights of the community.
Matthews v. Bay Head Improvement
RULE: The public must be given both access to and use of privately-owned dry sand
areas as reasonably necessary. While the public's rights in private beaches are not coextensive with the rights enjoyed in municipal beaches, private landowners may not in all
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instances prevent the public from exercising its rights under the public trust doctrine. The
public must be afforded reasonable access to the foreshore as well as
a suitable area for recreation on the dry sand.
1. Case illustrates the adoption of the public trust doctrine and its conflict with private
property rights.
Armory v. Delamere
Relativity of Title—Prior possessor rule [Armory found a jewel and took it to Delamiries
jewelry shop. Delamerie refused to return it] àThe finder of lost property has a title superior to
all but the true owner.
1. Outcome: Armory has superior title. Wins action in trover (value of jewel)
2. Prior possessor rule à achieves multiple social goals:
a. (1) It protects an owner who cannot prove that he is the true owner.
b. (2) It protects individuals who entrust goods to others. Entrusting goods to others
promotes social welfare. For example, an individual may entrust his clothes to the
laundry without worrying that he may not get them back. Since he is the prior possessor,
he will prevail over the laundry.
c. (3) It protects the expectations of prior possessors, who expect to prevail.
d. (4) It promotes peaceable possession. If prior possessors did not prevail, individuals
might begin to steal property, hoping that the law would protect them.
Hannah v. Peel
FACTS: Found property goes to finder, instead of owner of locus in quo
[Hannah found brooch on Peels property. Peel never lived on that parcel of
property
à If the owner of property has never occupied his land, the finder of
property on this land has a superior title against the owner of the land. Court
seems to not apply the “private place” exception to the finder’s rule because the
owner of the locus in quo never occupied it, so was never really in possession.
1. Private place exception to lost property rule
2. Mislaid Property
3. Abandonment
4. I can acquire the property even though it was found in the home of
another if:
a. That owner wasn’t aware of the property
b. It appears that there was some sort of abandonment of the
property
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5. Policy: we want valuable property to have a home.
6. Lost= no intent to abandon. Abandonment requires intent. Can I lose
something and then 80 years later still be looking for it? Yes. But then
you have to show support that you were looking for it (O’Keefe didn’t
show that)
B. ADVERSE POSSESSION
Adverse Possession: Focuses more on labor and less about ownership
- The old owner receives nothing for the transfer while the new owner pays nothing
- An adverse possessor takes whatever rights the previous owner has
- Relation Back Rule: Adverse possession creates a new title that relates back to the
beginning of the adverse possession.
- The rule governing adverse possession is both statutory and common law
**** ADD ADVERSE POSESSION BY CHATTEL FROM BROOKE
OUTLINE***
à The acquisition of title by using the land
Policy: Avoid stale claims, economic efficiency, quiet titles
I.
Adverse Possession Elements of REAL PROPERTY
a. Actual Entry
i. This is necessary as it triggers the start of the statute and gives notice to the
true owner that a trespass is occurring
b. Exclusive Possession
i. Absolute exclusivity is not required, it just cannot be shared with the true
owner or public in general.
c. Open and Notorious
i. The type of use requires is one that would put reasonably attentive owners
on notice that someone is on their property.
d. Adverse & Hostile
i. Three approaches to determining this element
1. The Objective Standard
a. State of mind is irrelevant, all that matters is the actions
2. The Good Faith Standard
a. One must enter into the land, claiming in good faith the right
to do so
3. Aggressive Trespass Standard
a. Must intend to take the property even if they know it doesn’t
belong to them
e. Continuous
i. Must be continuous for the statutory period but bot literally constant
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II.
Privity
a. When two or more parties are in privity all parties are bound by the contract and
are obligated to each other in some way.
b. Tacking of adverse possession is permitted if the successive occupants are in
privity. See Howard v. Kunto
c. Privity by ownership
i. This person is now a predecessor in interest/ successor in interest?
d. How do we have a relationship with someone?
1. By Contract
2. By Estate (unique concept to land)
a. “I have a relationship with someone because of the land.
Relationship with who came before and who comes after.”
b. There was some owner who owned the land prior to me
i. Predecessors in interest
ii. Successors in interest
c. Related to the concept of covenants.
e. ii. Good argument if client doesn’t have a contract. Privity by Estate can be
an argument!
Fulkerson v. Van Buren
Facts: [church congregation tries to obtain title to the property by adverse possession, but
while there were using the property, they knew who the real owner was]
à a possessor of land does not possess adversely if he recognizes the ownership right of
the titleholder (good faith standard applied, and failed to meet)
Hollander v. World Mission Church of D.C
Facts: This case involves the determination of adverse possession based on the mistake in
boundary lines.
à adverse possession could not be determined based on the mistaken belief of the true
boundaries with no intent to claim the land.
Howard v. Kunto
Facts: [three adjacent landowners each held deeds that did not coincide with the actual legal
descriptions of the physical properties]
à Tacking on successive possessions of property is permitted for purposes of establishing
adverse possession if the successive owners are in privity.
O’keefe v. Snyder
Facts: Three O’Keefe paintings were stolen from an art gallery and not reported to anyone.]
àThe statute of limitations is tolled if the owner of stolen chattel makes diligent
efforts to locate and recover the lost chattel.
a. Holding
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i.
[O’Keefe did not exercise due diligence required by discovery rule. Had
she exercised due diligence, the statute of limitations would not have started
running in 1946, it would have started in 1975]
1. Notice here is not when she saw the paintings but rather when she
noticed them missing and thus when the SOF statute of limitations
began.
b. ON EXAM: Always work statute of limitations into your argument for adverse
possession, even if no statute given. “assuming that the requisite possession
occurred for the length of the statute of limitations…”
C. ACQUISITION BY GIFT
Three requirements: intent, delivery, and acceptance
Intent: "most focused on"
à The donor must intend to make a present transfer of an existing interest
in the property. That is, the donor must intend to be legally bound now, not
in the future. Intent is commonly a problem in litigated gift cases.
Delivery: "next most focused on"
à The law has long required that, to make a gift of personal property,
the donor must transfer possession (“hand over the property”) to the
donee with the manifested intention to make a gift to the donee. Delivery
and intent interact and overlap with each other to a considerable degree,
but they are discrete requirements nevertheless. Both must be present.
i. Delivery of Real property= Deed
ii. Delivery of Personal Property
1. Manual deliveryà physically handing over property/title.
Usually only required for small objects that can be easily
manually delivered.
2. Constructive deliveryà Constructive delivery occurs when the
donor physically transfers to the donee the means of access to or
control of the gifted object, such as when A gives B the keys to a
car that A intends to give B. Constructive delivery is permitted
when manual delivery is impossible or impracticable.
3. Symbolic deliveryàSymbolic delivery occurs when the donor
physically transfers to the donee an object that represents or
symbolizes the subject matter of the gift. This includes a writing.
Most jurisdictions recognize symbolic delivery. Traditionally,
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symbolic delivery is permitted only if manual delivery is not
feasible, but the modern trend is to permit it even when manual
delivery is possible.
Acceptance:
à Acceptance by the donee is also required but seldom an issue. Courts
presume acceptance upon delivery, unless a donee expressly refuses a
gift. Intention to make a gift may be shown by oral evidence; delivery
requires objective acts.
Donatio Causa Mortisà
i. A donation causa mortis is a gift made when death is immediately
impending
1. Gifts causa mortis are presumed to be revokable by the donor.
If the donor survives without revoking the gift within a reasonable
time after the donor is no longer in apprehension of imminent
death, the power of revocation terminates.
2. In some modern cases, the "contemplation of death"
requirement is met even where the donor intended to commit
suicide.
3. Because causa mortis gifts undercut the statute of wills, the
courts have been stricter in applying the gift requirements than for
gifts given inter vivos.
4. The person giving the gift MUST KNOW that their death is
imminent. Their state of mind is important. Doesn’t matter if the
person receiving the gift knows.
Inter Vivos Gift à Gift given by someone during their lifetime.
i. Once an intervivos gift is made, it is irrevocable and title vests
immediately in the donee. This has to be the intention of the
person giving the gift
Inter Vivos Trust à A “living” trust, also known as a “inter vivos” trust,
is simply a trust that is created while the grantor is still alive. The
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beneficiaries you designate in your revocable living trust receive the
trust's assets upon your death
Contract to Devise à A contract to make and not revoke a will devising
As property to B
j. A gift at death= unenforceable. “I’ll give you this when I die”
k. Testamentary Giftà gift in a will.
l. Statute of Willsà The statute enacted in England which allowed
persons to dispose of their property at death as they desired.
m. Gift of Remainder vs. Will:
i. Will would be, "I give you the Klimpt painting WHEN I DIE"
ii. Gift of remainder is: "I give you ownership of the Klimpt
painting right now, but I will continue possessing it until I die"
1. The rights are different. In a will, the beneficiary does not have any
rights to the property until the person dies. In a gift of remainder, the
remainderman has some actual interest in the property, they just don’t
get possession until the person dies. Donatio Causa Mortisà
ON EXAM:
i. If multiple gifts are given, you must go gift by gift and make sure that all of
the elements are present for EACH gift.
Newman v. Bost
Facts: After giving the keys to much of the furniture in the house to Newman (P),
the decedent pointed to the furniture and said to Newman (P) that he was giving it all
to her. In one of the pieces of furniture was a life insurance policy.]
à Symbolic delivery of a gift is not effective. Constructive delivery is allowed
only when it is impractical to deliver actual possession.
1. Court says: Keys to bureau was constructive delivery of the bureau itself.
2. Newman argued that keys were constructive delivery of the bureau and
everything inside (including insurance policy
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Gruen v. Gruen
Facts: The elder Gruen gave Gruen (P) a painting but reserved a life estate for
himself. Gruen (P) has never had possession of the painting] àCOURT MAKES IT
EASIER TO GIVE GIFTS: A PARTY MAY GIVE A REMAINDER TO ANOTHER
WHILE RESERVING A LIFE ESTATE IN HIMSELF.
1. Life estate and future interest normally connects to REAL PROPERTY. In
this case, the son made a crafty argument applying that concept to CHATTEL.
2. Letter served as a written instrument of a gift in this case. Acceptance was
telling other people about the painting and keeping the letters.
3. *Gift of complete ownership without remainder would not have been
satisfied by the letters, because the painting could have been delivered
POSESSORY ESTATES (MCQ/DEFINITIONS)
- LAND THAT IS OWNED NOW IN THE PRESENT. ANSWERS HOW LAND IS OWNED
AND WHO OWNS IT
THE FEE SIMPLE
“O TO A AND [HIS OR HER] HEIRS”
• DEFINITION: LARGEST POSSIBLE ESTATE & DURATION CAN BE INFINITE
• CAN BE FEE SIMPLE ABSOLUTE OR FEE SIMPLE DETERMINABLE
- FEE SIMPLE IS BOTH INHERITABLE AND ALIENABLE.
I. HERITABILITY - WHEN O OWNS LAND, IF O
PASSES INTESTATE (DYING WITHOUT A WILL)
THE PARCEL OF LAND WILL GO TO O’S LEGAL
HEIRS. → THIS IS WHAT IS MEANT BY
HERITABILITY. FEE SIMPLE CAN BE INHERITED
II.
ALIENABILITY - ABILITY TO PASS FREELY
THE FEE TAIL
“O TO A AND THE [FEMALE/MALE] HEIRS OF [HIS OR HER] BODY”
• A FEE TAIL IS AN ESTATE IN LAND CREATED BY A CONVEYANCE
• ABOUT THE ONLY PROBLEM RELATED TO THE FEE TAIL THAT ARISES IN
MODERN TIMES IS THIS: WHEN AN INSTRUMENT USES LANGUAGE THAT
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THE RULE IN SHELLEY'S CASE (THIS HAS BEEN ABOLISHED IN ANY STATES)
• IF (1) INSTRUMENT, (2) CREATES A LIFE ESTATE IN LAND IN A, AND (3) PURPORTS TO
CREATED A REMAINDER IN PERSON DESCRIBED AS A'D HEIRS (OR THE HAIR OF A'S
BODY), THE REMAINDER BECOMES A REMAINDER IN FEE SIMPLE IN A
• P. 240 HYPO :
§ ABOLITION OF CL RULES - § 5.042
(A) THE CL RULES KNOWN AS THE RULE IN SHELLEY'S CASE, THE RULE
FORBIDDING A REMAINDER TO THE GRANTOR'S HEIRS, THE DOCTRINE OF
WORTHIER TITLE, AND THE DOCTRINE OR RULE PROHIBITING AN EXISTING
LIEN UPON PART OF THE HOMESTEAD NOT CHARGED W/ THE DEBTS
SECURED BY THE EXISTING LIEN UPON PART OF THE HOMESTEAD DO NOT
APPLY IN THIS STATE
RULE AGAINST PERPETUITIES (RAP) [DIFFICULT DOCTRINE]
• A FUTURE INTEREST MUST VEST (OR BE DESTROYED) WITHIN 21 YEARS OF THE END OF
•
SOME LIFE IN BEING AT ITS CREATION
§ THE 21 YEARS STARTS WHEN THE VALIDATING LIFE IS OVER
SO FUTURE INTEREST SUBJECT TO CONTINGENCIES HAD TO SATISFY RAP AT THE TIME
OF CREATION OR BE DESTROYED BY THE RULE
CO-OWNERSHIP AND MARITAL INTERESTS
A. CO-OWNERSHIP
I.
THE THREE MODERN CONCURRENT ESTATES
a. The Tenancy in Common
- Separate but undivided interests in the property
- Each interest is descendible and may be conveyed by deed or will
There are no survivorship rights
Although their shares may or may not be equal, each of the tenants in
common is entitled to possess or use the entire parcel of land.
Exp. T devises Blackacre ‘‘to A and B.’’ – concurrent owners of T’s
conveyed
interests
A and B are tenants in common.
If A conveys his interest to C, B and C are tenants in common.
If B then dies intestate, B’s heir is a tenant in common with C
1. Terminating a tenancy in common
a. Get a contract that is an agreement to terminate the tenancy
in common (but it must be with all the tenants in common).
b.
By a court ordered partition, which is either by physical
division of the land or a partition by sale
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c.
II.
By ouster, meaning any act which unlawfully deprives a
tenant in common of their share of the property
b. Joint Tenancy
- These tenants have the right of survivorship
- Joint tenants together are regarded as a single owner
- When one tenant dies, nothing passes to the surviving joint tenants.
- Four unities were essential to a joint tenancy (time, title, interest and
possession)
1. Time: Interest of each joint tenant must be acquired or vest at the
same time.
2. Title: All JT’s must acquire title by the same instrument or joint
adverse possession
3. Interest: All JT’s must have equal and undivided interest
measured by duration
4. Possession: All JT’s must have a right to possession of the whole.
- In common law, if all four do not exist, a joint tenancy is not
created instead a tenancy in common is
If later one of the four is severed, a tenancy in common can also be
created that way
c. Tenancy by Entirety
- This can be created only by husband and wife
- Has all four parts of a joint tenancy with the additional requirement of the
unity of marriage
- Are treated as one and neither can defeat the right of survivorship by the
other
MULTIPLE- PARTY BANK ACCOUNTS
Multiple-party accounts with financial institutions, including banks, generally
take one of three forms—
1. Joint accounts (“A and B,” or “A or B”),
2. Savings account trusts, called “Totten trusts” in some states (“A, in trust for
B”), or
3. Payable-on-death (P.O.D.) accounts (“A, payable on death to B”).
ii. Of the three, joint accounts are the most common. Joint bank accounts
have been the subject of much litigation. The primary reason is that the joint
bank account is used by depositors with different intentions and for a variety
of purposes.
iii. Because the joint account is an all-purpose account, it invites litigation
to establish the true intention of the depositor. The agreement signed with
the bank, providing that the account belongs to the survivor, is, in most
states, not controlling. It is viewed as intended merely to protect the bank if
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it makes payment to the survivor. It does not determine the realities of
ownership between the joint tenants. After the death of the depositor,
disappointed heirs may claim that the joint tenant’s name was put on the
account merely for the purpose of paying the decedent’s bills; if they can
establish this, the money in the account belongs to the decedent’s estate and
not to the surviving joint tenant.
VOCABULARY
PARTITION BY SALE: A court-ordered division of land held by joint tenants or tenants
in common by which the land is sold and the proceeds are divided among the tenants according to
the size of their interests in the land.
PARTITION IN KIND: A court-ordered, physical division of land held by joint tenants or
tenants in common by which each tenant’s interest is converted into a parcel taken from the whole,
and each tenant then takes exclusive possession of their share of the land.
Delfino v. Vealencis
Facts: [The Delfinos owned 99/144 of the property and wanted a residential development,
while Vealencis owned 45/144 and wanted to keep her garbage business on it]
à A partition by sale should only be ordered if the physical attributes of the land
in question are such that a partition is impracticable or inequitable, and the interests
of the owners would be promoted by a partition by sale.
Spiller v. Mackereth
Facts: [After another tenant vacated their building, Spiller used it as a warehouse, and
Mackereth demanded he pay rent or vacate half of the building]
à In the absence of an agreement to pay rent a cotenant in possession is not liable to
his or her cotenants for the value of his or her use and occupation of the property
unless there is ouster of a cotenant.
1. OUSTER: The beginning of the running of the statute of limitations in cases of
adverse possession; the liability of an occupying cotenant for rent to other cotenants.
2. PER MY ET PER TOUT: “By the half and by the whole;” term used to describe how
each tenant in a tenancy in common or a joint tenancy holds a whole share of the
property with regard to survivorship but holds a share equal to other tenants with
regard to the right to occupy.
B. MARITAL INTERESTS
COMMUNITY PROPERTY
1. Nine states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and
Wisconsin—use a system of community property. Although there are substantial differences in details
among the community property states, the fundamental idea of community property is that the
earnings of each spouse during marriage should be owned equally, in undivided shares, by both
spouses
2. Community property includes earnings during marriage and the rents, profits, and fruits of earnings.
Whatever is bought with earnings is community property. All property that is not community is
separate. Separate property is property acquired before marriage and property acquired during
marriage by gift, devise, or descent. Property acquired or possessed during marriage by either husband
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or wife is presumed to be community property. This is a strong presumption and can be overcome only
by a preponderance of the evidence.
3. In most states, the husband and wife can freely change (“transmute”) the character of their property
by written agreement and, in some states, by oral agreement. They can convert community property
into separate property, or vice versa.
3.
If marriage is terminated by divorce, some states require an equal division of community property.
Other community property states authorize a divorce court to make equitable division of community
property.
SAME SEX MARRIAGE
1. Obergefell v. HodgesàIn Obergefell v. Hodges, 576 U.S. 644 (2015), the United States Supreme Court
struck down as unconstitutional an Ohio law banning same-sex marriage. The Court emphasized both
the symbolic and practical consequences of marriage, and pointed out that many material benefits are
attached to the institution of civil marriage. Marriage also confers certain obligations on legally
married parties. These property rights and duties exist under both state and federal law.
2. Respect for Marriage Act
RIGHTS OF DOMESTIC PARTNERS
1. Unmarried cohabitants do not acquire any rights in each other’s property on the basis of their status
alone
2. Cohabitation may be regarded as legally married under the doctrine of common law marriage
4.
May acquire certain property rights on the basis of contract
Sawada v. Endo
[Kokichi and Ume Endo conveyed their property to their sons the same day that Kokichi got into an auto
accident that injured the Sawadas]à An estate by the entirety is not subject to the claims of creditors of only
one of the spouses because neither spouse acting alone can transfer his or her interest.
1. This aspect of the tenancy effectively protects the family home, as well as other property, from
unwise transfer by one spouse and from creditors of one spouse. It is likely that this condition is one
of the main reasons the tenancy by the entirety has endured.
LEASEHOLDS: LANDLORD-TENANT LAW
Leasehold Estates, generally:
à Historically, courts treated a lease as a conveyance of an interest in land. More
recently, courts have focused on the contractual nature of the lease and use many
contract interpretation principles.
à When residential leases are involved, many courts view landlords as suppliers of
housing, a necessity. Thus, social welfare/public policy principles may override
private notions of freedom of contract.
à Non-Freeholds: A tenancy is a nonfreehold estate because the tenant has the right
to possess but not title. A tenancy typically is for a set period of time, whereas a
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