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Property Law
Christopher Green
Fall 2011
Katy Koon
A BIT ABOUT PROPERTY
1. Property
a. A relationship a person has to other people with respect to an object.
b. A system of relationships with respect to a thing.
c. Property is not a relationship a person has to some object.
d. We need property to keep labor from seeping out and being wasted.
2. Whole system is based on theft; we got this by taking it from people who were here
before us.
3. Property law changes at a very slow pace.
4. As a general matter, the system of property allows people to reap the fruits of their
labor, but that doesn’t mean that in particular cases, the hardest working person always
wind.
a. Getting the right rule ≠ Most sympathetic party wins
POSSESSION
1. Pierson v. Post (NY 1805), pp. 18- 22 (until you actually kill or possess a wild
animal, you don’t own it, and chasing it isn’t possession)
a. Facts
i. Post (P) and his hounds found a fox on a wild, uninhabited stretch of land.
As Post was hunting and chasing the fox, Pierson (D), knowing that Post
was pursuing the fox, killed it and carried it off. Post brought a suit of
trespass on the case against Pierson for taking the fox. Post wins, Pierson
appeals.
ii. Not clear whose land it is.
b. Ruling:
i. Reversed
ii. A fox is an animal ferae naturae (wild), and possession of such an animal
is acquired by occupancy only.
iii. First Possession Rule: Until you actually kill or possess a wild animal, you
don’t own it, and chasing isn’t possession.
iv. If the animal is somehow “deprived of its natural liberty” so that capture
is certain, then the pursuer has rights to it.
v. Pursuit alone isn’t sufficient to constitute occupancy, but the mortal
wounding of a beast, or the trapping of a beast, does give possession.
c. Dissent:
i. The death of foxes is in the public interest, so we should encourage the
destruction of them. So wild animals may be acquired without having to
touch them, so as to ensure they are destroyed.
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ii. The majority violated “usual custom of hunters.”
d. In Popov, both full-possession rule and defer-to-custom rule favor Hayashi, but
in Pierson, these considerations pull apart.
i. Post wins under custom, but Pierson has first possession, and majority
says custom isn’t binding.
2. Popov v. Hayashi, (Cal. Super. 2002) (ownership is doled out based on the strength
of each man’s claim)
a. Facts:
i. Popov makes a “snow cone” catch of an awesome record-breaking
homerun baseball hit by Barry Bonds.
ii. The ball falls from Popov’s mit when a mob lunges for the ball.
iii. There’s a dogpile on Popov, so he loses the ball.
iv. Hayashi picks it up.
v. Hayashi is assumed to have possession, Popov sues for possession.
b. Ruling:
i. When tortious violence from A prevents B from possessing an unclaimed
object, B receives fractional ownership interest in the object, and later
possessor C takes title subject to that interest.
1. What fraction? Presumably equal to the probability that A
would’ve possessed the object if the violence hadn’t happened.
2. Court says probability that Popov would’ve caught it had it not
been for the mob isn’t 1, but it isn’t 0, so the court guesses it’s
½.
3. Court orders the ball to be sold and the proceeds split between
Popov and Hayashi.
ii. Ownership is doled out based on the strength of each man’s claim.
c. Just a trial court; not any major source of property law and this rule doesn’t
make much sense to Green.
d. Third-party involvement (the mob)
i. Says Popov couldn’t sue members of the mob, but this seems
unconvincing to Green.
ii. The mob’s violence isn’t any worse than a hit-and-run. Sometimes we get
injured and there’s no one to sue – that’s life.
iii. If the lack of would’ve-caught-the-ball proof would be fatal in a suit
against the third party mob, why isn’t it fatal for the principle case?
iv. Why penalize Hayashi who wasn’t part of the mob?
1. He benefits from the mob, but that’s really just fortuitous – we
let other people gain fortuitous benefits from 3rd party
misbehavior. E.g., I get a job because a competitor misses his
interview because of a hit & run accident.
2. And Popov benefited himself from his actions in pushing other
people away to get the ball, but it’s very weird to say that
pushing and shoving is ok for Popov to get the ball, but not ok as
soon as it touches his mitt.
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e. Importance of Labor
i. Barry Bonds the one who did the important work in making the baseball
valuable.
1. Since he doesn’t claim it, Bonds essentially donates his labor to
a lottery set up by the Giants.
2. He’s well paid, but some players think they ought to get it
without paying for it out of their salary.
ii. Neither Popov nor Hayashi is performing important labor we should
reward.
iii. Locke’s labor theory can’t apply here because they didn’t really do any
work to make it valuable.
f. Both full-possession rule and defer-to-custom rule favor Hayashi.
g. Why Hayashi should’ve won
i. Got full possession first (full-possession rule)
ii. Custom favors him too (pursuer gets it)
iii. Popov didn’t do anything worth rewarding
iv. Court’s rule doesn’t eliminate incentive to fight, and this would.
3. Distinctions between Popov v. Hayashi and Pierson v. Post
a. Pierson is to Popov; Post is to Hayashi
b. If Popov is basically like Pierson, then Hayashi wins; if we equate it with Pierson
v. Post, Hayashi should win.
c. Why Hayashi doesn’t win:
i. Popov got closer to the baseball (“snow cone” catch) than Post did to the
fox.
ii. Third party involvement (the mob) in Popov, but not in Pierson.
iii. Important work involved from both Pierson & Post, but not from Popov
or Hayashi.
iv. Custom favors same result as first-possession rule in Popov, but not in
Pierson.
4. Full-possession rule vs. Defer-to-custom rule
a. Full possession rule (followed by Pierson, but not Popov)
i. Person who acquires first and full possession has possession.
b. Defer-to-custom rule (followed by neither Pierson nor Popov)
i. The pursuer gets the property.
ii. If followed in Popov, everyone, even the mob, would have a claim to the
ball.
iii. If followed in Pierson, the pursuer of the fox, would have a claim to the
fox.
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c. Makes Green inclined to think Popov is an easier case than Pierson, and that
Popov was wrongly decided.
i. Both the dissenting approach and the majority approach in Pierson would
favor Hayashi.
ii. If there were some reason to think that Popov had performed important
labor, might want to reward that, but Popov just wants to be rewarded
for being lucky and tall.
5. Shipwrecks
a. In English commonlaw, cargo that washed ashore (no survivors) went to the
king.
b. Traditional law: Ship lost at sea remained owner’s property.
i. Anyone else who found it was entitled to a salvage award
c. In the USA, finder gets it.
6. Locke’s Theory (first one there doesn’t necessarily own it; whatever you mix your
labor with is yours)
a. (Important to Johnson v. M’Intosh)
b. Occupancy Theory – Principle of First in Time (opposite of what Locke thinks)
i. The notion that being there first justifies ownership rights.
1. Locke says first one there doesn’t necessarily own it if I mix my
labor with it.
ii. John Locke asked: Why would anyone respect someone’s claim to
something just because they were there first?
1. The only thing that man rightfully owns is the work of his
hands. Whatever he moves out of the state nature has provided,
then becomes his property.
2. It’s not interpreted to mean that one who puts forth the most
effort wins.
c. Locke labor theory = “they weren’t using it”
i. “Whatsoever then he removes out of the state that nature has provided,
and left it in, he had mixed his labor with, and joined it to something that
is his own, and thereby makes it his property.”
d. Locke’s view on America
i. Not enough productive labor = no property rights
ii. “In the beginning, all the world was America.” Green wonders if Locke
means, “already possessed by someone else.”
e. Everyone’s entitled to their bodies, and thus the work of their bodies.
f. Whatever you mix your labor with is yours.
7. Johnson v. M’Intosh, (USSC 1823), p. 1 (Native American rights to property –
M’Intosh gets it because Indians weren’t using it and because U.S. “discovered” it,
so has exclusive right to purchase/sell)
a. Facts:
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i. M’Intosh (D) owned land in Illinois that he acquired under a grant from
the U.S. Johnson (P) had purchased the same land from the Piankeshaw
Indians, Johnson (P) wants to eject M’Intosh (D).
ii. Johnson’s (P) title is directly from Native Americans, but M’Intosh’s (D)
title is from US gov’t.
iii. M’Intosh (D) is on land, and Johnson (P) wants him out.
iv. In 1773 & 1775 (when Johnson bought the land), George III had
forbidden people to buy land directly from Indians, but it wasn’t
absolutely clear to what extent those rules were followed by the
Continental Congress about to lead the Revolution.
b. M’Intosh (D) gets title to the land.
i. Can’t buy from Native Americans (Nomintercourse Act).
ii. Only U.S. can buy/sell Native American’s lands.
c. Discovery v. Conquest
i. Discovery regulates relationships among Europeans – giving exclusive
rights to e.g., either England or the Netherlands.
ii. Conquest regulates relationship between the dominant power and the
Native Americans.
d. Discovery gives an exclusive right to extinguish the Indian’s right of occupancy,
either by purchase or conquest.
i. Exclusivity of purchase rights
1. Discovery rule adopted in Johnson: Whichever European gov’t’s
explorer found something first gets exclusive rights to conquer
and/or contract with Native Americans.
i. Gives them monopsony power (one buyer, so can
pay less)
ii. Monopoly (one seller, can charge more)
2. Indian land isn’t freely alienable = not able to be sold to just
anyone, but only to US gov’t.
a. If Native Americans can’t sell their land, it’s much less
valuable to them.
b. So the US gov’t is to some extent stealing land and
stealing the right to sell the land.
ii. Conquest – is it legitimate? Locke’s theory justifies it.
1. Marshall clearly ethically troubled about conquest, but says you
can’t expect him to declare the illegitimacy of the very gov’t he’s
apart of.
2. Justifying Conquest
a. Lockean Labor Theory = “they weren’t using it”
b. Marshall argues, “The tribes were fierce savages, whose
occupation was war, and whose subsistence was drawn
from the forest. To leave them in possession of their
country was to leave the country a wilderness.”
3. Whether conquest can be justified is a recurring issue in
property law. Fork in the law:
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a. Which person had first possession (Pierson) versus
Which person was using the thing most actively and
profitably devoting his labor to it (Post)
e. Current implications from Johnson
i. Indian law is a big field today, and rules on not buying land from Native
Americans are still pretty important
ii. Striking parallels with Israel/Palestine Issues:
1. “We had this property first” vs. “We need this property in order
to defend ourselves from people attach us on your behalf”
iii. Really old controversies in title can be relevant today if they involve they
state – Section 104 of the MS Constitution says statutes of limitation don’t
run against the state, so state can reassert title after a really long time.
FINDERS VS. LOCUS IN QUO
8. Finders (4 Possibilities)
a. Honest finder who gets object stolen (Armory)
i. Not allowed to steal from a finder.
b. Thief who gets his object stolen (Anderson, we didn’t read this case)
i. Not allowed to steal from a thief.
c. Honest finder who loses his object (N1 hypo)
i. The title of the finder is good as against the whole world but the true
owner.
ii. F1 loses a watch he had earlier found and F2 subsequently finds it. F1
sues F2 for replevin (return of the watch). F1 wins.
d. Thief who loses object (Helmholz’s article & Payne)
i. Minority Rule: The thief has rights over everyone but “former owners”
(loosely used) (What Payne says)
ii. Majority Rule: You get to keep what the thief loses; thief protected from
theft, but not loss (What Helmholz says)
e. 5 cases, 2 where finder wins, 3 where locus in quo wins.
i. Finder wins: Hannah and Bridges (Bridges not in book, but discussed in
Hannah)
ii. Locus in quo wins: South Staffordshire Water, Elwes, and McAvoy
1. Elwes not in book, but discussed in Hannah.
9. Armory v. Delamirie, (K.B. 1722), p. 98 (finder’s title is good against everyone but
the true owner or an earlier finder)
a. Facts:
i. Armory (P), a chimney sweep, found a jewel and took it to Delamirie’s (D)
goldsmith shop. Under the pretext of weighing, Delamirie’s (D)
apprentice removed the stones. Delamirie (D) offered Armory (P) three
half pence for the jewelry, which Armory (P) refused. When Delamirie (D)
refused to return the stones, Armory (P) sued for trover (value of the
item), as opposed to replevin (return of the item)
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ii. Delamirie (D) keeps the jewel improperly through “qui facit per alium,
facit per se” (he who acts through another, acts himself).
b. Holding:
i. Finder gets title good against everyone but the true owner or an earlier
finder.
c. Basic Idea:
i. Not allowed to steal jewel from the chimney sweep, even though he was
just a finder, not the true owner.
d. Notes
i. What if true owner shows up?
1. A finds object and gives it to B, who wrongfully keeps it. A sues
B for trover (value) and leaves town with the money. True
owner (T) shows up and wants to object back. T has rights to
the object or value of it if B doesn’t have the object anymore. It’s
just like he bought it honestly from the finder.
2. But if B gave the jewel back to the finder, true owner can’t do
anything.
ii. Bailment situation
1. A gives object to B in bailment. P obtains it, and B sues for trover
(value). True owner (T) doesn’t have action against P. T would
presumably have action against B.
iii. Stealing
1. You’re not allowed to steal from a thief.
iv. What if the thief loses the property?
1. Minority Rule: The thief has rights over everyone but “former
owners” (loosely used) (What Payne says)
2. Majority Rule: You get to keep what the thief loses; thief
protected from theft, but not loss (What Hemholz says)
10. Hannah v. Peel, (K.B. 1945), p. 101 (if absent locus in quo, finder wins)
a. Facts: Peel (D) bought a large house in 1938 but never moved in. In 1940 it was
requisitioned by the military. While requisitioned Hannah (P), a soldier,
discovered a brooch in a room being used as a sick bay. The brooch was in an
obscure place. Hannah (P) gave it to the police. In 1942, the true owner never
having been found, the police gave it to Peel (D), who sold it for $66. Peel (D)
never possessed the house himself nor did he have knowledge of the existence of
the brooch prior to its discovery by Hannah (P). Hannah (P) brought writ
seeking the recovery of the brooch or its money’s worth.
b. Locus in quo (owner of the land or building where the object ends up) versus
Finder
c. Issue:
i. Does the owner of the locus in quo count as an earlier finder?
ii. Does the locus in quo have “constructive possession” of the objet in virtue
of owning the land underneath (or around) it?
1. “Constructive Possession” = not possession, but what courts
want to treat like possession.
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d. Holding:
i. Hannah, the soldier, is the owner of the brooch.
ii. Locus in quo owner, Peel, never lived in the house.
iii. Court seems to try to award the finder for coming forward and giving the
brooch to police.
1. “If you don’t give it to me, I’ll have incentive to steal it next
time.”
e. Other cases discussed in Hannah
i. Bridges – Money in public part of shop goes to finder.
ii. South Staffordshire Water – Rings in mud at bottom of pool, found by
people hired by landowner, goes to landowner, locus in quo.
1. Finders were the landowners employees, so “qui facit per alium
facit per se,” the landowner owns it through the actions of the
pool cleaners, just like Delamerie possessed the jewel through
the actions of his apprentice in Armory.
iii. Elwes, underground pre-historic boat goes to landowner.
f. If Peel owns the house, why doesn’t the brooch come with it?
i. Basic argument for locus in quo: I own the land and house, so I own
what’s on it too – I constructively possessed it before the finder did.
1. This argument wins if it were in the soil (Elwes).
2. This argument also wins if it’s a ring in the mud (South
Staffordshire Water).
3. This argument doesn’t win in Bridges, which involves a bunch of
money in a public part of a shop.
g. Other considerations
i. Trespassers always lose unless the trespass was “trivial.”
1. We don’t want to encourage trespassing.
ii. We don’t want to encourage hole-digging (rooting around).
1. Explains Staffordshire and Elwes, but doesn’t explain Hannah.
iii. We want people to notice valuable stuff laying around.
1. Explains Bridges and Hannah.
h. Economic considerations
i. Behavior that gets rewarded gets repeated.
ii. Is Hannah’s rooting-around-for-stuff behavior the sort of thing we want
to encourage?
1. Maybe – it’s a valuable object, and at least now someone gets to
wear it.
iii. Is Hannah’s honest something we want to encourage?
1. Court briefly suggests yes, “His behavior was commendable and
meritorious.”
2. Obviously so, but not obvious that the way to encourage is it to
give him the object.
3. Feels a lot like extortion – “If you don’t give me the brooch, I’ll
have an incentive to just steal it.”
iv. If Hannah had been a trespasser, he loses.
1. Because we don’t want to encourage trespass.
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v. We don’t want to encourage people to go around digging holes
1. Explains South Staffordshire Water and Elwes results.
vi. We probably want people to notice valuable stuff lying around in public
places
1. Explains Bridges
11. McAvoy v. Medina (Mass. 1866), p. 107 (mislaid property, voluntarily placed
property [as opposed to lost property] goes to locus in quo)
a. McAvoy found money on the table of Medina’s barber shop.
b. Rule
i. If item is mislaid (intentionally placed somewhere, but forgotten), locus
in quo wins. If the item is lost, the finder wins.
c. Here, the wallet was mislaid rather than lost, so the owner of the barber shop
wins.
d. McAvoy is certainly inconsistent with Hannah, since the brooch was clearly
mislaid and maybe inconsistent with Bridges, since it seems to be a public place
and money was mislaid in Bridges too.
12. Does intentionally mislaid vs. lost distinction make sense?
a. Intentionally place something – one-stop shopping retracing one’s steps,
whereas lost property usually requires march larger search.
b. Intentionally put something somewhere = entrusting it to the locus in quo in
case you forget to pick it up?
c. Generally hard to tell what the mental state is of someone we can’t even find.
d. Casebook complains this doesn’t reward finders enough for their honesty.
13. 3 Types of Lost Property
a. Lost Property
i. Unintentionally dropped or lost
ii. Belongs to the finder
b. Mislaid Property
i. Property the true owner intentionally placed somewhere and forgot
ii. Belongs to locus in quo
c. Abandoned Property
i. Voluntarily relinquished property
ii. Belongs to the finder
d. Treasure Trove
i. In England, it goes to the crown
ii. In the US, goes to the finder
iii. Finders of shipwrecks get a salvage fee in England.
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PROPERTY DISPUTES: YOU CAN GET AN ORDER OR YOU CAN GET DAMAGES
ORDER
DAMAGES
REMEDIES FOR LAND
EJECTMENT – person is
TRESPASS – court makes
DISPUTES:
ejected from the land
the trespasser pay the
owner money
REMEDIES FOR
REPLEVIN – person is
TROVER – person is forced
PERSONALTY DISPUTES
forced by court to return the by court to pay the other
item
party damages equal to the
item’s worth
ADVERSE POSSESSION
1. Elements of Adverse Possession
a. Actual
b. Open and Notorious
c. Exclusive
d. Hostile or Adverse
e. Continuous
2. Types of Adverse Possession
a. Aggressive
b. Mistaken (inadvertent)
3. Van Valkenburg v. Lutz, (NY 1952), p. 122 (using land for cultivation and putting
garbage on land isn’t necessarily enough for adverse possession)
a. Basic Facts: Corner lot not used by anyone except the Lutzes.
i. Lutzes
1. Put a few inches of garbage on the lot.
2. Use a bunch of the land for gardening.
3. Very regularly use a path to get to their land.
4. Leave a bunch of junk and shack on the land.
5. There’s no fence, but an enclosure would’ve been enough for
Lutzes to win.
ii. Van Valkenburgs, as part of a feud with the Lutzes, buy the corner tract
just to make the Lutzes miserable – retaliation for chasing their kids with
a lead pipe
b. In an earlier lawsuit, Lutzes try to preserve the use of the path, but in so doing,
they actually allege that Van Valkenburgs own the land, and the court uses this
against them.
i. They got an easement in the earlier lawsuit, but sue again for the entire
property under adverse possession.
c. Holdings
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i. Cultivating only part of the land and other activity isn’t enough for
adverse possession.
ii. Cultivating land, knowing you don’t own it, isn’t enough.
iii. Putting garbage on a few inches of land, thinking you own it, isn’t enough.
iv. Problem: If you take the second and third holdings together, it would
eliminate adverse possession, which doesn’t make sense.
4. Does adverse possession make sense? If so, when? (Theories Behind Adverse
Possession)
a. 3 Basic Storylines and Characters:
i. (Character A) – The Sleeping true owner, who fails to prevent people
from coming on his land.
ii. (Character B) – The mistaken trespasser who thinks he’s on his own land,
but isn’t.
iii. (Character C) – The aggressive trespasser who thinks he can use the
property better than the true owner.
b. Essentially, issues (stories) are whether…
i. Character A or Character B is a more worthy person to own the land in
the future.
ii. Character A or Character C is a more worthy person to own the land in
the future.
c. Theory 1 focuses on the unworthiness of the true owner – “how dare he just
leave his property to rot!” – will probably allow both knowing and inadvertent
adverse possession (English rule)
i. A loses to both B and C.
d. Theory 2 focuses on the worthiness of the trespasser and will probably allow
only inadvertent adverse possession, unless we particularly admire the energy
and activity of the intentional trespasser.
i. A loses to B.
ii. A wins to C usually.
1. Sometimes we reward particularly admirable improvement efforts
by an aggressive trespasser.
2. Rewarding an aggressive improver will encourage that activity.
3. Rewarding an unintentional improver will encourage people to
improve without worrying.
4. Should we encourage improvement?
a. Environmentalists might say no.
b. Some people suggest no adverse possession for “wild
lands.”
c. “Sleeping” is good, so A wins against both B and C.
iii. Best argument for not rewarding a mistaken (inadvertent) trespasser
1. Ignorance of the law is no excuse.
2. We want to encourage people to figure out what property they
own.
5. Intermediate solutions for adverse possession
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a. Might allow both kinds of adverse possession (mistaken and aggressive), but
require longer time for aggressive than for mistaken.
b. Might allow both kinds of adverse possession (mistaken and aggressive), but
require trespasser to pay some sort of fee to the owner.
i. Might be damages from trespassing
ii. Might be the value of the land
iii. Might be something in between
MORE ADVERSE POSSESSION: COLOR OF TITLE, CLAIM OF RIGHT, AND CLAIM OF
TITLE
1. Color of Title
a. Refers to a claim founded on a written instrument that is for some reason
defective or invalid.
i. For example, when a deed is improperly executed.
ii. In a few states, it’s required to claim adverse possession. So in those states,
you must possess something to the effect of an invalid deed.
iii. Some states have a shorter statute of limitation for those with color of title
than those without who are seeking adverse possession.
iv. Actual possession of a portion of land within the area covered under the
color of title is deemed constructive possession of all the land on the deed.
b. Constructive Adverse Possession
i. If A has color of title for all of Blackacre and actual possession for only part
of it, then constructive adverse possession applies to all of Blackacre
1. Exception 1 – If O occupies a portion of Blackacre too, can’t kick O
out.
2. Exception 2 – If Blackacre is owned by O and Y, and A has only
trespassed on O’s land, but has color of title to the whole thing, A
can only adversely possess O’s land, not Y’s.
2. Claim of Right
a. Reasonable basis for belief that one owns land which he technically doesn’t own.
3. Claim of Title
a. A way of expressing hostility.
4. Mannilo (NJ, 1969), p. 136 (adverse possession doesn’t have to be hostile – you can
adversely possess land you thought you owned, but didn’t – accidental adverse
possession)
a. D possessed land under purchase agreement 23 years ago. Got title to land 17
years ago. 16 years ago, made improvements that intruded on P’s land by 15
inches. House built 15 inches onto neighbor’s yard. P sued for trespass and D
claimed adverse possession.
b. Maine Doctrine
i. Adverse possession must be hostile.
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ii. Aggressive Trespasser > Sleeping Owner > Mistaken Trespasser
iii. Doesn’t apply anymore, and doesn’t apply in this case.
1. So you can adversely possess here even if you think you own the
land.
2. Why? Mistaken trespassers are at least as worthy of winning over
a sleeping true owner as aggressive trespassers are.
c. Court says there’s a presumption that the owner knows about the encroachment.
i. Suggests this presumption could be rebutted by evidence that the owner
was completely unaware of the encroachment (sleeping).
ii. Bad reasoning because policy dictates that sleeping owners shouldn’t be
rewarded.
1. Better reasoning: “Open and notorious” = what O should know, if
he were properly diligent.
a. What O is deemed to know = O’s constructive knowledge =
what O would know if he were diligent
5. If the adverse possession clock has already rung, can it be unrung?
a. Once you get title by adverse possession, do you lose it by giving the land back or
moving off the land?
b. A adversely possessed B’s land with a fence for the requisite period, but moves it
back “to avoid a hassle” – that’s not the same as reconveying the land that A now
owns back to B.
c. Generally, conveyances of land and leases over a year have to be in writing to be
enforceable.
d. Oral agreement accepted by the neighbors for a long period of time might stick,
but not just 3 years.
e. Estoppel might work, if B had gone to some big expense (e.g., planting expensive
vegetables on “his” side of the fence after it was moved to the original boundary
line).
6. Howard v. Kunto, (Wash. 1970), p. 142 (must be continuous, but only need to
possess the way a normal owner would possess, so just summer possession ok)
a. Adverse possession must be continuous for the time period. How much
possession is required to be “continuous?”
i. Summertime-only possession is enough – only need the sort of
possession that a normal owner would have.
ii. Hypo with campers, p. 147
1. Just because they leave no trace doesn’t mean they’re not visible in
the summer, which seems to be what counts.
2. If they’re possessing it the way a normal owner would (e.g., if
everyone camps this way), that’s enough.
7. Tacking
a. Defined: Adding time from multiple different adverse possessors up so as the
reach the required time period.
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b. Shouldn’t privity between prior and subsequent possessors be in here
somewhere?
i. Privity – a relationship between the prior and subsequent purchasers is
required for tacking in Kunto.
c. Kunto says you can have tacking between possessors without specific
conveyance of the exact property in question – conveyance of the property next
door under the impression that it was the one occupied is enough.
i. Must be intended.
1. For example, it wouldn’t be allowed if he had intended to convey
other property but accidently conveyed the adversely possessed
property.
2. It wouldn’t work if one left in response to a threat.
d. Baylor rule
i. Rejected by Kunto.
ii. Must convey actual property adversely possessed from adverse possessor
#1 to adverse possessor #2 – that rule makes adverse possession less
helpful in correcting mistakes.
iii. Here, at least some of the land must be described on the deed in order to
tack.
iv. It does work, even if done in response to a threat.
e. English rule for tacking
i. No particular relationship required – as long as someone was there before
you, can add their time up to get to statute-of-limitations-time.
ii. It does work, even if done in response to a threat.
iii. Focus in English rule is on sleepiness of the true owner, not the worthiness
of the adverse possessor, so this isn’t a big surprise.
f. Adverse possession – leaving in response to a threat (problems)
i. If adverse possessor #2 (B) gets adverse possessor #1 (A) to leave
because of a threat, then no tacking under either Baylor or Kunto rules – B
would have to be there the full time himself.
1. But under the English Rule (above), B can add his time to A’s
2. If wrongfully threatened off land, A can eject B.
a. Akin to the Armory rule of relative title: whoever adversely
possesses first has a right good against later adverse
possessors, but not against O, the true owner (until the
clock runs out).
b. First one to possess land gets the exclusive right to
adversely possess it, akin to fist-one-there-gets-to-takeland-from-Native-Americans rule in Johnson v. McIntosh.
ii. If A leaves for a time because of B’s threats, but then comes back, there’s
an argument for “tolling” the statute of limitations – American Law of
Property says that – which means A’s own total time would have to be
enough.
1. Tolling
a. “Stop the clock” while A wrongly dispossessed (kicked off).
2. English rule would say A gets B’s time too.
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3. Might treat A’s repossession as an entirely new event of adverse
possession, since no tacking between A and B, but a focus on
worthiness of A would give him credit for his first possession – not
his fault B kicked him off.
g. Adverse possession – abandoned property (problems)
i. What if A abandons property, rather than being kicked off (dispossessed)
by B?
1. B still can’t tack the two time periods under American rules, but he
can under the English rule.
2. Obviously A can’t then eject B.
h. Adverse possession and the remainderman’s duty
i. Remainderman = the guy who gets land after an earlier life estate, or could
be just a term of years, ends.
1. Example: O conveys to B for life, and then to C – C has a remainder,
C is a remainderman.
ii. These aren’t really tacking problems, because the issue is which owners
are required to be awake and monitoring for adverse possessors, not
which adverse possessors can add time together, which is what tacking is
about.
iii. If adverse possession is already underway at the time of the conveyance,
then C can lose his remainder interest through adverse possession too, not
just B.
1. C has to get B to remove adverse possessor.
iv. If adverse possession begins during B’s life estate, then
1. Majority says it restarts when B’s life estate ends.
a. Reasoning: Remainderman can’t distinguish between
guests and adverse possessors.
2. Minority says it keeps ticking.
i. Adverse possession and disability
i. Disability has to exist at the time that the cause of action for ejectment
accrues – that is, the time the true owner could kick adverse possessor off
land if he wanted.
ii. Standard Statute: 21 years for adverse possession, but 10 years after the
end of the disability that existed at the time c/o/a accrued.
1. Original owner O is insane, but when he dies, the insanity ends, so
then heirs have 10 years after O’s death to eject adverse possessor
A.
2. Only original disability counts
a. Even if O’s heir is a minor, only 10 years after O’s death
(when O was insane).
b. If O is sane, only 21 years total, even if O’s heir is a minor.
c. Even if a minor goes insane at 15, only get 10 years after O
turns 18.
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GIFTS
1. Gifts are irrevocable and take property away from the estate left to heirs, so the law
imposes requirements on them:
a. There must be intent to make a gift.
i. Not controversial in the law, but frequently difficult fact question.
b. There must be delivery or constructive delivery of the gift.
i. Very controversial in the law, and Restatement wants to change this rule.
ii. Manual delivery (just like it sounds)
iii. Symbolic Delivery
1. Something that represents the gift.
2. Must be an object, words aren’t enough.
iv. Constructive Delivery
1. Treated like delivery when it’s impractical to deliver manually.
c. Does delivery have to happen at the same time as the intent to give the object?
i. No, you can leave the ring somewhere and then after the fact declare it to
be given – that counts as delivery.
ii. What if the giftee hands it back to the giver to keep until it can be resized?
1. No intention from the giftee, so the giftee still owns it.
2. Original owner is bailee.
2. Promises to give gifts
a. Must have consideration or reliance (as a substitute for consideration).
b. What if a giver promises to give the ring when she dies?
i. Not enforceable without consideration or something done by the giftee.
ii. For a promise to be enforceable, must either be a contract (consideration)
or the giftee must act in reliance on the gift (promissory estoppel).
3. Broken engagements – does she have to give the ring back?
a. 3 possible rules (varies by jurisdiction)
i. Giftee always allowed to keep it.
ii. Giftee must always give it back (Lindh).
iii. Giftee must give it back if the broken engagement is the giver’s fault (i.e.,
the giftee is at fault for the broken engagement).
1. Traditional rule, obviously requires courts to hear testimony about
everything that happened during the engagement.
b. Engagement rings usually seen as a conditional gift – if seen as unconditional,
the always-keep-it-rule would make sense.
4. Gifts of checks
a. Checks aren’t money, it’s an order to a bank to pay money (acc. to most courts).
i. Doesn’t satisfy delivery aspect.
ii. Of course, the decedent’s water and phone bills are still due after he dies, so
if someone dies on his way back from the mailbox in which he left a check
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for the outgoing mail, the bank is allowed to cash it. It the bank didn’t, the
water and phone companies could sue the estate for the unpaid bill.
iii. If someone dies before the giftee cashes the check, though, there’s no
underlying obligation of the estate to still gift the money to the giftee.
5. Constructive delivery ok if the item can be manually delivered?
a. As we’ll see in Newman and Gruen, the traditional rule is that if something can be
delivered manually, it has to be delivered manually, no constructive delivery by a
document of a wristwatch, for example.
b. Restatement wants to reform this no-constructive-delivery-of-a-manuallydeliverable-item rule.
6. Jointly owned safety deposit boxes don’t count as delivery.
a. Because giver never relinquished control over the item and could get it back at
any time.
b. For bonds in Ore, the giver never relinquished control over the bonds left in the
safety deposit box for the giftee with a clear note saying the bonds are the
giftee’s. Also, the giver was collecting interest from the bonds, thus indicating
dominion over them.
i. Actual facts said giftee gets the bonds when giver dies, but court says even
if the gift was immediate, you still need more delivery than that.
7. Newman (NC 1898), p. 167 (no constructive delivery)
a. Guy dies without a will (intestate). Before he dies, he gives a bunch of stuff to his
housekeeper who he planned to marry.
b. Suit by housekeeper/fiancé against estate administrator
c. The intestate guy without a will is Van Pelt
d. Gift “causa mortis”
i. Deathbed gift
ii. Gift in contemplation of dying
e. Gift “inter vivos”
i. Gift given earlier in life
ii. During life gift
f. The intent to give the objects is there, but the delivery is questionable.
i. On his deathbed, Van Pelt tells Newman he wants her to have everything in
the house and gives her keys that open several pieces, including a bureau
with $3,000 life insurance policy.
g. 3 kinds of delivery
i. Symbolic (give something that represents the object)
1. Court rejects argument that keys represent everything in the house,
because it rejects the whole concept of symbolic delivery, but other
courts might disagree.
ii. Constructive (treated as delivery if it’s impractical to deliver manually)
1. Court doesn’t like constructive delivery, but goes along grudgingly
based on precedent, construing it as stingily as possible.
iii. Manual (actual physical delivery)
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1. Court applies manual delivery and it is acceptable (of course).
h. 5 categories of stuff at issue
i. Bedroom furniture
1. Julia wins because of constructive delivery
ii. Insurance policy in the furniture that the keys opened
1. Julia loses
2. The bureau isn’t normally used for storing important documents –
the bureau is “in the ladies department,” not like a safe, so the
contents don’t go with the bureau (this is questionable to Green).
a. Court probably a little worried about Van Pelt’s intent,
though issue framed as delivery.
3. Other furniture
a. Julia loses, no symbolic delivery
i. Post-Newman hypos
i. What if Van Pelt clearly wanted to give both the bureau and the insurance
policy inside, but Enos didn’t move it to Julia’s room as asked?
1. No delivery, so no gift.
ii. What if Van Pelt wants to give the bureau and asks Enos to move it to Julia’s
room and Enos complies, but Van Pelt doesn’t know about the policy
inside?
1. No intention, so no gift.
8. Gruen v. Gruen (NY 1986), p. 174 (as much delivery as makes sense required –
letter ok here since dad wanted to keep life estate in painting)
a. Time 1, letter conveying painting, but preserving a life estate – son gets a
remainder
i. Court says it’s effective via letter, because how else can you give a
remainder?
1. No need to manually deliver painting if the giftee doesn’t get a
present possessory interest.
ii. Delivery must be tailored to circumstances
1. As much delivery as makes sense, and for remainder, letter is the
only thing that makes sense.
b. Time 2, letter purporting to convey painting (which, if time-1 gift is effective,
father no longer owns) without a life estate (for tax reasons).
i. Is the gift of the life estate to the son? Maybe no, because father actually
intended to give it to the son possession only when he died – might say
father wanted to change from the owner into a bailee, though.
ii. Under reasoning of case, this would not be effective, since the painting
could’ve been delivered, but court doesn’t discuss this because the son only
asked for the painting after his father died.
c. Does the delivery requirement make sense?
i. Restatement (Third) of Property Wills & Donative Transfers says no, as
long as there’s sufficiently explicit statement of intention in writing.
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ii. The point of the delivery requirement is to prevent fleeting gift statements
from being taken seriously, but writing seems like enough to Green and the
ALI.
POSSESSORY ESTATES
1. Types
a. Fee Simple
i. This type of estate has the potential to endure forever
ii. “to A and his heirs”
iii. In 1600, have to add “and his heirs” in order to convey more than a life
estate to someone – “to B forever” makes that clear in English, but not
1600-law-ese.
iv. There is no reverter back to O in a fee simple.
v. If O conveys “to A for life, remainder in the heirs of B,” and B dies before A,
leaving C as heir, C has fee simple.
1. No need to convey “to B’s heirs and their heirs,” because under a
system of primogeniture, there’s only one heir, so “B’s heirs”
means “B’s heir and B’s heir’s heir and B’s heir’s heir’s heir, and
so on.
vi. Conveyance “to A and his heirs” conveys fee simple to A.
1. Doesn’t convey and interest to potential future heirs – living don’t
have any heirs.
2. A’s prospective heir can’t complain if A sells the property and
wastes the money.
vii. Conveyance “to A for life, then to B and his heirs,” if B is A’s only child, will
create immediate interest in B which he can sell to creditors, who could
then take the land when A died
viii. Defeasible fee simple estates
1. Fee simple determinable
a. Automatically ends if some specified event occurs.
b. It’s a fee simple because it can last forever.
c. It’s “determinable” because at the occurrence of the
specified event, it automatically reverts back to the
grantor.
d. Uses language “so long as.”
2. Fee simple subject to condition subsequent
a. It can last forever, but it can be cut short at the occurrence
of some specified event, but not automatically.
b. The grantor may end it if he wants to; O has a “right of
reentry.”
c. Uses language “but if.”
3. The difference between them is the fee simple determinable ends
automatically and automatically reverts back to O, but the fee
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simple subject to condition subsequent doesn’t end automatically
since O can take it back if he wants, but doesn’t have to.
b. Heirs
i. In 1600, intestate property was always passed to the oldest son.
c. Life Estate
i. Estate that will end at the death of some person.
ii. “to A so long as he lives”
iii. “to A for life”
iv. “to A forever”
v. 2 types of life estates
1. Pur autre vie
a. French phrase means “for another’s life”
b. Here, the measuring life is someone other than the
grantee.
c. “To A for the life of X, then to her son B”
i. If A predeceases X, whoever A devises her estate to is
still for the life of X.
2. For the life of the grantee
a. This is the typical life estate.
b. The measuring life for the estate is the grantee
c. “to A for life”
vi. “To A for life, then to B forever” creates, in 1600, life estate in A and
“remainder in fee simple” – i.e., remainder lasting forever in B.
1. In 2002, same language creates life estate in A and “remainder in
fee simple,” i.e., remainder lasting forever in B
d. Term of years
i. This is all from google:
ii. Lesser than a life estate.
iii. Similar to a life estate in that the grantee has possession of the estate for a
term of years (but not their entire life).
iv. If the grantee dies or forfeits the estate, the person next in line gets it and
doesn’t have the wait the full term first.
e. Fee tail
i. Estate that has the potential of lasting forever, but will end whenever the
tenant doesn’t have a lineal descendant to succeed him.
ii. Was important in feudal times as a mechanism to keep land in the family
of the wealthy.
iii. Now it’s only recognized in a handful of jurisdictions.
iv. “to A and the heirs of his body”
v. Series of life estates to decedents with reverter when lineage runs out.
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vi. Essentially a series of life estates – to A for life, then to A’s heir (though it
must be descendant) for life, then to A’s heir’s heir (with the same
restriction) for life, and so on – when A runs out of descendants, back to O.
1. Reverter back to O when grantee runs out of heirs. O will be dead,
but it goes to his heirs.
vii. The guy who dies at the beginning of a fee tail can’t sell his land, because in
essence he only has a life estate, so his oldest son and evil daughter-in-law
(they’re married) can kick his widow and other children out of the house.
viii. Can add a restriction, e.g. “must be male descendant.”
1. Male fee tail = “to A and the male heirs of his body”
2. Female fee tail = “to A and the female heirs of his body”
2. Current Law
a. Heirs
i. “Per stripes approach”
ii. Status as an heir is not devisable
iii. Living people don’t have heirs
iv. Surviving spouse
1. In England, didn’t get anything
2. Today they’re entitled to some portion
b. Issue
i. Descendants (excluding children)
3. Living people don’t have heirs (those remainders are contingent).
4. Problems
a. O has 2 kids, daughter A and son B.
i. B dies and devises his property (i.e., leaves it in his will) to widow W.
ii. B has daughter B1, son B2, and daughter B3.
iii. A has son A1.
iv. O dies intestate
1. In 1600, B2 gets it, as oldest son of oldest son.
2. Today, A gets 1/2, B1, B2, and B3 get 1/6 each – per stripes
approach.
3. A1 gets nothing, because his mother is still alive to be heir.
4. W gets nothing from O, because B’s status as heir isn’t devisable.
WHY????
5. White v. Brown (Tenn. 1977), p. 202 (preference for largest estate in construing
wills – “to live in” only states a purpose, not a duration, so doesn’t limit the gift –
she gets a fee simple)
a. Interpreting a will in light of the law’s hostility to restraints on alienation.
i. Ms. Lide’s will: “I wish Evelyn White to have my home to live in and not be
sold.”
b. 2 Issues
i. Can Lide ban heirs from selling the house?
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ii. Does White get the home free and clear (fee simple) or only a life estate?
1. If only a life estate, then she generally can’t sell the house without
consent of owners of remainder – the dissent suggests this is
what Lide meant to do.
iii. Trial court says the restraint on alienation isn’t effective, so house can be
sold, but must give part of the money to the other heirs since White only
gets a life estate.
iv. TN Supreme Court says White would get all the money if she sold it
because she has a fee simple.
v. Supreme Court (majority) rule that “to live in” only states a purpose, not a
duration, and doesn’t limit the gift.
1. Not read as “so long as she’s living in it.”
2. Not read as “so long as she’s alive.”
c. Dissent (Green hates this type of argument)
i. The testatrix knew how to make an outright gift, if desired.
1. But an argument like this can be made both ways – surely Lide
also knew how to say “as long as she’s living” or “for life.”
2. Sure, could’ve made one result clear, but could’ve also made the
contrary result clear too.
6. Restraints on alienation
a. Recall Johnson v. McIntosh
i. The right to sell something is itself an important, valuable aspect of
ownership.
b. General rule
i. Absolute restraint on alienation is void almost everywhere, but
partial restraints (limited in time, limit on people to whom it can be
sold) is ok if reasonable.
c. Even if they’re allowed, better way to do it in the form of a forfeiture.
i. E.g., “I wish Evelyn White to have my home for life, but if it is sold, the
home is to be given to the state of Tennessee.”
ii. That’ll be enforceable for a life estate, but generally a “don’t sell my house”
will not.
7. Baker v. Weedon (Miss. 1972), p. 210 (life estate owner wants to sell, remainders
don’t)
a. Life estate to Anna, remainder to her former husband’s grandchildren.
b. Division of opinion about whether the market price adequately reflects the fact
that US 45 will be built at some point.
c. Anna wants to sell the land.
i. She wants the grandchildren to sell their remainder interest at the market
rate because no one wants to buy a life estate pur autre vie (tenancy ends
when Anna dies).
d. 2 issues
i. Should Anna be allowed to require the remaindermen to sell their
interests?
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1. Conceptually, the same question as whether Nissan can make
people sell their land so they can build a plant.
a. Neighbors in space (Nissan and people with land it wants)
are like neighbors in time (Anna and the grandchildren).
b. The homeowners selling their land, or the
grandchildren/remaindermen can present a bill, but
refusing to sell isn’t the act of a friend.
2. Someone in Anna’s position will always be present-oriented - i.e.,
let’s sell now because I need the money - but remaindermen will
want to wait.
a. Life tenant will, if allowed, cut down trees before the
sensible time because trees left on the land after she’s
gone are not useful, so wants the money for them before
she dies.
b. Remaindermen will, if allowed, insist the trees not be cut
down even if it makes sense to chop them down, sell them,
and plant new ones. This is because they want as many
valuable objects on the land when the life tenant dies as
possible.
ii. How to divide the proceeds between Anna and remaindermen from selling
the land.
1. Anna essentially has a life estate in the proceeds, and the
grandchildren have the remainder.
2. One way to do it – take the money, put it in a bank account, and
give Anna the interest during her life, and the
grandchildren/remaindermen the principal when she dies.
3. Here, court decides the best interest of all the parties wouldn’t be
served by a sale of all the property. The case is remanded for
consideration of Anna’s motion to sell only as much of the
property as is sufficient for her needs.
e. Should Anna or the grandchildren/remaindermen win?
i. Court agrees it makes sense to allow Anna to sell her property and pay
compensation to the remaindermen, since the life estate is too awkward to
sell by itself, but then it credits the grandchildren’s somewhat absurd
thought that they know how much the land is really worth.
1. Court says selling now would cause “great financial loss” to the
remaindermen.
2. What the land is worth is what people are willing to pay. If people
aren’t willing to pay $336,000 now, they obviously disagree with
the grandchildren’s estimates of future value.
3. In general, Green would be skeptical of people claiming to know
future value better than the market does – the $168,500 figure
includes the probability US 45 will make the land more valuable,
and also the probability that US 45 will take a long time to build.
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ii. The court adopts an intermediate solution, allowing Anna to sell off bits of
the property, putting the proceeds in a fund to pay her the interest for her
reasonable needs and saving the principal for the remaindermen.
1. Requires lots of continuing supervision.
2. Also a bit odd that her particular financial needs are so relevant,
since the basic issue is whether it’s efficient and proper to
forcibly combine both temporal slices into one package, and that
has nothing to do with how much Social Security Anna is getting.
3. Green doesn’t like this. He says one party should win outright.
f. Waste vs. “Economic Waste”
i. They are different concepts.
ii. Waste
1. Legal doctrine concerning things the life tenant (or any other sort
of person entitled to possess property for a limited time) does to
harm the interests of the remaindermen.
2. Legal doctrine concerning things one interest holder does to
harm another interest holder.
a. Interest holder shouldn’t be allowed to use property in a
manner that unreasonably interferes with the expectations
of another interest holder.
3. This is the issue in Wood v. Woodrick.
iii. “Economic Waste”
1. Idea dreamed up by chancellor in Baker.
2. Anna needs to be able to force the remaindermen to sell in order
to get a proper price for the sale of her life estate
3. Takes into account the economic needs of the parties.
8. Woodrick v. Wood (Ohio. App. 1994), p. 218 (current tenant wants to destroy barn
that has sentimental value to remainderman - Current tenant must pay
remainderman barn’s worth even though destroying it increased value of land)
a. 25% remainderman seeks injunction against destruction of barn, though the
court think the barn is actually bad for the value of the property.
b. Waste
i. Conduct that violates the remainderman’s rights.
ii. Basic policy issue about whether remainderman is only allowed to care
about the value of the property, and not about “a really special barn.”
iii. Remainderman might pretend to have sentimental value, though, in order
to extort a payoff.
iv. Traditional rule says no significant changes at all, which would protect
sentimental value, but trend is toward the only genuine concern is the
market value.
c. Court orders life tenant (who owns the other 75% of the remainder interest) to
pay the 25% remainderman the full value of the barn, even though it was bad for
the value of the farm.
d. Makes no sense for 2 reasons:
i. She’s only a 25% owner of the remainder.
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ii. If destroying the barn increases the value of the farm, then she gets
compensated twice, once at time of suit, and then later when she takes
over (a part interest in) a more valuable property.
9. Possessory Estates
a. Fee simple defeasible (can be defeated), 2 types
i. Fee simple determinable
1. Automatically ends if some specified event occurs.
2. It’s a fee simple because it can last forever.
3. It’s “determinable” because at the occurrence of the specified
event, it automatically reverts back to the grantor.
4. O has a “possibility of reverter”
5. Uses language “so long as.”
ii. Fee simple subject to condition subsequent
1. It can last forever, but it can be cut short at the occurrence of
some specified event, but not automatically.
2. The grantor may end it if he wants to.
3. O has a “right of reentry.”
4. Uses language “but if.”
iii. The difference between them is the fee simple determinable ends
automatically and automatically reverts back to O, but the fee simple
subject to condition subsequent doesn’t end automatically since O can take
it back if he wants, but doesn’t have to.
iv. In Illinois (for Mahrenholz), neither right of reentry nor possibility of
reverter is transferable (can’t give it away, sell it, or leave it to someone in
a will, but it can go to someone by intestate succession), but some states
say both are transferable, and some say only the possibility of reverter is,
and not a right of reentry.
v. Fee simple defeasible and adverse possession
1. With fee simple determinable, ownership transfers automatically,
so adverse possession clock starts ticking immediately when
ownership is transferred back to O (or O’s heirs).
2. With fee simple subject to condition subsequent, right of reentry
has to be exercised, and it’s possible the rules on when you have
to exercise it will be different.
b. Problems
i. The case of the ambiguously-worded liquor restriction
1. Says “so long as,” which seems like a FS determinable.
2. Refers to a “right to reenter” too, which seems like a FS subject to
condition subsequent.
3. Cooking with alcohol is not selling alcohol, but giving away free
champagne at lunch kind of is.
4. 11 years have passed
a. This might be more than the statute of limitations for
ejectment, which would be enough if it’s FS determinable.
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b. Might be more than the laches period for exercising right
to reenter, if it’s FS subject to condition subsequent.
i. Laches – Party invoking laches (it’s a defense) is
asserting the opposing party has “slept on its rights”
and as a result of their delay, can no longer exercise
those rights.
5. There’s no real answer, it’s just asking you to advise the tenant.
ii. Can the owner of a fee simple defeasible (either determinable or subject to
condition subsequent) drill for oil?
1. Davis v. Skipper holds that title didn’t revert back to O because the
church building was still being used as a church. And because the
present owner of a fee simple determinable (reverts back to O if
it’s no longer used as a church) has “all the incidents of a fee
simple” and could therefore extract oil from the land.
2. So you can extract oil even if it would by waste by a life tenant.
3. Intuitively, it should matter how likely the condition that would
end the fee simple determinable (or FS subject to condition
subsequent) will be met. If it’s almost certain to end at some time,
then it seems certainly wasteful.
10. Mahrenholz (Ill. App. 1981), p. 226 (distinctions between a fee simple determinable
and a fee simple subject to condition subsequent – can convey possibility of
reverter, but not right of reentry)
a. Issue
i. “This land is to be used for school purposes only; otherwise to revert to
Grantors herein.”
1. Doesn’t fit either “so long as” fee simple determinable formula or
“but if” fee simple subject to condition subsequent formula.
2. Trial court says fee simple subject to condition subsequent, but
appellate court says fee simple determinable.
b. Why does it matter if it’s a fee simple determinable or a fee simple subject to
condition subsequent?
i. Because fee simple determinable means transfer back to O is automatic,
and fee simple subject to condition subsequent mean transfer back O
requires O to reenter and ask grantee to leave.
ii. Because, under Illinois statute, neither a “right of reentry” or “possibility of
reverter” are conveyable.
1. If Harry has a “possibility of reverter” (fee simple determinable, it
automatically goes back to him, so he has a fee simple and can do
with it as he pleases, so any conveyances of the land is valid.
2. If Harry has a “right of reentry” (fee simple subject to condition
subsequent), he has an unexercised right to take the land back,
but since he didn’t exercise that right, the land isn’t his and all
conveyances are invalid.
c. When the land arguably stops being used for school purposes (it’s debatable)…
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i. If it was a fee simple determinable, then O’s heir gets fee simple back
automatically, which he can sell.
ii. If it was a fee simple subject to condition subsequent, then O’s heir still
just has a right of reentry, which he’s now allowed to exercise, but can’t
sell (because O’s heir didn’t reenter).
d. Facts
i. Time 1, interest gets created
ii. Time 2, school purposes possibly cease
iii. Time 3, O’s heir’s heir, Harry, conveys his interest (whatever it was) to
Mahrenholz.
1. Was this an interest he could convey?
a. If original conveyance to the school created a fee simple
subject to condition subsequent and Harry had a right of
reentry, no.
b. If the original conveyance to the school created a fee
simple determinable, and Harry had a fee simple after it
reverted back to him, yes.
iv. Time 4, Harry disclaims his interest (if he still has one) in favor of school
trustees.
1. Disclaimer allowed, but not sale to 3rd party.
2. Did Harry have such an interest?
a. If the interest he had before was able to be conveyed
(because O originally created a fee simple determinable),
then Harry had a fee simple, which he gave to Mahrenholz,
so no, Harry could not disclaim his interest in favor of the
school trustees because he no longer had an interest.
b. If the interest he had before wasn’t able to be conveyed
(because O originally created a fee simple subject to
condition subsequent), Harry would only have an
unexercised right of reentry, which he couldn’t convey to
Mahrenholz, so yes, he could disclaim his interest in favor
of the school trustees because he still had an interest.
c. So school wins if it was a fee simple subject to
condition subsequent, but loses if it was a fee simple
determinable.
11. Mountain Brow Lodge v. Toscano (Cal. App. 1967), p. 236 (a use restriction isn’t a
restriction on alienation)
a. Toscanos deed a lot to Lodge, a fraternal organization.
i. Deed provided the following two conditions or it would revert back to
Toscanos.
1. Lodge (as a fraternal organization) must continue to use it.
2. Lodge can’t sell it.
b. Toscanos died, so Lodge sued Toscanos’ heirs for quiet title.
i. Lodge claims since it’s an absolute restrain on alienation, the reversion
back to Toscanos’ heirs is invalid.
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ii. Heirs claim the deed created a FS subject to condition subsequent.
c. Both majority and dissent agree the 2nd condition (Lodge can’t sell it) is void as a
restraint on alienation.
d. Majority and dissent disagree about whether the use restriction is a restraint on
alienation.
i. Holding: Majority says it’s not an invalid restraint on alienation, but not
much explanation as to why.
1. Majority says it will encourage gifts to charities.
a. Is the fraternal organization really a charity?
2. Supplement: A grantor may restrict the use of land. Here, it’s
obvious the clause limits the land to the Lodge’s use in order
to ensure the land was used for the fraternal organization’s
purposes.
a. Thus, it is a FS subject to condition subsequent and heirs
keep their interest.
ii. Dissent wants “realism in the law,” which he thinks means treating this a
restraint on alienation.
1. Supplement: The clause has the same effect as forbidding the sale
of the land because it limits who can use it without reverting it
back to the grantors.
12. Ink v. City of Canton (Ohio 1965), p. 243 (possessor of a FS determinable [a park]
will get the value of the park, and the heirs of O will get the value of the land
[minus the park’s worth] if the land conveyed to the city for a park is seized for
eminent domain)
a. Land conveyed to city for use as a park “and for no other use and purpose
whatsoever.” When this condition wasn’t met, the land was to revert back to the
grantors (FS determinable). Then a large portion of the land was taken for a
highway through eminent domain. The state deposited money in a fund for the
land. The dispute is over whether the city or the grantor’s heirs get the fund.
Court decides to split it up – heirs get the fund (minus the value of the
park), and the city gets the value of the park (minus the value of the rest of
the land).
b. This case is about an apportionment between owner of defeasible fee and owner
of future interest.
c. 2 basic approaches:
i. Give it all to the owner of the defeasible fee (majority)
ii. Give it to the owner of defeasible fee, unless it was likely to lapse soon,
then give a portion to the owner of the defeasible fee and a portion to the
future interest remainderman (Restatement 1936)
d. Holding/Rule
i. Future interest holder gets total value of land minus value of land as a
public park.
ii. Defeasible fee holder gest value of land as a public park (not likely to be
much).
e. Rationale
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i. City didn’t pay anything for land, so it’s no problem if they don’t get much
from condemnation.
1. That doesn’t make much sense…
a. Property obtained through a gift is normally protected the
same as any other property, and how much the city paid
for the land doesn’t tell us how to draw the boundary
between its rights and someone else’s.
f. Problem with the rule
i. Paying total full market value for the land (i.e., how much the land would
be worth with expensive condos on it, or the like) doesn’t take into
account the reduction in value that the must-use-it-as-a-park-restriction
causes.
g. Alternative rule
i. Rather than valuing land on the basis of what the city could sell it for, pay
them enough to buy some land for a public park, and give the Ink heirs a
future interest with respect to that land.
1. Comes a lot closer to fair replication of the status quo ante.
2. “Here’s enough to buy yourself a new home” vs. “Here’s what you
could have sold your home for” takes the purpose of eminentdomain compensation.
13. Palm Springs (Cal. App. 1999), p. 243
a. City that defeats its own defeasible fee (on purpose) in order to turn horses-only
land into a golf course has to pay full compensation to the owner of the future
interest.
i. Modifies Restatement rule to take into account changes from the
condemnation itself - Ink does that too, though without the 100%-tofuture-interest-aspect.
1. Restatement Rule: Give it to the owner of defeasible fee, unless it
was likely to lapse soon, then give a portion to the owner of the
defeasible fee and a portion to the future interest remainderman.
ii. Maybe only applicable when city is engaged in self-dealing – rule might
not apply if the state highway department was the one doing the
condemning, rather than the city.
14. Marriage restrictions
a. Generally can’t penalize marriage, but can provide support until rich second
spouse can support.
b. Another place where the FS defeasible vs. FS subject to condition subsequent
distinction matters.
i. For no particularly good reason, “Blackacre goes to my widow so long as
she’s unmarried” is sometimes treated as support during marital
interregnum, but “Blackacre goes to my widow, but if she marries, my
heirs have a right to take it back” is treated as a marriage penalty.
1. Restatement says it’s of “slight evidentiary value,” but even that
seems like too much.
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ii. Even when they’re allowed, marriage restrictions constructed strictly:
mere cohabitation doesn’t trigger forfeiture unless it says so explicitly.
15. Reversion problems
a. Using “reversion” to mean any interest at all left in O.
b. “To A for life, then to B and her heirs”
i. No reversion
c. “To A for life, then to B and the heirs of her body”
i. There’s a reversion because this is a fee tail.
ii. However, some states don’t allow fee tails and fee tail language produces a
fee simple.
d. “To A for life, then to B and her heirs if B attains the age of 21 before A dies”
i. There’s a reversion, which disappears (“divests”) if B turns 21 before A
dies.
e. “To A for 20 years”
i. There’s obviously a reversion.
f. “To A for life, then to B for life”
i. Both A and B have life estates, so there’s a reversion back to O when A and
B dies.
g. The funeral contingency
i. Holder of remainder always has right to take possession immediately
upon expiration of prior estate.
ii. Holder of executory interest usually divests an earlier estate.
iii. “To A for life, then to B if B gives A a proper funeral”
1. B has an executory interest that would divest O once B gives A a
proper funeral, which obviously isn’t during A’s life estate.
a. “Springing” executory interest since it cuts short O.
b. Would be “shifting” executory interest if it cut short
someone else.
FUTURE INTERESTS
1. When a future interest is created, it’s fixed. It does not change its original character if
it’s transferred.
2. All future interests are alienable except rights of reentry (in a few states they’re still
alienable).
3. Future interests in the transferor
a. The grantor only has a future interest when he conveys an estate lesser than his
own.
b. Reversion
i. Based on a life estate.
ii. A future interest held by the grantor who conveys a life estate.
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c. Possibility of reverter
i. Based on a FS determinable.
ii. A future interest held by the grantor who conveys a FS determinable.
d. Right of reentry
i. Based on a FS subject to condition subsequent.
ii. Future interest held by the grantor who conveys a FS subject to condition
subsequent.
4. Future interests in the transferee
a. Vested remainder
i. Created in an ascertained person.
ii. Are not subject to a condition precedent.
iii. The holder of a vested remainder is certain to acquire a possessory estate.
iv. 3 types of vested remainders
1. Indefeasibly vested
a. Holder of this remainder is certain to acquire a possessory
estate.
b. Once he receives the estate, he’s entitled to retain it
permanently (i.e., he gets a fee simple)
2. Vested remainder subject to open (partial divestment)
a. Holder of this remainder is certain to acquire a possessory
estate.
b. Once the remaindermen receive the estate, they’re entitled
to retain it permanently (gets a fee simple).
c. However, the “holders” are a class of people that may
expand.
i. If the remainder is in A’s children – well A can still
have more children.
d. Subject to open/partial divestment
i. Is there someone that can happen to dilute interest?
e. RULE OF CONVENIENCE HERE?
3. Vested remainder subject to complete divestment
a. The vested remainder is subject to being divested by some
event (a condition subsequent) or there’s an inherent
limitation of the remainder.
b. “O to for life, then to B, but if B doesn’t survive A, then to B’s
eldest son.”
i. B has a remainder, but if B doesn’t survive A, then B
will be divested of the remainder.
b. Contingent remainder
i. Either created in an unascertained person or subject to a condition
precedent.
c. Condition precedent vs. condition subsequent
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i. Must be able to differentiate these because if it’s a condition precedent, the
remainder is contingent. However, if it’s a condition subsequent, the
remainder is vested subject to divestment.
ii. Condition precedent
1. No deal has been struck until this duty is fulfilled
iii. Condition subsequent
1. The deal has been struck, but if this condition occurs, deal comes to
an end.
d. Executory interest
i. Green said these aren’t all that important.
ii. Defined
1. Executory interests are future interests in a grantee that either
divest (cut short) the prior estate or springs out of the prior estate.
iii. Types
1. Shifting executory interest
a. “To A, but if B returns from the war alive, then to B”
b. B has an executory interest that will divest A when B returns
from the war alive.
c. The estate will shift from A to B.
2. Springing executory interest
a. “To A if A returns from the war alive”
b. When A returns, A’s future interest will spring from O (the
grantor) to A.
c. O’s fee simple will divest when A comes back from the war.
3. Difference between springing and shifting?
a. For springing, the estate springs from O to A.
b. For shifting, the estate shifts from someone O already
conveyed it to to another person.
e. Executory interests vs. remainders
i. The distinction itself is sometimes very confused.
ii. It only matters when we’re applying rules like DOCR (Destruction of
Contingent Remainders) and RISC (Rule in Shelley’s Case).
iii. Remainders
1. A remainder cannot divest (cut short) a prior estate.
2. A remainder can only become possessory at the expiration of the
prior estate.
iv. Executory interests
1. Must divest (or cut short) a prior estate.
2. An executory interest becomes possessory before the expiration of
the prior estate – it cuts the prior estate off if some condition is
met.
5. Problems, vested or contingent?
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a. “To A for life, and if A dies, to B and her heirs”
i. “if A dies” is unnecessary because A will die, so B’s remainder is vested.
ii. “If B subsequently conveys her interest back to O”
1. O’s remainder is still vested because it doesn’t automatically turn
into a reversion for O. A reversion is only possible when O conveys
less than his full FS, but O conveyed everything here.
b. “To A for life, then to B for life, then to C and her heirs”
i. A has a life estate.
ii. B has a vested remainder in a life estate.
iii. C has a vested remainder in fee simple.
c. “To A for life, then to B for life, then to C and her heirs if C survives A and B”
i. A has a life estate.
ii. B has a vested remainder in a life estate.
iii. C has a contingent remainder in FS.
iv. O has a reversion
d. “To A and B for their joint lives, then to the survivor in FS”
i. A and B each have contingent remainders because the holders of the
future interest will not definitely get possession of the estate, so it can’t
really be vested.
e. “To A for life, then to A’s children who shall reach 21”
i. A has a life estate.
ii. Remainder in A’s children is contingent until one of them reaches 21, then
remainder becomes vested subject to open.
iii. Even if all of A’s children die before A, the children’s heirs will get their
interest as long as the child is 21.
f. Life estates ending before the death of the life tenant (forfeiture)
i. Certain things can end a life estate and give title to remainderman early
(before the life tenant dies).
1. Forfeiture for waste – You’ve been so unreasonable in managing
this land, we’re going to give it to the remaindermen now.
ii. “To A for life, then to B and her heirs if B survives A, and if B doesn’t
survive A, to C and her heirs”
1. A has a life estate.
2. B’s remainder is contingent
a. If A dies before B, B gets a FS
3. C’s remainder is contingent
a. If B dies before A, C gets a FS
4. If A forfeits his estate early, the estate goes back to O temporarily
until with A or B die, so as to determine who (B or C) gets the FS.
iii. “To A for life, then to B and her heirs, but if B doesn’t survive A, to C and
her heirs”
1. A has a life estate.
2. B’s remainder is vested in FS.
3. C’s remainder is contingent
a. If B dies before A (before his interest becomes possessory),
C gets the FS.
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4. So if A forfeits his estate early, B will get the estate until either A or
B dies. If A dies first, B gets the FS (and C no longer has any
remainder). If B dies first, C gets the FS.
5. Helps to split it up by the commas to determine who has what
because this problem and the one above seem similar.
6. Problems, identifying interests
a. “To A for life, then to A’s children and their heirs, but if at A’s death he’s not
survived by any children, then to B and her heirs”
i. A has a life estate.
ii. A’s children have a contingent remainder in FS because they’re
unascertained.
iii. B has a contingent remainder in FS because based in a condition precedent
of A not being survived by any children.
iv. O has a reversion.
1. Because if A’s life estate ends before he dies (A forfeits), and has no
kids yet, neither contingent remainder is fulfilled, so someone has
to have possession until A dies and we can ascertain who gets the
remainder (A’s kids or B). So O’s reversionary interest is here. O
holds onto it until A dies.
2. When A has kids (C and D), O’s reversion disappears since they
would get it.
a. Are you sure it disappears? Because A still might survive C
and D.
i. Yes, it still divests because if C and D die before A, C
and D’s heirs would get C and D’s interest. However,
as soon as A dies, C and D’s interests will be cut off by
B’s interest because the only requirement for B’s
remainder to be vested is that A die without
surviving children.
v. A has children, C and D
1. They have a vested remainder in FS subject to open (subject to A
having more children)
2. This remainder is subject to complete divestment, though, if C or D
doesn’t survive A.
3. B still has a contingent remainder because C and D might not
survive A.
a. I am confused here too. If it’s vested remainder in FS, it
should go to A’s children’s heirs, not to B. Why does it still go
to B?
4. If C dies before A, but D survives A, then C’s estate still gets C’s
share when A dies, since the condition for B getting his remainder
is A not being survived by any children.
a. D and C’s estates share the property.
b. So B’s remainder will only be vested when A dies and if A is
survived by one or more children.
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c. If A is survived by any children at all, whether one died
before A or not, each child (and their heirs) have an interest
b. “To A for life, then to such of A’s children as survive him, but if none of A’s
children survive him, to B and her heirs” A has children C and D.
i. A has a life estate.
ii. C and D have contingent remainders in FS (depends on one of them
surviving).
iii. B has a contingent remainder in FS (depends on if C and D die before A).
iv. O has a reversion in FS
1. If A forfeits their life estate, but is still alive, we don’t know whether
either contingency will be fulfilled, so someone has to have
possession of the estate in the interim, so O has a reversionary
interest there – O holds on to it temporarily until A dies.
c.
“To A for life, then to B and her heirs, but if A is survived at death by any
children, then to such surviving children and their heirs.” A has children C and D
i. A has a life estate.
ii. B has a vested remainder subject to divestment (because he will for sure
get the estate after A dies, but his interest will divest if A is survived by any
children) (read them in order, go comma by comma).
1. “To B if [condition]” is contingent and not yet vested.
2. “To B, but if [condition]” is vested subject to divestment.
iii. A’s children, C and D have a contingent remainder in FS because it’s based
on a condition precedent of one of them surviving.
iv. No reversion here in O because p. 262 hypo.
1. I really don’t understand this hypo.
d. T: “To my cousin, if and when he survives his wife”
i. So the cousin only gets it if his wife dies before him.
ii. Cousin has a springing executory interest that will divest either T or T’s
heirs (or if T devises it to someone in a will, that person).
iii. T must really not like his cousin’s wife.
iv. Every time you give a gift to someone, but it depends on some event
that must occur first (and might not), it’s a springing executory
interest.
v. Why is this an executory interest and not a vested remainder subject to
divestment?
1. An executory interest must cut off a prior estate. This one would
because it’s dependent on when the cousin’s wife dies. If she dies
before the cousin, it would spring from T (or whoever inherits it
from T) to the cousin.
e. “To A for life, then to B for life, then to C’s heirs”
i. A has a life estate.
ii. B has a vested remainder in a life estate.
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iii. C’s unascertained heirs have a contingent remainder in FS.
iv. O has a reversion in fee simple because if C outlives A and B, C won’t have
any heirs when it’s their turn. You must be dead to have heirs. Living
people don’t have heirs.
v. O has a reversion also because if C doesn’t have any heirs (even after C
dies), it would go back to O.
f. “To A upon her first wedding anniversary”
i. If A’s marriage lasts a year, A will get it.
ii. It’s an executory interest.
iii. It will spring from O (or whoever inherits it from O if O is dead) if A is
married for a year
g. “To A for 10 years, then to such of A’s children as attain age 21” A has children X
and Y, but are under 21.
i. A has a term of years estate.
ii. O has a reversion since it’s possible none of A’s kids will make it to 21.
iii. If X makes it to 21, but Y doesn’t
1. X has a vested remainder in FS subject to open (subject to partial
divestment because when Y turns 21, part of the estate will go to
Y).
2. Y still has a contingent remainder in FS subject to open (A may have
more children).
3. O’s reversion divests now because we know at least X (or X’s heirs)
will get possession.
iv. If X dies at 22
1. X’s estate has the vested remainder in FS subject to open because
the requirement was to make it to 21, not to survive the term of
years.
h. “To A for life, then to A’s children”
i. A has a life estate.
ii. A’s children who don’t exist yet have a contingent remainder in FS.
iii. A’s children who do exist have a vested remainder subject to open.
iv. O had a reversion that divests as soon as A has a child, and if A already has
one, no reversion to begin with.
v. When A dies and is survived by 2 kids, they own together in fee simple (as
joint tenants).
i.
“To A for life, then to B and her heirs, but if B marries Z, then to C and his heirs”
i. A has a life estate.
ii. B has a vested remainder subject to divestment by executory interest
(because if B marries Z).
iii. C has a shifting executory interest – the estate will shift from B to C if B
marries Z.
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j.
“To A for life, then to B and her heirs so long as Blackacre is organically farmed”
i. A has a life estate.
ii. B has a remainder in FS determinable.
1. Not sure if it’s vested or contingent, though.
iii. O has a possibility of reverter because it will automatically revert back to
O if the farm stops being organically farmed.
k. “To A if she graduates from college”
i. A has a springing executory interest.
1. Because it will go directly from O to A and will cut off O’s estate
when the specified event occurs. Not a remainder because
remainders are those future interests that only vest at the
expiration of the prior estate. Here, O’s estate would be cut short.
7. Destructibility of contingent remainders
a. An almost-obsolete rule because most states have gotten rid of it.
b. If a contingent interest does not vest at the termination of the prior estate, the
remainder is destroyed and doesn’t take effect.
c. “To A for life, then to B and her heirs if B reaches 21”
i. If A dies when B isn’t yet 21, the DOCR would destroy B’s interest since it’s
still contingent when it’s time to start (reversion in O)
d. Only applies to remainders, not executory interests (motivation for rule against
perpetuities)
8. Rule in Shelley’s Case
a. Another almost-obsolete rule because most states have gotten rid of it.
b. “To A for life, then to A’s heirs”
i. It basically merges A’s life estate and the heir’s remainder together and
creates a fee simple in A.
ii. A can sell the whole FS now, and A’s heirs don’t have any interest anymore
(if A sells it).
9. Doctrine of worthier title
a. Most states still have this rule, a minority of states have abolished it.
b. Can’t inter vivosly convey property that has an interest in your heirs.
c. If an inter vivos conveyance creates a future interest in the heirs of the grantor,
then the future interest is void and the grantor has a reversion.
d. O conveys inter vivos “to A for life, then to my heirs”
i. Since an inter vivos conveyance is involved, which creates a future interest
in O’s heirs, O has a reversion.
ii. O replaces O’s heirs and gets a reversion, which he can sell while he’s alive.
RULE AGAINST PERPETUITIES
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1. “No interest is good unless it must vest, if at all, no later than 21 years after some life in
being at the creation of the interest”, otherwise it divests.
a. Key word: MUST
i. Issue is whether, at the time of the grant, the vesting is logically required
within the time period.
1. Doesn’t matter what actually happens, but what might happen,
or (the flip side) what is guaranteed not to happen.
2. If it’s a class gift, must be vested for all members of the class.
b. Determine if the given interest might not vest within the period of “lives in
being plus 21 years.”
i. You must prove a contingent interest is certain to vest (or not) no later
than 21 years after the death of some person alive at the creation of the
interest.
c. Steps to analyzing a RAP problem
i. Determine if the future interest in question is even subject to the rule.
1. Only applies to contingent remainders, executory interests, and
class gifts.
a. Not to future interests in the grantor
b. Not to vested remainders
ii. Find the validating life.
1. This is the “life in being.”
2. For a future interest to be valid, it must be able to vest within 21
years after this person’s death.
3. A validating life can be anyone…
a. That was alive at or before the time the interest was
created.
i. Someone in gestation (still in womb) can be a
validating life if they’re in gestation at or before
the interest was created.
b. That is somehow causally connected to the interest.
c. If it’s possible someone alive at the time the instrument
is created could die before their interest (or interests
after them) vest, then they can’t be a validating life.
iii. After you find the validating life…
1. If the remainder can vest within 21 years after this person’s
death, it’s valid.
2. If the remainder cannot vest within 21 years after this person’s
death, it’s invalid.
3. What might happen test
a. All possible post-creation events, no matter how
unlikely, must be taken into account.
b. An interest may be invalid on the basis of a seemingly
absurd invalidating chain of events.
c. If it’s at all possible the remainder might not vest within
the 21 year period, it’s invalid.
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d. For this rule, it doesn’t matter what’s already happened
– if it’s possible from the beginning (from the creation of
the interests) that it won’t vest within 21 years after the
death of a validating life, then it’s void.
iv. ANYTIME A PERSON IS THEIR OWN VALIDATING LIFE, THE
INTEREST WILL BE VALID.
1. If it’s possible the person could die before their interest vests,
they can’t be a validating life.
v. Other considerations
1. Make sure to analyze each interest separately (if there are
multiple).
2. Different validating lives may validate different interests in the
same instrument (because you choose the best possible person
for each interest – you choose the one that is most likely to make
each interest valid under RAP).
3. If one interest is void, then it is stricken from the instrument and
legal effect is given to what is left.
4. No matter your age, you’re assumed to be capable of conceiving.
5. For purposes of the rule, a person exists from the time of
conception (if they’re later born alive).
a. So if someone was an unborn fetus when the interest
was created, can still be a validating life.
6. Unborn widows
a. Conveyances that involve widows usually invalid
because the person he is married to now might not be
the person he will be married to later.
b. In fact, the person he may marry in the future might not
be born yet.
c. Thus, any interests after a “widow’s” interest is usually
invalid because since it’s possible he can remarry (and
his next wife isn’t born yet), those interests will likely
no vest within 21 years of some life in being.
d. Unsure why the widow can’t be the validating life,
though.
2. RAP and class gifts
a. “All-or-nothing” rule
i. If a gift to one member of the class might vest too remotely (not within
21 years after the validating life dies), the entire class gift is void.
b. A class gift is not vested in any member until the interests of all members have
vested.
i. Remember, RAP only applies to gifts that are NOT vested.
ii. Vested class gift subject to open
1. Not vested under RAP.
2. “To A’s children”
a. Until A dies, the gift is not vested under RAP because
more kids can be born.
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3.
iii. For a class gift to be vested under RAP, the class must be closed.
1. Each and every member of the class must be in existence and
identified.
2. All condition precedents for each and every member of the class
must be satisfied within the perpetuities period.
c. Closing classes
i. A class can be closed
1. When birth is no longer possible; or
a. Natural/physiological closing
2. By using the rule of convenience.
a. Premature/artificial closing
ii. Rule of convenience
1. The class closes “on the distribution date if a beneficiary of the
class gift is then entitled to distribution.”
a. The date of distribution must be within 21 years
after the death of a validating life.
b. At the time of possession, class must have at least
one member.
c. Class deemed to close as soon as one member of the
class (or their heir) is entitled to possess part of the
property.
i. As soon as one person starts eating the pizza, the
door to the party is closed.
2. However, if the gift shows an outright intent ROC isn’t to be
followed, then it will not (i.e., intent prevails over ROC).
a. If ROC doesn’t apply, the rights of the entire class must
vest within the perpetuity time.
3. Whether ROC is applied is subject to the court’s discretion.
4. Rule of convenience problems
a. “To A for life, then to A’s children who reach 25”
i. There are children who might not reach 25
within 21 years after A’s death, so without ROC
invalid.
ii. With ROC, if there’s at least one member of the
class now, then someone will be taking
possession upon A’s death, and then the class
will close.
b. “To A for life, then to A’s children who reach 25,
including those who reach 25 after A’s death”
i. This is clear O intended ROC to be overruled, so
RAP applied without ROC.
ii. So this would be invalid since it’s possible not
every member’s interest would vest 21 years
after A dies.
a. Steps to analyzing a class gift interest
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i. Apply the all-or-nothing rule
1. If it’s possible any member’s interest in the gift won’t vest 21
years after the giver’s death, the entire gift is invalid.
ii. Apply the rule of convenience (if it makes a difference)
1. It will close the class at the distribution date even if there are
members of the class yet to reach the required age.
a. “To A’s children if they reach 25”
i. If there’s at least one child alive that’s 25, you
can apply ROC
ii. When A dies, the class will close and all those
children under 25 lose their interest and all
those 25 and older get partial fee simples.
iii. When one starts eating the pizza, the class gets
closed off to everyone else who has to wait to eat
the pizza when the distribution date occurs.
2. If the giver has specified intent to overrule the ROC, don’t follow
it.
a. “Including those who reach 25 after A’s death”
3. Make sure there’s at least one person who meets the criteria
right now.
a. That is, there must be at least one possible member of
the class to get the gift if the giver dies right now.
4. Make sure the distribution date is within 21 years after A dies. If
A is the validating life and the gift will vest when A dies, then the
distribution date (when A dies) will obviously be within 21 years
after A dies.
4. Modification of the RAP
a. Wait and see doctrine
i. Destroys “what might happen” test.
ii. Majority of states follow this.
iii. Focus not on what might happen, but what actually does happen.
iv. Used to be popular, but it’s conceptually confused because there’s no
such thing as a “measuring life” for grants that are invalid as to RAP.
1. A life is a “measuring life” only if it validates the interest.
2. Invalid interests are invalid because there is no measuring life.
b. Uniform Statutory Rule Against Perpetuities (USRAP)
i. Wait for 90 years and anything no yet vested disappears.
ii. This is the sensible way to do “wait and see.”
iii. Over 20 states have it.
iv. Still a minority position, though.
5. RAP problems
a. From O “to my grandchildren who reach 21” in a will
i. Since it’s in a will, it’s conveyed by someone who’s already dead, so the
testator’s children are the validating lives.
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ii. Valid because the grandchildren’s remainders will vest within 21 years
after O’s children die, who are alive at the time of the grant.
b. From O “to my grandchildren who reach 21” in an inter vivos deed
i. Invalid since heirs aren’t ascertainable because O is still alive.
c. “To A for life, then to B if B attains the age of 30,” B is now 2
i. Valid because B is the validating life, and B will definitely reach 30 within
her lifetime.
ii. B is the validating life because B was 2 years old when the interest was
created.
1. A validating life is someone who was alive (or in gestation) at or
before the interest was created and is somehow causally
connected to the interest.
d. “To A for life, then to A’s children for their lives, then to B if B is then alive, and
if B is not then alive, to B’s heirs”
i. A’s children’s remainder is valid because A’s children will be in existence
within 21 years after A’s death (obviously).
ii. Obviously B exists when the interest was created because he’s
mentioned. So B can be his own validating life. Since B’s interest will
definitely vest within 21 years after B’s death, it’s valid.
iii. For B’s heirs, B is the validating life since the heirs don’t exist when the
instrument was created. Since B’s heirs’ interest will vest 21 years after
B’s death, their interest is valid.
e. “For all members of my property class who are admitted to the bar”
i. The property class members are the validating lives since they’re alive
when the instrument was created.
ii. Thus, they are their own validating lives, and their interest will definitely
vest within 21 years after they die.
f. “For the first child of A who is admitted to the bar”
i. A is the validating life.
ii. Invalid, since A’s child might not pass the bar within 21 years after A
dies. It’s possible the child passes the bar years after A dies.
g. “To A for life, then to A’s children who reach 25”
i. A is the validating life.
ii. Invalid, since it’s possible one of A’s children might not reach 25 within
21 years after A’s death.
iii. However, if rule of convenience applies, it would be valid if A has a child
over 25 at the time of conveyance to the class, because then the class has
at least one member who will take possession at A’s death, and rule of
convenience would close the class at that time.
h. “To A for life, then to A’s widow, if any, for life, then to A’s issue then living”
i. A is the validating life.
ii. The conveyance to A’s widow is valid because the vestment must take
place within 21 years after A dies.
iii. However, A can remarry and technically the widow he may leave might
not be born at the time the instrument was created. Thus, the remainder
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in A’s children (not necessarily the widow’s children) is invalid since
their remainder won’t necessarily vest within 21 years after A dies
(because the widow he leaves may live longer than 21 years).
i. “To A for life, and on A’s death, to A’s children for their lives, and upon the
death of A and A’s children, to B if A dies childless”
i. For A’s children
1. A is the validating life.
2. Valid because A’s children’s remainder will vest within 21 years
after A dies.
ii. For B’s contingent remainder (depends on if A dies childless)
1. Since it is resolved if A dies childless when A dies, B’s remainder
is also valid.
2. It will be determined if B gets possession when A dies, so
definitely within the 21 year time limit after A dies.
3. B definitely exists at the time the instrument was created, so why
can’t he be his own validating life? Because he might not be alive
when A or A’s children die.
j. “To A for life, and on A’s death, to A’s children for their lives, and upon the
death of A and A’s children, to B if A has no grandchildren then living”
i. Gift to A’s children is valid because A is the validating life and it will vest
right when A dies.
ii. Last gift invalid
1. Since A is the validating life and A’s children could die 21 years
after A dies, the gift to the grandchildren or B is invalid because
it’s possible it wouldn’t vest within 21 years after A dies.
k. “To A for life, and on A’s death to A’s children for their lives, and upon the
death of A and A’s children, to B’s children”
i. Gift to A’s children is valid because it will be possessory as soon as A dies
and A is the validating life.
ii. Gift to B’s children is valid too because B is the validating life and must
vest when B dies.
iii. Does the Rule of Convenience not apply here? Should we always apply
the rule of convenience on the test?
1. Generally, you want to mention ROC when it would make a
difference. If he didn’t mention it on the slides, it wouldn’t make
a difference.
l. “To A for life, and on A’s death to A’s children for their lives, and upon the
death of A and A’s children, to B’s children then living”
i. Gift to A’s children is valid because it will vest right when A dies, so
definitely within 21 years after A dies.
ii. Gift to B’s children invalid, not really sure why. Says “B’s children then
living” might include after-born children, and because of after-born
children to A, “then” might be beyond RAP time.
1. Not sure what Green is saying here. What are “after-born
children?” Why can’t B be the validating life for B’s children?
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m. “To A for life, and on A’s death to A’s children for their lives, and upon the
death of A and A’s children, to A’s grandchildren”
i. Gift to A’s children is valid because it vests as soon as A dies, so definitely
within RAP time (A is validating life).
ii. Gift to A’s grandchildren is invalid since it might not vest within 21 years
after A dies.
n. “To A for life, and on A’s death to A’s children for their lives, and upon the
death of A and A’s children, to T’s grandchildren”
i. T is testator, dead at time of conveyance.
ii. Valid
1. T’s grandchildren are determined within the lives of T’s children,
all of whom are alive at the time of the grant because T is dead.
6. RAP problems that involve future interests in the grantor, which aren’t subject to RAP
a. From O “To School Board so long as it’s used for school purposes, then to A”
i. O’s remainder is subject to RAP.
ii. A’s interest is invalid since it’s possible it won’t vest within 21 years
after O dies.
1. A can’t be his own validating life because it’s possible he will be
dead when it’s his turn to get possession (then A’s heirs would
get it [if it were valid]).
iii. You can accomplish the same thing and make A’s interest valid (if O
trusts A) by O conveying it to A and then having A convey it to the School
Board so long as it’s used for school purposes.
7. RAP doesn’t apply to vested remainders, so must be able to tell the difference between
contingent remainders and vested remainders subject to complete divestment
(condition precedent vs. condition subsequent).
a. Condition precedent vs. condition subsequent
1. If it’s a condition precedent, the remainder is contingent and
RAP applies.
a. No deal has been struck until this duty is fulfilled
2. If it’s a condition subsequent, the remainder is vested subject to
divestment and RAP doesn’t apply.
a. The deal has been struck, but if this condition occurs,
deal ends.
b. Problems
i. “To A and her heirs until A has no surviving grandchildren, then to B and
her heirs, but if at the time A’s last grandchild dies, the Cubs have still
not won a world series since 1908, to C and her heirs”
1. A and B’s remainders are vested subject to complete divestment
because relies on a condition subsequent, so RAP doesn’t apply.
2. C’s remainder involves a condition precedent in which the Cubs
must win a world series, so their remainder is subject to RAP.
a. A must be the validating life and since it’s possible C’s
interest won’t vest within 21 years after A dies (A’s
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grandchildren and B get remainders first), C’s interest is
invalid.
ii. “To A and her heirs until A has no surviving grandchildren, then to B and
her heirs if the Cubs have won another world series, if not, to C”
1. A is the validating life.
2. B and C both have contingent remainders that rely on a
condition precedent, whether the Cubs win another world series,
so RAP applies.
a. Since A is the validating life and B or C won’t get
possession until A has no more grandchildren left, it’s
quite likely their remainders wouldn’t vest within 21
years after A dies, so their interest is invalid.
8. Symphony Space v. Pergola (NY 1996), p. 292 (RAP applies to options to buy back)
a. Facts
i. Contract between someone who owned a theater and was operating at a
loss, so sold it to Symphony Space, non profit dance company, for cheap,
but seller had an option to buy it back for the same price.
ii. “Here, you take it for $10,00, and I won’t have to pay taxes on it. You can
dance there in the meantime, but if I want to buy it back for $10,000 in
1987, 1993, 1998, or 2003, I’ll be allowed to.”
b. Holding
i. Option to buy back is still subject to RAP. The option lasts 25 years, so is
invalid.
1. Restatement says options aren’t subject to RAP, but court
doesn’t consider that because this is actually 4 options, only one
of which violates RAP.
CO-OWNERSHIP AND MARITAL INTERESTS
1. Tenancy in common
a. 2 people own something together, but if one dies, his heirs step into his shoes,
not his co-owner.
i. (No survivorship)
b. You own it together, undivided.
i. Each tenant has an equal right to possess the whole property.
ii. If land is sold,
1. Each tenant has right to half the money, but there’s not a
metaphorical dotted line down the middle of the property.
c. Shares don’t have to be equal and need not have the same estate.
2. Joint tenancy
a. 2 people own it together, and it one dies, the other gets it.
i. (Survivorship)
b. You own it together, undivided
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i. Each tenant has an equal right to possess the whole property.
ii. If land is sold,
1. Each tenant’s interests must be equal and the same type of estate
2. So each tenant would get the proceeds divided by how many
tenants there are.
iii. Interests must be equal and the same type of estate.
c. 4 unities
i. All unities are required for a tenancy to be a joint tenancy.
1. If there’s a failure of one of the unities, it’s a tenancy in common
rather than a joint tenancy.
ii. Title
1. The tenants must acquire title by the same conveyance, be it a
will or deed.
2. At common law, you could not convey property to yourself (selfenfeoffment).
a. So used a strawman then, but now you can usually do it
without a strawman.
i. Strawman/Intermediary – joint tenant would
convey property to a strawman/intermediary who
would then reconvey it back to the former tenant.
iii. Time
1. Each tenant’s interest must vest at the same time.
iv. Interest
1. Each tenant’s interest must be equal.
a. If 2 tenants, each must own 1/2 (or it’s a tenancy in
common).
b. If 3 tenants, each much own 1/3 (or it’s a tenancy in
common).
2. Each tenant must have the same type of estate.
a. If one tenant has fee simple, the other(s) must too (or it’s a
tenancy in common).
b. If one tenant has life estate, the other(s) must too (or it’s a
tenancy in common).
v. Possession
1. Each tenant must have the right to possess the whole property.
2. After the tenancy vests, though, they can agree one tenant is to
have actual possession.
d. Joint tenancy problems
i. If a tenant transfers to a 3rd party, which unities are destroyed?
1. Time
a. The 3rd party got it at a different time than the original
tenants.
2. Title
a. The 3rd party got it from a different interest.
3. So becomes a tenancy in common.
ii. If A, B, and C own Blackacre as joint tenants, then A sells to D
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iii.
iv.
v.
vi.
1. Joint tenancy preserved between B and C.
2. Tenancy in common between all three of them together, though?
3. If B dies, C and D become tenants in common.
a. Undivided 2/3 for C, and undivided 1/3 for D.
Leaving part of a joint tenancy to someone in a will?
1. Can’t do it.
Husband, wife, and X as joint tenants?
1. No problem, X gets it after H and W die.
2. Husband and wife treated as one interest?
“To A and B as joint tenants for their joint lives, remainder to the
survivor”
1. Joint life estate, with contingent remainder.
a. Contingent because it depends on who dies for one of
them to get it. One of them must die before (condition
precedent) the survivor is ascertained.
Unmarried tenancy by entirety?
1. Can’t do it – it’s a joint tenancy.
2. Doesn’t change to tenancy by entirety when you get married
either.
e. Severing a joint tenancy
i. One tenant can change it into a tenancy in common voluntarily and
unilaterally by breaching one of the 4 unities.
1. By common law, there doesn’t have to be intent (can be on
accident or on purpose).
2. By modern law, there must be intent (must be on purpose).
ii. Severance problems
1. Secret termination of survivor ship rights encourages fraud.
a. The fraudulent plan
i. Destroy self-enfeoffment if the other guy dies first,
but allow heir to present the self-enfeoffment if you
die first.
b. The cure
i. Allow self-enfeoffment only if there’s adequate
notice (by putting deed in the land records)
c. Not sure what’s going on here.
iii. 4 basic ways to sever a joint tenancy
1. A and B are joint tenants, and A transfers some interest less than
a fee simple to C (mortgage, life estate, or lease, etc.)
a. It’s now a tenancy in common.
b. Door 1 – severance of joint tenancy – C steps into A’s shoes
to the extent of the interest, and A’s heirs take over when
A dies.
i. State with a title-theory view of mortgages. Harms
doesn’t follow this theory.
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c. Door 2 (Harms) – no severance – the interest disappears if
A dies. B gets it free and clear if A dies before C’s interest is
done.
i. Lien-theory view of mortgages, takes the interest
disappears view of joint tenancy. Harms follows this
theory.
d. Door 3 – no severance – but the interest survives A, so B
gets the whole thing subject to the mortgage/life
estate/lease/whatever of C.
i. Makes sense to Green, if we see joint tenancy at the
transfer of an interest to survivor, rather than
disappearance of the interest of the one who dies.
e. Door 4 – partial severance – If A or B dies before C’s
interest is over, then their heirs step into his shoes, but if C
is out of the picture before A or B die, goes back to joint
tenancy.
i. Weird solution the casebook likes and thinks a
sufficiently creative court could adopt.
ii. Supplement: But the court says in Riddle even if the
recipient reconveys the property to the joint tenant,
the unities remain destroyed and there is no joint
tenancy.
2. Not sure what’s going on here.
iv. A joint tenant can terminate a joint tenancy by granting her 1/2
undivided interest to herself without using a strawman/intermediary
(Riddle).
3. Interpretation of grants - Today, whether “survivorship” is mentioned determines
whether it’s a joint tenancy or tenancy in common.
a. Joint bank accounts
i. Courts look past the text of the agreement to the intention of the parties.
1. Discretionary
2. Franklin and Allen
a. If a joint bank account is merely opened for convenience
(to pay bills, etc.) and not for survivorship (as a will
substitute), then no survivorship rights.
3. Have to look at intention of parties to see how much of a joint
account creditors can get to (Maloy).
ii. For joint safety deposit boxes, intent doesn’t matter.
1. No survivorship rights even though it’s stated clearly in the bank
agreement, because safety deposit boxes generally have
extremely valuable property (Newton County).
2. Since one joint owner never relinquishes control over the item
since he could get it back at any time, no delivery.
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4. Tenancy by entirety
a. 2 married people own it together.
b. If one dies, the other gets it (survivorship).
c. Must satisfy 4 unities.
d. Can’t sever a tenancy by entirety unilaterally.
i. Only divorce or an agreement to sever it will terminate it.
e. Involves married people, not about to be married people.
f. Most states don’t recognize it anymore, and it’s a joint tenancy.
5. Riddle v. Harmon (Cal. App. 1980), p. 324 (elimination of the need for a
strawman/intermediary to sever a joint tenancy)
a. Relevant background law
i. If A owns property, he can convey it to A and B as joint tenants and that’s
fine.
1. Might argue that A’s title began earlier and wasn’t from the same
instrument as B’s (no unities of title or time).
a. But CA law says the relevant status of A’s ownership
begins when the new deed to A and B is given, no when A
first got the property.
b. Here, court uses idea of self-enfeoffment parity.
i. If it works as a way to get into this mess it should work as a way to get out
of it.
1. (i.e., you should be able to do the background law above in
reverse too),
c. Supplement: Holding
i. A joint tenant can terminate a joint tenancy by granting her one-half
undivided interest to herself without the use of a
strawman/intermediary.
d. Supplement: Rationale
i. Using a strawman is an outdated requirement that’s easily met by using a
trust or associate of the attorney involved as the strawman.
ii. There’s no reason other than tradition to use a strawman, so it’s no
longer necessary.
6. Harms v. Sprague (Ill. 1984), p. 330 (If one joint tenant mortgages his interest in the
joint tenancy, the joint tenancy isn’t severed)
a. Facts
i. One joint tenant takes out a mortgage on his interest to help his friend
buy some property.
b. Mortgages
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i.
ii.
iii.
iv.
The mortgagee (the person with the ability to repossess property, lender)
The mortgagor (the borrower)
A mortgage is a transfer of interest from the mortgagor to the mortgagee.
2 Theories on what’s being transferred in a mortgage:
1. Title theory
a. The mortgagor transfers title to mortgagee.
b. The bank owns your house, but you have right to get it
from them when you pay the money back.
2. Lien theory
a. The mortgagor transfers a lien to mortgagee.
b. You own your house, but bank has the right to get it back if
you don’t pay the money back.
c. 2 issues
i. If only a lien is transferred, is that enough to turn the joint tenancy into a
tenancy in common?
1. Harms says no, but some courts would say look at the intent of
the parties.
2. Supplement: If a mortgage is merely a lien, and not a conveyance
of title, the execution of a mortgage by a joint tenant wouldn’t
destroy the unity of title.
a. This court characterizes mortgages as liens.
ii. When someone gets property after death of first joint tenant, is that
treated like a transfer of the decedent’s interest (in which case the
encumbrance goes with it) or like its disappearance?
1. Harms says disappearance, but other courts would say treat it like
a transfer, so mortgage would survive.
2. Supplement: Here, the tenant who mortgaged his interest died, so
the question is whether the mortgagees would get his interest or
the other tenant would get complete survivorship.
a. Court says other tenant gets complete survivorship and
the mortgage disappears because mortgages no longer
sever joint tenancies.
iii. Holding
1. If one joint tenant mortgages his interest in the joint tenancy, the
joint tenancy isn’t severed
d. Another pizza metaphor (regarding issue 2)
i. Joint tenants are like people with tickets, allowing them to eat part of the
pizza.
ii. Transfer of decedent’s interest to successor(s) theory
1. When one joint tenant dies, we take his ticket and give it to the
survivors (chop it up if there’s more than one).
2. Some courts take this view.
iii. Disappearance of decedent’s interest theory
1. When on joint tenant dies, the ticket disappears, making the
denominator smaller, which gives everyone else more pizza.
2. Harms takes this view.
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e. Two related questions
i. If we were in a title theory and the joint tenancy were severed, does it go
back to being a joint tenancy when the mortgage is over?
1. No, that wouldn’t be consistent with the fact that it’s possible to
use a straw transaction to sever joint tenancy but then get the
interest back – if getting the interest back doesn’t recreate a joint
tenancy in the normal case, no reason it should in the mortgage
case.
ii. If the non-mortgaging brother had died first, what interest would be
subject to the mortgage?
1. Under disappearance view, whole thing, but under transfer-ofinterest view, that would be subsequently-acquire property, so
only the mortgaging brother’s half should be subject.
a. Mortgagee would have bigger security interest if William
died first, but loses since John did.
7. Delfino v. Vealencis (Conn. 1980), p. 338 (partition in kind appropriate when
considering sentimental value of land to tenant)
a. “Partition in kind” vs. “partition sale”
i. Divide up the land (partition in kind)
1. Considers sentimental value of land to parties.
2. What court decides here.
ii. Sell the land and divide up the money (partition sale)
1. Doesn’t consider sentimental value of land to parties.
2. Court reverses trial court’s decision to do partition sale.
b. Facts
i. Delfinos have 11/16 (=99/144) interest in land; Vealencis has 5/16
(=45/144) interest.
ii. Delfinos want to sell, but Vealencis wants to stay there.
c. Trial court orders sale, Vealencis appeals and wins the right to stay in her home.
i. Since she’s running a garbage business, she has to pay nuisance damages.
ii. Ends up with a $72,000 1-acre property and nuisance damages, and
Delfinos sell the other 19 acres for $725,000.
d. Vealencis would’ve been financially better off selling, but she wanted to keep
her home – did she want it to the tune of giving up $200k?
i. Depending on how attached to the property she was, better lawyer
might’ve been able to talk her out of it.
ii. One way to get Vealencis to see how much value – she can keep the whole
20.5 acres, but has to pay 11/16 of the whole market value ($548k) to
Delfinos for the right.
8. Spiller v. Mackereth (Ala. 1976), p. 348 (a co-tenant in possession must oust
[exclude] the other for the non-possessing co-tenant to have the right to collect
rent from the possessing co-tenant)
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a. Facts: Tenants in common, D begins using it as a warehouse and supplied new
locks, P demanded he vacate half the building or pay half the rental value (they
rented it, but the lessee vacated).
b. Holding: A co-tenant in possession isn’t liable to his co-tenant for the value of
his use in the absence of an agreement to pay rent or an “ouster.”
i. Ouster = excluding one co-tenant
c. Majority rule
i. Tenant in common can only get rent from co-tenant if he’s ousted.
d. Minority rule
i. Exclusive possession by one co-tenant is enough to give right to rents.
1. No ouster is required.
2. This is the position Cohen takes (a case we didn’t read).
e. Rationale
i. Putting locks on the doors isn’t ouster because the other co-tenant never
asked to come in.
ii. Under majority rule, tenant in common gets right to possess property, but
not right to exclude the other or get rents if his own right to possession
isn’t interfered with.
f. Basic policy
i. Favors active co-tenants and makes co-ownership unlike a partnership.
1. Partners (not co-tenants) have duties toward each other, act as
each other’s agents, and must share profits.
ii. Minority rule (that exclusive possession by one co-tenant is enough to
give right to rents) makes co-ownership more like a partnership, which
might not be what we want in the case of two brothers inheriting a house
together, only one of whom lives in it.
g. What can non-possessory tenant do?
i. Get ousted, or
ii. Sue for partition (either partition sale or in kind).
9. Swartzbaugh v. Sampson (Cal. App. 1936), p. 351 (lessee in possession without
consent one of the co-tenants doesn’t sever a joint tenancy)
a. Supplement
i. Facts: Swatzbaughs own land as joint tenants. Husband leased land to
Sampson. Mrs. Swartzbaugh sued husband and Sampson to cancel the
lease. Sampson was going to construct a boxing ring, Mrs. Swatzbaugh
disapproved and wouldn’t sign the lease. Husband entered into lease
without wife’s knowledge.
ii. Holding: One joint tenant who has not joined in the leases executed
between her co-tenant and another cannot maintain an action to
cancel the leases.
1. (Lessee in possession without consent of one of the cotenants won’t sever a joint tenancy even though it seems to
disrupt the required unity of possession)
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b.
c.
d.
e.
f.
iii. Rationale: Since one joint tenant is entitled to possession of the entire
property, a lease merely gives to the lessee a right that he, the lessor, had
been enjoying, so this doesn’t prejudice the non-consenting co-tenant.
Same basic story as Spiller.
i. If one co-tenant wants to lease the land, he can do so, and the lessor can
stand in shoes of the co-tenant, which means being able to possess the
land, but not being able to exclude the other co-tenant.
Here, wife wants to keep the walnut trees, husband wants to lease land to
Sampson for a boxing ring.
If no ouster, then no right to cancel lease.
i. If “come on in and see the fights!” would be answer, no ouster.
What to do? Again, could also either sue for partition or get ousted.
i. Get ousted, e.g., bring a bunch of anti-alcohol, anti-boxing protestors to a
boxing match.
1. Could also invite the public to come for free, which would
undermine the enterprise.
Also, because a third party is involved, could sue for accounting – Spiller says no
right to rent if the co-tenant is possessing, but if a third party is paying on cotenant rent, or taking out minerals or trees, the other co-tenant has a right to
half to money.
i. Mrs. Swartzbaugh only asked the court for cancellation of the lease, not
an accounting from her husband, though – that would be Swartzbaugh v.
Swartzbaugh.
10. Married women’s property
a. “The legislature shall never create by law any distinction between the rights of
men and women to acquire, own, enjoy, and dispose of property,
i. Or their power to contract in reference to property.”
b. “The rights of married women shall be protected by law, in property owned
previous to marriage, and all property acquired in good faith by purchase, gift,
devise or bequest after marriage.”
11. Borelli problem
a. If wife has duty to care for husband anyway, agreeing to do so isn’t
consideration that can support a contract.
b. Dissent
i. Clearly enforceable if she were a nurse, so why should marriage prevent
people from making a contract?
1. Possible answer: We generally don’t want our marriages filled
with a lot of law – that’s what people use to regulate their
disputes when they can’t do so any other way, but marriage isn’t
supposed to be like that.
a. On the other hand, many pre-nups used to go into huge
detail about who takes out the garbage, for instance.
c. We won’t allow you to promise to do something you were supposed to do
anyway.
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12. Sawada v. Endo (Haw. 1977), p. 361 (spouse’s interest in tenancy by entirety not
subject to attachment by creditors)
a. Are you allowed to shield assets from your creditors by owning them in tenancy
by entirety? This case says yes.
b. Accident victims trying to attach defendant’s property held as tenancy by
entirety because they want compensation for being injured by defendant.
i. Whether property can be attached depends on whether property could be
alienated.
1. Common law rule allows husband to alienate his interest, but not
the wife.
2. Married Women’s Property Acts allow women to own their own
property – women no longer legally invisible like under
“coverture.”
3. Here, court says neither husband nor wife can have their interests
in a tenancy by entirety attached or sell their interests.
a. No unfairness to creditors since creditors are on notice of
the status of the property.
i. That might make sense for a contract, but it’s nuts
here because you can’t just make sure not to get into
a car accident with someone whose property is tied
up in a tenancy by entirety.
b. The better rule is that both husband and wife can sell the
interest or have it attached.
13. Problems, tenancies by entirety
a. If we’re in a state where judgment creditors can obtain one spouse’s interest in
tenancy by entirety and a creditor steps into that spouse’s shoes, does the other
spouse have to pay rent?
i. Spiller rule – there must be an ouster of the non-possessing co-tenant for
that tenant to require the co-tenant in complete possession to pay him
rent.
1. If you follow Spiller, the other spouse whose interest wasn’t
attached doesn’t have to pay rent to the creditor unless she ousts
(excludes) the creditor or leases the property to a third party.
ii. Cohen rule – no ouster required to make one co-tenant who is possessing
the entire property pay rent to the other co-tenant.
1. We didn’t read this case; it’s just the minority rule in Spiller.
2. If you follow Cohen, the other spouse has to pay rent to the
creditor if they possess the whole property, even if the creditor
isn’t ousted.
b. If house burns down in state where tenancy by entirety can only cover realty
(not personalty), and husband dies a few days later, who gets husband’s share
of the insurance proceeds?
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i. Husband’s heirs because the tenancy by entirety was only in the land, so
wife had no right to money because money is personalty, so tenancy by
entirety changes into tenancy in common.
LEASEHOLD ESTATES – LANDLORD/TENANT LAW
1. Term of years
a. For a fixed period of time.
b. Nonrenewable (unless so stated in the lease)
c. Calendar dates for the beginning and end of the lease period are ascertainable.
i. Thus, no notice required when lease ends.
2. Periodic tenancy
a. For a fixed period of time until either the landlord or tenant gives notice of the
termination.
i. The terms and provisions of the lease carry over from period to period.
b. Notice is required.
i. Usually the notice required is for the term specified for the lease. If it’s a
month-to-month periodic tenancy, then tenant must give 1 month
notice before moving out (or LL one month notice before kicking T out).
c. “From month to month”
d. “From year to year”
3. Tenancy at will
a. Lasts as long as the landlord and tenant desire.
i. Both are equally capable of terminating the lease anytime.
ii. Lease may provide a given period of notice before the lease can be
terminated.
1. “You have 30 days”
iii. I’m unsure about notice here – problem below seems to imply most
jurisdiction require some notice (although different).
4. Tenancy at sufferance (holdovers)
a. A tenant who was rightfully in possession, but wrongfully remains in
possession after the tenancy expires.
b. Once the lease expires, the tenant who stays is a tenant in sufferance.
i. Tenant is “holding over”
ii. Tenant is not a trespasser
iii. Tenant is not in possession (because is there w/o landlord’s
permission)
c. It will last until the landlord either evicts or elects to hold the tenant for another
term.
5. Problems, leasehold estates
a. “To T for one year, beginning October 1”
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b.
c.
d.
e.
i. T moves out without giving L any notice on September 30th?
1. Lease is a term of years for one year
2. No reference to renew
3. No notice required.
4. L has no rights.
“To T from year to year, beginning October 1”
i. T moves out without giving L any notice on September 30th?
1. Lease is a periodic tenancy.
2. It’s renewable.
3. Notice is required. T didn’t give L notice upon moving out, so T
obligated to another year.
“To T for no fixed term at an annual rent of $24,000 payable $2,000 per month
on the first of each month”
i. T moves out without giving L any notice on September 30th?
1. Lease is tenancy at will.
2. It’s renewable.
3. Some courts say tenant has to give 6mos notice, some say 1
month.
a. So notice is always required for a tenancy at will?
T gives 2 weeks notice for a month-to-month periodic lease
i. Majority
1. Tenant required to pay another terms rent. Since this was
month-to-month, tenant on the hook for 1 months rent.
ii. Minority
1. This is bad notice and tenant must pay rent until landlord can
find a new tenant.
For these problems, determine how much more notice would be required
to make it valid notice. Then determine how much more rent is owed
(usually one more term if it’s not enough notice).
6. Numerus clausus principle
a. Not a very good principle, but some courts follow it.
b. Idea that every leasehold estate has to fit into one of our pre-established
categories.
i. Term of years,
ii. Periodic tenancy,
iii. Tenancy at will, or
iv. Tenancy at sufferance
c. Leads courts astray in Garner.
i. Here, allowed to have one-sided termination (of tenant) at will lease
1. Terminable whenever tenant wants, but not whenever
landlord wants.
2. “Determinable life estate,” even though that’s not one of the
boxes.
a. Determinable life estate – “so long as tenant doesn’t
terminate the lease, it’s his for life”
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d. One-sided-termination-at-will right and “during the war” duration don’t fit into
any of the categories, so a numerus-clausus-influenced court gets all goofy with
them.
i. If a termination of an at will lease is one-sided and only the landlord can
terminate it (the other way around from Garner),
1. This is ok, and ought to be a determinable life estate too.
a. Determinable life estate – “so long as landlord doesn’t
terminate the lease.”
2. But Restatement says it’s a FS determinable.
a. Not sure I understand the difference or what Green is
trying to say here.
ii. L leases “to T for the duration of the war”
1. Doesn’t fit any of the 4 boxes, so numerus clausus produces
goofy results.
a. Some courts say it’s a tenancy at will, so LL can evict
tenant before end of war.
b. Some courts say it’s a tenancy at sufferance, which
means tenant wins.
i. But that’s nuts because there’s no holdover.
c. Other courts say there’s no need for a label (no need to
put it in a box), and we should enforce leases like this
according to their terms.
7. Hannan v. Dusch (VA App. 1930), p. 438 (LL not responsible for evicting holdover
tenants, that’s the new tenant’s responsibility; LL only responsible for delivering
the legal right to possess, not required to deliver actual possession)
a. Whose problem is the fact that the tenant before the new tenant held over – the
new tenant or the landlord?
b. Legal right to possess land vs. actual possession of land
i. English rule
1. Have to give actual possession (legal right to possession not
necessarily required), so evicting holdover tenant is LL’s
responsibility.
a. Followed in lots of American jurisdictions
ii. American rule
1. Have to give only legal right to possession, and delivering
actual possession isn’t required. Thus, evicting holdover tenant
is new tenant’s responsibility.
a. Position Hannan takes.
b. This is usually a default rule if the lease doesn’t specify
something different.
iii. Seems like English rule is the better one.
1. LL is in far better position to know how to remove old tenant at
cheapest cost.
c. Problems, legal right to possession vs. actual possession
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i. Landlocked land (can only be reached by crossing someone else’s land,
no street, and no public access to land)?
1. Violates both American and English rules.
2. Legal right to possession not given here (violates American
rule).
3. Actual possession not given here (violates English rule)
ii. Current tenant in possession, but learns LL leased same property for
same period to someone else, and is worried about earlier lease.
1. American rule would say this is breach of landlord’s duty since
no legal right to be there because the earlier lessor has FITIFIR
(first in time is first in right).
2. English rule not violated because actual possession is enough.
SUBLEASES AND ASSIGNMENTS
1. These involve a LL, an initial tenant, and a new tenant that receives an interest from the
initial tenant or the LL.
2. Assignments
a. Leases can be assigned by either the LL or the initial tenant.
b. Assignee (new tenant) is in privity of estate with the LL.
i. LL is new tenant’s LL (not the initial tenant).
ii. There’s still privity of K between LL and initial tenant.
1. This means initial tenant can still be liable.
c. Assignee’s obligations and LL’s obligations are same as original lease.
i. Unless contract provides otherwise.
d. The assignee and the original tenant are bound by the covenants of the original
lease.
e. A landlord can sue an assignee or original tenant (and vice versa)
3. Subleases
a. Leases can only be subleased by the initial tenant.
b. Privity of contract between LL and initial tenant, and between initial tenant and
new tenant, but not between LL and new tenant.
i. LL is intial tenant’s LL.
ii. Initial tenant is new tenant’s LL.
c. A landlord cannot sue a sublessee.
i. Unless sublessee agrees to assume initial tenant’s responsibility under the
LL/initial tenant contract (then sublessee and LL will be in privity of
contract)
4. How do we decide if it’s a sublease or assignment?
a. One way, look at intention of parties to form a particular arrangement.
b. Another way (more common)
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i. Look at whether the original tenant transfers his entire interest to the new
tenant.
1. If initial tenant meant to transfer his entire interest, it’s assignmed.
2. If initial tenant didn’t transfer entire interest, it’s subleased.
3. Is the initial tenant gone for good (assignment) or coming back
(sublease)?
5. Ernst v. Conditt (Tenn. App. 1964), p. 442 (language uses “sublease,” but that doesn’t
control in determining if it’s a sublease or assignment)
a. Sublease v. assignment
i. Important for deciding whom the LL can sue.
b. If it’s an assignment, the new tenant is in privity of estate with the LL.
i. The LL is the new tenant’s LL.
c. If it’s a sublease, the new tenant’s LL is the old tenant.
i. If the new tenant agrees to assume the covenants in the original lease,
then the LL is a third-party beneficiary of the sublease, which means LL is
in privity of contract with new tenant.
ii. Original tenant is in privity of contract and privity of estate with LL if it’s a
sublease.
6. Sublease/assignment problems
a. L = landlord; T = initial tenant; T1 = new tenant (sublessee/assignee)
b. Ambiguous language on whether it’s an assignment or sublease, but T give T1
only the middle year of a 3 year lease.
i. Probably a sublease, since T would come back for the last year.
ii. If it’s an assignment, L could sue either T or T1.
iii. If it’s a sublease, L can only sue T, and then T would have to sue T1.
iv. Even if it is a sublease, if T1 agrees to meet responsibilities on L/T lease,
then L can sue T1 as third party beneficiary (because that would establish
privity of K)
c. T transfers whole interest to T1 and L gives permission, but after default by T1, L
sues T, not T1.
i. T is still liable, because this is an assignment and L can sue either T or T1.
d. T assigns to T1, who agrees to meet T’s responsibilities, and T1 assigns to T2,
who assigns to T3 who defaults on rent.
i. T is liable to L
ii. T1 is liable to L (or to T if T had to pay L) because he’s assumed T’s
responsibility (so there’s privity of K).
iii. T2 not liable at all, since he didn’t breach any covenants.
iv. T3 liable to L, to T1, or T if they have to pay L.
7. Kendall v. Ernest (Cal. 1985), p. 450 (a commercial lessor cannot unreasonably and
arbitrarily withhold consent to a commercial assignment by a commercial lessee)
a. Standard leases say “L must consent to sublease, such consent not unreasonably
to be withheld”
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b. Here, there wasn’t any “such consent not unreasonably to be withheld”
provision, can a lessor deny a lessee the ability to assign?
i. No, a court will presumably put the provision to not unreasonably
deny an assignment in if there isn’t already one.
c. Only applies to commercial leases, not residential, since it’s easier to tell what
makes a good commercial tenant (i.e., a business that makes money and will pay
rent).
i. No state has inferred a “such consent not unreasonable to be withheld”
provision into a residential lease
ii. Commercial landlord is only allowed to be concerned about money.
1. Denying consent solely on the basis of personal taste, convenience
or sensibility is not commercially reasonable.
d. But lessor isn’t allowed to be too concerned about money.
i. If new tenant is willing to pay more rent, T gets to picket the difference.
8. Problems on lessor’s refusal to consent to subleases and assignments
a. T wants to transfer the rest of a lease to T1, but L refuses to consent because T1
is a tenant in another of L’s buildings with a lease that’s about to expire. L and T1
are negotiating a new lease, but L doesn’t want to lose T1 as a tenant in the other
building.
i. Court says it’s unreasonable to deny T consent to transfer to T1.
b. T wants to transfer to T1, but L refuses consent because T1’s business is in
competition with L’s.
i. Courts say it might be reasonable to withhold consent.
1. Green says this creates a strong argument against the court’s
ruling for the first problem – worrying about losing business from
competition and worrying about losing business because of
another rental seem similar to Green.
c. T wants to transfer to T1, but L refuses consent because he has moral objections
to T1.
i. Court says it’s unreasonable to withhold consent.
1. But this case involves a new landlord. If it were original landlord,
stronger argument to withhold consent.
d. Can L demand a fee in exchange for consenting to a transfer of a lease?
i. Unreasonable – if T really has a right, L of course can’t demand that he pay
for it.
e. Lease prohibits only assignments without L’s permission, can T get around that
by transferring the whole lease to T1 minus one day through a sublease?
i. Court construes contract strictly – if it’s written only to apply to
assignments, then it doesn’t apply to subleases.
f. What if consent is required by contract for T to assign or sublet, T assigns to T1
(with consent), but T1 doesn’t expressly assume covenants of lease, and then
transfers to T2 without consent from L, and T2 defaults?
i. Restatement rightly rejects T1’s not obtaining consent to transfer to T2 (I
think – not sure what the slides are saying here).
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9. Landlord’s remedies for defaulting tenants
a. Eviction
i. A tenant can be evicted if he violates lease covenants or holds over beyond
the lease term.
1. By judicial process
a. Most states have a statutorily prescribed summary
proceeding for evictions that involves serving a tenant,
and if tenant doesn’t leave, the LL can file an action, which
is heard quickly. If tenant did breach a covenant, sheriff
can evict tenant.
b. Here, LL cannot collect back rent, can only gain possession.
c. Are summary proceedings a good idea?
i. The longer judicially-supervised evictions take, the
more pressure there is for self-help
ii. The more costly eviction is, the higher everyone’s
rent will be.
iii. Quicker procedure always produces greater danger
of wrongful evictions, though.
2. Self-help
a. Changing the locks, for example, to help remove a tenant.
b. Most states prohibit self-help now.
i. Thought appropriate because judicial proceedings
easily available to LL.
c. If LL uses self-help, what about tenant’s personal
property?
i. LL doesn’t have right to take tenant’s personal
property.
ii. Leaving personal property where it could be
damaged is risky.
iii. Self-help really only makes sense when property is
abandoned (because no personal property there).
10. Berg v. Wiley (Minn. 1978), p. 460 (landlord is liable for damages if he uses self-help
to evict tenant)
a. Common law rule
i. LL is allowed to use self-help as long as it’s peaceful.
b. Modern law (majority)
i. Trend in most states is to prohibit self-help – have to go through judicial
eviction channels.
c. Repossessing land and building, though, doesn’t give right to take the tenants
personal property.
i. Leaving tenant’s personal property where it could be damaged is risky.
d. Self-help really only makes sense where the property is abandoned by tenant.
i. Berg involved restaurant that was closed for remodeling, so little or no
personal property inside. This made it tempting to use self-help without
abandonment.
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11. If tenant abandon’s possession
a. LL can leave premises vacant and sue for rent.
i. Common law says no need to mitigate.
ii. In most jurisdiction, LL must mitigate (retake and lease again).
b. LL can retake the premises and try to lease again.
i. Courts conflict on whether tenant would be liable for rent for entire lease
or just up until termination of the lease.
12. Sommer v. Kridel (N.J. 1977), p. 469 (landlord’s duty to mitigate damages)
a. LL has duty to mitigate damages by looking for a new tenant if tenant vacates.
i. Tradition common law rule says you don’t, but majority says you do.
ii. Similar to contributory fault
1. It’s LL’s own fault he’s out so much more money since he could’ve
gotten much of the money back by renting to someone else.
iii. Economic rationale
1. It’s bad for resources to be idle, and we want to encourage LLs to
remove them to higher-valued use.
iv. LL might be worried that renting to someone else is giving into to tenant’s
termination and forfeiting right to collect any damages.
1. This rule where we don’t have right to rents if we re-lease the
property has to change if we go with the mitigation rule.
LANDLORD’S DUTIES
1. At common law, LL had no duty to furnish habitable premises.
a. Just had duty to disclose defects.
2. Quiet enjoyment
a. Implied covenant
b. LL cannot interfere with tenant’s use and enjoyment of premises.
3. Constructive eviction
a. If LL disrupts the tenant’s use and quiet enjoyment, tenant may treat lease as
terminated and vacate, and no longer liable for rent.
b. Required elements
i. Substantial interference
1. Tenant can waive interference if he knows about it when signs
the lease.
ii. Notice to LL
1. Tenant must notify LL of defect and give reasonable time to fix it.
iii. Tenant must vacate
1. Tenant cannot stay and refuse to pay rent.
iv. Fault
1. LL must act (or fail to act) to the tenant’s damage.
c. Damages
i. After vacating, tenant can recover incidental damages for being
wrongfully evicted.
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4. Reste Realty v. Cooper (N.J. 1969), p. 483 (tenant can vacate if his right to quiet
enjoyment is substantially interfered with by LL – here, basement kept flooding
and quiet enjoyment means tenant is guaranteed minimum quality property)
a. Tenant wanted to have seminars for selling jewelry in a basement that flooded.
b. Traditionally “quiet enjoyment” meant no one else is claiming an interest.
i. Now courts say it’s a guarantee of minimum-quality property.
1. Here, right not to have floor covered in water.
c. Constructive eviction = it was so bad I had to leave and evict myself.
d. Overrules that LL’s and tenant’s covenants independent of each other.
i. Now, the obligation to pay rent is not independent of the obligation to
keep it in good shape, so tenant is allowed to abate his rent because of
problems with the property.
Note: Word malfunctioned and turned my entire outline into asterisks the night before
the exam, so the last 10 pages or so is from a friend and not in as good of detail.
Implied Warranty of Habitability
 Usually applies to residential premises
 Both a warranty and a covenant
o Representation that it is habitable (fact)
o Covenant to keep it that way (promise)
 Non-negotiable. Cannot be contracted out of.
 Basically, only covers safety hazards
 Must be substantial
 Remedies:
o Withhold rent
o Sue for damages
Hilder Case (tenant doesn’t have to vacate premises to sue for breach of warranty of
habitability)
 Horrible living conditions. Tenant sues under warranty of habitability while still living
in the house.
 Court rules they give back ALL rent, plus damages
o Basically says the house is beyond worthless, but tenant didn’t move out. Also
basically taking away the right to living in shitty housing (minimum wageesque).
o Punitive?
 Warranty of Habitability
o Can stay in possession while seeking damages
 Just like covenant of quiet enjoyment? E-mailed Green.
Assignment v. Sublease – Assume L leases to T, who then leases to T1
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

Privity of Estate – Landlord tenant relationship is formed
o Sublease
 L  T  T1  relationship
o Assignment
 L  T1
Privity of Contract – Can sue this person under contract
o Sublease
 L  T1  IF there’s a provision saying that T1 assumes all liability for
T.
 Otherwise it’s L  T  T1
Kendall Case (LL cannot deny consent to tenant for tenant to assign property to
another tenant in a commercial lease)
 T signed a commercial lease with L. Lease had a provision that said
assignments/subleases were subject to the approval of L.
 Court ruled that reasons for preventing assignment had to be “commercially
reasonable,” despite the contract provision.
o My note: This is one of the few instances where a contract provision doesn’t
govern.
o Green’s argument: Doesn’t “commercially reasonable” include holding out for
higher rent?
Berg Case
 L wants to evict T. Waits until T is gone, then brings a police officer and changes the
locks.
 Court rules that you have to judicially evict someone
o Also found that T didn’t abandon premises by closing it for renovations.
 Rules
o Common law – Self help eviction permissible
 Only makes sense when T has abandoned property
o Majority – Judicial eviction necessary
 Even if they abandon the property?
 Seems so
Sommer v. Kridel
 LL has a duty to mitigate damages by looking for a new tenant  Modern rule
o It’s bad for resources to be idle
 Common law rule says you don’t
Reste Realty v. Cooper (already done – slides out of order)
 “Quiet enjoyment” traditionally meant no one else claiming an interest in the land
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
o Now it’s looked at as a guarantee of minimum quality property
“Constructive eviction” – It was so bad I had to leave
Problems – 491-92
 You can recover damages if you’re constructively evicted in a tenancy-at-will (Kent 
Note the case name for the test. Green says it’s implausible)
 LL has a duty to do everything (reasonable) in his power to ensure quiet enjoyment.
 If a sex offender moves next door, lease can be terminated (Knudsen). Not IWH
breech.
 IWH breech only guarantees minimum quality, nothing more
o Applies even with a contract provision
Landlord Tort Liability
 Minority Rule – Negligence Standard (RPP)
 Minority Rule – LL Strictly liable
 General Rule: LL liability ends when possession delivered to the tenant
o Seems to hold true only for obvious
 Exceptions:
o Latent (un-manifest) defects.
 Known to LL, but not to tenant
 Once the defect is disclosed, liability ends
o Prior Conditions dangerous to persons off the premises
 Even if tenant is aware, LL still liable
o Leases for public use
 Exception to disclosure rule
 LL has duty to inspect if it knows public will be admitted
 Responsible for foreseeable harm
o Common Areas
o Contracted repairs
o Negligent repairs
 Crime from third parties – no duty to prevent (Feld)
o Has a duty to prevent foreseeable misbehavior from other tenants (stems
from CQE)
 Statute of Frauds – Judge made law (adopted from English statute)
o Minimum requirements:
 Signed by the party to be bound
 Describe the real estate
 State the price
 Some courts say this is essential, others infer a reasonable price
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Must be “executed” (delivering a deed from person to person not
enough)
Uniform land transactions act – Parties may enter into a binding contract without
having agreed upon a price
o However, parties must refer to price and indicate the method to determine it
o “FMV” contract is enforceable
Electronic signatures are good enough except in New York
o Policy:
 For – Intent is more discernable than a written contract
 Against – More casual and loose
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Remedies BEFORE the contract is executed – Exceptions to the SoF
 Part performance
 Estoppel
o Detrimental reliance
o Foreseeable damages
o Unconscionable results
After the contracts is executed, before closing (fork in the law)
Risk of Loss
 Majority:
o Purchaser is said to have equitable title, while the seller has a claim for the
money secured
o Seller is said to hold legal title as the trustee for the buyer
 Minority:
o Some court say that the loss is on the seller until the title is conveyed
Marketable Title – Separate from the warranties (General, Special, Quitclaim) – Executory
Stage
An implied contract provision that is subject to adjustment
 Definition:
 Part of the contract, can be express or implied
 Seller has to have time to fix any defects found in this state
 Subject to contract stipulations:
 Implied condition: Must convey “marketable title”
o “a title not subject to such reasonable doubt as would create a just
apprehension of its validity in the mind of a RPP.”
o “one in which a RPP w/ legal advice would be willing to pay fair value”
o Basically, title free from reasonable doubt of exposure to litigation [Lohmeyer].
Different from encumbrances under Covenant against encumbrances.
 Seems to run along with the covenant of Seisin, but it applies to the executory stage
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Zoning Regulations and Private Covenants
o Zoning regulations only make the title unmarketable if violated
o Private Covenants always make it unmarketable
Private Covenants (fork in the law)
o Split – Whether the buyer (constructively) knows about an easement affects
marketability
o Violations of marketability are based on things done by the property owner
Landlocked title – Division of authority
IMPORTANT
o Broader definition of “encumbrance” in marketability (Act II) than in warranty
(Act III) [Frimberger]
o “Encumbrance” – Anything that might foreseeably (?) subject the purchaser
to a lawsuit
Landlocked land – Split on whether or not this is marketable
Hazardous waste doesn’t affect marketability
Insurable Title (executory stage)
 Less valuable than Marketable title. All it shows is that someone was able to purchase
title insurance for it; doesn’t mean it’s marketable.
After closing
 General Warranty Deed: 6 Covenants:
o Present Covenants – Only breakable when the grantor presents the deed (SoL
runs when deed is presented)
 Seisin – Grantor warrants that he owns the estate
 Right to convey – Grantor warrants that he has the right to convey the
property
 Usually same as seisin (Ex: trustee, etc.)
 Covenant against Encumbrances – Grantor warrants that there are no
encumbrances on the property
 i.e. mortgages, easements, restrictive covenants, etc.
o Same view as Marketability, except it only includes things
that the seller(s) would be in a position to know
o What exactly is an “encumbrance”?
 Anything that actually burdens the property
o Future Covenants – Breakable forever (SoL runs when covenant is broken);
can’t being suit until actually breeched (i.e. evicted)
 General Warranty – Grantor warrants that he will defend against lawful
claims and will compensate for loss from a superior title
 Covenant of quiet enjoyment – Will not be disturbed by superior title
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Pretty much the same as a general warranty, often omitted from
deeds
Covenant of further assurances – Grantor promises he will execute any
other documents required to perfect the title conveyed
Lohmeyer v. Bower – Know 2x2 grid. Find it!
 Deed warranties – 3 distinctions
 Special – “I didn’t cause any problems during my ownership”
 Contains warranties only against the grantor’s acts, not the acts
of others
o Not sure how strictly to construe that language…
 General – “There are no problems”
 Quitclaim – No warranties of any kind; conveys whatever interest the
grantor has, if any
 Present Covenants v. Future Covenants
o Present – Breached, if at all, at time of the deed
 Consideration listed in a deed – not customary to describe exact consideration given
 Forgery and Fraud
o A forged deed is always void
o Bona fide purchaser of fraudulently procured deed prevails against the grantor
 Rockafeller v. Gray
o Covenant of Seisin runs with the land; action can be brought against grantor
by a remote grantee
o Didn’t talk about this case much on slides…
Remote Grantees
 Future Covenants – In all states, these run with the land. Grantees can seek relief
against ANY prior grantor who breached his deed covenant
o This grantor has recourse against any prior grantors
 Present Covenants (Fork in the law)
o Common law –cause of action was not assignable. Grantees cannot bring suit
to REMOTE grantors for breach of present covenants
o Other states: Cause of action is assignable; runs with the land (Rockafellor)
 Remember, you can only sue for actual damages (i.e. the amount you are sued for by
a subsequent purchaser). So if you buy a bad title and sell it, you can’t sue for
damages. You might be able to ask a court to escrow potential damages, though. 
Pertains to problems, page 604
o When causes of action are assignable, there’s only 1 cause of action. When it’s
not assignable, a bunch of causes of action are created for each person in the
chain
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Yeah, but… does that make an impact if you can only sue for actual
damages?
 Really the only thing I see it affecting is the escrow account
option. Ugh…
Compensation is based upon actual damages; market value at the time of
Problems; page 604 – these are based on no assignable cause of action
Ok, from supplement:
o Maximum a grantee can receive from a remote grantor will be the amount the
remote grantor received from a bona fide purchaser
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Frimberger
 Latent, unrecorded zoning violations didn’t violate the covenant against
encumbrances
o If the seller was not in a position to know of them
Damages
1. Breach of Seisin – Return of purchase price for the area breached (reliance damages)
2. Covenant against encumbrances (expectation damages)
a. If easily removable (mortgage) – Cost of removal
b. If not easily removable (restrictive covenant, easement) – measure of
difference in value with and without encumbrance
c. Always limited by total price received
Sweeney v. Sweeney
1. Delivery (and contingent delivery) – Split of authority
a. Sweeney – Deed given to someone with understanding that they will record it
upon the happening of some contingency. Rules:
i. There must be delivery with intent to pass ownership (Sweeney)
1. Delivered and passed back to him
2. “Conditional delivery vests absolute title to the grantee”
ii. Some courts say that contingent delivery regarding death is void
because it tries to replace a will
iii. Other courts say that the conditional delivery is effective
2. Note on delivery: It is not necessary that the deed be “handed over” to the grantee.
Just an act that evinces intent to be immediately bound to transfer
Rosengrant
1. Rule:
a. “execution” of a deed – must give up control; envelope with “Uncle or Nephew”
on it isn’t enough
i. Presumably, “nephew” would have been enough
b. Similar to joint deposit box rule
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c. I don’t get this yet…
Title Searches
1. Don’t see how he can test us on this. Just have a general idea of what it’s about (pg
10 on 3rd title of slides)
Recording Acts
1. Ask yourself 3 questions:
a. Did he win the race to record?
b. Did he pay value?
c. Did he have no notice of earlier transfer?
2. Race Statute (minority) – First one to record their title wins
3. Notice Statute (1/2 states) – Subsequent purchaser always wins unless he has notice
of a prior unrecorded deed
4. Race-Notice Statute (1/2 states) – Subsequent purchaser only protected if:
a. Has no notice of prior conveyance
b. Records first
Survey System
1. Principal Meridian and Baseline – Main lines
a. Township – Divides into east and west (6 miles between)
b. Range – Parallel to PM. Divides into north and south (6 miles between)
i. Don’t multiply by 6. First square is from 0 to 6 miles out.
ii. Basically, multiply Z-1 x 6.
c. Sections – Each 6 mile square
i. Numbered in serpentine pattern
d. Each section is divided into quarters or halves.
i. e.g. S.E. ¼ of N.E. ¼ etc.
Luthi case – pg. 651
1. Conveys to one company using mother Hubbard clause, and then grants same land to
someone else
2. Did second coveyee have notice?
a. Court says no because it would be too difficult to look for this clause
Other shit:
3. Do mis-indexed deeds count as recorded?
a. Split of authority
4. Idem Sonans – The idea that subsequent grantees have to check for different spelling
variations of names. Limited to misspellings with the same first letter.
a. Split of authority on the issue.
i. Orr says we don’t follow Idem Sonans
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5. Q3, pg 669 – Crazy A beats B who beats C who beats A hypo
a. One way to do it – “reasonable expectations approach”
i. Give each what he reasonably could have expected under the
circumstances
Messersmith
1. Facts: (Race-notice statute)
a. Joint owners: A & B. B transfers her share to A, who doesn’t record. B then
leases mineral and sells ½ shares to S.
b. S: First deed wasn’t recorded, but was “Acknowledged” but it had “his heirs”
on it, so he tore it up. Second deed was correct, and recorded but not
properly acknowledged.
c. S sells to Z, who records.
d. A records.
2. Issue: Does the goof on S’s deed mean that Z isn’t deemed to have recorded first?
3. Overall issue: Does a mistake in acknowledgement of a deed mean that the recording
of it doesn’t count?
a. This court says the mistake voids the recording. The recording that doesn’t
completely comply with recording laws is not constructive notice.
4. Ok ok ok here’s the rule:
a. Messersmith rule: There must be completely non-defective recording of all
the deeds in the chain
i. Legislature overturns
b. Some jurisdictions say that recording your deed first wins period (like I
assumed it should be), regardless of the chain
Guillette v. Daly Dry Wall, inc.
1. Facts:
a. Conveyed 2 lots in same subdivision. 1 deed had reference to building
restrictions to all the lots in the subdivision. The other did not.
2. Issue: Is this constructive notice?
3. Answer: This court says yes, title searchers have to look at other lots in the
subdivision
a. Some states don’t require this
i. In these states, you have to put the restriction somewhere in the chain
of title for the other lots
Other stuff
1. Out-of-order deeds
a. What if someone obtains title after they convey it to someone? Do title
searchers have to search later records, not just earlier?
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i. Split of authority
Board of Education v. Hughes
2. H  D
H| D
a. H  R
H | R
i. R  P
R | P
3. H  D deed wasn’t filled in [name] until right before he conveyed
4. Questions:
a. Did the deed become operative before he signed it?
b. Would D be a subsequent purchaser who recorded first, under the statute?
5. Apparently this court was like Messersmith because it seems to be saying that the
whole chain has to be valid in order for a recording to count
6. Answers:
a. No conveyance until black filled in; thus D was a subsequent purchaser who
recorded without notice
i. Questionable, because he gave consideration earlier. That’s when BFP
should be assessed.
b. No notice of R  P deed
i. “Wild deed” – No connection
ii. Doesn’t count as notice
c. So D was subsequent purchaser (grantor) for all of the deeds, without notice
7. So a wild deed for an earlier grantee isn’t enough for subsequent purchasers, but
what about vice versa?
a. Split of authority
i. Even some courts that say it’s OK
Some say no – even some that say it’s ok to have latent defects (e.g.
opposite of messersmith
Guillette
1. Notice of covenants in other same-subdivision deeds
2. Are covenants in deeds referencing the whole subdivision notice?
a. Yes…
Daniels
1. What if you’re a BFP, but you’ve only made part of payments when you find out about
prior conveyance?
a. Some courts say must pay full amount to be a BFP
b. Majority – Partial BFP (Daniels)
i. Either split the land or buy the other out (Daniels)
Harper
1. Facts:
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a. Maude was granted a life estate, w/ remainder to the children (P). Didn’t
record, lost the deed. A new one was executed, but it granted her a fee simple.
b. Then Maude gave mortgage to T. Foreclosed, and transferred to D.
c. Maude finds old deed and dies.
2. Issue: Did Maude mortgage a fee simple or just a life estate?
3. Holding: Just a life estate because the replacement deed referred to her old deed
(inquiry notice)
a. Split of authority about whether this holds true
4. Inquiry Notice – An inquiry a RPP would make under the circumstances
a. Reference in deed put them on notice of a prior conveyance. Even though the
life estate wasn’t in the chain of title and was unrecorded, they could have
asked.
Walderoff
1. Inquiry notice
2. Umm… same thing as above. Didn’t spend a long time on in slides
3. Notes last bullet of slide. I’m exhausted! Good work today!!! 11 hours straight!