Property I - Festa, Property Fundies

Fair Housing Act—Remedies?

Person discriminated against may sue -Injunctive relief -Damages -Punitive damages Suits by United States Criminal penalties

EX 5: O conveys "to A for life, then to the heirs of B" B is alive.

The remainder is contingent because the heirs of B cannot be ascertained until B dies. Contingent remainder in "heirs of B"

Trespass -

cause of action that most obviously involves the right to exclude

Texas: income from separate property =

community property

Covenants -

conditions tied to the use of land; binding agreements, but NOT involving the government EX: Home Owners' Associations

The TIC presumption is one that can be rebutted, depending on what kind of facts?

consider whether there are reasons it should be overcome based on the facts. EX: one could identify the importance of the intent of the parties. [2011 Final Example} There's a good argument here that the four unities of a joint tenancy were met, and that the facts (Stan's intent to give as a wedding gift, and their marriage the next day) show an intent to establish the right of survivorship. Good to make this argument if possible

Primary reason landowners create defeasible fees these days is to...

control the use of the land after it has been transferred Sometimes to control behavior (EX: "to A and his heirs so long as A never drinks beer") As instruments of land use control, they are blunt instruments since violation may result in forfeiture of ownership Restrictive covenants have overtaken to large degree

Externalities

cost or benefit to a property use decision that isn't taken into account because it falls on others Exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision, because they fall on others They are external to the person, thus externalities The resource then tends to be misused or misallocated, instead of the socially optimal way Negative Externalities: pollution, littering, overharvesting of fish Positive Externalities: street musicians for tips, anyone who doesn't pay but enjoys the music

Critics of rule of capture relating to oil and gas:

creates a race to pump. If reservoir is under A, B, & C's land, they all want to extract oil as quickly as possible. Example of "tragedy of the commons" Theoretically, they could all agree on a way to maximize drilling resources over time, but this is hard to do in reality, and strong incentives to cheat As a result of these issues, many states have altered capture rules in various ways

Critics of the Economic Theory of Property/Utilitarianism

does not give adequate weight to the interests of individuals; trades individual well-being for aggregate utility. Also, individual well-being can't be aggregated so easily as utilitarians believe since measures of value can't be substituted easily for each other Other critics challenge the rational actor model of individual motivation. Social scientists have found humans don't always act this way. They act from differing motivations, including altruism. Also, people don't always evaluate circumstances accurately in making decisions (EX: availability heuristic)

In Elwes v. Briggs Gas Co., a prehistoric boat was found in land that was leased to the defendant. The issue was whether the boat belonged to the lessor or lessees.

The court ruled that the boat belonged to the lessor.

Acts of Third Parties -

Traditional CL: L's not responsible Today, jx divided. Some stick with CL, others have held that the L is responsible for controlling the 3P's conduct if the L has the legal authority to do so

O—For the first child of A who is admitted to the bar"

Is A dead? Valid Is A still alive? Void All of A's presently living children could die (lives in being) Afterborn child could be admitted to bar more than 21 years after A's death.

Termination of Marriage by Divorce, Community Property States

"Community property" jx - easier, just divide in half (can be complicated, but easier overall usually)

Property effects of Civil Marriage

Joint income tax filing T by the E [or CP in Tex.] Homestead protection Elective share Intestate succession rights Equitable division on divorce Alimony Medical coverage Pension benefits Veteran's benefits

L leases to T for a term of three years at a monthly rent of $1000. One year later T "subleases, transfers, and assigns" to T1 for "a period of one year from date." Thereafter neither T nor T1 pays rent to L. What rights has L against T?

Just a sublease L can sue T for missing rent, then T can sue T1 for missing rent L CAN'T sue T1 directly. No privity of estate or contract with subleasee (1) CAN evict T1

What is the key to a FSD?

Key is that is created by durational language: "so long as", "during" or "while" or "until" Words of limitation that cause the fee simple to terminate automatically upon the occurrence of the stated event

Stan and Kyle on Blackacre as landlord and tenant. Now we get into landlord-tenant law. Due to a hurricane, Blackacre sustained damage to the electrical box on the house, and after Kyle's demand, Stan refuses to fix it, stating that the terms of the lease don't cover the power lines; that Kyle agreed to be responsible for maintenance; and that Stan doesn't have the ability to fix the power. Kyle then withholds rent but doesn't move out. Stan then changes the locks and sues Kyle for rent and the cost of repairing the power line. How would argue breach of quiet enjoyment and constructive eviction?

Kyle needs a defense to the charge that he is the one in breach because he failed to pay rent. The two most relevant arguments: (1) Stan breached the covenant of quiet enjoyment, and constructively evicted Kyle; or (2) Stan breached the landlord's implied warranty of habitability. The implied warranty of habitability provides the better argument here, but you should analyze both. The covenant of quiet enjoyment requires that the landlord not interfere with the tenant's use of the property: any act or omission of the landlord which renders the premises substantially unsuitable for the purposes for which they were leased, or which seriously interferes with the beneficial enjoyment of the premises, constitutes a breach of the covenant. In Reste Realty Co. v. Cooper, the court held the covenant breached when a leased office was unsuitable for business because of recurring flooding that was in the landlord's power to fix. Here, it seems that living in a home without electricity is at least a serious interference, and perhaps renders Kyle's house substantially unsuitable for the purpose of living in it, so Stan could be in breach. Kyle did agree in the terms of the lease that he would have "the duty to maintain and repair the property," so Stan will argue that the covenant of quiet enjoyment doesn't apply, or more precisely that Kyle waived it in the lease. You should analyze this question closely on the facts—does the duty to "maintain and repair" extend to the power lines? There is another problem for Kyle, though, on this theory. Even if Kyle proves that Stan had the duty to provide electricity lines, and that Stan's failure to repair constitutes breach of the covenant, remember that Kyle is the defendant here, and he needs to prove that he is entitled to withhold rent. The second part of the quiet enjoyment argument is that if there is a breach, then the tenant can claim "constructive eviction," and stop paying rent, if he actually moves out. The concept of constructive eviction is a legal interpretation that you can stop rent because the landlord forced you out. Here, a key fact is that Kyle stopped paying rent, but didn't move out. He might have success in asserting that he was actually evicted as of the date that Stan changed the locks, but he would still be liable for back rent before that.

How would Kyle argue breach of the implied warranty of habitability?

Kyle's better argument is that Stan breached the implied warranty of habitability. The modern trend (remember, the instructions to the exam stated to assume all majority rules and modern trends apply unless told otherwise) is for states to abrogate the common law doctrine of "caveat lessee" by implying a warranty of habitability by the landlord in residential property leases to ensure that the premises are safe, clean, and fit for human habitation. In Hilder v. St. Peter we saw a very through policy discussion of why the modern trend is justified due to changes in the nature of the landlord-tenant relationship from historic times to the present. You can use these policy arguments to augment your legal reasoning in answering this question. To prove a breach of the implied warranty of habitability, Kyle will have to show to things. First, that he gave notice and a reasonable time for Stan to fix the defect. This is supported by the facts. Second, that the defect either (a) is a building code violation—which supports a prima facie case of breach; or (b) shows that the defect has an impact on health and safety. Here, the availability of electric power may well be in the building code for residences, but we don't know for sure. Still, you can argue persuasively that in the modern day (invoking those policy arguments from Hilder), society recognizes access to electricity as a basic condition This claim is helpful to Kyle is several other ways. First, this warranty is implied into residential leases, and can't be waived by the tenant in the terms of the lease. Therefore, the language purporting to make Kyle responsible for repairs does not trump the warranty. Also, the warranty entitles tenants to withhold rent even if they don't actually move out, which would also help Kyle here. Furthermore, a breach of the warranty entitles Kyle to a wider array of possible damage claims (assuming he files a counterclaim along with his defense): contract remedies of recission, reformation, and damages—including compensatory damages, consequential damages for annoyance and discomfort, and perhaps punitive damages as well. Therefore the implied warranty of habitability is Kenny's best argument, if he can invoke it. It only applies to residential leases, which is clearly the case here. One potential problem is that in some jurisdictions, the warranty is implied only to residential leases in apartment complexes and multi-family properties, and has not been extended to the rental of single-family homes; this could be a problem for Kenny since the facts seem to imply that he is the only tenant on Blackacre. This is only a minor point from the materials we surveyed, but it's a good example of the kind of thing that can distinguish a great answer from a good one, and how you'll need to pay attention to these details in practice.

*How do we want our foxes?* How do we want our aircraft hanger? What's the highest and best use? Get Kendall in there. If facing extortion, then leaves. *Can look at FREEDOM from both party's perspectives, L and T*

L - I want freedom to do with my property whatever I want T - freedom of alienability, modern trend, tenant's rights

Term of years; T vacates & stops rent; claims constructive eviction L fails to control party noise in another unit he rents.

L is liable L has power to control this; Therefore l has the duty to control it

Self-Help—Common Law

L may use self-help if (1) Legally entitled to possession E.g., by virtue of re-entry clause (2) Repossession is exercised in a peaceful manner Why? Resort to traditional judicial process harms Ls.

Characteristics of the fee simple

Largest possible estate because its *potential duration is infinite* Key characteristics of the fee simple are *heritability and alienability* Closest to absolute ownership (ultimately the govt can take thru imminent domain). No other private individual has a stick. Creditors can reach

Gift causa mortis -

Latin for "on the occasion of death"; gift made in contemplation of and in expectation of immediately approaching death Presumed to be revocable If the donor survives without revoking the gift within a reasonable time after the donor is no longer in apprehension of imminent death, the power of revocation terminates (Older authority has held that the donor's recovery automatically revokes the gift)

Keeble policy

Law disfavors using one's property in spiteful ways when the activity itself is only meant to cause harm to another, rather than to use property in a productive way. Thus, many jx provide a cause of action for property owners harmed by a *spite fence* - an obstruction to hurt neighbor (view of a lake, etc) for the sake of hurting neighbor, not for any productive purpose.

Migrating Couples—Problem H&W live in Ohio. H earns salary; W raises the kids. They retire and move to Texas. H dies with will leaving everything to D SP Doesn't change when they move to Texas. What law governs personal property when H dies?

Law of the state you die in. Texas: no elective share statute W takes nothing, all goes to D.

Periodic Tenancy

Lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. -EX: To A from month to month EX: To B from year to year *Termination: L or T must give NOTICE* -Year-to-year: common law requires 6mo (originates from agricultural land arrangements that considered planting/harvest time requirements) -Sometimes statutes modify to 30 days -Less than year to year: length of the period EX: one month on month-to-month

Josh William Singer, Property and Social Relations: From Title to Entitlement

Legal realists, including RS of Property, property describes a collection of legally protected interests which can be disaggregated into their component parts. The crucial steps are: 1) identifying the interests for which individuals seek legal protection and 2) using policy analysis to adjudicate conflicts among those interests and to determine the appropriate extent of legal protection for each interest Describes legal relations among people with regard to control of valued resources rather than relations between persons and things Under this idea, property has no utility except to obfuscate the underlying policy choices which must be done at the level of the detailed individual rules Instead of giving the concept of "property" its own force, specific entitlements and policy concerns are key

fee simple subject to executory limitation (FSSEL)

Like a fee simple subject to condition subsequent, but creates a future interest in a third party rather than in himself Executory interest - future interest in 3P EX: O conveys land to Hartford School Board, but if it ceases to use the land as a school, to the City Library School board has fee simple subject to executory interest City Library has executory interest

John locke and the labor theory of property

Locke argued that humans have natural rights to their own bodies and, by derivation, over their own labor. So, when a person appropriates some resource - say, an apple - from the common stock, that person acquires a property right in the apple because he has mixed his labor (which he owns) with the previously unowned apple and thereby makes the apple his own

How in Court reconstruct whether it was Lost or Mislaid?

Look at circumstances Location, value of property, etc We tell stories about the past as lawyers. Want to tell a more convincing story. Constructing persuasive narratives about past events to persuade decision-makers about right and wrong EX: keys fall out of pocket on beach vs. student leaves book in class. Circumstances

Henrietta Lacks

an African-American woman whose cancer cells are the source of the HeLa cell line, the first immortalized cell line and one of the most important cell lines in medical research. Her family sued NIH and are now on board that approves use of HeLa cell lines

Tenancy at Will; L causes nuisance; To vacates and sues for b/COQE Constructive Eviction?

NO damages! Tenancy at will. Can be evicted anyway. TaW, either party can walk away at any time. If I can evict you at any time, I can constructively evict you at any time.

O: "I promise to leave you this ring when I die" Gift?

NO! Mere expectancy Intent? - NOPE Intent to give property at death But NOT intent to make a present transfer, which is the key element, MUST be intent to transfer NOW Not enforceable Will does not come into effect until death. Will is simply instructions on how to make gifts at death. Doesn't not count as gift until death occurs, until that time, can change her mind. DELIVERY MUST BE IRREVOCABLE!

EX: if you go somewhere this summer to see concert, and stay in Holiday Inn, are you a tenant?

NO. But if you rent apartment for a year, that IS a term of years. How is it different? One creates sticks! A property relationship. A landlord/tenant relationship The other is just a mere license Just permission NOT about length of time. But you need "incidents" of landlord/tenant relationship: have to sign a contract granting property rights. But not the way it works with tickets. They give you a license

Michael gives Ryan a gift because he is dying of cancer, telling Ryan "this cancer is gonna get me soon, so I want you to have this gift." Ryan does not want Michael's gift, but does not expressly reject it. Later that night, Michael gets beaten to death by Dwight and his martial arts skills. Question: Is this a valid Causa Mortis gift?

Naw son. While this may appear to have the necessary requirements for a causa mortis gift, a valid causa mortis gift requires that the donor actually dies from the disease/peril that was the basis for the gift in the first place. If Michael died from the cancer, this would be valid, but Dwight ruined it.

In order for a bailment to exist, the bailee must have

*actual control* of the property *together with intent to possess* the property

Legality of Conveying a future interest

CL: void Some statutes (IL): void *Modern trend: POR and ROE are transferrable inter vivos or by will.*

Ferae Naturae

Common law reference to wild animals; literally "wild nature."

Marital Interests: differing systems

English system: H and W have separate property Continental system: Community property USA: Most states: CL/separate property Texas: community property

Law's values What do we want a system of property rules to accomplish?

Fairness - allocation and enforcement of property rights Efficiency - property to its highest and best use

Short cut rule #1 If LE + Fi1 + Fi2, and Fi1 = CR(in a FS), then

Fi2 = CR

Multiple-Party Bank Accounts

Joint accounts; POD accounts . . . All-purpose joint bank account -Banks prefer it -Doesn't establish your intent

Remainders -

a future interest that is capable (do not do so necessarily) of becoming possessory [[IMMEDIATELY]] at the end of the prior possessory estate. Remainder is a future interest that waits politely until the termination of the preceding possessory estate, at which time the remainder moves into possession, if it is vested.

The concept of constructive eviction is ...

a legal interpretation that you can stop rent because the landlord forced you out (constructive eviction)

Criminal Activity; L installs locks and hired security, but problems continue

No breach of COQE: No private duty on L to control public crime L can't control, not his responsibility Constructive eviction requires some interference by L

Intent: fact question for jury

Oral evidence ok Evidence is subjective: what witnesses thought happened, what was decedent thinking, etc

Migrating Couples

Property doesn't change when you move, property gets the character of the state you acquired it in. But the law of the domicile governs the estate.

Real vs. Personal Property

Real Property: Land, and generally whatever is erected or growing upon or affixed to land Personal Property: Generally, all property other than real estate; as goods, chattels, money, notes, bonds, stocks, and choses in action generally, including intangible property

Suicide and gifts

Some modern cases allow suicide to meet the "contemplation of death" requirement Older cases did not since suicide against public policy

If under a tenancy for no fixed period rent is reserved or paid periodically, ...

a periodic tenancy, rather than a tenancy at will, arises in most jx by implication

If A, owning only a life estate, creates a term of years, A has

a reversion

Based on judicial statements like that in the Armory case, it is often said "that the title of the finder is as against the whole world but

the true owner..." However, in reality, title, or ownership, is relative.

Class Gifts and RAP

"All or nothing" rule Class must close in order to vest Q1: when are all class members ascertained? Within lives in being + 21 years Q2: when are all conditions precedent met? Within lives in being + 21 years Regardless of when the gift vests in possession, gift will be good if it vests in interest within the RAP period.

Mahrenholz v. Board March: Huttons >>> School (1.5 acres) *"this land to be used for school purpose only; otherwise to revert to Grantors herein."* Q: what estate did deed create? FSD with POR? Or, FSSCS with ROE?

words of limitation, not condition, thus a FSD Suggests a limited grant rather than a full grant subject to a condition Holding: 1941 Deed = FSD Remainder: POR Court reasoning: *Intent: Words seem more mandatory than permissive* [Policy?—resolve in favor of more certainty?] Result: Since Harry held a POR, then the possessory FS would have automatically reverted to Harry in 1973, and he could have transferred FS to Mahrenholz in 1977 . . . if jury finds "school use" ended in 1973 (remand)

What if market went down, can L get the difference in DAS? If you can only rent for 90% of price of breaching party contract,

you can get the loss of 10% as DAS. But must show that you made all reasonable efforts to mitigate L must advertise for them equally. Should show that property first, shows strongly that you did you duty to mitigate Should log the number of visits/inquiries, to show evidence to judge that you weren't scheming to keep DAS clock running

FHA—who pays?

§ 3613—reasonable attorney's fees to successful aggrieved parties Exception from normal civil practice Why? United States wants to encourage lawsuits

Indefeasible vested remainder

■ Not subject to any condition and that will not need to be shared with other persons who join the group to whom it has been given. ■ "To A for Life, then to B" → no contingencies, goes to B when A dies *can't be taken away* _certain of becoming possessory in the future and cannot be divested_

Vested remainders -

1) given to an ascertained person, AND 2) Not subject to a condition precedent (although may be subject to a condition subsequent), nothing has to happen

RAP Steps

1. CLASSIFY the interests created 2. [[KILL]] the lives in being at creation 3. COUNT 21 years—will we know?

O: "to Amanda and her heirs, then to Bill and his heirs" What do all 3 have?

Amanda: has a fee simple absolute Bill: has nothing O: has nothing

Heritability

Can be left in will to a person or if no will it will pass to legal heirs

Delivery: question of law

Evidence: objective acts Judges CAN overturn since matter of law

How do you prove? What kinds of evidence? How do you persuade?

Intention to make a gift by be shown by oral evidence, delivery requires objective acts

O has wristwatch, hands note to A: "I hereby give A my wristwatch." Gift?

NOPE. No delivery. If manual delivery is possible, must be had.

lost property in public places goes to the...

finder

Chain of Title

The succession of conveyances, from some accepted starting point, whereby the present holder of real property derives title. Sometimes used by courts to determine owner of property if there are conflicting claims

Why have a TBTE?

What's the point? 1) Protects the other spouse 2) Keeps creditors from attaching the property

Basic Definition of Implied Warranty of Habitability

deliver & maintain "premises that are safe, clean, and fit for human habitation

Patents -

protects inventions that are novel, useful, and non-obvious

White dissent

"Classic case of overprotection" Parody - creating something new Property rules as balancing interests majority goes too far. Private property is vital, but too much and it hurts society. EX: Private land is more useful if separate from other private land by public streets, roads, and highways, public sewers, etc. Overprotecting intellectual property stifles creative forces. Majority's opinion makes it a tort to remind people of a celebrity. This is Orwellian and a violation of the first amendment Intellectual property isn't free, they're imposed at the expense of future creators and the public. That's why there are limitations like Short life of patents, copyrights, fair use doctrine, prohibition on copyrighting facts, etc

Continental System:

"Enlightened system" handed down by the Visigoths -More equal; seen as property of both. -Everything is community property -NOT TIC; each spouse has equal share, both own -Similar to TBTE, but not exactly the same -TX, southwest states (from Mex, Spain, Romans, Visigoths) -Think of it as a circle Every piece of property is owned by the community: ½ share of the whole -*In the case of divorce*, it is easy to divided: 50/50 -*In the case of death* -Surviving spouse keeps ½, inherits some or all (depending on whether kids have a right) -This is why TX does not have tenancy by the entirety

Rule Against Perpetuities

"No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest"

The "Takings" Clause of 5th Amendment

"Nor shall private property be taken for public use, without just compensation" Another limit on the right to exclude The implication is that government may take private property so long as it does so for public use and with payment of just compensation In Andrus v. Allard, the owners argued that the federal govt had de facto "taken" their property by virtue of prohibiting commercial transactions in those artifacts, reducing their value. Thus the decision looks at the meaning of property

Duties Regarding the Condition of the Premises - overview

"Revolution" has occurred in residential landlord-tenant law Tenant's rights increased dramatically -In the 1960s, courts began to adopt legal doctrines aimed at addressing the appallingly bad housing conditions in many low-income areas -Increasingly imported contract law doctrines; rejection of traditional common law approach to defining the L's duties regarding the care of the premises -CL was based on a model of leasehold covenants as independent

Transfer of Possession Actual delivery required?

"Seisin" Ceremonial: hand over dirt or the thing Effect of "wrench of delivery" What about today? Still a ceremonial aspect - CLOSING Transfer the deed (land) Hand over the chattel, or a key, or something?

How to create fee tail?

"To A and the heirs of his body"

If the bailor is the sole beneficiary (i.e. bailee is not compensated), the bailee is a

"gratuitous" bailee, and the bailee is liable only if the property is damaged through his or her gross negligence.

When sales are prohibited by gifts allowed, property is sometimes said to be ...

"market-inalienable" Moore court could have said his cells were his property but that he had no right to sell them

Shipwrecks

-Sunken treasure from ships is governed by finders law or maritime law -Finders law applied in territorial waters, finder entitled to abandoned shipwreck unless the wreck was embedded in land owned or possessed by another -States or US govt have successfully asserted claims to shipwrecks in their territorial waters USC transfers to the states -Evidentiary standard for abandonment is high, so in most cases maritime law, with its principle of salvage awards, applies -Salvage award - anyone who reduces the ship or its cargo to possession gets award, but property belongs to state -Sharp contrast with property law that awards all or nothing to finder

Term of Years

-Tenancy for a fixed term -Estate for a certain period of time -Fixed period; or fixed calendar dates -"Term of years" -Can be one day, one month, or 3000 years -At CL, no limit on the number of years permitted -But in most US states, statutes limit the time *Termination:* -Automatic upon end of term -No notice required -Usually have to sign lease because of SOF. Land contracts subject to SOF SOF protects things of high value from fraud (year+, land, $500+, etc)

Delfino rules

-The potential economic gain of one tenant or group of tenants alone cannot justify a partition by sale. -Sale of one's property that includes both her home and her business (and perhaps jeopardizing it) without her consent is an extreme exercise of power warranted only in clear cases

Common Law Marriage? Requires:

1) Cohabitation 2) Both parties manifest intent to be H and W 3) Hold themselves out to the public as H and W *Texas has it* CL marriage has same legal effect as licensed marriage Most states have abolished it. In practice, very rare

Common Law Concurrent Interests: 3 Types

1) Tenants in Common [co-ownership and marital interests are different] 2) Join Tenants 3) Tenants by the Entirety (only available to married people, not really used in TX)

The rule announced in Armory is called the *prior possessor rule.( It achieves multiple social goals: (4)

(1) It protects an owner who cannot prove that he is the true owner. (2) It protects individuals who entrust goods to others. Entrusting goods to others promotes social welfare. For example, an individual may entrust his clothes to the laundry without worrying that he may not get them back. Since he is the prior possessor, he will prevail over the laundry. (3) It protects the expectations of prior possessors, who expect to prevail. (4) It promotes peaceable possession. If prior possessors did not prevail, individuals might begin to steal property, hoping that the law would protect them. WHAT KIND OF WORLD DO WE WANT TO LIVE IN?

A lessor may withhold consent only when he has a commercially reasonable objection to the assignment. We adopt this rule for the following reasons: (4)

(1) Public policy favors free alienability; (2) The relationship between lessor and lessee has become more and more impersonal. As a result, the lessor is just as likely to find a high quality tenant in the assignee as the lessee; (3) The lessor's interests are protected by the fact that the original lessee remains contractually liable to the lessor; (4) A lease is increasingly viewed as a contract. - duty of good faith and fair dealing (precludes arbitrary refusals of sublease/assignment)

Leaseholds (AKA tenancies) are the so-called nonfreehold estates. The principal leaseholds are:

1) Term of years, 2) periodic tenancy, 3) Tenancy at will, 4) Tenancy at sufferance ***When any of the leasehold estates is created, a future interest necessarily arises. Either reversion (to landlord) or remainder to third party***

Gift Inter vivos

(Latin, between the living) is a legal term referring to a transfer or gift made during one's lifetime with no knowledge or threat of impending death. *IRREVOCABLE.* [as opposed to a testamentary transfer (a gift that takes effect on death) under the subject of trust.] Elements of an inter vivos gift 1) intent to make a PRESENT transfer 2) delivery 3) acceptance by donee (presumed usually)

Four "unities" required for a JT:

*1) time* - the interest of each JT must be acquired or vest at the same time *2) Title* - acquired by same instrument all joint tenants must acquire title by the same instrument or by a joint adverse possession. A JT can never arise by intestate succession or other act of law *3) interest* - equal, undivided shares, same duration *4) possession* - each must have a right to possession of the whole. After a JT is created, however, one JT can voluntarily give exclusive possession to the other JT. (Unity of possession is essential to a TIC as well; none of the other three unities is) *PLUS intent for right of survivorship*

RAP Reform

*1) "Wait and see"* or "second look" -Whether the interest does in fact vest within lives in being + 21 2) USRAP - flat 90 years --> both of which embrace: A) *Cy pres* Court reforms the conveyance to avoid RAP Give effect to transferor's intent AND B) the reduction of any age contingency to 21 years

Delfino v. Vealencis (1980) (Building Developers) v. (Garbage Lady) FACTS: The Delfinos owned 99/144 of the property and wanted a residential development, while Vealencis owned 45/144 and wanted to keep her garbage business on it. *Overall Rule: Partition by sale should be ordered only when two conditions are satisfied:*

*1) Practicality* - the physical attributes of the land are such that a partition in kind is impractical or inequitable *2) Best interests of parties* - the interests of the owners would be better promoted by a partition by sale Burden is on party requesting partition by sale to show it would better promote owners' interests What subjective value might certain parties place on the specific land? Q: does the economic gain for all parties outweigh the desire of one cotenant to stay on the land? Take into account both parties. *Fairness Efficiency*

Landlord's options when tenant has abandoned (traditional view)

*1) Terminate the lease* L can treat as implied offer to surrender and accept, terminating lease *2) Leave premises vacant;* recover accrued rent Reject implied offer of surrender; keep lease in effect; bring action for accrued unpaid rent *3) mitigate damages & recover any difference in rent* Rejecting implied offer of surrender and keeping the lease in effect, the L could mitigate the T's damages by reletting the premises to a 3P and bringing an action against the T to recover any difference in rent Landlord's options when tenant has abandoned *(MODERN view) A MAJORITY OF JX NOW IMPOSE A DUTY TO MITIGATE!*

Inaction by the Landlord In general, wrongful only where L is under duty to act Duty can exist on basis of express clause in the lease, EX: covenant to make repairs Statutes can also impose a duty (EX: provide heat) CL did not impose duties to keep premises in good repair or habitable Exceptions:

*1) furnished-dwelling rule* - in short term leases with furnishings, L had to keep habitable *2) common areas:* L was responsible to maintain (hallways, walkways, etc *3) latent defects:* L had to disclose any at outset of lease he knew or should of known of *4) nuisances:* in some jx, the L is responsible for abatement of nuisances occurring on the premises if they affect the leased premises

Rationale: Delivery is thought to perform three valuable functions:

*1) making abstraction a reality* - when a donor must part with a cherished possession, the idea of giving becomes real. Actions speak louder than words *2) objective evidence of intent* - intent is subjective, but delivery is objective. Delivery acts as a second check on intent, where the act of delivery serves as extra observable evidence of intent *3) objective evidence of acceptance* - presumptive evidence of acceptance by donee

Two requirements for donatio causa mortis: Both are issues of FACT for jury

*1. Intention to make the gift* Can be implied from facts attending delivery (what donor said and did) Must clearly show he knew what he was doing and intended a gift *2. Delivery of the thing given* Some jx say symbolic delivery is ok, some article delivered in the name and stead of the thing intended to be given is sufficient Other say symbolic isn't good enough, but constructive delivery (delivery of a key to a locked house, truck, etc) is sufficient. Constructive involves delivery in substance, the means of using and enjoying the thing given; usually if manual delivery isn't possible or extremely difficult

Transfer of Community Property

*Change CP to SP? SP to CP?* OK if both spouses agree in writing *Conveyance?* Neither spouse acting alone may convey his or her ½ share of the CP *Inheritance?* No survivorship! Each spouse may devise his or her ½ share Surviving spouse keeps their half. Half of deceased goes according to will, etc Each spouse may devise his or her ½ EX: if you buy a $10 pizza, you are spending $5 of your spouse Technically, need her consent. In reality, no one worries about it *Intestacy*—passes to the surviving spouse

RAP in Texas—Reform

*Cy pres: Tex. Prop. Code Ann. Sec. 5.043(a)* Within the limits of the rule against perpetuities, a court shall reform or construe an interest in real property that violates the rule to effect the ascertainable general intent of the creator of the interest. *See, e.g., Meduna v. Holder, 2003 WL 22964270 (Tex. App. - Austin, 2003).* Deed had successive life estates followed by right of first refusal—violated RAP Texas S.Ct.: reform the deed to strike out the restraint, and accord with the intent of the grantor.

The Duty to Deliver Possession What happens when the holdover tenant keeps the new tenant out?

*English Rule (majority)* Every lease has implied covenant by L to deliver possession when the term begins *American Rule* T has legal right to possession, but L has no implied duty to deliver physical possession

T "to A for life, then to A's children for the life of the survivor of them, then to A's grandchildren" When T dies, A is 80 yrs old, kids B & C Valid under RAP?

*FIRST! Note that there are TWO RAP analyses here* [First: A's children's CR is valid] So when B & C die, we will know who the grandchildren are at that time, right? [[Void!]] "Fertile octogenarian" possibility _Possible invalidating chain:_ Who is the validating life for grandchildren's remainder? B & C both die 21+ years later, A (now age 101) has another child, X. Then we won't know how many grandchildren A might have within 21 years of B & C's deaths.

Pierson v. Post analysis There are two justifications advanced for the rule that capture is required to vest title.

*First, this rule advances society's goal of capturing wild animals* (the desire to make "efficient use" of property). -Society rewards the captor only because this rule fosters competition. -More competition means more hunters. -More hunters results in the more efficient capturing of wild animals. *HOW DO WE WANT OUR FOXES?!* *The second reason for this rule is that it is easy to administer.* -While it is easy to determine who has captured a wild animal, it would be very difficult to determine who was the first to pursue a wild animal. -Alternatively, one may use the principle of first in time to understand this case: "He who first occupies a wild animal owns it." Of course, the fight is over whether one must be the first to chase a wild animal or the first to capture it. The majority rules that one must be the first to capture it. Interestingly, the majority went against the established custom, which recognized hot pursuit as vesting a right of ownership in the pursuer.

Accounting: Repairs and improvements

*No right to contribution* But courts might protect interests Equity: claim for improved value E.g. in partition EX: one cotenant fixes roof; no right to contribution necessarily, but can get value of roof back in sale based on equity EX: if property is physically divided in a partition action, the improved portion is awarded to the improver; if property is sold, the proceeds are distributed in such a way as to award to the improver the added value (if any) resulting from the improvements

What are the three remedies for co-tenants against each other?

*Partition* -In kind -By sale *Ouster* -Ousted party: share of reasonable rental value of the land -Fair rental value—MARKET rent; not necessarily K rent *Accounting* Sue other JT for her share of rents or profits received

Spiller analysis. Pros and Cons

*Pros:* highest & best use Majority rule encourages a cotenant to make use of the property, since rent need not be paid to the cotenant out of possession. As opposed to leaving it vacant and possibly unimproved until a new renter occupies the premises. *Cons:* need litigation to determine what is "ouster" Some jurisdictions take the view that a cotenant in exclusive possession must pay rent to cotenants out of possession even when no ouster is established. This view may seem more fair to cotenants out of possession. When a cotenant occupies the property in question, it is essentially kept "off the market" and thus potential rent from a prospective renter is lost.

Accounting: taxes, costs A cotenant making various expenditures, such as *taxes and mortgage payments, repairs, and improvements,* might also seek to recoup some or all of them through ...

*Right to contribution* A cotenant paying more than his share of expenses such as taxes and mortgage costs is entitled to recover to contributions from other cotenants, at least up to the amount of the value of their share in the property a partition action or an action for an accounting (brought independently or incident to a partition action) or an action for contribution from the other cotenants

Decision Tree for Classifying Future Interests: (3 steps)

*Step 1: Remainder (REM)* _________ or _________ executory interest (EI)? *Step 2: If REM, vested remainder (VR) or contingent remainder (CR)?* *Step 3: If VR, vested how?* Indefeasibly, or Subject to open, or Subject to complete divestment, or More than one of the above?

Difference between sublease and assignment

*assignment* - conveys the entire interest in a lease; it left nothing to the original lessee. -You transfer what you have -Transfers privity of estate to 3P (T2) (privity of K remains with T1) -3P/T2 assignee is liable to original lessor *sublease* - grants an interest less than the original lessee; the original lessee retains a reversionary interest. -Separate K -No "privity of estate" w/ original lessor -T1 "carves out" less than his entire estate

Accounting - rents and profits

*co-T who collects from 3P is liable & must account to other co-T* One cotenant may seek to recovery from another cotenant rents realized from leases to third parties, profits realized from using the property for business purposes, and value realized by one or more of the cotenants in occupying the property as a residence. In all states, a cotenant who collects from 3Ps rents and other payments arising from the co-owned land must account to cotenants for the amounts received, net of expenses. Thus, if one cotenant leaves a farm to a 3P, executes a mineral lease, or cuts and sells timber, he must account for net rents, royalties, and other proceeds in excess of his share. Absent ouster, the accounting is usually based only on actual receipts, not fair market value

Externalities and property rights: The idea of establishing property rights is to create...

*reciprocal obligations between respective owners* to refrain from imposing negative externalities and, if they do so, the law will force the internalization of those costs by imposing liability because the imposition of the costs on another was a violation of that other owner's property rights, including the *right to exclude* (Demsetz' thesis!) Nuisance and trespass laws are examples of laws that force internationalization of externalities. This risk of liability forces owners to find ways to minimize their imposition of externalities in the most cost-effective and efficient way.

Acquisition by Capture

- First in time to take possession acquires ownership. - Pursuit alone is not enough. - Landowner has constructive possession of wild animals while on his property. Most things are already owned, but not always. EX: fish in navigable waters are considered unowned. Wild animals may be one of the few things that are unowned and susceptible to capture Actual Possession - the usual method of acquiring a property right in a wild animal is actually to possess it, dead or alive

Ratione Soli (AKA "Constructive Possession")

-"by reason of the soil" -A landowner has certain rights on account of ownership of the soil -Establishes exclusive right to hunt wild game on a landowner's property, subject only to state's rights to regulate or manage game -Landowner has constructive possession, not ownership -Constructive possession = having the power and intent to control, without actual possession

English System

-H and W have separate property -Ownership is given to the spouse who acquires the property -Most states follow -When spouse 1 dies, doesn't matter how you devise, other spouse can claim a 1/3rd -Male dominated, since traditionally men dominated economic sphere, this system gave them almost all the property to men

Lease, License, or What? The legal nature of some arrangements is often unclear. EX: billboards. Suppose A "rents" from B the right to erect a billboard on land owned by B. Is the arrangement a lease, or is it something else, such as a license or still some other legal category? EX: concession stand in department store? In answering such questions, courts look at a number of variables, including:

-Intention of the parties -Number of restrictions on use -Exclusivity of possession -Degree of control retained by the granting party -The presence or absence of incidental services, -Etc Typical billboard situation creates easement or license, not a lease, because although there is exclusive possession it doesn't really interfere with the grantor's right of possession in any way Why does it matter? -It matters primarily because leases give rise to the landlord-tenant relationship, which carries with it certain "incidents" (certain rights and duties and liabilities and remedies) that do not attach to other relationships

Tenancy at Will

-No fixed period: can leave or be kicked out at any time -Continues as long as L and T agree -Termination: either party -Notice: not required -BUT, states have laws (typically 30 days) Note, however, that a unilateral power to terminate a lease can be engrafted on a term of years or a periodic tenancy EX: a lease by L to T for 10 years or until L sooner terminates create a "term of years determinable" Tenancy at will ends, among other ways, when one of the parties terminates it (or at the death of one of the parties)

How can a tenant default?

-Non-payment of rent -Holdover -Abandonment -Violating any covenant of the lease EX: throwing crazy toga parties What can L do? see next cases

*Litigation issues in joint bank accounts at death*

-Presumption of survivorship rights -Presumption of proportionality - The presumption in Texas is rebuttable. A majority of jxs hold that the surviving joint tenant takes the sum remaining on deposit in a joint account unless there is clear and convincing evidence that a convenience account was intended. The burden of proof is placed upon persons challenging the surviving joint tenant

Hannah v. Peel POLICY -

-Restore property to the true owner -Reward honest finders, -deliver the reasonable expectations landowners, -Discourage trespassers and other wrongdoers, -Encourage the productive use of found property -giving possession to the 2nd best person who has most incentive to take efforts that will lead to true owner getting back property -Specifically, incentivizes finder on other person's property to turn into police/authorities, who notify public -Rewarding finder is the best way to get back to owner

How to Calculate DAS for breach of IWH?

1) Agreed rent minus fair market rental value (FMRV) of defective premises 2) FMRV of premises as warranted minus FMRV of defective premises Advantage: in case premises were defective at beginning, this is better than #1 3) Agreed rent minus % of rent corresponding to lease value lost as a consequence of L's breach EX: L charges $600/mo for rent. FMRV of premises in habitable conditions is $1000/mo. FMRV of premises in current conditions is $500/mo. The % value lost is 50%. Hence, the tenant is entitled to reduce the rent by 50%, by $300 to $300/mo.

Covenant of Quiet Enjoyment

1) Any act or omission of the landlord . . . 2) Which renders the premises substantially unsuitable for the purposes for which they were leased, OR 3) which seriously interferes with the beneficial enjoyment of the premises, 4) is a breach of the covenant of quiet enjoyment and *constitutes a constructive eviction* of the tenant" Remedy? Move out, stop rent, claim damages

Courts today commonly rely on contract principles to reshape the law of leases with respect to such questions as the following:

1) Are the covenants in leases "mutually dependent" such that (as in contract doctrine) a material breach by one party excuses further performance by the other party, even if the lease do not so provide? 2) If the tenant wrongfully abandons the leased premises, must the landlord take steps to mitigate the damages, say by searching for a suitable new tenant? 3) Is a warranty of quality - that the leased premises are habitable or fit for their purpose - to be implied in leases?

To prove a breach of the implied warranty of habitability, P must show two things. What are some advantages of IWH over CoQE?

1) First, that he gave notice and a reasonable time for L to fix the defect. 2) that the defect either (a) is a building code violation—which supports a prima facie case of breach; or (b) shows that the defect has an impact on health and safety. Remember: this warranty is implied into residential leases, and can't be waived by the tenant in the terms of the lease. Also, the warranty entitles tenants to withhold rent even if they don't actually move out Furthermore, a breach of the warranty entitles T to a wider array of possible damage claims (assuming he files a counterclaim along with his defense): contract remedies of rescission, reformation, and damages—including compensatory damages, consequential damages for annoyance and discomfort, and perhaps punitive damages as well. One potential problem is that in some jurisdictions, the warranty is implied only to residential leases in apartment complexes and multi-family properties, and has not been extended to the rental of single-family homes

Q: any downside for Ts? Critics of ban on self-help

1) Forcing use of judicial process creates records that actually hurt the tenants more long term by hurting their credit history, making it harder to get leases in the future 2) Ls pass on higher rents off to other Ts. Tenant protection rules raise rents 3) May constrict housing availability as Ls have less incentive to provide housing since they are more liable 4) Less likely to take a chance of those with bad credit *Summary proceedings are in part an effort to lessen these burdens on landlords*

Contingent remainders

1) Given to an unascertained (or unborn) person, *OR* 2) Made contingent upon some condition other than the natural termination of the preceding estates (AKA subject to a condition precedent), something has to happen Look for "if" after initial future interest (usually before the next comma)

Inheritance of a fee simple

1) Heirs Persons who survive and are successors of decedent 2)Issue - Descendants (all) 3)Ancestors 4)Collaterals - people related by blood that are neither ancestors nor descendants (nephews, cousins, etc) 5) Escheat If no heirs, property escheats to the state HI ACE!

Reasons for (old) Majority rule: Where lease contains approval clause, lessor may arbitrarily refuse/void assignment no matter how unreasonable

1) Lease-as-conveyance -Historically personal 2) nature of L-T relationship -want to choose your Ts 3) Freedom of ownership, - control of property 4) Freedom of contract 5) "Stare decisis"/reliance 6) Right to profit from increased value of property? CL old rule - The (no longer) majority rule allows the lessor to arbitrarily withhold consent. Caveat lessee Lease-as-conveyance Historically personal nature of L-T relationship I'm making a deal with YOU, not some loser from section B. In old days, property was such a personal thing that landowner should get total control of property Freedom of ownership, control of property My land, my fee simple, my rules 1) pay rent 2) no waste 3) no sublease or assignment

3) Implied Warranty of Habitability (cont) What are the aggrieved T's rights if L breaches IWH? *MR3*

1) Move out and end the lease T is within her rights to move out and end lease, BUT DOESN'T HAVE TO This is the big difference between constructive eviction (breach of CoQE) and IWH 2) Repair and deduct cost of repair from rent Allowed by statute in a growing number of states 3) Reduce rent, or withhold all rent until court assesses fair rental value in view of the premises defects Typically aggrieved must place rents into escrow account to demonstrate good faith 4) Remain in possession, continue to pay rent, and affirmatively sue L for damages

How to prove IWH case?

1) Must give notice of defect to L, reasonable time to fix 2) Show substantial violation of a housing code = (prima facie case); or 3) Show that defect has impact on health and safety

Lost property goes to the finder. This "prior possessor rule" protects owners who cannot prove title, it encourages the entrusting of goods to others, it protects the expectations of possessors, and it promotes peaceable possession. What are the exceptions to this rule?

1) One exception to the rule is that if an *employee* finds a lost article on the employer's premises, the property goes to the owner. - One reason for this is the view that the employee is acting on behalf of the employer. - There is a criticism of this exception, however. It discourages finders from reporting found articles. - If they do not report the lost article, they keep it. - If they do report it, they lose it. - Reporting lost articles is a social goal, because it helps return lost property to the true owner. 2) Another exception is that lost property found *under the soil or embedded in the soil* belongs to the landowner. - The reason for this rule is that owners of land expect that they own not just the surface, but all that lies underneath it. - It also discourages trespassers from coming onto land in search of treasure.

Possession Two meanings of possession:

1) Physical Act - by picking up the cereal box in the grocery store, you take "possession" of the box 2) Legal Possession - Describes a *legal conclusion* - the owner of the grocery store is in possession of the store and owns its contents, so she can demand that you purchase the cereal before leaving the store or she will call cops Legal possession can mean less than ownership. EX: tenant possessing the apartment she rents

To plead constructive eviction, the aggrieved T must SING! (like Dido)

1) Substantial Interference - due to L's actions or failures to act could be permanent problems, or chronic problem EX: every time it rains, it floods Dido's apartment 2) Notice - must give L notice of problems. - Good faith L can't remediate what she doesn't know about 3) Goodbye, or GET OUT! - T must vacate within a reasonable time after L fails to fix the problem Can be tough if T has nowhere to go. But must go Can't have it both ways. Can't say have been constructively evicted while remaining in possession

Landlord's remedies

1) Sue for back rent 2) Recover possession 3) Damages for breach of covenants 4) Keep security deposit 5) Accelerate rent

If the bailment benefits only the bailee (e.g. bailee borrows the bailor's property without payment), then liability results from

damaged caused by the bailee's "slight negligence"

Pierson v. Post (1805) - dissent

1) adopt sportsmen custom to determine title 2) property right created thru Hot pursuit with reasonable likelihood of capture would encourage more killing of foxes The following rule accomplishes this: *A pursuer acquires title to a wild animal if he is in reach of the animal or if he has a reasonable prospect of capturing the animal.* Differences between majority and dissent? Majority: Formalist Consensus among ancient scholars One gets a property right to wild animals by actually killing or capturing them Certainty, peace & order Dissent: Functionalist/Instrumental Social interest in killing foxes Similarity: Capture is the goal, Difference: what constitutes capture? Both want foxes dead, debate over which represents the best policy to achieve that end

Sublease/assignment distinction - two tests

1) an assignment arises when the lessee transfers his entire interest under the lease; transfers his right to possession for the duration of the term If he transfers anything less than his entire interest (if 2 years remain on the lease and the lessee transfers a term of one year), a sublease results In this case, the lessee is said to have retained a reversion; the right to possession goes back to him at the end of the period 2) intent of the parties The actual words used are not conclusive

CL rules give the landlord confronted with a holdover essentially two options:

1) eviction (plus damages) 2) consent (express or implied) to the creation of a new tenancy Some jx have changed these rules. Complications arise in any event

Whether a lessor's refusal to consent was reasonable is a question of fact Factors to consider when applying good faith test:

1) financial responsibility of assignee 2) suitability of use for the property 3) legality of use 4) need for alteration of property for use 5) nature of occupancy Denying for personal taste, convenience or sensibility is not commercially reasonable; nor is attempt to charge higher rent than contracted for (goes beyond contract, concern should be limited to concerns about property, not the economic betterment of L)

Reasons for survival of the delivery requirement in gifts of personal property: (3)

1) handing over object makes vivid and concrete to the donor. By feeling the "wrench of delivery," the donor realizes an irrevocable gift has been made 2) act is unequivocal evidence of gift to witnesses 3) delivery of the object gives the donee, after the act, evidence in favor of alleged gift

Important Property Policies. Law should serve human values that are important to the people of the society. As courts try to do this, they tinker with doctrine to serve those policy ends. Generally, property doctrine tries to serve several important vluaes, including:

1) incentivize behavior, reward productivity, and foster efficiency 2) create simple, easily enforceable rules that are consistent with the rule of law (knowable, stable, predictable) that make owners and others confident in the system 3) create property rules that are consistent with societal habits and customs, and 4) produce fairness in terms of prevailing cultural expectations of fairness. Sometimes these all point in the same direction, sometimes not

There are three requirements of a gift: DO NOT HAVE TO BE AT THE SAME TIME

1) intent 2) delivery 3) acceptance

Losing ownership of one's body (and parts) When do you lose ownership interest in your body part? Abandonment elements

1) intent to permanently relinquish to no one in particular 2) voluntary act effectuating that intent

Multiple-party accounts with financial institutions, including banks, generally take one of three forms:

1) joint accounts - "A and B" or "A or B" 2) savings account trusts (AKA "Totten trusts") - "A, in trust for B" 3) payable-on-death (POD) accounts - "A, payable on death to B"

Property rights are thought to perform this value-maximizing function by "internalizing externalities" - bringing the costs of the resource's use to bear on the user in two ways:

1) property rights concentrate the costs and benefits of the use on owners, giving them greater incentives to use their own resources more efficiently 2) by reducing the costs of negotiating with others over remaining externalities

Remedies for Breach of IWH (textbook)

1) remain in possession and bring action for DAS 2) rescind the lease, thereby permitting the tenant to vacate the premises with no further obligation to pay rent 3) remain in possession and withhold all or part of the rent (most jx allow to without all rent, some require to deposit into escrow) 4) repair the defects and deduct the costs of the repairs from the rent

What are the policy objectives in finders' law?

1) restore property to the true owner 2) reward honest finders 3) deliver the reasonable expectations of landowners 4) discourage trespassers and other wrongdoers 5) encourage the productive use of found property

Common Law view of duty to mitigate (textbook)

1) tenant cannot by his own wrongdoing impose a duty on the landlord 2) tenant has purchased an interest in real estate and is stuck with it 3) landlord should not be forced into a personal relationship with a new tenant he does not wish to accept 4) landlord should not be required to seek out new T continually

The "hot news" doctrine INS fell out of favor for a while, but has recently come back under the "hot news" doctrine News gatherer may recover from a D when (5)

1) the newsgathering or collection process involves significant expenditures; 2) the collected news or info is time-sensitive; 3) the D free-rides on the collected material 4) the freeriding directly competes with the newsgatherer's market; and 5) the freeriding is likely to diminish incentives to collect news/info in a timely fashion

Rationales for protecting prior possession, especially when we know there is some unknown true owner are:

1) to encourage finders to make productive use of their finds rather than to hide them 2) provide a cheap, easy means of establishing presumptive title

There are three types of future interests in transferees

1) vested remainders 2) contingent remainders 3) executory interests

Elements of the Covenant of Quiet Enjoyment and Constructive Eviction (BASICS)

1) wrongful conduct by L (or someone for whom L is legally responsible) 2) substantial interference with the T's use and enjoyment; AND 3) vacation of the premises in a timely fashion

How do you prove delivery? What kinds of evidence? How do you persuade?

delivery requires objective acts

What are freehold estates?

estates are held by free men Fee simple absolute Fee tail Life estate Defeasible Fees -Fee simple determinable -Fee simple subject to a condition subsequent

The notice must terminate the tenancy on the final day of the period, not in the middle of the tenancy Thus, if a month-to-month tenant who began his tenancy on 1/1 decided on 3/20 to terminate, the earliest termination date would be ...

4/30. In many states, statutes have shortened the length of notice required to terminate periodic tenancies and have permitted a month-to-month tenancy to be terminated at any time following 30 days notice.

T "to A and B as joint tenants for their joint lives, remainder to the survivor"

A & B: Joint Life Estate, measured by life of first to die; Survivor has Contingent Remainder in FS; *Difference from JT in FS?* Either JT/FS can unilaterally sever & destroy right of survivorship, but here . . . *CR/FS cannot be destroyed by either A or B alone* *There can't be a survivorship of a Life Estate; it ends upon the death of A or B.* *A and B together could convey a FS, but if A doesn't sign the deed, and survives, B, A has FS.*

To A for life, then to B and her heirs if B attains the age of 21 before A dies (A is 15 at the time)

A = Life Estate B = Contingent Remainder in Fee Simple O = Reversion When B turns 21 (A is alive): B's contingent remainder vests in possession - FS O is divested of the reversion

O "to A for life, then to B if B attains the age of 30." B is now age 2. Interests? RAP?

A = Life Estate B = Contingent Remainder/Fee Simple O = Reversion/FS [[Valid]] *B is the validating life for B's remainder.* It must vest or fail within B's life. B is, at the time of conveyance, a "life in being."

O to A for life, then to B for life

A = life estate B = vested remainder in life estate "Vested" because B currently holds remainder stick Can't pass on remainder to B's heirs since measured by B's life. O = reversion

Cheney Brothers v. Doris Silk Corp (1929)

Design protection case P sought protection of design of silks that it manufactured D make copies and sold them at a cheaper price P sought injunction, relying on INS Learned Hand denied relief, stating that the basic rule is: "In the absence of some recognized right at common law, or under the statutes...a man's property is limited to the chattels which embody his invention. Others may imitate these at their pleasure." Today, fashion designs are not protected under intellectual property law in the US. However, legislation is pending that would add such protection to federal copyright act

Executory Interests

A future interest in a transferee, that to become possessory, must: *Divest or cut short some interest in another transferee [shifting] or divest transferor in the future [springing]* Take effect in possession ONLY by DIVESTING (cutting short) the interest before them Developed to do what the remainder cannot: divest or cut short the preceding interest

EX 10: O conveys "to A and his heirs, but if A dies without issue surviving him, to B and her heirs."

A has a possessory fee simple subject to an executory limitation (or subject to divestment by B's executory interest). Operates like a FSD/POR in effect CUTS OFF the otherwise infinite estate B's future interest can become possessory only by divesting A

Difference between landowner recovery in sublease vs. assignment?

An *assignment* allows the land owner to recover from the assignee. A *sublease does NOT* allow the land owner to recover from sub-lessees.

Constructive Delivery

An act equivalent to the actual, physical delivery of property that cannot be physically delivered because of difficulty or impossibility. For example, the transfer of a key to a safe constructively delivers the contents of the safe. is handing over a key or some object that will open up access to the subject matter of the gift

Landlords, once free to discriminate as they wished, are today constrained in a number of respects. Perhaps the most significant constraints are imposed by the ...

federal Fair Housing Act, originally enacted in 1968, and amended since. Passed under Congress's Commerce Clause power

Constructive Possession (AKA "ratione soli")

A landowner is considered as being in possession of a resource that is on or in her land even if she does not have physical possession of it. EX: trespasser hunts on someone else's land. Landowner owns the game

What is often required if a person wants to create a TBTE with himself and his wife?

A straw. is a figure not intended to have a genuine beneficial interest in a property, to whom such property is nevertheless conveyed in order to facilitate a transaction. The unity of time rule requires a joint tenancy or TBTE be granted both parties at the same time.

If Eric goes for partition...

A tenant in common (or a joint tenant, in severing the unities) has the right to partition the co-owned property. If Eric brings an action for partition, he would have the right to his one- half interest in Blackacre. Doctrine still favors partition in kind, and if it is possible to split Blackacre in a way that preserves all parties' interests, a court might get out a map and order a partition in kind. However, due to the inherent difficulties in doing so, modern courts tend to favor partition by sale. In that event, Eric will get one-half of the proceeds of the sale of Blackacre.

Covenants

A written agreement; a promise or obligation contained in an instrument under seal, such as a deed. The term is often used in relation to land, such as a "covenant for quiet enjoyment," which is a promise by the conveyor of land that he will protect the buyer against lawful claims made on the land. A "covenant of seisin" is a promise made by a grantor of property that he lawfully possesses the property and has the right to convey it. Covenants are classified in many ways. "Covenants in gross" are those that do not run with the land (i.e., they do not pass to succeeding owners). "Covenants running with the land" do pass to succeeding owners. "Covenants against encumbrances" are promises made by the grantor stating that an estate has no burdens on it, such as claims or liens. Covenants are usually express, but may be implied from the agreement.

O conveys Blackacre to A for life, then to B and her heirs. Describe the rights of B

B has a PRESENT legal right and liabilities. B can sell or give away her remainder. She can enjoin A from committing waste. She can sue third parties who are injuring the land. If B dies during the life of A, B's remainder will be transmitted to B's heirs or devisees, and a federal estate tax or state inheritance tax may be levied upon its value.

Summary proceedings

A/k/a "forcible detainer" Recover possession Maybe rent too Short notice Limited range of issues

EX. O to A for life, then to B and her heirs if B survives A

A: LE B: contingent remainder in FS O: reversion in FS Can be divested if A dies before B O has a reversion in fee simple that is NOT certain to become possessory. If B dies before A, O will be entitled to possession at A's death. On the other hand, if A dies before B, O's reversion is divested on A's death and will never become possessory

O "to A for life, then to A's children and their heirs, but if A not survived by children, then to B and her heirs." [[C & D born to A.]] Title now?

A: Life Estate; C & D: Vested remainder in fee simple . . . Subject to open (partial divestment); AND Subject to complete divestment by executory interest [if A's children die before her] "A's children": contingent remainder in fee simple B: executory interest in fee simple

O "to A for life, then to B and her heirs, but if A is survived by children, then to A's surviving children and their heirs" At time of conveyance, A has 2 kids (C & D)

A: Life estate B: Vested remainder in fee simple subject to divestment (by executory interest) C & D: executory interest in fee simple *Subject to partial divestment (open)*

1. O wants to convey to A for life, then to A's living children, or if none, then to B. a. O "to A for life, then to A's children and their heirs, but if A not survived by children, then to B and her heirs." [[A has no children at time of conveyance.]] Title?

A: Life estate; "A's children": Contingent remainder in fee simple B: (alternative) Contingent remainder in fee simple

*O to A for life, then to B if B gives A a proper funeral* [[_HE SPENT A LOT OF TIME ON THIS!!!_]]

A=life estate B = springing executory interest *NOT a remainder because B's interest does not become IMMEDIATELY possessory on A's death. There must be time between death and funeral. Who owns in between? O* Because there's a gap, and the law craves seisin (legal possession), there must be someone seised of Blackacre O = reversion in FS subject to divestment Whether a proper funeral is a question of fact for court's jury

Manual Delivery

AKA actual delivery. Donor physically transfers possession of the object to the donee. Primary method of delivery for most items of tangible personal property If manual delivery is impractical due to size or weight of object, or inaccessibility, constructive or symbolic delivery may be permitted.

Armory v Delamirie (1722)

Acquisition by find case COURT DECLARES THAT THE FINDER OF LOST PROPERTY HAS A TITLE SUPERIOR TO ALL BUT THE TRUE OWNER Facts - a chimney sweep, finds a jewel takes it to a goldsmith, for appraisal. goldsmith's apprentice appropriated the jewel through deceit and refused to return it Issue: Does finding an item entitle the finder to sue for its return when another party takes it from him? Holding: Yes. Finder of a jewel has a property right to keep it as against all but the rightful owner Action lay against master of wrongful apprentice Valuation of damages: burden on D Status of goldsmith (/clerk)? "Bailee" - means bailor has better right The finder's possessory rights are superior to everyone else's except for those of the true owner.

The Lease - Conveyance or Contract?

Actually, it is both. A lease transfers a possessory interest in land, so it is a conveyance that creates property rights. But it is also the case that leases usually contain a number of promises (or covenants) such as a promise by the tenant to pay rent or a promise by the landlord to provide utilities. So the lease is a contract too, thus creating contractual rights

CONSTRUCTIVE EVICTION ELEMENT 1) wrongful conduct by L (or someone for whom L is legally responsible)

Affirmative acts by the L that seriously interfere with the T's use or enjoyment are the easy cases. More difficult are inaction by the L and acts by third parties

Gruen reasoning

An inter vivos gift requires that the donor intend to make a present transfer of title. If the intention is to make a transfer of title only after death, the gift is invalid unless made by a will. Stepmom (D) errs in maintaining that the elder Gruen intended to make a transfer of title only at his death. On the contrary, he intended to make a present transfer of a future interest. Title to this future interest, which is a remainder, vested at the time of the gift. It is irrelevant that possession is not taken until some time in the future. As to Stepmom's (D) contention that the gift was invalid because possession was not delivered, we note that the rule that possession must be delivered to consummate a gift is flexible. This is a better statement of the rule: The delivery that is required is that delivery that is best under the circumstances. In this case, since Gruen (P) had only a remainder, it was impossible to deliver such an interest until the elder Gruen had died. Moreover, it would be silly to have the elder Gruen deliver possession merely to take it back so that he could enjoy his life estate.

Acquisition by Creation: An Introduction to Intellectual Property

Another method of acquiring property rights is by creation The idea is that if you create something - if i that sense you are first in time - then that something is yours to exploit because of your investment of labor and money. Grants a limited monopoly Promote creation Market competition hurt by monopoly? John Locke labor theory

EX: one year term. Tenant holds over and pays monthly rent. Landlord cashes check. Since landlord elected not to evict, appears to be a new tenancy. But what sort?

Answer varies based on jx, but most say it gives rise to periodic tenancy But this also varies. Is it month-to-month, or a year? Tenancy resulting from holdover is usually subject to the same terms and conditions (amount of rent, duty to repair, etc) as those in the original lease, unless the parties agree otherwise States widely vary in how they deal with holdovers

Hilder v. St. Peter (1984) (Tenant) v. (Landlord) FACTS: St. Peter (D) leased an apartment unfit for habitability [understatement] to Hilder (P). Though Hilder (P) informed St. Peter (D) of these defects, he failed to remedy them. Definitely bad enough for COQE, but didn't move out so can't claim constructive eviction

COURT MAKES LIFE EASIER FOR RENTERS: THERE IS AN IMPLIED COVENANT OF HABITABILITY IN EVERY LEASE THAT *CANNOT BE WAIVED* In modern times, a tenant leases land for a safe, sanitary dwelling, not for arable land. -Moreover, the characteristics of today's tenant has changed. -The tenant of the middle ages was a farmer who was capable of making necessary repairs himself. -In contrast, today's tenant is a city dweller who is unable to repair complex living units. -On the other hand, landlords are in a much better position to repair residential units. -Given these changes, we now hold that there exists in every residential lease an implied covenant of habitability.

Possession as a "Text"

Argument that acts of possession are a kind of "text" that has to be interpreted. Have to go further than just say "it's mine," must do so in a way that "some relevant world" understands the claim and takes it seriously. Indians' use not taken seriously

RAP in Texas—Constitution

Article 1—Bill of Rights Section 26—Perpetuities and Monopolies. *Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this state.*

L leases to T for a term of three years at a monthly rent of $1000; the lease provides that "T" hereby covenants to pay said rent in advance on the first of each month. Lease also provides that "T shall not sublet or assign without the permission of L" Six months later T, with the permission of L, transfers to T1 for the balance of his term. Thereafter T1 pays rent directly to L for several months, then defaults. L sues T for rent due. What result and why?

Assignment "balance of the term" - no more sticks T1 stops paying rent. L sues T. *T is liable to L No privity/estate; but . . . Privity/K remains* (unless T got a release/novation from L)

FEE SIMPLE (creation)

At common law: "To A and his heirs" "To A": A is the grantee "and his heirs": words of limitation

Lionel's most prized possession is the trophy we won at the World Cup. His grandniece Alice covets the trophy too. When Alice turns 14, Lionel promises to give her the trophy next year when she turns 15, and he gives her the secret combination to the safe where the trophy is kept. Alice immediately texts all her friends saying "I'm finally getting a World Cup Trophy!" Who owns the trophy? A. Alice, because her communication with others shows acceptance of the gift. B. Lionel, because he does not presently intend to give Alice the trophy. C. Alice, because the combination to the safe constitutes constructive delivery. D. Lionel because he did not physically deliver the trophy.

B There was no present intent. Review of elements of a gift: Donative intent to make a present transfer Delivery to donee Acceptance by donee So even though we have constructive delivery and acceptance, we don't have present intent. Alice has a future interest in the Trophy

McAvoy v. Medina (1866)

COURT RULES THAT A "FINDER" DOES NOT HAVE TITLE TO MISLAID PROPERTY FACTS: A customer of the shop owner placed his wallet on the counter, but neglected to remove it. McAvoy (P) found the wallet. The ordinary rule is that a finder of lost property has title superior to all the world except the true owner. Here, however, the property was mislaid, not lost. When property is mislaid in a shop, the shop owner has a duty to safeguard the property until the true owner returns. Therefore, a finder can never gain title to mislaid property.

Why can't contingent remainders be subject to executory limitations?

Because they have NOT VESTED. Can't divest something that hasn't vested.

Ex. 25: O "to School Board so long as used for a school, then to A and her heirs" RAP?

Board: FFSEL? A: Executory interest? *A's future interest is [[void]] under RAP* Board: FSD O: POR Executory interests with no time limitation are void.

Confusingly: If an executory interest follows a fee simple determinable, we call the fee simple a ...

fee simple determinable, NOT a fee simple subject to executory limitation EX: O conveys Whiteacre to the Hartford School Board, its successors and assigns, so long as the premises are used for teaching purposes; otherwise, to the City Library

Escheat -

feudal incident still around today If a tenant died without heirs, the land returned to the lord from whom it was held *Today: if a person dies intestate (without a will) and without heirs, the person's property goes to the state*

Gruen v. Gruen (1986)

COURT MAKES IT EASIER TO GIVE GIFTS: A PARTY MAY GIVE A REMAINDER TO ANOTHER WHILE RESERVING A LIFE ESTATE IN HIMSELF FACTS: The elder Gruen gave Gruen (P) a painting but reserved a life estate for himself. Gruen (P) has never had possession of the painting. ISSUES 1) whether a valid inter vivos gift of a chattel may be made where the donor has reserved a life estate in the chattel and the donee never has had physical possession of it before the donor's death 2) whether the elements of a valid inter vivos gift have been met

Custom Customary rules often arise to maximize the well-being of the group creating the custom, to ensure that

individuals do not grab benefits for themselves that impose net losses on the group as a whole. Individuals conform to the custom out of self-interest: in the long run, they will be better off, and in the short run, deviations from the customs will result in substantial informal sanctions from the group.

O "to A for life, then to A's children and their heirs, but if A not survived by children, then to B and her heirs." [[C & D born to A. C dies first; A is survived by B and D. A dies; Estate in Blackacre:]]

C not divested because D survives ½ = D ½ = C's estate B: gets nothing

Newman v. Bost (1898)

COURT MAKES IT MORE DIFFICULT TO GIVE GIFTS: SYMBOLIC DELIVERY IS NOT ALLOWED In order to effect a gift, whether causa mortis or inter vivos, the items must be physically delivered to the donee where possible. Decedent on deathbed gave keys to maid Julia, pointed out items in room, in hallway, intended her to have that stuff Julia's claim: 1) proceeds from life insurance policy 2) value of household property 3) value of burned piano 4) value of Julia's bedroom furniture Trial finds for Julia - gets all 4; Julia persuaded jury that old man intended for Julia to have the items; Persuaded jury that intent, delivery (constructive thru keys) SCt (NC) 1) insurance - no 2) household property? - partly (keys to bureau is constructive delivery; no to the rest) 3) piano? Maybe, new trial 4) bedroom furniture - yes Deathbed gifts suspect - could be lightheaded, irrational, fearful, mentally incompetent, beneficiary could be lying, etc. Hesitant to override carefully planned will

IWH and Tort Q: is L responsible for torts occurring on T's premises?

CL & majority rule: no general duty of care Exceptions Promises made in the lease Express & implied Other CL exceptions

The Original Common Law Approach: Independent Covenants

CL treated lease as both conveyance of an estate and a contract As a contract, the least is a bundle of covenants, some of which the parties expressly made and others of which the law implied. EX: Covenant of Title running from L to T (implied) Major difference between K law and property law was that leasehold covenants, whether express or implied, had to be performed independent of each other. -Covenants had to be performed regardless of whether the other party's covenants had been performed EX: even if a landlord had expressly covenanted to repair the premises and failed to perform, the tenant was still obligated to perform all of his covenants, including, to pay rent Major exception to independent covenants approach: The obligation to pay rent was dependent upon the T's having possession undisturbed by the L (or his agents) AKA *Covenant of Quiet Enjoyment* - originally, under CL, meant L promised not to interfere with the T's right to actually possess the land during the term of the lease

Moore v. Regents of the University of California (1990)

COURT DECLARES THAT EXCISED BODY PARTS ARE NOT ONE'S OWN PROPERTY FACTS: P Moore: leukemia - spleen removed Docs use it for cell line, made serious coin Moore sues for Conversion: wrongful exercise of ownership rights over the personal property of another Informed consent; b/fiduciary duty BLACK LETTER RULE A doctor has a duty to disclose the extent of his research and economic interests in a patient's body parts. Human body parts are not property such that they may be converted. Allowing conversion claim would chill medical research. Moral issues best left to politically accountable legislature. Holding - Yes - breach of informed consent But NOT for conversion: not property Highest and best use of cells: curing disease. However, it is also worth tons of money

Berg v. Wiley (Minn. 1978) (Tenant) v. (Landlord) FACTS: Wiley (D) changed the locks on property that he leased to Berg (P). He said/she said factual dispute about restaurant closing for renovations; L claims she "abandoned" property; L can evict ISSUE: May a landowner use self-help to retake possession of his property?

COURT GIVES ADDITIONAL RIGHTS TO TENANTS: LANDLORD MAY NOT USE SELF-HELP TO EVICT TENANT (1) Sufficient evidence for jury to find no abandonment or surrender (2) L's self-help was not peaceable CL rule is set aside; Court adopts modern trend. Any use of self-help has the potential for violence. Therefore, unless the tenant has abandoned or surrendered the premises, a landlord may not use self-help. The landlord must resort to the judicial process to regain possession.

The Public Trust and the Public Domain in Land

Cases like Jacque indicate private property rights are strong, but other cases like Shack, Andrus, and Eyerman suggest that ownership rights are not absolute when particular uses are against social interests Public Trust - comes from ancient Roman times Certain resources that used to be in the commons that society believes should be available to all are part of the public trust Ocean - commons that can't be owned Wet sand is in the public trust (in other words, the area covered in water during high tide) Dry sand - CAN be privately or publicly owned public trust doctrine, ownership of and sovereignty over land flowed by tidal waters, which extend to the mean high water mark, is vested in the state in trust for the people. The public's right to use tidal lands and waters encompasses navigation, fishing, and recreational uses such as bathing, swimming, and other shore activities.

Limits on the Right to Exclude

Civil rights legislation forbidding various forms of discrimination Rent controls and other limitations on a landlord's right to evict tenants Law of adverse possession (under certain circumstances, a trespasser can come onto your land, occupy it, and gain legal ownership of it) Bodies of doctrine granting public rights of access to private beaches Laws protecting homeowners who have defaulted on mortgage payments

Doctrine of Accession 2

Comes into play when one person adds to the property of another either labor or labor and new materials. Rule: ownership depends on 3 factors... 1) The mental state of the improver Most hold good faith is necessary for accession. If improver knows they are trespassing, it is conversion, original owner gets full value. 2) The degree of transformation of property Huge transformation weighs in favor of compensating improver. Small/no transformation weighs in favor of giving full property to original owner. 3) Relative values contributed If the final product is of much greater value than the raw materials, weighs in favor of compensating improver. Ex. Wetherbee v. Green (Supp) A, relying on permission that he supposes came from B, enters B's land, cuts timber, and makes hoops from the timber. The standing timber was worth $25; the hoops are worth $700. Held that the hoops belong to A under accession though B can sue for the price of the standing timber.

Termination of Marriage by Divorce, Common Law

Common law - property went with title -Separate property to each -At common law, TBTE becomes TIC; wife entitled to support ("alimony") unless at fault -JT - stays the same Today, much has changed Division of property by "equitable distribution" True in both common law (separate) and community property states Some divided ALL property evenly, others only marital property Equitable distribution gives HUGE discretion to judges. Almost anything can happen

Duty to mitigate? Common Law (case)

Common law rule: no. Property theory—a lease is a conveyance of property. It divests L of possession and therefore L has no responsibility if T abandons "the tenant has an estate with which the landlord cannot interfere." It was understood that when the tenant vacated, he could retake the premises when he wished. Since the landlord had no control, it would be silly to require him to mitigate.

American community property system: Property from earnings during marriage =

Community property

CONSTRUCTIVE EVICTION ELEMENT 2) substantial interference with the T's use and enjoyment; AND

Conduct must constitute such a major interference with the T's ability to use or enjoy the premises that a reasonable person would conclude that the property is uninhabitable or unfit for its intended use EX: single broken window not enough

T subject to ongoing abortion protests; complains to L; L does nothing

Constructive eviction Generally, L not liable for 3P torts; but L failed to respond to request Amounted to allowing trespassers to interfere May depend on promises made in the lease

What kind of future interests are subject to rap?

Contingent remainders Executory interests Class gifts

Henry E. Smith, Property as the Law of Things

Conventional wisdom states that property is a bundle of rights and other legal relations available between persons. Things are just the backdrop to these social relations Bundle of rights is more description than theory "Property" is simply a conclusory label we attach to collection of relations among persons

Principle of acquisition by creation is the domain of intellectual property Three main types:

Copyrights, patents, trademarks All governed by federal statutes, but there are common law copyrights in addition to statutory Trademarks regulated through a mixed system of state common law rules and optional federal registration Federal Constitution authorizes Congress to "promote the process of science and useful arts," by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

H and W and their son, S, open a joint savings account. H and H are in their sixties. The money deposited in the savings account comes from savings from H's salary that H formerly had in a separate savings account. H dies. W, claiming that the entire amount in the savings account is hers, withdraws the balance. Does S have any rights to the money?

Court: H intended gift to W S name added for convenience Court will make presumption in favor of spouse unless clear evidence otherwise

(majority/CL rule). L refuses permission to assign; lease silent on subleases T "sublets" to T1 (term minus 1 day). Sham?

Court: Technically, it's a sublease L should have put it in the K.

L refuses consent to T -> T1, planned parenthood L opposes T1's use for birth control/abortion Reasonable?

Court: no "Objective criteria": financial, legal, etc. "Subjective" considerations not applicable

1(a) (Modern Trend rule). L leases to T (5 yrs) L refuses sub to T1 b/c T1 is L's tenant in another building. Reasonable?

Court: unreasonable. Rule is for protection of L "in its ownership & operation," not "general economic protection"

The Rule of Capture Applied to Other "Fugitive" Resources

Courts have extended the analogy to wild animals of various "fugitive" resources using the rule of capture as the means of acquiring property rights for the first time EX: oil and gas; water in common pools

Language used to create FSSCS?

Created by a conveyance of a fee simple, followed by language providing that the fee simple may be divested by the transferor if specified event happens *"But if"; "upon condition that"; "provided that" ; "however' "provided, however, that when the premises..."; "on condition that if the premises...." etc*

A and B have a joint savings account of $40,000. How much of the account can A's creditors reach?

Creditor can reach in proportion to debtor's ownership rights Burden on each depositor to show what he actually owns Sack full of paperwork, W2s, etc.

What about "symbolic" delivery of all items? Don't keys signify transfer of dominion?

Ct rejects EX: mayor gives keys to city, they aren't transferring ownership of city. Just a symbol

Rob & sister Joan, joint safe deposit box. Rob hands 4 bonds to Joan, puts them + more stuff into box. Rob leaves note in box indicating contents left to Joan. GIFT?

Ct: sister only owns the 4 bonds that were hand delivered to her; the remaining contents were not delivered even though Joan was a joint tenant of the box. Intent: yes Acceptance: maybe, never touched Delivery? - NOPE Key to the box constructive delivery? Contents of box are manually deliverable; can't change your mind More importantly, since both have access, he could change his mind. NOT IRREVOCABLE. He never gave up control. Could have taken back.

O, a widower, opens a joint bank account with his niece, A. O tells A, "I'll want your name on this account so that in case I am sick you can go and get the money for me." O dies. Is A entitled to the money in the bank account?

No. Ct: A is acct. Signatory for CONVENIENCE Absurd? It plainly says "O" and "A" It would have to be a gift REMEMBER, UNDER LAW for gift: Need intent, delivery, acceptance BUT bank will grant request, because doesn't care

If O, a fee simple owner, granted the land "to A for life," the land would revert ("come back") to O at A's death. O's right to future possession is called a reversion. If O dies during A's life, ...

O's reversion passes under his will or to his heirs, and at A's death whoever owns the reversion is entitled to possession of the land.

Moore dissent

Dissent (Mosk, J.) Humans have a property interest in their bodies and its products. Moore had the right to do with his cells what Golde and Quan did to them. This exploitation of Moore's body for the benefit of another is akin to slavery and should not be tolerated. Additionally, in terms of the patent, although the Regents are the rightful patent holders, Moore had a critical contribution to the invention, as without his cells there would have been no invention. Moore should be compensated accordingly.

Bonus Causa Mortis Elements: beyond Inter Vivos

Donor must have disorder which makes death imminent or be in peril that threatens death; AND Donor MUST actually die from the specific disorder or peril (presumed revocable)

If Eric goes for accounting...

Eric also has the right to bring an *accounting* against Stan. While Spiller holds that one co-tenant doesn't owe the other for his or her use of the property, all co-tenants are entitled to their proportionate share of the profits obtained from that use (minus their shares of the expenses incurred). An accounting entitles the co-tenant to a share of the actual profits, not necessarily the market value. Eric is entitled to $500 per month—i.e., one half of the $1000 monthly rent Kyle is paying to Stan—minus one half of the expenses.

If Eric goes for ouster...

Eric's third option is to force an ouster. Back to Spiller again, ouster obtains if one co- tenant denies the other their equal right to use or possess the co-owned property. If co-ownership means equal undivided rights to the whole, then the converse of the idea that each can use the whole thing is that none can be excluded from any part of the property. Eric can't yet claim that he has been ousted, but you could easily come up with a hypothetical course of action that he could take (e.g., demanding to enter Kyle's leased home) that would lead to an ouster. If he can force an ouster, then he would be entitled to one half of the reasonable rental value of the lease (not the actual rents received, as with an accounting). If Stan leased to Kyle at below market value, then Eric would be better off trying to force an ouster

English rule -

Every lease has implied covenant by L to deliver both legal right to possession and physical possession when the term begins Upon the landlord's default, the tenant may terminate the lease and sue for damages Alternative, the new tenant may continue the lease and sue for damages Based on the view that the landlord has the greater ability to guard against the risk of trespassers and holdovers L's are more sophisticated about the eviction process and better able to bear the costs Majority of jx follow English rule, so does RS

White v. Samsung Electronics America, Inc. (1992)

FACTS - Vanna White sues Samsung for depiction as robot in ad without permission/payment Claims her persona is her property, asserts claim that Samsung violated her CL "right of publicity" Rule: A common law right to publicity will be violated when a celebrity's identity has been commercially exploited. Celebrities have a commercial interest in their identities, which the law must protect. Neither the celebrity's image, nor her identity must be revealed for violation of the right to publicity. A court may consider the surrounding circumstances when determining whether a celebrity's identity has been used.

Baker v. Weedon

FACTS John Weedon left a life estate to his 2nd wife Anna Weedon (P) and a remainder to grandchildren of his first marriage, the Bakers (D). Weedon (D) wishes to sale the land now to reap its value; Baker (P) wishes to retain ownership of the land to allow its value to increase (a highway was about to come thru and double property's value) RULE A trial *court shall order a judicial sale only if it is in the best interest of all the parties* (both the freehold tenant and the holder of the future interest) Though it is true that a sale would benefit Anna Weedon (D), it would bring great financial loss to the Bakers (P). Thus, a judicial sale is not in the best interest of all parties.

Keeble v. Kickeringill (1707)

FACTS: When Keeble (P) lured wildfowl to his land with decoys, Hickeringill (D) frightened the wildfowl away by firing a gun. RULE: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade. 1) First, every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful. 2) Second, the capture of wildfowl in pursuit of a trade is profitable; it creates wealth for the tradesman, for employees, and for the nation at large. *HOW DO WE WANT OUR DUCKS?* Used schoolmaster analogy: okay to lure students away from competitor with better instruction, but NOT with threats/fear Fair competition improves society, but malicious interference hurts society (fewer ducks on the table)

What is the key difference between a FSD and FSSCS?

FSD ends AUTOMATICALLY upon stated event, FSSCS gives O the OPTION on ending. EX: If you want to donate land, but don't want to use as soccer field. FSD: automatic, even if just kids sneaking in FSSCS: grantor gets option Subtle difference between determinable fee and fee simple subject to condition subsequent, but millions may be at stake Mahrenholtz: words of limitation = FSD words of condition = FSSCS FSD suggests a limited grant, rather than a full grant subject to a condition (FSSCS). So, if said was a "grant forever unless" that would be FSSCS Also, look for anything resembling "may, option, etc" to retake land = clear FSSCS language of ROE/POR

White v. Brown

Facts: Jessie Lide: holographic will *"Evelyn White to have my home to live in and not to be sold"* Issue: did will create Fee simple or life estate? Need to fit into a box. "Cardinal rule" of interpretation: Testator's intent Tenn. S. Ct.: *presumptions Presumption that FS is intended* unless words or context show intent to pass lesser estate. Presumption that will is intended to convey the entire estate. Majority: "to live in" does not indicate lesser estate Purpose What about the restraint on alienation? ["not to be sold"] Void on public policy grounds as restraint on alienation

Defeasible Fee Simple TYPES *Remember: Defeasible Fees are FEE SIMPLES WITH A CATCH*

Fee simple determinable Future interest = Possibility of reverter Fee simple subject to a condition subsequent Future interest = Right of entry / power of termination Fee simple subject to executory interest Future interest in transferee

Short cut rule #2 If LE + Fi1 + Fi2, and Fi1=VR (in a FS), then

Fi2 = Ei

Relativity of Title: Acquisition by Find

Finders prevails against all except the true owner and prior possessors. A finder has *relative title* Finder prevails against subsequent possessors What concept does this remind us of? Prior possession - first in time favored over subsequent possessors

*"The unborn widow" problem*

For example, when a person leaves property to A for life, and upon A's death, to B's wife without considering the fact that before A dies, B's current wife could die or divorce B, and that B's next wife may not be born for twenty years after that. Supposing that B was eighteen at the time the gift was made, and his wife left him immediately thereafter, he would be thirty nine when his next wife was born.

Property in One's Person: Body Parts

Foundation of Locke's labor theory was "every man has a property in his own person" Of course slavery is in opposition to that, can't sell yourself into slavery. Is a kidney property? Can donate, but not sell What does it mean to say that you have property in yourself? What does it mean if you don't? You don't have all the sticks in the bundle due to public policy Given the link between labor theory and intellectual property (or the fruits of one's mind), if ideas are protected because they emanate from or are an extension of one's person, then they could be justified in concepts of self-ownership. Questions are unsettled, especially as science makes progress, new questions arise (see Moore case)

Prior possessor as a thief Would it have made any difference in Armory if the sweep had stolen the jewel off the desk of a house he was cleaning?

Generally courts say no Bare possession of property, though wrongfully obtained, is sufficient title to enable the party enjoying it to prevail over the party who takes it from him Any other rule would lead to an endless series of unlawful seizures and reprisals in every case where property had once passed out of the possession of the rightful owner WHAT KIND OF WORLD DO WE WANT TO LIVE IN?

Rights of the True Owner What if the true owners of the jewel had appeared and demanded the jewel?

Generally, the subsequent possessor's payment to the finder (the jury award) bars any later action by the true owner against the subsequent possessor. The true owner may compel the finder to transfer the payment which takes the place of the bailed chattel, to the true owner

Intellectual property rights are a potential answer to this problem:

Give incentives to create to inventors and artists by making goods into excludable but non-rivalrous. However, by creating a monopoly, they solve the problem of incentive to create, but create the problem of stifling competition hurting consumers. Sometimes alternatives to monopolies are used instead due to this problem: grants, prizes, first-mover advantages, social production

treasure trove

Gold, silver, bullion or money that has been concealed in a private place. English common law belonged to king, Today auctioned to museums and divide the receipts equally between the finder and owner of the land where treasure discovered US jx - reject and treat as either lost or mislaid property. If buried, usually give it to landowner

Advice to W before moving from OH?

Have H put ½ of his property in an irrevocable trust, income to H, remainder to W if she survives, reversion to H.

Tenants in Common

Have separate but undivided interests in the whole property Each is transferable; can be conveyed by deed or will No survivorship rights between tenants in common Remember: you can transfer up to your interest

"Vested"-

Having become a completed, consummated right for present or future enjoyment; not contingent

Wesley Newcomb Hohfeld and the Origins of the "bundle of rights"

Hohfeld noted that one could not logically recognize rights without imposing duties on others EX: if you give A the right to own land, A has right to enter and also right to exclude B. This also imposes a duty on B not to enter land In deciding whether particular individual privileges ought to be recognized, lawmakers should consider whether imposing duties on others is justified. Since property rights are "in rem" (good against the whole world), duties could be burdensome on society

Sawada v. Endo (1977) (Judgment Winner) v. (Judgment Debtor) FACTS: Kokichi and Ume Endo conveyed their property to their sons the same day that Kokichi got into an auto accident that injured the Sawadas.

Holding: The interest of one spouse in a TBTE can not be attached to pay the other spouse's debts. *Rationale* -"Indivisibility of the estate" "indispensable feature" of T by the E -Neither spouse can alienate interest w/o consent -Creditor can attach TBTE property only if the debt in question is an obligation of *both* spouses (unless IRS!) While a joint tenancy may be severed by such a process, a tenancy by the entirety cannot. This aspect of the tenancy effectively protects the family home, *as well as other property*, from unwise transfer by one spouse and from creditors of one spouse. It is likely that this condition is one of the main reasons the tenancy by the entirety has endured.

When is there a Lease?

How do you know when you have a lease? -Possession (T); control (L); etc. -Could be something less, or more, than a leasehold So what? -L-T relationship has special rights, duties, etc. Conveyance vs. Contract -Lease conveys possessory (property) estate in land -Leases contain exchanges of promises in contract. -Modern trend towards emphasizing K aspects

Free-riders

Occurs when efforts are made to extract contributions from members of a group in order to carry out transactions that will confer collective or nonexclusive benefits on the group - contributors and noncontributors alike Problem of the commons

Matthews v. Bay Head Improvement Association (1984)

IN ORDER FOR THE PUBLIC TO EXERCISE ITS RIGHT TO ENJOY PUBLIC WATERS, IT MUST HAVE A WAY TO GET TO THEM Facts: Dense area; Jersey Shore. Bays Head (basically a homeowners association) prohibits public from accessing beach. Residents only Limit access to dry-sand beach to members; it's their land ISSUE: Does the public trust doctrine include the right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body? RULE: Yes. The public's ability to exercise its rights under the public trust doctrine includes the right to pass across the upland beach; without some means of access, the public's right to use the shore is meaningless. If can't access public trust, so public trust voided. Not okay. Created "easement"

Gruen INTENT

INTENT Victor intended to transfer a REMAINDER interest to Michael by his letter Intent had to be present intent, not future intent (because can change their minds) Victor gives immediate interest in future possession. Court: Not just a promise, he's giving future possession. Can't change his mind, a stick was transfer Once the gift of a remainder (future interest) is made, it is irrevocable and the donor is limited to the rights of a life tenant, not an owner Gift of remainder gives title immediately to the donee, but any possession is postponed until the donor's death

After camping in New Mexico, Willard is diagnosed with Hantavirus Pulmonary Syndrome, a deadly disease transmitted by rodents. As he is lying on a hospital bed, awaiting certain death, he writes a note stating: "To my nephew Pete. I know I'm going to die. I want you to have my baseball card collection. It is located in the shoebox in the bottom drawer of my dresser." He signs the note, placing it in the pocket of his robe. Willard dies. The nurse later finds the note and hands it to Pete. Pete retrieves the baseball cards. Willard's heir, Lisa, contests Pete's ownership. Lisa's best argument is:

If the note were valid delivery, it would be considered symbolic delivery because it was a written description of the gift. However, Lisa's best argument would be that *symbolic delivery did not occur because the nurse did not take delivery of the note until after Willard's death.* Use of an agent for delivery works only if the owner delivers the object to the agent before death (because the agent's delivery to the donee relates back to the donor's delivery to the agent). The issue is whether the owner loses possession and control. Here, Willard retained control until his death. Therefore, Lisa will argue that delivery is invalid.

Posthumous right of publicity

In most jx, the right of publicity persists after death (for 20 to 100 years, depending on the state), and can descend by will or intestacy. 2015 - Michael Jackson's copyrights and publicity rights brought in $115 million

Alienability

In property law, alienation is the voluntary act of an owner of some property disposing of the property, while alienable is the *capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another* Important to keep in mind that the estate that A's heirs or A's transferees take is the SAME ESTATE that A had, not a new one

Two characteristics in particular distinguish information assets from real and chattel property.

Information assets are 1) non-excludable - people cannot be prevented from gaining access to it even though they have not paid for it; 2) non-rival - meaning that the resource may be used by one person without preventing simultaneous use by others

O writes check to B, hands it to B, but O dies before B cashes check. Gift?

Intent - yes Acceptance - yes *Delivery - NOPE* Money is the gift. Check is a letter to the bank saying give money. *Gift doesn't happen until bank cashes check* Can stop payment on a check. Can change your mind, so NO GIFT When O dies, it's no longer hers. The moment she dies, the estate owns the money. Bank won't pay since it's not her money anymore EX: if you put check in mail to pay landlord, then die. It will be ESTATE that pays, not deceased. Check is NOT money. EX: bounced check doesn't result in payment NO GIFT, because you do not have irrevocable delivery

Dinner Party, O hands pearl ring back to A, "It's yours." Too big for A's finger, so O leaves with the ring to resize for A. Gift?

Intent? - yes: "it's yours" Delivery? - yes, handed to A with statement Acceptance? - yes, presumed since valuable YES, is a gift. O is a bailee, ring is now bailment

Johnson v. M'Intosh (1823)

Issue: Are land title transfers from Indian tribes to private individuals prior to the American Revolution recognized in a United States court? Holding: *No.* Land titles transferred by Indians to private individuals under foreign rule before the American Revolution are not recognized in the United States. Native Americans have "right to occupancy": can possess, live on land, subject to US rule. However, they don't own title. Can't convey title Discovery gave title to the Europeans nations that came to America. Not conquest, discovery because the Indians never truly owned title to the land to begin with. Always merely occupants, because they didn't make proper use of land (Locke's labor theory). Eurocentric approach to discovery supplemented by idea that US also derived its ownership by conquest. Reminder of *socially contingent* nature of property: property rights are defined by the society in which they are at issue. Indians were conquered, so they had to submit to US's view of property rights.

Jacque v. Steenberg Homes, Inc (1997)

Issue: Can punitive damages be awarded without compensatory damages in intentional trespass cases where harm to property is minimal? Holding and Reasoning: Yes. Punitive damages may, at the discretion of the jury, be awarded when there are only nominal and no compensatory damages to deter violation of property rights. The actual harm here is not in any physical damage to the land, but in the denial of the *owner's legal right to exclude* all others. The right to exclude is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." *Society's Interest: Deter trespassers; preserve private property. Otherwise, trespassing would be common, private property ceases to exist*

State v. Shack (1971)

Issue: Does an owner's rights in his land justify his refusal to allow individuals to come onto the land and give aid in private to the owner's employees who are housed on the land? Holding and Reasoning: No. Tedesco's rights in his land did not justify refusing access to Tejeras and Shack when their aim was to provide aid in private to the migrant workers who were housed on the land. Rights in real property are not absolute and are limited by the maintenance of the well-being of those people that the owner permits on his land. Property rights serve human values No property right is absolute Necessity may justify entry Property must account for social (mandated/statutory) rules, such as right to legal aid, govt services

Hannah v Peel (1945)

Issue: Does the finder of lost chattel on another's property have rights to that chattel superior to the rights of the property owner (who never lived on property)? Rule of Law: A finder of lost chattel on another's property has rights to that chattel superior to the rights of the property owner. HANNAH RULES OF LAW Rule 1: "A man possesses everything which is attached to or under his land" Rule 2: "A man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else"

Andrus v. Allard

Issue: If the government prohibits the sale of eagle feathers that were lawfully acquired, has there been a Fifth Amendment taking? Rule of Law: A prohibition on the sale of lawfully acquired property is not a taking for Fifth Amendment purposes. As for the Fifth Amendment, much governmental regulation involves restricting private property rights for the public good. Government could not function if all restrictions on private property rights were considered takings. Thus, a prohibition on the economic use of property is not necessarily a taking, even though the prohibition may reduce the value of the property. Property owners who are deprived of the right to sell their property still retain most of the rights of ownership, including the rights of possession and ownership, and the right to transfer ownership for others. Still have most of the sticks in bundle of property, not a takings, govt wins. Just a redefinition of this stick in the bundle.

A constructive trust is

It is a legal fiction that is used as a remedy for unjust enrichment. Hence, there is no trustee, but the constructive trust orders the person who would otherwise be unjustly enriched to transfer the property to the intended party.

Why the different results between Jacque and Shack?

Jacque court - should be able to exclude, even if irrational, inefficient Shack - same rule of exclusion, but here if farmer allows them to live on property, he can't exclude social workers that are empowered by Congress to help them. Property rights subject to limitations based on circumstances Shack had Congressional statute EX: cops have warrant Not really exception so much as aspect of right to exclude being limited; not part of the bundle Non-owners have a right of access to property based on need or important public policy as set forth in legal rules Who sets policy limitations? We the people through govt

Jay is distraught over his low ratings. He tells his friend Bob, "I'm so sad that nobody watches my new show. I think the loneliness might kill me. But before I die, I want you to have my gold watch." He gives Bob the watch an hour before his next show. That night, a best Buy employee accidentally changes the channel to NBC during prime time, upsetting customers, but boosting Leno's ratings. Jay survives and wants the watch back, but Bob won't give it to him. What result?

Jay gets the watch back. This was intended to be a gift causa mortis, but the donor lived. Also, did Jay really believe that he was actually going to die because of this? These problems usually have some kind of death-causing disease or a perilous event that leads the Donor to believe death is imminent. The gift is revoked

McAvoy v. Medina POLICY and CRITICISM

Lost property goes to the finder, but mislaid property goes to the shop owner. One way to understand this rule is to look to one of the goals of property law, to promote the return of lost property to its true owner. If property is mislaid, the true owner will likely retrace his steps and return to the shop where he mislaid it. Thus, the rule that places mislaid property in the hand of the shop owner will more efficiently return mislaid property to the true owner. There are two criticisms to this rule. First, it is difficult to determine whether property has been mislaid or lost. For example, a wallet found on the floor could easily have fallen through a person's pocket and been lost, but it also could have been mislaid on a counter and knocked to the floor by another customer. The second criticism is that individuals retrace their steps for both lost and mislaid property.

Self-help—modern trend

Ls must always resort to judicial process to dispossess a T who has not abandoned or surrendered possession Why? Discourage violence Legislatures have provided for summary judicial procedures to make it easier for Ls. Prohibition on self-help cannot be bargained away (RS) Ban on self-help applies to commercial and residential leases

Harms v. Sprague

MAJORITY RULE: Mortgaging an interest in a property is a lien that does not sever joint tenancy (some states hold mortgage as title transfer that DOES sever JT) A mortgage is a lien but does not survive the death of the JT as a lien on the property of the survivor. While a joint tenancy may be destroyed when one of the tenants *conveys* his interest in the property to another, it is NOT destroyed when the tenant merely encumbers his interest in the property. When John died, his interest in the land no longer existed, and the mortgage was extinguished along with John's interest in the land.

What's so bad about restraints on alienability?

Marketability / highest & best use - if someone wants to buy land, but there's complicated restrictions, less likely to buy, put to highest and best use. Concentration of wealth Discourages improvements Hardship on creditors - if someone is in debt, they don't fully own property, can't put a lien, can't get property towards payment. EX: win tort claim against drunk driver that paralyzed you for life, can't get recovery because D can't sell property EX: want to get a loan to open practice, but biggest asset has restraints on alienation

Fee Simple Subject to a Condition Subsequent

May be divested when event happens It's up to the transferor to decide Ex.: O "to the School Board, its successors and assigns, but if the premises are not used for school purposes the grantor has the right to re-enter and retake the premises" O's Future interest: *right of entry (a/k/a "power of termination")* Goes on forever unless event happens *AND . . . O exercises the right of entry*

Intellectual property is often defended using Locke's labor theory

May be even stronger than Locke's original version since creating out of nothing seems stronger than creation of tangible products from resources removed from original commons, or trying to separate relatively contributions of individual laborer and material on which he labored. However, some argue that granting individuals exclusive rights to info they gather conflicts with other rights and preclude competition that is healthy for market economy

Right of Publicity and the First Amendment

Mixed messages from courts EX: Tiger Woods sued a company that marketed copies of a painting that commemorated his 1997 win. Woods lost since artistic aspects of painting gave it first amendment protection EX: "Human cannonball" Hugo Zacchini wins against a TV station broadcasting his act of being fired 200 ft through the air

Termination of Marriage by Death, Common Law

Modern Rule: *Elective Share* -Surviving spouse (SS) gets ⅓ to ½ of decedent spouse's estate -In other words, you CANNOT disinherit your spouse -Or, SS can elect to take the devise under the will -Even if will says 100% to someone else, surviving spouse can elect to take ⅓ to ½ -Statutory right [you CAN disinherit kids, any other relatives, but NOT spouse] -This is partly the reason that persuades the court in Obergefell -Stereotype motivates policy: husband leaves wife nothing, she has to go beg on streets

Duty to mitigate? Modern trend

Modern trend: yes. *Contract theory* -Modern leases are full of implied covenants -Contract law requires you to mitigate damages "Fairness & equity" -Efficiency? -Discourage waste/highest & best use -Impact on Ts? -*Landlord has burden to show reasonable efforts* Why? L is better positioned.

Implied Warranty of Habitability

More modern, contract remedy Like CoQE must be substantial problem, but *DON'T have to move out* CL harsh about T's rights and remedies. T took premises "as is" and Ls under no duty to warrant fitness: Caveat Lessee As culture changed, so too did this rule. Slowly at first, then big shift in 1960s However, doctrine hasn't completely settled on new standard, many variations *Typical example: Safe, clean, and fit for human habitation* Most have adapted via legislature

Property in One's Persona: The Right of Publicity

Most states now recognize the right of publicity as a kind of property interest, assignable during life and descendible at death, either as a matter of common law or statute. Prevents the unauthorized commercial use of one's name, likeness, and other aspects of one's "identity" and gives the individual the exclusive right to license the commercial use of these personal features Rooted in the right of privacy Judge Posner notes that the courts first recognized the right of privacy when the D, without consent, used the P's name and picture in an ad.

Newman v. Bost, Policy

NC SCt - elected justices, don't want to set precedent that aging, potentially senile man can leave everything to young female servant he is infatuated with. Violates values of the day. Suspicious of deathbed gifts. But don't want to foreclose them entirely, but be "reasonably anticipating imminent death"; In this case there are two competing policy goals in operation:. 1) The first goal is to protect owners of property from being defrauded. (estate/old man) 2) The second goal is to promote the free alienability of property. This court has reconciled these competing goals with a compromise. Symbolic delivery will not be allowed, and constructive delivery will be allowed only if actual delivery is impractical under the circumstances. This compromise between the desire to make property freely alienable and the desire to protect the owner from being defrauded also appears in the law of concurrent interests.

EX: O conveys "to A for life, then to B (and her heirs)"

Remember, if a FSA is conveyed, *ALL sticks are conveyed,* so there is NO reversion (even if B dies first, goes to B's heirs) B has an indefeasibly vested remainder certain to become possessory upon termination of the life estate. If B dies during A's life, on B's death B's remainder passes to B's devisees, or, if B dies without a will, passes to B's heirs, or if B dies without a will and without heirs, escheats to the state. B or B's successor in interest is certain to take possession upon A's death. /Full state of title described this way: "B has a vested remainder in fee simple absolute"/

Jus Tertii Defense

Rights of the absent true owner defense Who is the true owner of the jewel? Goldsmith's defense probably was that he didn't have to return the jewel to the sweep (P) because the sweep could not prove ownership. Courts usually reject this defense They require that the D stand on his own rights rather than those a third party

Can L demand Fee for consent to sublease/assignment?

No, if it's not in the lease K.

Suppose that O also gives A a right of access to O's safe deposit box by adding A's name to the signature card giving access; the lease agreement signed with the bank provides that the contents of the box are owned in joint tenancy with right of survivorship. The box contains $324,000 in bonds and $4000 in cash. Is A entitled to the bonds and cash?

No, just because a joint tenant in lockbox, doesn't mean have survivorship of contents Bank will let you in, but it's not necessarily your stuff Need specific reference of O's intent Even if put name on account, still can change mind. Can still take out bonds. If can change mind, it's NOT delivery

On October 1, L leases Whiteacre "to T for one year, beginning October 1." on the following September 30, T moves out without giving L any notice. What are L's rights?

None. This was a term of one year and was met. No notice required. You might sign contract saying 30 days notice required. That's a CONTRACT requirement, not a property law requirement What does landlord want most of all? Occupancy! Over 90% is good occupancy rate, under, can be difficult In real estate it's all about occupancy

Secret Severance

Not only may one JT unilaterally sever a JT, but he may do so without giving notice to the other tenant(s) /Riddle v. Harmon/ - husband and wife owned real estate as JT. Wife wished to dispose of her interest by will. Rather than using a straw to effect a severance, she secretly deeded her interest to herself and then executed a will in which she devised her interest to her daughter. A few weeks later she died. Court held that a straw is not required to sever a a joint tenancy

"convenience account"

O may intend that A only have power to draw on the account to pay O's bills and not have survivorship rights

POD accounts

O may intend to make a gift to A only of survivorship rights Some jx do not permit POD accounts because it is viewed as a testamentary instrument that is not signed and witnessed in accordance with the requirements of the Statute of Wills Only recently have they become legally acceptable

"True joint tenancy" bank account

O may intend to make a present gift to A of one-half sum in addition to survivorship rights to the whole sum on deposit

Oil and Gas

Oil and gas commonly collect in reservoirs that underlie many acres owned by many different people. The resources have a fugitive character, in that they wander from place to place Problems can lead to litigation: mining a common well under both A & B's land; B placed oil/gas into ground by A for storage, etc Rule of capture from law on wild animals was applied: oil and gas in natural underground reservoirs are not considered owned by anyone until reduced by physical possession. Any surface owner whose land lies above the reservoir is free to pump oil or gas so long as the drilling remains within the imaginary column of space projected down from the boundaries of his land. Slant drilling across this line into another's property is considered trespass

Gender Control Over Property

Old days: coverture Married Women's Property Acts (states started passing in 1800s) Gave wife control over her own property Coverture just as much about keeping landed estates together as about sexism. -At marriage, W ceased to be a legal person. . . Couldn't own property, or make transactions, or testify in court. -MWPA just as much about paternalism (protect W from H debts) as about enlightened feminism -Wife's property was separate property, immune from H debts.

History & Change in L-T relations

Olden times: Property—lease = conveyance "Caveat lessee" or "as-is" rental T's rent obligation was independent No duty to provide habitable premises Modern times: Lease is also a K T's expectation: suitable housing, not farmland Ls in best position to maintain property Modern Ts at bargaining disadvantage

What are the boundaries of publicity rights?

One of the concerns was that White was seeking an intellectual property right in "what she does for a living" rather than "what she looks like or who she is." EX: she could then sue another game show for having a person perform the "Vanna White" function. This would basically be granting her a monopoly Another concern is that White may be monopolizing an identity that was created by Wheel of Fortune's producers, not her

Gruen analysis - POLICY

One of the principle goals of property law is to promote the alienability of property. This goal is of such importance that the court in Gruen v. Gruen allowed the elder Gruen to make a gift of a future interest, even though it was not possible to deliver possession of this interest, and even though the possibility of fraud was great. The possibility of fraud is generally great in the area of future interests because a person may easily claim that he was given a gift, but that he was not given possession because he was given a future interest. The tension between the possibility of fraud and the desire to make property freely alienable appears throughout the law of estates and concurrent interests.

Demsetz's Thesis

People decide to create individual property rights when it is more efficient to do so When harmful externalities are sufficiently costly, it makes sense to *create private property rights* in the resource Creating private property rights internalizes the costs and leads to better (more efficient) decision-making In other words, this is why private property rights come to exist EX: few people would undertake the effort to grow crops (or whatever) if they couldn't internalize the costs of the benefits (own the crops they produce and sell them for profit)

What if lease had been "year to year" beginning October 1? Notice?

Periodic T. CL requires 6 months notice. Hypo: no notice, so T bound for another year. Today, most jurisdictions: one month notice. Can he give notice on July 15 to terminate Aug. 15? No! Still must go to end of lease.

What if no fixed term, "annual rental $24K payable $2K per month"?

Periodic T. Q: what period? (year or month?) Most states: this creates a year-to-year Minority rule: month-to-month

REVIEW - bundle of sticks

Possession - M'Intosh, Pierson Use - more in property 2 Exclude - Jacques, Shack Transfer - when can be limited by public policy: when can transfer kidney, persona issue,

Pierson v. Post (1805) - majority

Post hunting fox with dogs on waste land called the beach; Pierson interferes, kills and takes the fox Rule: Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. -Mere pursuit is not enough to obtain title to hunted animal. Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. *First person to take something and exercise dominion/control is recognized as the first possessor* This is to prevent litigation. If mere pursuit were to vest title, it would be very difficult to determine who was the first to pursue. Since Post (P) was in mere pursuit of the fox, he acquired no title to it. Perhaps pursuit was labor, but until pursuit produced capture, it wasn't mixed enough with the fox to create property. Rule of actual possession promotes certainty and peace and would spur people to kill foxes

T devises $10,000 "to my cousin, Don Little, if and when he survives his wife."

Present possession? T's estate Don: Executory interest Reversion? T's heirs: reversion in fee simple subject to divestment by Don's executory interest

Gruen STICKS analysis

STICKS (Victor) - life estate - can hold on until death. NO LONGER HAD THE RIGHT TO TRANSFER WHEN HE DIED. Possess, Use, Exclude, Transfer - yes, until death, then automatically goes to son Michael STICKS (Michael) - future interest/remainder. Got rights in 1968, didn't get right to possession until father's death Possess - Use - Exclude - Transfer - yes, but only his remainder interest

Community Property—Presumption

Property acquired or possessed during marriage is presumed to be community property. Rebuttable by preponderance of evidence Practical problems? *How do you prove it up?* -Need receipts, bills, deeds, etc. -Even if one party (H or W) purports to say that something is "separate property", not controlling unless: -Both spouses agree to the deal. I.e., *neither spouse can unilaterally alienate community property.*

What is property?

Property is a social institution describing the legal relationships between people with respect to things. Something in which a person has certain rights like: (a "bundle of rights") -Possession -Use -Exclusion of others -Transfer -Decided upon by the people through governments Property is socially contingent - its definition will vary with culture. EX: slavery Property is whatever interest in a thing - whether tangible or intangible - that is protected against invasion by others by the legal system of a society Study of property is NOT the study of the relationship of a person to a thing called property, but the study of the relationship between people with respect to things we call property

The right to transfer, and restraints on alienation

Property law regularly disfavors limits on the right to transfer property (AKA restraints on alienation). Such measures may prevent property from flowing to the party most capable of maximizing its value, its highest and best use. Absolute restraints on alienation are usually void (RAP).

Abandoned Property

Property that has been discarded by the owner, who has no intention of reclaiming it. EX: toss item into trash Usually goes to finder; Sometimes courts award it to the owner of the land where the thing was abandoned When person finds abandoned property, ownership/title goes to the finder Policy of facilitating return of the item to the true owner is irrelevant Law presumes against abandonment on presumption that most often people want to keep what they own; thus the conclusion of abandonment usually has to be made after weighing the evidence to determine whether unequivocal intent to abandon exists Statutes can modify rules EX: is stuff in trash/recycling bins placed on curbs abandoned? Jx vary. Some say yes, some say a willing transfer to waste company

Retaliatory Eviction Doctrine

Provides that a L cannot retaliate against a T for reporting housing code violations - *protects whistleblowers* -CL gave L unlimited right to terminate periodic tenancies and tenancies at will upon proper notice, with motives being irrelevant -Thus, under CL, L could just get rid of person complaining of a breach of IWH -Today, most jx forbid retaliation by Ls -Typical approach is to create rebuttable presumption of retaliatory purpose if the L seeks to terminate a tenancy, increase rent, or decrease services within some given period (typically 90-180 days) after a good-faith complaint or other action by a T based on the condition of the premises. -Retaliatory acts beyond the state period are also usually prohibited, but the T bears the burden of proof

American community property system: Property from before marriage; from inheritance; from gift =

Separate Property

Kendall v. Ernest Pestana, Inc. (1985) (Assignee) v. (Lessor) FACTS Ernest Pestana (D) demanded increased rent in exchange for consent to assign a lease. Ernest Pestana (D) contends that he may arbitrarily refuse consent. Kendall (P) contends that this provision is against public policy since it is an unreasonable restraint on alienation.

RULE: A lessor may not unreasonably and arbitrarily withhold his or her consent to an assignment. *Shows incorporation of K doctrine of good faith* *RULE IN THIS CASE ONLY APPLIES TO COMMERCIAL. IF APPLIED TO RESIDENTIAL COULD LEAD TO SPIKE IN LITIGATION* The law favors the free alienability of property, including a leasehold. -However, alienability may be restricted by contract so as to protect the lessor. -Such contracts are construed against the lessor, especially when the act of assigning terminates the lease. -The majority rule allows the lessor to arbitrarily withhold consent. -A growing trend asserts the following rule: *A lessor may withhold consent only when he has a commercially reasonable objection to the assignment.* Court adopts minority rule

Village Commons, LLC v. Marion County Prosecutor's Office (Ind. Ct. App. 2008) (Landlord) v. (Tenant) FACTS: After a series of water leaks in the leased premises, the local prosecutor's office moved out of the leased building and stopped paying rent; the landlord sued for breach of the lease based on the exclusive remedies provision included therein. T.Ct: tenant was wrongfully evicted Actual eviction? Tr Ct: YES, because leaks forced them outs Constructive eviction? Deals with what were the issues that forced him out? What were the EXPECTATIONS?

RULE: A tenant is relieved of any obligation to pay rent if the landlord deprives the tenant of possession and beneficial use and enjoyment of any part of the demised premises by eviction; constructive or actual. Here, *actual eviction occurred* when the landlord informed the prosecutor's office to refrain from using the portions of the leased premises most vulnerable to water damage. -The landlord advised the tenant to move evidence out of the evidence room. This supports the trial court's findings that the prosecutor's office was deprived of a material part of the leased premises by the water intrusions. *Constructive eviction occurs* when an act or omission by the lessor materially deprives the lessee of the beneficial use or enjoyment of the leased property, in which case the lessee may elect to abandon the property and avoid further obligations under the lease. The election must occur within a reasonable time after the act or omission. It would be contrary to public policy to permit a landlord to completely eliminate a tenant's remedy for constructive eviction if the conditions are such that the leased property is unusable.

Ernst v. Conditt (1964) (Lessor) v. (Assignee) FACTS: Ernst L to Rogers. -Rogers built go-cart track -Lease: R needs permission to assign or sublet -Assignment or sublease "lessee is liable to perform the covenants of this lease" -I.e., R will still be on the hook. -R wants to sell business to Conditt, they negotiate 2-yr extension w/ Ernst & then sublease or assignment to C. -Modified K says Ernst "consents to the subletting of the premises to Conditt" -R to remain on the hook—personally liable for K to Ernst -C paid rent directly to E. Then stopped. Arguments? *E's argument:* R assigned the lease to C. Therefore, C is directly liable to Ernst. "Assignment" implies that R gave C whatever he had, including liabilities to E. *C's argument:* sublease. Sublease implies separate transaction. C may be liable to R, but only R is liable to E.

RULE: In determining whether an assignment or a sub-leasing has occurred, the court looks to the intentions of the parties. Holding: Assignment -R gave his full estate to C -C made covenant to perform all conditions of lease *How determine? Intention of the parties* Does it matter? If sublease—no privity of estate T1 -> L. T1 should still be liable to L on privity of contract (unique to this K because of clause that says..."for value received and in consideration..."

Spiller v. Mackereth (Ala. 1976) (Warehouse Occupant) v. (Other Tenant) FACTS: After another tenant vacated their building, Spiller used it as a warehouse, and Mackereth demanded he pay rent or vacate half of the building.

RULE: In the absence of an agreement to pay rent, a cotenant in possession is *not* liable to his cotenants for the value of his use and occupation of the property unless there is ouster of a cotenant (meaning occupying cotenant would have to refuse to allow "equal use and enjoyment" of cotenants). Co-tenant in possession has equal right to use the whole property. Just the fact that co-tenant put locks on building is not enough to prove ouster. He may have just been protecting his property. Only if other co-tenant(s) asked for keys or access and were denied would there be ouster.

Eyerman v. Mercantile Trust Co (1975) FACTS: Neighbors of a deceased woman sought the court's help in preventing the demolition of the decedent's home (it would hurt their property values), despite a provision in the dead woman's will asking that the home be razed and the empty lot sold.

RULE: When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void The taking of property by inheritance or a will is not an absolute right, but is one created by the laws of the state, and the state may foreclose that right or make it conditional, within constitutional limits. Generally, the primary rule in wills is to follow the deceased's wishes Exception: Although a person may deal capriciously with his own property, his self interest during life will ordinarily restrain him from doing so. There is no such deterrent after death, so public policy can void merely capricious or injurious wishes. Property rights cease to exist when you die. What is someone wants to be buried wearing diamonds? What if someone is NOT an organ donor?

Popov v. Hayashi (2002) FACTS: A fan attempted to catch Barry Bonds' history-making seventy-third homerun ball but he lost possession when a mob of spectators attacked him, and another fan grabbed the loose ball from the ground and put it in his pocket; both claimed ownership of the baseball.

RULE: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property, which can support a cause of action for conversion. Relativity of Title - both Popov and Hayashi have good claims (better than anyone else in the world) Popov - but-for the crowd's assault, he would have had the ball Hayashi - got physical possession and control by picking up and putting into pocket; wasn't part of mob Who Cares? Cases may seem quaint, but they deal with essential meaning of ownership Form and function When a new resource is reduced to property

The bundle-of-rights and Andrus v. Allard

The court relied on the bundle-of-rights conception of ownership and concluded that the regulations had not "taken" the property because they had only removed one twig from the bundle, the right to sell. The owner still had the right to possess, display, use, give, devise by will, etc

2. T, a month-to-month tenant, notified L on 11/16/2015, that she would vacate as of November 30, 2015. T subsequently vacated on that date and paid no further rent to L. L, after reasonable efforts, finally relet the premises beginning April 1, 2016. The jx in question has no statute prescribing the method of terminating a month-to-month tenancy. L sues T for unpaid rent for the months of Dec 2015 and Jan-March 2016. What result?

She can get to end of December, but nothing more, IF periodic tenancy started at beginning of the month. Have to ask: on what date does the term start? If you break lease, you are liable for the remaining payments for the period More likely, term ended at end of month. Liable for rent thru end of Dec. SDG case: corollary to CL rule is that if notice is given effective in the same month in which the quit is to take place, it will be effective as of the end of the following month. Minority view: untimely notice is totally ineffective (I.e., it doesn't even count for notice)

Commodification and the limits of the market

Should non-replenishable human body parts be subject to market exchange? Raises broader issue of markets and commodification Prohibitions of slavery, child labor, and prostitution are all examples of situations in which resources have been legally removed from the domain of the market, largely for moral reasons Should Moore have the ability to sell his spleen? What if it wasn't medically necessary?

Sommer v. Kridel (1977) (Landlord) v. (Tenant Who Has Abandoned) FACTS: Sommer (P) failed to make efforts to re-let an apartment when Kridel (D) *hero 1L* abandoned it. T asked to be released, wrote to L, said keep the 2 months rent. L never responded, 3P asked to lease the apt, L said no. Did not re-let until over 1 yr later

Since we now view a lease in large measure as a contract, *we apply a contract principle: The landlord must mitigate damages.* This rule derives from considerations of fairness. It would be unfair to allow a landlord to sit idly by and watch damages mount when he can prevent those damages. The landlord cannot argue that he will lose the opportunity to rent to another if he's required to first rent the apartment that has been abandoned. -This is because each apartment has its unique characteristics, and there is no reason to believe that a tenant who wished to rent the apartment that has been abandoned also would have been willing to rent another vacant apartment.

Today: they will "accelerate" all rents due, and the rent rate/mo will jump in price. Sneaky things.

Sneaky stuff: "market rate is 2000, but we'll give you a concession of $1700." Of course, the real market value is 1700. But this trick allows them to retroactively charge you the higher rate, including the time you were actually there. Not your actual price, it's a "concession" you have to pay back if you breach.

Consent clauses raise questions regarding the scope of the L's discretion to refuse consent to a proposed sublet or assignment. May the landlord refuse to give consent for any reason, or are there limitations on the scope of discretion?

Some consent clauses themselves limit the L's discretion by expressly providing that the L may not withhold consent "unreasonably" Other clauses are silent, providing no standard. What happens then? Next case addresses issue

IWH—Remedies

Standard K remedies are available: Recission, Reformation, Damages Compensatory: difference between value as warranted and value as it exists w/ defects Hilder court remands Consequential damages for annoyance & discomfort Punitives—SCt suggest Trial Court consider Withhold future rent; deduct for own $ in repair

Locke's Labor theory of property

Started from natural law premise that every person owns himself.Lock claimed that because you own your own labor, when you mix that labor with something UNOWNED BY ANYONE you own the resulting mixture. Also, property rights are necessary to reward such labor in the first place. If a person cannot keep and own the fruits of her labor, then why labor in the first place?

Gruen DELIVERY

Stepmom: when tangible personal property is capable of delivery, need physical delivery What would this require? COURT: the letter delivering the remainder interest is sufficient Remainder - abstract concept; symbolic delivery OK Legal right to future interest WAS delivered/transferred Gave a possession "stick", but it is the time element of future How to delivery legal title to something that can't be grasped? Symbolic delivery is best. Here, the letter Delivery requirement is not rigid, but applied in light of its purpose to avoid mistakes by donors and fraud by donees Delivery is tailored to the circumstances, and must be as perfect as the nature of the property and circumstances of the parties permit EX: Here, Victor Gruen gifted title at his son's 21st birthday, but NOT possession until Victor's death. Gave one stick, but not all until death. Remember, property is not thing, it is rights to a thing. We can transfer future interest/right in a thing now, that concerns the future *Can't change mind* Stepmom doesn't get painting because Victor doesn't possess it when he dies, has no ability to give. Not part of will because his son owns it at the moment of his death

By virtue of first possession one can make an unowned thing, or a thing before only enjoyed by all in common, one's own. But what if someone A already owns a thing? What if person B subsequently comes to own that thing, without A's consent?

Surprisingly, B might still become the thing's "owner" or be granted considerable protection by the legal system

American rule -

T has LEGAL right to possession, but L has no implied duty to deliver PHYSICAL possession Tenant's responsibility, rather than the landlord's to oust a trespasser or holdover Tenant's remedies are against the person wrongfully in possession: he may sue to recover possession and damages POLICY: founded on the argument that the tenant has sufficient legal and equitable remedies available to protect himself against the 3P wrongfully in possession and a greater incentive to use them than the landlord In old west, the L might have been hundreds of miles away, take much longer to resolve

L leases to T for a term of three years at a monthly rent of $1000; in the lease "T covenants to pay the rent in advance on the first of each month" and also "covenants to keep the leased premises in good repair." Six months after T assigns her entire interest to T1, who agrees in the instrument of assign to "assume all covenants in the lease" between L and T; three months later T1 assigns his entire interest to T2, and three months after that T2 assigns his entire interest to T3. T3 defaults on rent payments and fails to keep premises in good repair. L sues T, T1, T2, and T3. What result?

T liable to L for T3's defaults—privity/K T1 liable to L—p/K (assumed cov'ts) T1 also liable to T (p/K) T2—not liable; no privity T3 liable to L—p/estate; T3 also liable to T & T1 (subrogation)

CONSTRUCTIVE EVICTION ELEMENT 3) vacation of the premises in a timely fashion

T who vacates claiming a constructive eviction takes a real chance. On the one hand, the T must give the L notice of the defect and time to resolve the problem If she leaves too soon, she cannot later successfully assert constructive eviction as an affirmative defense in an action by the L for unpaid rent On the other hand, the COQE is waivable, and if the tenant waits too long before vacating the premises, she will be considered to have waived any constructive eviction claim

O "to A for life, then to A's widow, if any, for life, then to A's issue then living"

TWO conveyances Widow's CR/LE? Valid A's issue's CR/FS? "Validating life" = A's widow Void *"The unborn widow" problem*

Kajo Church Sq., Inc. v Walker FACTS: *Lease: in effect until "the date of death of the last of the Lessees to die."* -Church sold, new owners terminated lease -Intent of the parties to lease K? -P: plead life estate or leasehold for life -Kajo: tenancy at will Issue: Is there such a thing as a leasehold for life?

TX Ct App Holding: -No language creating life estate; it's a lease -What kind? There's only 4 -Has to be a tenancy at will; -Kujos can terminate -Court had to find a box. Language doesn't fit. "Until the last one dies" doesn't fit. -Not LE since have to pay rent -No fixed term - not a term of years State of title? Kujo FS subject to T/W (Tenancy at will)

Ownership and Market Value in Andrus v. Allard

The Court conceded that the regulations deprived the most profitable use of the artifacts. This decreases the market value, but the Court states that decreasing market value is not the same as a taking under the 5th amendment.

Adverse Possession

The actual, open, notorious, hostile, and continuous possession of another's land under a claim of title. Possession for a statutory period may be a means of acquiring title. if you camp out on property for 10 years and no one notices, real owner doesn't care enough to kick you off, then maybe you are putting property to highest and best use, and deserve to own.

May the covenant of quiet enjoyment be breached if the tenant remains in possession?

The answer should be yes. Some jx incorrectly state that an eviction, actual or constructive, is necessary to constitute a breach of the covenant of quiet enjoyment, but they are incorrect. The COQE and constructive eviction are related, but separate doctrines.

Difference between freehold and non-freehold:

The collection of rights that come with them. Freehold has no end in sight, continues on until you sell it, gift it, or die. Insurance

Transaction Costs

The cost incurred in making an economic exchange -Search and information costs -Bargaining costs -Policing and enforcement costs What effect do transaction costs have on incentives to create & use property rights?

Bridges v. Hawkesworth. In that case, a bag of money was left in a shop. The bag was left in that area of the shop accessible to the general public. The principle issue in that case was whether superior title lay in the finder or in the shop owner. The court applied the old rule: superior title goes to finder.

The court ruled this way because the shop owner never possessed the bag and because the place where the bag was found was open to the public.

What is the essential difference between remainders and executory interests?

The difference between taking possession as soon as the prior estate ends and divesting the prior estate is the essential difference between a remainder and an executory interest

Delivery (gift)

The donor must TRANSFER POSSESSION to the donee, IRREVOCABLY *actual/manual* - hand it over, must be had if possible *Constructive* - key, makes property accessible/usable (only when actual delivery impossible) *Symbolic* - deed, intellectual property, etc. that can't be transferred physically the donor must transfer possession ("hand over the property") to the donee with the manifested intention to make a gift to the donee. Delivery and intent interact and overlap with each other to a considerable degree MUST BE IRREVOCABLE: EX: checks are revocable, so NOT a gift

Intent (gift)

The donor must manifest the INTENTION to make a gift to the donee the donor must intend to make a present transfer of an existing interest in the property. Cannot just transfer possession, must be title interest The donor must intend to be legally bound now, not in the future Intent is commonly a problem in gift cases

taxonomy of present estates (who possesses it now), from most sticks to least

The fee simple The fee tail The life estate Leasehold estates Defeasible estates

the requirements of a joint tenancy.

The four unities of time, interest, title, and possession are present, plus a clear statement of the right of survivorship. JT TTIP

Last summer, Tiger Woods presented one of his adult entertainment friends with a Master's jacket in appreciation for a lovely evening. She declines the gift because green is an ugly color for a blazer. Months later, Tiger's friend needed money and decided that the jacket would be a great thing to sell. She demands it back, because it was a gift. What result?

The friend doesn't get the jacket Requirements of a gift: -Intent -Delivery -Acceptance No acceptance here—she declined it! Upon rejection, the gift is revoked and cannot be reclaimed.

Case against IWH:

The implied warranty is often hailed as a victory for renters, but this is in dispute. -First, as with the doctrine of constructive eviction, landlords may increase the rent, since they must now warrant the premises. -This increase in rent will make housing less affordable, which is surely not a victory for tenants. -Second, since the warranty is not waivable, it decreases renters' bargaining power. - -Should an informed renter, willing to live in an unfit house for a reduction in rent, be denied the opportunity to live there? -The answer often given is that the courts should not permit conduct that debases human dignity.

EX 6: O conveys "to A for life, then to B and her heirs if B survives A"

The language "if B survives A" subjects B's remainder to a condition precedent B can take possession only if B survives A

In South Staffordshire Water Co. v. Sharman, a servant found two rings on the landowner's land while working for the landowner. The issue in that case was whether superior title lay in the finder or the landowner.

They applied a new rule: superior title goes to the landowner. The court ruled this way because the finder worked for the landowner. By employing the servant, the landowner was exercising control over that part of the land where the rings were found.

Stan leased Blackacre to Kyle. Eric—still Stan's co-tenant—is upset and wants to cancel the lease. The call of the question: 1) "Can Eric cancel the lease? 2) What are his rights and remedies, if any?" Answer to #1? [Similar to Swartzbaugh v. Sampson, Spiller v. Mackereth]

The legal issue is whether one co-tenant (Eric) can sue to cancel a lease to a third party (Kyle) by the other co-tenant (Stan). In Swartzbaugh, one co- tenant objected to a lease that the other co-tenant executed with a third party. The court held that there was no cause of action allowing one co-tenant to essentially veto the decisions of the other with respect to property. You should reach a similar conclusion here, that Eric may not have the lease cancelled just because he objects to Stan's decision to lease his own interest to Kyle. Remember that we defined the basic concept of concurrent ownership (whether as tenants in common, jointly, or by the entirety) as sharing an undivided interest in the whole. You could start, then, by defining Eric's property interest as a one-half fee simple interest in Blackacre in common with Stan. The idea of an undivided interest in the whole means that either co-tenant is entitled to possess, use, exclude, and alienate the whole, subject to only to the equal rights of the other co-tenants. But each co-tenant has the right to use the whole thing. You may remember from a previous case, Spiller v. Mackereth, the idea that one co-owner who is actually possessing and using the property doesn't owe anything the other co-owner who is not in possession simply for the fact that the first one is actually using the property. This is further supported by the idea that we like to have property put to its highest and best use. These ideas feed into the analysis here. Eric's disagreement with Stan doesn't stop Stan from renting to Kyle.

Ejectment

The legal process to have a trespasser or tenant at sufferance removed from property .

The cell line and the law of accession

The majority distinguished between Moore's cells and the cell line, and states that even if Moore owned his cells after removal, he cannot own the cell line, which the court says is the product of "investive effort" Under the doctrine of accession, when a person (A) in good faith applies labor alone or labor plus materials to some object that another person (B) owns to create a fundamentally different product, A acquires ownership of the new product. Did the Ds acquire ownership of the cell line on the basis of this doctrine? If so, they would owe Moore the fair market value of his cells. How would they value that asset?

Principle of First Possession

The notion that being there first somehow justifies ownership rights

Doctrine of Increase

The offspring or increase of tame or domestic animals belongs to the owner of the dam or mother. The increase of the increase, as infinitum, of domestic animals comes within the rule and belongs to the owner of the original stock Comes into play when animals wander to another's property and give birth. Rule: The increase in property goes to the property owner, not the locus owner. Only applies to domestic/tame animals that wander. Very labor theory intensive - put work into raising the animal, should get the benefits. Ex. Carruth v. Easterling A's cow wandered onto B's property and had calves. A and B both wanted possession of the calves. Held that for tame, domesticated animals, offspring goes to the mother's owner.

Economic Theory of Property

The purpose of property rights is to enhance social welfare by maximizing the value of scarce resources.

EX 4: O conveys "to A for life, then to A's children and their heirs." A has one child, B

The remainder is vested in B subject to open to let in later-born children. B's exact share cannot be known until A dies. If A has no child at the time of the conveyance, the remainder is contingent because no taker is ascertained. A = life estate B = vested remainder in FS subject to open B's heirs? Mere expectancy If A has no child? - contingent remainder

Bailment

The rightful possession of goods by a person who is not the owner When Armory left the jewel with de Lamerie he created a bailment Bailor - person who delivers the chattel Bailee - person who receives the chattel Has possession, but not title Creation of a bailment requirejs that the bailee both intend to possess and actually possess the chattel

Stan leased Blackacre to Kyle. Eric—still Stan's co-tenant—is upset and wants to cancel the lease. The call of the question: 1) "Can Eric cancel the lease? 2) What are his rights and remedies, if any?" Answer to #2? [Similar to Swartzbaugh v. Sampson, Spiller v. Mackereth]

The second part of the question asks what Eric's rights and remedies are. We've partly answered this with the conclusion that he has no right to cancel the lease under the facts as given. But that doesn't complete the picture, because as a co-tenant he must have some rights over what happens on Blackacre. Eric has three basic options: partition, accounting, or ouster.

Constituting Ownership

There is no single universally agreed-upon definition or conception of ownership Legal theorists have struggled to come up with a definitive model of ownership.

Tradition vs. Modern approaches to gifts causa mortis

Traditionally courts saw upholding gifts causa mortis as undercutting the Statute of Wills, they had more strictly applied the requirements for a valid gift causa mortis than for a gift inter vivos They also have added more restrictions to causa mortis gifts EX: if the donee already is in possession of the property, there must be a *redelivery* to effect gift causa mortis, but NOT if inter vivos EX: if Van Pelt had put a small box in Julia's bedroom, he could during his lifetime, before death drew near, declare he was giving the box to Julia. But if he waited until on his deathbed, has to redeliver box. Modern trend is away from strict approach to causa mortis gifts. Modern jx seek to enforce will of decedent, even if didn't strictly stick to causa mortis rules

"Trover" cause of action in Armory

Trover is the old common law action for money damages resulting from the D's conversion to his own use of a chattel owned or possessed by the P The P waives his right to obtain the return of the chattel and insists that the D be subjected to a forced purchase of the chattel from him. If the D loses, he must pay money damages to the P. Today, trover is basically obsolete; largely replaced by conversion

Tenant's Duties / Landlord's Rights. Duty to Repair

Ts also have incentives to not repair! Doctrine of Waste (again) -T duty not to make such change that would have substantial effect on L's interest. -T duty to make minor repairs -Responsibilities often stated in K. -Modern trend: L in better position to maintain the property -Reasonableness? Fact Question

Stan discovers that there is a large reservoir of oil underground, of which 10% is under Blackacre but 90% of which is under a neighbor's land. Stan extracts the oil, and his neighbor sues, claiming 90% of the profits. The call of the question is: what legal theories and arguments should Stan use to respond to his neighbor's claim?

Two relevant theories: the rule of capture, and Locke's labor theory. (Pierson v. Post) when you have a "fugitive resource,"—like foxes, or other wild animals, or . . . oil—the person who "owns" it is the one who first reduces it to possession; and in the fox case, the one who "captured" it reduced it to possession. That leaves the question of what counts as "possession"? In Pierson, the court ruled that the bystander possessed the fox first because he was the one who first established physical dominion and control—it might have been different if the hunter had first shot the fox. Is oil the same as a fox? Like the fox, the oil under the ground can move from place to place, and therefore the logic of the rule of capture applies: by being the first to exercise physical dominion and control over the oil, Stan has reduced it to a thing that can be possessed, and therefore owned. Good to compare the traditional rule of capture with the facts of this case, focusing on the reasons why extracting the oil can be considered "first possession" here. The second theory that applies here is Locke's labor theory. The essence of the labor theory of ownership is that when a person takes a thing (land, chattels) and mixes her labor with that thing, thereby improving it and giving it value, she has a superior entitlement to ownership rights versus the rest of the world. This is probably secondary to the rule of capture as a legal matter, but it provides a great opportunity to talk about the facts. Stan is the one who worked to discover the oil, hired the geologist and drilling company, and paid for the effort to extract it. Under labor theory, he should have a superior right to the oil over his neighbor, who did nothing to make the mineral resource marketable.

Dower and curtesy have been abolished in all but a handful of US states; replaced with the *statutory elective share*

Typically, surviving spouse can renounce the will, if any, and elect to take a statutory share, which is usually one-half or one-third or some other fractional share

International News Service v. Associated Press (1918)

U.S. SUPREME COURT DECLARES THAT NEWLY PRINTED NEWS IS PROTECTED FROM COPYING FACTS - INS was taking AP's stories and copying, republishing them. Rule: A quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade. If the court allowed the copying of fresh news, no news service could manage to stay in business. Attempting "reap what it had not sown" Intellectual Property is Property First in time? Labor theory? Q; what rights should we give to IP, and how should we allocate them?

T "to A for life, then to A's children for their lives, then to T's grandchildren" T=testator=deceased

Valid T is dead—so we know who all of T's children are at the time of the creation i.e., T's children are all lives in being! All of T's grandchildren will be ascertained at the time of the death of T's last child . . . who was a life in being

Who cares about remainders? Why is it important to distinguish ?

Vested remainder accelerates into possession [Common Law: Contingent remainders not transferrable] Modern trend: yes *Contingent remainders subject to Rule Against Perpetuities* /When ambiguous, what do courts prefer?/ _Vested remainders_

T "to A for life, then to A's children for their lives, then to A's grandchildren" RAP?

Void Takers will not all be ascertained until the death of A's children, and A's last surviving child might be an afterborn child. Might take 21+ years between end of lives in being and death of last (potentially afterborn) child to ascertain A's grandchildren.

O "to A for life, then to A's children who reach 25"; A has a 23-year-old. RAP?

Void A could have another (afterborn) child, then die Class gift must be valid or void for all— Even the current 23-year-old! *On kid's 25th birthday?* Their remainder is "vested, subject to open," which doesn't count as indefeasibly "vested" under the RAP. *Still void.* Bad as to one, bad as to all.

Groundwater

Water found in underground aquifers Governed early on by the British rule of absolute ownership, which allowed landowners over an aquifer to without freely without regard to effects on neighbors. Most states now use American rule of reasonable use. Also a rule of capture, but with the addition that wasteful uses of water, if they actually harmed neighbors, were considered unreasonable and hence unlawful Today, groundwater extraction is governed by legislative and administrative programs

Housing Discrimination Claims

What do you need to show? Proof of discriminatory effect, not intent Is proof of discriminatory intent required? NOPE! Not part of prima facie case under FHA; just need proof of discriminatory impact or disparate treatment Congress realized that having to prove intent would be extremely difficult; decided not to include You can show a study, etc. *Burden-shifting:* P: prima facie case of disparate impact D: justification—valid & necessary business purpose P: show that justification is a pretext Once P proves either, D must then justify the action as one taken in pursuit of a bona fide, compelling govt purpose, with no less discriminatory alternative available to achieve the goal, or in the case of private Ds, one taken pursuant to a rational and necessary business purpose

Waste

When 2 or more persons have estates in the same property A's present use should not unreasonably interfere with the future interest of B. "Affirmative waste"—injurious acts Substantially reduce value "Permissive waste"—negligence "Ameliorative waste"?

Tenancy at Sufferance: Holdovers

When T doesn't leave after termination Arises when a tenant remains in possession (holds over) after termination of the tenancy Technically a trespass, but situation where property rights are created (more below on eviction)

Right of Entry

When an owner transfers an estate subject to condition subsequent and retains the power to cut short or terminate the estate, the transferor as a right of entry EX: O conveys Whiteacre "to Hartford School Board, but if it ceases to use the land for school purposes, O has the right to re-enter and retake the premises

When in doubt, courts presume TIC in common, NOT JT. Why?

When in doubt, what do we do with sticks? Set them free. Allows greater freedom of alienation. JT prevents you from passing along property, your share "survives into" other JT. Your heirs get nothing.

If a will is susceptible of two constructions, one by which the testator disposes of the whole of his estate and by the other of which he disposes of only a part of his estate, dying intestate as to the remainder, the Court will...

prefer that construction which disposes of the whole estate When in doubt, MORE STICKS!

Reversion

When you have transferred a lesser estate than what you have In other words, a reversion is the interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when the lesser estate expires Precise definition: A reversion is the interest remaining in the grantor (or in the successor in interest of a testator) who transfers a a vested estate of a lesser quantum than that of the vested estate which he has

Trespassing Finders?

Whether the property is lost, abandoned, or mislaid, trespassing finders lose. would not have claim to abandoned property unless trespass was "trivial or merely technical"

Fee Simple Determinable

Will automatically end when event happens Ex.: O conveys Blackacre "to the School Board, its successors and assigns, *so long as* the premises are used for school purposes" Future interest: possibility of reverter Goes on forever unless it is no longer used for school purposes Then it reverts back to O—automatically FDSPOR

Pearl ring A found O's ring. O tells A to keep it as a gift. (Left on sink, mislaid, but not an issue since found true owner; so not an issue to be addressed). Has she made a gift to A?

YES Can she change her mind? - NO, ownership transferred; don't own anymore *1) Intent?* - mental act yes, she said keep it intent did not converge with delivery DOESN'T MATTER, INTENT DOES NOT HAVE TO HAPPEN AT THE SAME TIME AS DELIVERY *3) Acceptance* - yes, can presume since valuable pearl ring (not toxic sludge) *2) Delivery* - physical act - YES If manual delivery possible, IT MUST BE HAD "wrench of delivery" can happen at later time - when told on the phone, that's fine Whose house was the sink in that the ring was laid upon? What kind of evidence are we looking for concerning delivery? Not subjective IS OBJECTIVE Who is holding it? Who has physical possession? Don't let intent color your understanding of delivery Manual/physical delivery is satisfied here Therefore, it meets all three elements, so yes, a gift has been made. *Remember, 3 elements do NOT have to converge in time*

White v. Brown main take away: When the terms of a conveyance are ambiguous...

grant a fee simple absolute. When in doubt, err on the side of more sticks. Law wants to allocate the most sticks because less restraints on alienation, control of property. EX: Homeowner more likely to improve land if they own it as opposed to just a life estate. Also, if a company wanted to buy, and would put land to most efficient use, FS allows to sell, where LE doesn't.

Copyright -

grants exclusive rights in original literary and artistic works like books, poetry, music, dance, movies, paintings, and computer programs

Symbolic Delivery

handing over something symbolic of the property Usually a written instrument declaring a gift of the subject matter. EX: Note says "I give my piano to Joe. s/Steven" EX: deed to home is a symbolic transfer at closing

Effect of the death of the landlord or tenant on leaseholds?

has no effect on the duration of a term of years or periodic tenancy, but it does on the tenancy at will

Can Michael stop Victor from using painting as dartboard?

Yes. If he did, he would be committing "Waste" - Legal doctrine that you can't unreasonably harm another's interest EX: drill all the oil that someone else has future interest in So, NO, can't use as dartboard since Michael has some sticks/interest in the painting. Remember, the painting is Michael's now, Victor only has life estate (possession until death) Michael had the painting all along. He didn't just get when Victor died. He already had. Remainder immediately vests in possession at death. But stick said all along: "when Victor's possession ends, Michael's begins, and Victor can't change his mind"

Does a court of equity have the right to order the sale of land in which there are future interests?

Yes. When this is necessary for the preservation of all interests in the land. Must be NECESSITY for sale. Proceeds are held in a judicially created trust for the beneficiaries (who hold the same interests in the trust that they did in the land sold)

What is the difference between FSSCS and FSSEL?

have same language; distinction based on type of future interest following it. FSSCS followed by right of entry; forfeited only if this right is exercised FSSEL - followed by executory interest; forfeited IMMEDIATELY

Stan grants Blackacre "to Kyle for life." Kyle immediately conveys his interest in Blackacre to Ike. Ike then hires a real estate consultant who tells him that Blackacre would be worth twice as much as it is if Ike would tear down the dilapidated, nonproducing oil well, and open a nudist camp on the site. Ike tears down the well, and redesigns Blackacre as a nudist camp. Ike soon begins making lots of money in fees, and the following year's tax assessment shows that the property has in fact doubled in value. Stan, however, objects to both the nudist camp and to tearing down the oil well. He argues that the oil well added to the charm of the property, and that its reputation as a nudist camp will harm his interest. Can Stan sue Kyle for waste?

[Note that this created a life estate pur autre vie] You might have had a red flag in your mind when you compare the "doubled in value" fact to Stan's allegation that the actions harm his interest. That intuition turns out to be correct in this case, but always be sure not to leap to conclusions without careful analysis. Let's turn to the rule about waste. We're in the doctrinal realm of present possessory rights and future interest holders. Kyle—now Eric—has the present possessory estate, and Stan has the future interest. Generally, the present interest owner has broad rights to possess, use, exclude, and alienate with respect to the property. That's where waste comes in. The rule: a present possessor's use of property should not unreasonably interfere with the expectations of the future interest holder. Applied here, think about what Stan's argument would be. He would have to argue that removing the oil well and/or opening the nudist camp harms his interest as a future interest holder. He will ultimately lose this argument, because of the powerful fact that the property is assessed as being worth twice as much as it was before. So the actions that Ike took actually increased Stan's interest as measured by economic value. But before you dismiss Stan's argument out of hand, be sure to give it your most careful consideration. Perhaps Stan might argue that there is sentimental value in the old oil well. Courts sometimes factor this in, but of course the primary measure of value is going to be economic value. Perhaps Stan might argue that regardless of the value it generates now, the negative reputation of the nudist camp will harm the economic value of the land in the long run. This argument isn't implausible, but he would have to bring evidence to support it, while we already have strong evidence the other way in the increase in the present value of Blackacre. The court in Woodrick v. Wood faced a similar situation, and held that the act of destroying a barn resulted in "ameliorative waste" because it actually resulted in increasing the economic value of the property. My personal view is that this situation is better characterized as simply "not waste," but the concept of ameliorative waste works perfectly well—something on the property was removed, but it made the property better (economically speaking). So you can conclude that Stan doesn't have a cause of action for waste; or that if there is any waste it's "ameliorative waste" and therefore Stan is not entitled to recover anything.

O "for all members of this property class who are admitted to the bar" RAP?

[[Valid]] *Validating lives are the members of this class.* You will either be admitted to the bar during your life, or die without being admitted(!) When the last one of you is admitted or dies, (only) then gift will vest. No possibility of vesting beyond the last survivor.

Fair Housing Act - doesn't necessarily apply to commercial property 42 USC Sect 3601-19, 3631 (1968) 3601 - It is the policy of the US to provide within constitutional limitations, for fair housing throughout the US 3603 -*** Exemptions

[landlords can still be racist, sexist, etc. IF!] Single-family house (unless 3+) Owner-occupied dwelling (4 or less) 5th Amendment - Takings Clause limits govt from going to far Congress was worried it might go too far and become a taking *BOTTOM LINE:* If you're in the biz of being a landlord, got properties all over city, kinda sounds like commerce If you're a little old lady renting out garage appt, doesn't sound as much like commerce 1991 ADA adds disability Reasonable accommodation standard

For anything less than a FSA, there MUST be

a future interest REMEMBER! A future interest is a *presently existing* property interest. It is a future interest in the sense that the right of possession is delayed to some future time. But it gives legal rights to its owner now, and is protectable by the courts now.

Doctrine of Accession

accession occurs when a person *in good faith* adds his labor to the property of another, or when a person *in good faith* mixes his labor and his property with the property of another. The issue: WHO OWNS THE RESULTING PRODUCT? A in good faith applies labor alone or labor plus materials to some object B owns. If A adds labor alone, the final product is generally awarded to B unless A's labor (1) transforms the original item into a fundamentally different article or (2) greatly increases the value of B's original item. EX: A uses B's grapes to make wine. If A is awarded the final product, then B is entitled to damages equal to the value of the original material before transformation If A adds both labor and other materials to B's object, the final product is awarded to the owner of the "principal" material. Just what the "principal material is is often hard to determine

Relationship of delivery to intent

actual delivery is objective proof of intent. However, constructive/symbolic delivery, the element of intent becomes virtually the same as delivery. In both cases, the question becomes, "What did the donor intend by her acts?"

Surrender -

agreement between T and L to prematurely terminate a tenancy Relieves T of liability for future rent Subject to SOF. If original lease had to be in writing, so does surrender

Abandonment -

an implied surrender instead of express An abandonment of the leased property by the tenant occurs when he vacates the leased property without justification and without any present intention of returning and he defaults in the payment of rent Considered an implied offer of surrender that the L is free to accept or reject

The doctrine of ratione soli asserts that ...

an owner of land owns the wild animals on that land. Note, however, that this rule may discourage the efficient capturing of wild animals if the owner refuses to capture them. On the other hand, it discourages trespassing. Were it not for this rule, individuals may be tempted to trespass on another's land to be the first to capture a wild animal. The doctrine is nevertheless important because it serves to protect a landowner's constructive right to possession as against a trespasser. As an interesting side note, at least one court faced with a dispute over ownership of oil and gas used the rules set forth in the wild animal cases to resolve the dispute, likening fugitive natural resources like oil and gas to wild animals.

Civil Trespass -

an unprivileged intentional encroachment upon property owned by another. Intentional simply means that the D engaged in a voluntary act, NOT that the D specifically intended to commit trespass Trespass is unprivileged when the encroachment is 1) without the owner's consent; 2) lacks necessity as a justification; AND 3) is not otherwise justified by public policy

How is a fee tail read today in Texas?

as a fee simple

Standard of Care owed in a bailment

bailee has the duty to take extraordinary care, reasonable care, or to avoid acting in gross negligence or bad faith with respect to the property, depending upon who benefits from the arrangement

In a case of legal ambiguity in the creation of a concurrent estate [AKA co-tenancy] the default presumption is ...

in favor of a tenancy in common. There are policy reasons to support this rule, such as favoring the free and unencumbered alienability of property, and providing the most flexibility when in doubt. (find more here)

Custom Customary rules often arise to maximize the well-being of the group creating the custom, to ensure that ...

individuals do not grab benefits for themselves that impose net losses on the group as a whole. Individuals conform to the custom out of self-interest: in the long run, they will be better off, and in the short run, deviations from the customs will result in substantial informal sanctions from the group.

the right to destroy

issue does not frequently arise because self-interest usually restrains people from destroying their own property. However, it does sometimes happen. EX: painter instructs inferior artwork destroyed Differing views: 1) argues that such destruction is socially wasteful and ought not be permitted 2) limited right to destroy serves important welfare and expressive interests Prohibitions on destruction can be wasteful and inefficient. When rational people destroy their own property, they must either be expressing something or be calculating the utility of the destroyed property differently from others. The conflict posed is between a notion of property rooted in individual autonomy and one that is grounded in a more collective sense.

The fee simple absolute is "indefeasible"—that is, ...

it will not terminate and revert to someone else upon the happening of a specific event. Accordingly, since a fee simple absolute is indefeasible, it does not give rise to a corresponding future interest when it is created.

mislaid property in public places goes to the

landowner

The remainder is vested subject to open or vested subject to partial divestment if

later-born children are entitled to share the gift Vested subject to "open" or "partial divestment" If something can come along and change

Involuntary bailments -

less common Finder of a lost or mislaid chattel is an involuntary bailee because the bailor has not voluntarily transferred possession to him

To A for life. Then A transfers to B. What does B have?

life estate pur autre vie, That is, a life estate *measured by the life of A* don't forget this!!!

Limited-access commons -

limit access to and use of some resource (pasture land) to members of a relatively small group, all of whose members have equal privileges to use the land Group has right to exclude outsiders from access to the use of land Some have noted that in Limited-Access Commons cooperation is possible that avoids tragedy of commons Limited numbers and shared outlooks facilitates constructive collection action

Prior Appropriation -

many Western states, where water is scarcer, have adopted The person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right superior to later appropriators Critics: encourages premature development and excessive diversion; also rations poorly when supplies dwindle periodically

Covenant of Quiet Enjoyment - originally, under CL,

meant L promised not to interfere with the T's right to actually possess the land during the term of the lease Fundamental right: any breach would discharge T's duty to pay rent -Originally limited to cases where tenant was physically ousted -Gradually expanded to include actions by L that so substantially interfered with the T's beneficial enjoyment of the premises that the tenant has no reasonable alternative but to vacate. -This is known as *constructive eviction* For purposes of the T's obligation to pay rent, a constructive eviction was the equivalent of an actual eviction - it discharged the T's duty to pay rent. Lead to more questions regarding what actions or inactions by L might lead to constructive eviction.

In a world where body parts have commercial value, the law's task is to...

mediate the conflict among *efficiency* (fostering commercial exchange of body parts and aiding scientific discoveries of broad social value), *fairness* - ought body parts go to the highest bidder? Should people be deprived from reaping value from their unique body tissues? and evolving cultural mores and expectations about commercial profit from one's body.

Although courts usually say that partition in kind is preferred, ...

more often than not it is the opposite that occurs. The present trend has been to order sale in partition in a great majority of cases. This is usually done in deference to the wishes of all parties involved, or because the courts believe that sale of the property is actually the fairest means of ending any conflict between them.

In economic terms, goods that are non-rival and non-excludable are public goods. EX: national defense According to conventional economic theory, the market will produce goods that are excludable and rivalrous, but will undersupply those that are non-excludable and non-rivalrous, because ...

no one will pay for it.

Open-Access Commons -

no single individual and no group has the right to exclude anyone; the land is open to all Thought to create "tragedy of commons" Garrett Hardin (1968) article Viewing the situation from the perspective of each herder, whom he assumes to be rational (self-interest maximizing), Hardin observed that each herder benefits directly from his animals and suffers only delayed costs from the deterioration of the commons when his and other herders' cattle overgraze. Each herder, acting rationally, will and more and more animals to the grazing herd because doing so maximizes his own direct gains while bearing only a share of the costs of overgrazing Eventually, the commons is ruined for all Solution? Hardin advocated coercive govt intervention instituting centralized regulation OR private property rights

Criminal Trespass -

only when D enters another's land knowing that he lacks a privilege to do so, or if the D refuses to leave another's land after being asked to do so

Co-tenant has three basic options against other tenants when not happy

partition, accounting, or ouster.

if TICs or JTs cannot solve their problems by mutual agreement, any one of them can bring an action for judicial partition. In a partition action, a court will either...

physically partition the tract of land into separately owned parts or order the land sold and divide the proceeds among the tenants

"Possession is 9/10ths of the law" -

possession gets us a long way towards a conclusion in property rights EX: drug possession, goes a long way towards establishing guilt; you are exercising ownership of something illegal

Consent Clauses (AKA approval clauses)

prohibit assignment or sublease without lessors' approval, and are considered a restraint on alienation CL disfavors restraints on alienation, but the situation is different with respect to restraints on tenants' interests. This policy has less application to leasehold interests because landlords have a legitimate concern with protecting their reversionary interest and assuring that leasehold covenants are performed.

Mislaid -

property that is intentionally placed somewhere but then forgotten Usually goes to owner of premises where found if the owner intentionally placed it in some location and then forgot to retrieve it, or was unable to locate it If the item is mislaid, the owner of the locus in quo wins Rationale is that this results aids return of the item to the true owner, who will usually retrace his steps to where he last left the item

Trademark -

protects words or symbols that identify that source of goods or services. Began as common law, today federal trademark law supplements (rather than preempts) state common law

Easement -

provides someone other than the owner(s) of land with rights to use the land or an opportunity to prevent land from being used in a particular manner Public trust doctrine extends to all land covered by the ebb and flow of the tide and, in addition, all inland lakes and rivers that are navigable In Michigan, public trust doctrine protects the public right of access to privately owned beaches along the Great Lakes Court held that the public access along the shore is permitted between the current edge of the lake and the ordinary high water mark

Section 3604 It shall be unlawful: a) to refuse to sell or rent because of

race, color, religion, sex, familial status, or national origin Many localities have added more: LGBT, age, etc. (b) discriminate in the provision of services in sale or rental of housing (c) to discriminate in advertising (d) to discriminate by falsely representing unavailability (f) no discrimination based on handicap

With life estates you must have a....

remainder or reversion

Legislation Many states have laws on lost, mislaid, and abandoned property Typical statute:

require finders to deposit property at a designate place, prove notice to possible owners, and provide for an award of title - say to the finder - if the property owner does not appear within a specified period

Surface Water Two different systems governing water in a defined channel (or body):

riparianism (strips of land) and prior appropriation

the basic concept of concurrent ownership (whether as tenants in common, jointly, or by the entirety) as ...

sharing an undivided interest in the whole. The idea of an undivided interest in the whole means that either co-tenant is entitled to possess, use, exclude, and alienate the whole, subject to only to the equal rights of the other co-tenants. But each co-tenant has the right to use the whole thing.

Conquest is the ...

taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror

During the life time of the parties, litigation may arise over what present rights the parties to a joint account have in the sum on deposit. In most jx during the lifetime of the parties the presumption is ...

that the joint account belongs to the parties *in proportion to the net contribution of each party* Thus if O deposits $5000 in a joint bank account with A, it is presumed that O does not intend a gift to A of $2500 but intends A to have survivorship rights only. If A withdraws from this account without O's permission or later ratification, O can force A to return the amount withdrawn The presumption that O did not intend a gift can be overcome by clear and convincing evidence of a different intent.

In a commons, agreements to reduce external cost requires ...

the consent of everyone having a right to use the resource Such agreements encounter high transaction costs by the sheer number of people involved

Courts view gifts causa mortis with some skepticism because

the donor is likely to be dead, and the completed gift is a substitute for a will, a form of giving at death that is laden with formalities to be sure that the dead person's wishes are accurately carried out

tenancy by the entirety requires

the four unities of a joint tenancy, plus marriage at the time of the conveyance. TTIP plus a ring! CANNOT CREATE TBTE UNTIL ACTUALLY MARRIED. Engaged not good enough. Neither partner can defeat the right of survivorship by conveyance of a moiety [portion] to a third party Only a conveyance by both husband and wife can do so Can't transfer during life without the permission of the co-owner Divorce terminates the TBE because it terminates the marriage Exists in fewer than half the states TX: "community property" not TBE

Spiller v. Mackereth,

the idea that one co-owner who is actually possessing and using the property doesn't owe anything the other co-owner who is not in possession simply for the fact that the first one is actually using the property.

Definition of the word "ouster."

the liability of an occupying cotenant for rent to other cotenant. With regard to liability for rent, ouster is evidenced *when an occupying cotenant refuses a demand of other cotenants to be allowed into use and enjoyment of the land.*

Once created, a remainder or executory interest can be transferred back to the grantor, but ...

the name originally given the interest does not change

If notice is not given for termination of a periodic tenancy,

the period is automatically extended for another period

If the bailment benefits both parties, as in a car rental agreement, then the bailee is liable if

the property is damaged as a result of his or her ordinary negligence.

Custom sometimes results in what can be referred to as *private ordering*, meaning that

the rights or claims to "property" and the norms or rules governing conduct (including the methods of proof of ownership) are created by private individuals in a group, and the rights or claims and violations of them are enforced through private methods of sanctioning. Such private ordering can sometimes become the basis for adopting common law rules (or serve as the model for laws)

Custom sometimes results in what can be referred to as private ordering, meaning that ...

the rights or claims to "property" and the norms or rules governing conduct (including the methods of proof of ownership) are created by private individuals in a group, and the rights or claims and violations of them are enforced through private methods of sanctioning. Such private ordering can sometimes become the basis for adopting common law rules (or serve as the model for laws)

Acquisition by discovery entails ...

the sighting or finding of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession. Often consummated by settlement and occupation

Accession: When only labor is added, the owner of the original property owns the resulting product, unless...

the value added by the labor is substantial. In that case, the laborer owns the resulting product but must compensate the owner of the original property for the trespass.

Conveyance

the voluntary transfer of a right or of property

Riparianism -

this system assigns water rights on the basis of ownership of riparian land (i.e. land that abuts the watercourse). Under this system, water rights are derivative of rights to the land. Each owner of riparian land has a right to use the water, subject to the rights of other riparian. The claims of riparians rest of their underlying holdings of riparian land, and the land itself was originally acquired by first possession More common in eastern states Critics: takes little or no account of the relative productivity of the land; encourages the development of uneconomical "bowling-alley" *strips of land* perpendicular to the banks of a stream; ration poorly when stream levels are low

Public Policy: monopolies on copyrights, patents, trademarks

to promote creativity; but has limits: to advance competition Fundamental tension in IP: Need to strike balance between: Incentivizing original ideas, but also don't want to stifle competition & the production of new ideas in the future the conflict is between the inefficiencies produced by a monopoly over creation (higher prices, less accessibility to a desired good) and both the sense of unfairness of allowing copycats to reap what they haven't sown and the fear that, without protection creators will not create. Don't want to lock up ideas forever. EX: if you gave Wright Bros forever patent on flight, state of aviation would be sad.

Statutes of Frauds abolished delivery of seisin and started

transfer of deed

Acceptance (gift)

usually presumed Usually don't have to prove Maybe not if more trouble than it's worth (barrel of toxic waste) required but seldom an issue. Courts presume acceptance upon delivery, unless a donee expressly refuses a gift.

Utilitarian/Economic Theory of Property

utilitarians broke with natural rights theorists on property. Utilitarians regard the concept of property as a mere artifact - a human invention, a social institution. This is the dominant view today. Primary function is efficient use of resources Self-interested acquiescence in social and legal rules. We accept legal protection for others' property because we desire the same protection fro our own. In a world without scarcity, there would be no need for property, you could always get more DOES NOT EXPLAIN INITIAL POSSESSION. Locke does

Voluntary bailments -

very common. When you take your clothes to the laundry for cleaning Leave car keys with a valet

Gift

voluntary transfer of ownership without consideration

Lost -

when the owner inadvertently loses possession of it. Finder entitled to possession vs. all but true owner & prior possessors Lost property usually goes to the finder because the true owner, who does not know the item's whereabouts, is unlikely to retrace his steps and find it. Moreover, this results rewards the finder's honesty

Holdouts -

which arises when payments must be made to a group in order to carry out a transaction and where, unless each member of the group accepts payment, the transaction fails entirely EX: X wishes to change land use law that will increase his profits by $1000, but will result in $50 effects on 10 neighbors. He must get consent of all. Each has an incentive to "hold out" for a higher amount than the $50

Accession: When labor AND new material are mixed with another's property, the resulting product goes to ...

whichever person supplied the more significant and valuable material. If that is the good faith improver, she must pay for her trespass.

What about Stan's going in and changing the locks?

while self-help eviction—such as Stan's changing the locks after Kyle's nonpayment of rent—was recognized under common law, the modern trend is to require the landlord to resort to judicial process (such as the summary eviction procedures available in most states). So Stan was in the wrong here, but where does it fit in to this question? Stan is the plaintiff here, and your primary job is to identify Kenny's best arguments in defense to the claim that he owes money to Stan—that's why the main points are quiet enjoyment and implied warranty of habitability. As noted above, the wrongful eviction could be used by Kenny to counter Stan's argument that he wasn't constructively evicted. You could also organize your answer to suggest that Kyle file a counterclaim for damages for wrongful eviction; this could provide further support for him in the lawsuit

Minority/Restatement Rule(Modern Trend)

§ 15.2(2): restraint on alienation without consent of L is valid, but consent can only be withheld for *commercially reasonable* reason Unless expressly included in lease *Restraints on alienation* Efficiency? Lease-as-conveyance? -L still protected by commercial reasonability *L has duty to mitigate* -Lease-as-contract *Duty of good faith & fair dealing* Implied covenant not to injure other party - arbitrary refusal violates good faith; is NOT allowed under standard approval clauses *What about the language of the K?* -If it requires consent, we can assume the parties thought that L must have to give some reason *What about reliance (K written relying on majority rule)?* Trend toward minority rule; get with the times *Right to profit?* You only have right to get what you K'd for.