Property Law I

Property Defined (division of marital property)

"Everything that has an exchangeable value or which goes to make up wealth or estate." In re Marriage of Graham: MBA does not have exchange value or objective transferable value on open market. However, can consider the contribution made by one spouse when the other is attaining the MBA

Difference between Condition Subsequent and Condition Precedent

"I will give Sam a car if she graduates high school" - graduating high school is a precedent. "I will give Sam a car until she graduates high school" - is condition subsequent. Subsequent means A has the property now and the future interest depends on a condition. Precedent means A does not have the property now, but may have it in the future based on a condition.

Public Property

"In trust" - cannot be sold off Just "public" property - can be sold to become private

Fee Tail

"O to A and the heirs of his body." This is a way to keep property within the family (like a family farm to go to your kid, not to your kid's spouse, you want the farm to stay within the bloodline).

Life Estate

"O to A for life" or "O to A for life, then to B" Absolute possessory interest because statement is "condition free" Gives A possessory interest. Gives A a benefit for the term of their life, and then gives the property to someone else. This is used so that the spouse is remained at status quo before O died, but then their children are taken care of thereafter. *Important in the context of second marriages

Fee Simple Determinable

"O to A so long as X happens" "O to A while X happens" "until X happens" "during X" Has no definite ending date, but has a condition to the gift or transfer and the transfer ends automatically when the condition stops. Also defeasible. Typically followed by possibility of reverter

Fee Simple

"O to A" O = owner, A = whoever they want to give the property to along the way Our idea of ownership. Our idea of ownership. If you own something in fee simple, then you have full and total control of the property (could be done through sale, transfer, donation)

Fee Simple Subject to Executory Interest

"O to A, but if X happens, to B" An interest in property that will terminate on the occurrence or nonoccurrence of an event or condition, where the property is transferred to a party other than the original grantor. - Similar to determinable because reversionary interest is automatic, but here it does not go back to O or O's heirs

Popular Restrictive Covenants

"Single-Family only" - excludes grandma, aunts, cousins, and was used to discriminate against same-sex couples (bc gay marriage was illegal, so they wouldn't be "family") "No cars parked on the driveway" - targets college students who all have individual cars

Evaluating Disriminatory Restrictions

"facially neutral" v "facially discriminatory" 1. Discriminatory Impact: easier to prove - just has to show that discrimination has been the result -Rent out high rise building, everyone is young Christian and white. 2. Discriminatory Intent: There was clear indication to discriminate - typically employers. More difficult to prove because of evidentiary limitations.

Types of Waste (Doctrine of Waste)

(1) AFFIRMATIVE: the idea that a life tenant affirmatively takes action that injures the property E.g. If Ben is the remainder man, and the life tenant A goes and destroys the house, then B will not only get the house, but the damage done as well. If A is dead then heirs will pay (2) PERMISSIVE: Life tenant hasn't actually taken affirmative action, it's just they have neglected the property and thus the property has fallen in disarray E.g. If A has the house and plumbing breaks and never fixes it. If damage is $100k, then B is owed the house and $100k that will be paid by the heirs of A. (3) AMELIORATIVE: A has done something to the property that has caused a material change that has improved the property. The question is if the remainder man gets compensated? Also consider CHANGED CONDITIONS. E.g. Melms v. PBR Beer case: Two dudes thought O left them a mansion in fee simple. Surrounding property started to develop so dudes decided to convert the mansion to a beer brewing manufactory & tore down the mansion. Heirs of O file a lawsuit saying the dudes didn't have the right to change the property bc they held it for a life estate and not in fee simple. - Court found the will to be a life estate. but that they owe the Remainder Man nothing bc it was ameliorative (bc when the property had the mansion, it was worth X, but now the value of the property is 3X).

What are the differences with adverse possession as it pertains to personal property, as compared to real property?

(1) Adverse possession of personal property feels more like stealing (2)You can hide someone's personal property, you cannot hide land - This restricts the open & notorious element (3) Someone can steal your personal property and then sell it - we are worried when goods are sold to a third party and then the third party develops a reliant interest in the good. Who should get the good? • It's more difficult for the third party to get the good than the true owner

Reasons FOR Adverse Possession

(1) Want to encourage B (rightful owner) to bring suit quickly because Courts want to AVOID STALE CLAIMS and don't want people to sleep on their rights - Courts are concerned that 50 years later, there will not be evidence to determine where the boundary line was, when the fence was built, what was being used on the property, etc. (2) Encourage uses of property and discourage WASTEFUL use of property because if someone is occupying the space, it is being made useful compared to the person who was not making use of it. (3) Protect the PERSONAL ATTACHMENT to the area - The longer the fence is up and the longer the person possesses the property, the longer they feel it is theirs. In addition, third party rights apply at some point. (4) When selling your property, you have to show that you own everything on it or nobody would buy your property. Because surveys are typically incorrect in showing what a property owner actually owns, the REAL ESTATE MARKET has a reliance on adverse possession.

Johnson v. McIntosh

(1823, Marshall). Established that Indian tribes had rights to tribal lands that preceded all other American law; only the federal government could take land from the tribes.

If you are a hunter, when is ownership acquired?

(First Possession) Mere pursuit doesn't vest any ownership rights; you must kill, capture, mortally wound or trap the animal; Must also be continuing that pursuit RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership. Pierson v. Post Extending the rights of ownership to people who merely see an animal would go against hunting customs and give too many people an interest in property (and lead to a ton of litigation). Courts worry that if you have not actually possessed the animal, then it can still get away.

Tenancy for a Term

(of years) Automatic The landlord and tenant have agreed on a specific duration of the lease and have fixed the date on which the tenancy will terminate. -Easy to evict people this way Tenancy for a Term can get shifted into a Periodic Tenancy, which could shift into a Tenancy by Sufferance (but landlords don't want that bc sufferance is difficult to kick tenants out of)

Characteristics of Fee Tail

- Fee tail trumps the order of heirs - Fee tail also collects wealth within a family -Four jurisdictions where you can still do it: Delaware, Maine, Massachusetts, and Rhode Island. Requires that you use language similar to "O to A and the heirs of his body" - how you write the will really matters

Remedies Mentioned in Purchase Agreement or Real Estate Contract

- Sometimes agreement or contract itself will state the remedies (buyer gets earnest money back) - Seller or buyer can engage in specific performance

Solutions to Nuisances

-Coase Theorem -Extra-Judicial Settlements: 9/10 parties reach compromise by themselves and settle (even if cancer is at risk from pollutants, P will take $ instead of injunction) -RAP: You might have grandchildren that really want to inherit the property, but your kids want to donate it to ASPCA. Grandchildren will go to ASPCA to work out a deal, give ASPCA 60% of the money and kids get 40%. ?

Easement Creation

-Has to be in writing - Statute of Frauds -Adverse Possession - common way for servitudes to be created. If someone crosses your property for a long enough period of time, they can get a servitude over your property. -Necessity/Implied Servitudes: When someone needs a servitude in order to access something over another person's property, government will pay for that easement if it blocks access to a public road.

Characteristics of Fee Simple

-It us UNLIMITED (greatest bundle of sticks) -Fee simple is ALIENABLE (it can be transferred through selling, leasing, renting, mortgage etc.) -Fee simple is HERITABLE (meaning if you die without a will, your heirs will inherit the property) E.g. Sally to Ron is O to A; O = owner, A = whoever they want to give the property to along the way

"Lena to Leo for life, then to Elise if Elise graduates from Medical School"

-Leo has a life estate -Elise has the future interest (not the grantor) as a Contingent Remainder because it is subject to a Condition Precedent (graduating Medical School) -Lena has possibility of Reverter IF Leo dies AND Elise does not graduate from Med School TWO VIEWS THO: (1) Could mean Elise does not get the property UNTIL she graduates Med School (condition precedent) - so Contingent Remainder (2) Could mean that Elise automatically gets property when Leo dies, but there is a condition to her CONTINUED possession of the property (graduating Med School)

When Remedies are NOT mentioned in purchase agreement or real estate contract

-Loss of the Bargain: damage that sellers receive (contract price - fair market value = loss of the bargain) - Sellers use this as a remedy when the contract is backed out of and the purchase price is higher than the fair market value of the house -Special Damages: damages the breaching party knew or should have known would be incurred by backing out of the contract. (Damages that the breaching party is aware or should be aware that would be incurred because of their behavior.) -Punitive Damages: discourage people from backing out -Liquidated Damages: Sometimes real estate contracts will just say (more common in commercial contracts): seller agrees to pay buyer $250k, if buyer breaches buyer will pay seller $250k. So damages are identified.

Property that is NOT communal property (community property jurisdictions)

-Property acquired before marriage is not communal property. Ex: Bought a car before marriage. Not owned by the other spouse when get married. -Property given as gift -Property given to you individually -Property inherited

What if the servient estate does not agree with the easement?

-Servient estate has to bear the burden, we don't want to further burden them, so if the servient estate does not agree then that decision will prevail. -Dominant estates do not get an automatic right to servitude, but adverse possession can prevail. -Servient estate can RELOCATE an easement if the relocation does not create a great inconvenience for the dominate estate (Servient estate would have to pay for it and it should generally be as convenient for the dominant estate).

RAP jurisdictions

-Some states adopted a rule that allows you to do what you want with the land for 2 generations of heirs -Other states put a time limit for how long those conditions can last - whoever has the property at 91 years gets Fee Simple. E.g. "Uniform Probate Law - outer limit of 91 years" or "Dead Hand Control for 90 years" -Other places abolished RAP entirely and said you can do whatever you want because they believe Tax Law will alleviate any issues (no taxes in Fee Simple, so tax market will force grantors to leave property to their children) -"Wait and See" - pick measuring life and see whatever happens after 21 years. If ends up with ultimate holder, Gucci, if not, then RAP violation - but only after the fact.

Types of Notice for Covenant Creation

1. Actual notice - actually noticing someone about a covenant 2. CONSTRUCTIVE Notice - When information is available in public records and easily accessible online so they SHOULD HAVE LOOKED. Available and written. Applies more in residential neighborhoods. 3. IMPLIED Notice - When information is not available in public records. Written somewhere, but needed to ask someone. Discussed in Winn-Dixie, that notice would be available asking owner of shopping mall, and they SHOULD HAVE KNOWN that covenants applied. Harder to argue in residential context. -Courts consider who the party is. If a reasonable person would ask questions and this is a mom & pops store, then that is considered. This would be evaluated differently than if this were Wal-Mart.

How have tenants rights shifted?

1. Agricultural land is no longer what is being rented, so these houses need to be suitable for living, the world is changing. 2. Consumer Protection Rules: UCC 2-214 (warranty of merchantability) & 2-215 (warranty of fitness) -Seller has to tell buyer of any material defects, if the use of the land will not fit the particular desire of the buyer, etc. (Merchantability - have to say that the spoons are actually spoons) (Fitness - if this is a spoon with a particular purpose (like to scoop ice cream), it is fit for the particular service that it is sold for) 3. Property law intends to catch up to contract law because the world and Housing market is different than it used to be

Servitudes may be...

1. Appurtenant: runs with the land, if the benefit of the servitude is for the actual real estate itself. E.g. if blue house gets sold, then next owner will still need to use the pink house's driveway 2. "In Gross": runs with the person, benefits the person and the real estate does not matter. E.g. someone has permission to park on your driveway during mardi gras

How to properly access Future and Possessory Interests: "O to A for life, then to B, unless B goes to law school, then to C, if C goes to graduate school"

1. Identify the parties: O is Grantor, A has Possessory Interest, B C and O have Future Interest 2. Start with Possessory Interest (A) - is the possessory interest subject to any condition? No = absolute interest (Fee Simple, Fee Tail, Life Estate); Yes = defeasible interest (Determinable, Subject to Condition Subsequent, Subject to Executory Interest) ~ Here, no condition, so absolute interest. A = Life Estate 3. First Future Interest - B. Is future interest going back to the grantor? No. If not going back to the Grantor, does the future interest cut someone else off? No. If not cutting someone else off, is the future interest subject to a condition precedent or to an unascertainable person? Up to interpretation. "Unless B goes to law school" can either be vested or contingent. -Vested Remainder: if going to law school is just a condition on B's CONTINUED possession of the property -Contingent Remainder: if not going to law school is a condition to B RECEIVING the property. 4. Determine possessory interest of first future interest holder once/if she takes possession - B, eventual possessory interest. Is the possessory interest subject to any condition? no = absolute interest, yes = defeasible interest ~Depends on how B's future interest was interpreted. -If not going to law school was a Condition Precedent to B getting the property (meaning B cannot take the property until B does not go to law school), then B gets Fee Simple Absolute. -If not going to law school was a condition to B's continued possession, then Fee Simple Subject to Executory Interest (bc it is B's so long as he doesn't go to law school, so if B does, it goes to C) 5. Determine next future interest - C Is the future interest going back to the grantor? C is not the Grantor, so no. Does this future interest cut someone else's time short? C is cutting B's time short Is C cutting off Grantor's time or non-Grantor? B is not Grantor, so non-Grantor. ~C has Shifting Executory Interest. 6. Determine possessory interest of next future interest holder once/if she takes possession - C Subject to condition? Yes, must go to grad school If defeasible, does it go back to grantor or third party? Nobody else listed, so must go back to Grantor. ~ Depends -If O's interest is automatic reverter, then fee simple determinable - If O's interest is not automatic (right of reentry) then fee simple subject to condition subsequent 7. Determine next future interest - O Is future interest going back to Grantor? Yes Is O taking proper automatically or no? ~Up to interpretation

Covenant Creation

1. Must be in writing - Statute of Frauds - except when something gets around SoF, like estoppel or partial performance (also except when it is implied - like Sanborn gas station on lot case or when there is a General Plan - HOA or neighborhood would be DE) Three steps to creation (TIN): 1. Intent (have to intend for there to be a covenant) 2. Notice (must be in writing when there is notice issue needed for covenant)- Actual, Constructive, and Implied 3. Touch & Concern (must have relationship to actual property - e.g. "no commercial activity" - wanting everything to be residential is relationship to property - can't force someone to eat bananas)

Purchase Agreements Include (1)

1. Names of parties - Identify & describe the parties (corporation, partnership, individual) + Gender & Marital status (single female) [this is how they identify tax classifications]

Landlord Duties

1. provide property 2. mitigate damages 3. warranty of habitability

Aftermath of Kelo Case

40 states changed their State Takings Clauses to say economic benefit does not constitute a public use. Some jurisdictions will say public use = only being owned by the state, local, or fed gov - but unclear on how long gov needs to own building

Separate Property Jurisdictions

41 States Whatever I acquire while married is mine. Whatever he acquired while married is his. I own my salary when I earn it and he owns his salary when earns it. Could combine salaries into bank account and create contractual relationship. -All property I create during marriage is mine. Elective Share for Debt Married more than 15 years, take 50% of marital property. If less than 15 years, less than 15% of property

Community Property Jurisdictions

9 States Property acquired during the marriage is jointly owned by the parties as soon as it is earned. Why? Bc each party is contributing equally to marriage. (1) 1980's feminist movement and (2) religious right - protect spouses by allowing/encouraging one spouse to stay home and raise children. Paycheck is shared by both parties. The moment earn paycheck, it is owned by each spouse for 50%. If die after 1 year of marriage, still have right to 50% of property, which is only property acquired during 1 year of marriage, but you still get 50% of it Debt: split jurisdictions - managerial system v. community debt system

O to A for life

A = possessory estate in life estate. O = reversion in fee simple absolute

Subprime Mortgage Crisis

A financial crisis that began as a result of the lending practices made to subprime borrowers. Mortgage delinquencies, home foreclosures, and a decline in home prices added to the crisis. Not enough people getting loans, New Deal decided owning property would be great. Fannie Mae and Freddie Mac started the trend of selling local bank loans to larger entities (like federal banks). If local bank was loaning $200k and expecting 33k in interest, the Feds would purchase the 33k for 5k from them. Feds did this because it would result in economic value: taking the loan off a local bank's hands would allow the local bank to invest 5k. Private industries started to catch on to this trend, so local banks started having their mortgages bought by big private banks. Mortgage-Backed Securities were bundles of these mortgages, and private investors began investing large sums of money into them. Prior to the crisis, MBS only went up in value because it was dependent on local banks offering solid loans (which they were offering at the time prior). All of the media and trustworthy sources were saying it was a promising investment and more and more people became interested in these investments, (firefighters, elderly, unions) so these banks started allowing more people to get mortgages. People were given mortgages who made less than the monthly mortgage note, called sub-prime mortgages (5k note with 4k monthly income), and the interest rates began fluctuating and rising, people couldn't afford to pay them back. Typically, a few bad mortgages is not a big deal in MBS, but they were added to bundles that began drastically depreciating (900 good and 100 bad, to 800 good and 200 bad, etc.) until bad mortgages took over. Eventually, property values dropped tremendously because nobody was interested in buying a home anymore, there was no demand and a high supply of foreclosed homes with no recourse, and the investors lost everything. Only a few investors were aware of the failure of MBSs and became investing in its failure. The U.S. government essentially bailed itself out by paying billions of dollars.

Contingent Remainder

A future interest that depends on the occurrence of an uncertain event; essentially if the person is not ascertained and it is based on a condition precedent "O to A for life then to B's heirs" if B is alive when O grants rights, then B's heirs are unascertained (they cannot be ascertained until B dies), so Contingent Remainder

Define O, A, and B in, "O to A for life, then to B"

A is the Life Tenant B is the Remainder Man O is the current Owner of the property (or owner at time will was made)

Mortgage - Defined & Examples

A mortgage is the conveyance of a SECURITY INTEREST IN LAND, intended by the parties to be COLLATERAL FOR THE REPAYMENT OF A DEBT. Fixed-Rate Interest: one rate of interest paid on an annual basis for 30 years, set by the Feds. Price per month also should include property taxes and insurance. Adjustable Rate: Rate moves around with the market. Equity: How much has been paid down in the house Compounded Interest: "every year we will add interest to this" - you have to pay down the principal (800k) and pay down the interest (35k)

What happens when you damage a dock NOT out of necessity?

A party who damages the property of another while acting out of private necessity must compensate the property owner for the resulting damage. Vincent v. Lake Erie Transportation Co. That party is not responsible to pay all the money they saved, even if it is greater than the amount of damage caused. E.g. going out into the storm would cause $1 million in damages, while the dock damage was $500k, they don't have to pay $1 million, only the $500k they actually damaged

If neighbor A builds a fence and it slightly protrudes into B's property, who owns that part of the fence?

A would be the adverse possessor and B would be the true owner Presumption is that everything within the boundaries of the fence is possessed by A

Possibility of Reverter

AUTOMATIC - the grantor has given something to A, so A has some sort of possessory interest, but the grantor has reserved a future interest for himself if some condition happens - likely to follow Fee Simple Determinable (defeasible interest), but can also be seen after a life estate. "O to A so long as X happens" Fee simple determinable (possessory interest), future interest for O is the possibility of reverter if X stops happening.

Types of Covenants

Affirmative (just called "covenants")- DE tells SE to do something on property. E.g. plant X trees on your property Restrictive - Saying SE can't do something e.g. can't part cars in front of house

How is the Remainder Man protected?

Affirmative and Permissive waste.

Purchase Agreements Include (6)

Buyer has the right to inspect the property. General inspections include foundation and plumbing checks. You have about 30 days to get the inspection done, afterwards you have the opportunity to negotiate with the seller.

Jurisdiction Calculations for Tenant Remedies

Agreed Rent: if rent is $1,000 the court may then ask what the fair market rental value in its dilapidated, inhabitable conditions. If it's only worth $50 when dilapidated, then you only owe $50. Then consider how long the place has been in this condition, so the landlord has to reimburse you $950 for every month that you paid full price when you shouldn't have -May incentivize landlords to provide cheap rent to try to get around the warranty of habitability. FMRV in good condition: based off where it's located, if it was in mint condition it should be worth $2000. FMRV in poor condition: $50. So now the tenant is owed $1,950 for each month. -ensures landlords aren't trying to find a monetary way to get around the rule.

Community Property Debt Principle

All debts that a spouse has acquired during marriage, creditors can only go after community property for community debt. -If take out loan on house while married = community debt. Creditors can go after any community property, including paycheck. -Unfairness is tort liability (if hubby raped some woman while yall were married and he dies, your income will pay for tort crime) CANNOT go after deceased spouse's debt incurred prior to marriage

How does Rule of Capture differ between property items? (underground resources)

Allowing the literal interpretation of Capture with Oil would incentivize everybody to begin a race and start drilling beneath their properties to steal all of the oil from the neighbor's land. Oil-rich states/jurisdictions developed Unitization: "he who captures owns the percentage of oil that is beneath his property" - profits are split proportionally by percentage of ownership based on location, size, and how much is beneath each person's property. Groundwater - can only be taken to the extent that it does not injure someone else from getting water.

Transfer of Property Jurisdictions

American System: children do not have to receive any property Civil Law System: more concern for children. "forced airship" - if a child is a minor, then you have to leave some property to them

Fee Simple Subject to Condition Subsequent

An estate carrying the limitation that, if it is no longer used for the purpose conveyed, it reverts to the original grantor by the right of reentry. Also defeasible. "but if" "unless" "on the condition that" "provided that" Like a Fee Simple Determinable except that there is a right for re-entry. - FSSCS is NOT a right that will revert back to O automatically

Breach of Warranty of Habitability

An implied warranty of habitability is read into residential leases and breach of that warranty frees tenants from the obligation to pay rent. If the landlord does not maintain the premises, the tenant is deprived of all value for which he contracted. (Javins)

Resolution to Tragedy of the Commons

Answer to overuse of property is to divide it up into private ownership, and private ownership only works if you can exclude all others from using and protruding onto your part of the land (Right to Exclude). This also creates tragedy of the anti-commons Another resolution is to make sure that there externalities are internalized, meaning the burden of the negative consequences are felt by the actor, eliminating the idea that they can transfer that consequence to others

What/Whom can a landlord legally exclude?

Anything that is not a constitutional matter, you can exclude. E.g. college students and children You CANNOT exclude against race or language barriers (can't be used for discrimination), or disabilities (American Disabilities Act)

"Sansa to John for life, then to Arya if Arya survives John"

Arya has a Contingent Remainder because it is based on a condition precedent (Arya surviving John) Future interest of Sansa: Reversion MAY apply if John dies, but only if Arya dies before John/ predeceases John

"Ned to John for life, then to Bran, but if Bran doesn't kill the Knight King, then to Arya"

Arya's future interest is an Executory Interest. It is a Shifting interest because she may get the property in the future, but only by cutting off Bran's rights to the property, and Bran is not the Grantor Bran has a Vested Remainder (because Bran is ascertained and killing the Knight King is not a condition precedent) subject to an Executive Limitation -Could also be interpreted as Contingent Remainder saying killing the Knight King is a condition precedent to get property, then possessory interest would be in fee simple absolute.

Partition by Sale

Auction off the land and divide up the proceeds, respectively

Periodic Tenancy

Automatic A lease interest in land for an indefinite period involving payment of rent at fixed intervals, such as week to week, month to month, or year to year. Either party can terminate, but has to give at least a month's notice (if tenant is doing it, only commences next pay period e.g. if gives notice 4/20 and pay period is 5/1, then kick out date is 6/1)

What happens if you stop making your mortgage payments?

Bank will foreclose on the house and essentially take the house and sell it at a tax sale. -Bank will find out how much is owed (400k), then the Bank will sell the house for 400k -Banks do this because they really don't care about the property itself, they just want their money.

How are we still impacted by the subprime mortgage crisis today?

Banks require a lot more in order to grant a mortgage -Now it's possible the person who makes $6k with a $4300 monthly mortgage will not qualify -This means less people can buy houses You have to put larger down payments -People who have a lot of money can afford to get loans to pay for the house they want, so if you come from a wealthy family, you can get more loans and bring down your monthly mortgage payment

Elements of Adverse Possession

CAHOE (California Hoe ay) For possession to ripen into title, you must meet all 5 requirements and hold possession of property for extended amount of time depending on jurisdiction (average between 7-10 years) (1) Continuous and Uninterrupted - possessing it in a continuous manner that the true owner would possess it. E.g. You can adversely possess a summer home or hunting camp by not being there every day because summer homes are visited over the summer (Kunto) (2) Actual Possession - physical occupation of the space. CANNOT be symbolic, hypothetical or fictitious entry. E.g. farm the property, graze your cattle on the property, build the fence, etc. to take actual possession of the property (3) Hostile/Adverse - possession must be done without owner's permission or consent. If there is permission then it is not against the wishes of the true owner. AWARENESS of the possession by the owner is still ok for adverse possession. E.g. Saying "get off my land" is not giving consent, owner can be aware that the land is being taken, owner just cannot give permission - Color of Title can fit here in Good Faith jurisdictions (4) Open and Notorious - You can't hide it, girl. Use dat shit in a manner that people will NOTICE U QUEEN. This applies more to personal property than real property like land or buildings. E.g. real property like a house is difficult to be used without someone seeing it, only exception would be a cave. (5) Exclusive - Possess it only for you, b, against the true owner. You cannot adversely possess against co-ownership.

Fair Housing Act (Civil Rights Act of 1968)

Cannot refuse to sell or rent on the basis of race, color, religion, sex, familial status, national origin - does NOT include sexual orientation or disability, but courts interpreted it to include disabilities and are now starting to interpret sexual orientation: 1990's - some jurisdictions put sexual orientation in the category of sex -Some said they'd put it in family status

Rule Against Perpetuities (RAP)

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Additional Factors to Adverse Possession

Certain types of possession trump other types of possession. E.g. possession that encourages development and economic viability trumps things that do not. You can only claim ownership to areas that you have proven you have ACTUALLY possessed and had fulfilled ALL adverse possession elements - this creates an evidentiary problem. Nome 2000 v. Fagerstrom, True owners only had evidence of owning northern part of property, not southern end. Possessors used northern parcel seasonally and built cabins on it - Court ruled they owned it through adverse possession. Possessors used trails, picked up trash, and allowed visitors to pick berries on southern end (which is consistent with how a true owner would use the property), but Court did not find them owners of southern end bc those actions are not enough to establish that somebody is in possession of the area (open & notorious) - anybody could pick berries, hike, and pick up trash.

Tenancy in Common

Co-ownership of property in which (1) each party owns an undivided share of the property and (2) is entitled to possession of the WHOLE property. Shares do NOT have to be equal in size. "undivided" means cotenant has possessory and other rights to the entire property, not merely some discrete part of it. NO right of survivorship - passes to deceased or deceased's heirs

Control of Donated Body Parts

Colavito - organ transplant Hecht - sperm Cannot transfer organs to specific people. There is a scarce market for organs, so you cannot choose who your donated organs go to because that could result in small groups acquiring all property and only helping a small sect (wealthy) of the population. Transfer of sperm can be specified because it is not scarce and leads to procreation (as opposed to kidneys saving lives)

Commercial v. Residential Tenancy

Commercial: landlords cannot unduly restrict a tenant from assigning or subleasing their rights without a reasonable basis/reasonable business (financial) decision- avoid idiosyncratic landlord behavior Residential: landlords can withhold tenants from subletting

Community Property Management Principle

Creditor can seize any property I have managerial control obver. Certain types of community property will assign management to one spouse. -Ex: If bought car while married and in my name, community property asset that is jointly owned, but I have managerial authority over car because registered in my name. -Ex: Real estate - both spouse have equal managerial rights over house. Neither party can sell without the other party's consent Unfairness is pre-marital debts. If hubby comes into marriage with a lot of loans and doesn't pay them, court will come after any property he has managerial control over, even if it's joint managerial control (i.e. our house or even my income because he had joint managerial control over it)

Shifting Interest

Cutting off someone's time who is NOT the Grantor

Springing Interest

Cutting off the Grantor's time

If one spouse buys a house before get married and pay down payment. Get married. Both parties pay mortgage. Get divorced. How would Court rule in Separate Property v. Community Property Jurisdictions?

Community Property: if the house is considered community property, then it was automatically jointly owned by both spouses upon marriage. Thus, it would be partitioned 50/50 along with all other community property. This could result in one partner with more from a value standpoint, so equalizing payments is used so that each person gets truly 50/50. Reimbursements can also be added for any investments on the property. If this is NOT community property, then the spouse will get reimbursed for their share of the mortgage, but the other spouse will walk away with the house since it was acquired before marriage. Separate Property: No automatic joint ownership of property acquired during marriage, but marital property is still given to both parties upon divorce. Marital property is the same as community property in community property jurisdictions, the only difference is that marital property is applied at the time of divorce or death (as opposed to at time of marriage). It is any property acquired during marriage. Equitable distribution is applied, which is basically partition, but it does not require a 50/50 split of value. Every jurisdiction is split on how to equitably distribute property, can be 40/60, etc. If this is NOT marital property, then other spouse may get nothing unless the property was transferred to the other partner.

Fee Simple Subject to Condition Precedent

Condition precedent means right does not commence until the condition occurs (e.g. a zone change from industrial to commercial)

How do Courts tend to deal with custody disputes?

Consider who the primary caregiver is and finances, but typically tend to try to have both spouses see the child. If there are issues, the courts tend to favor the mother. Family heirlooms- auction is set up to see who is willing to pay more for the item -Sometimes this happens with dogs and custody

"John to Steven for life, then to whoever scores the highest grade in the class"

Contingent Remainder because the person who scores the highest grade is not ascertained, we do not know who that person is yet. *Must look at the time when executed*

Tenancy by Sufferance Jurisdiction

Courts don't really know what to do in these situations: -Some jurisdictions will say that if they keep paying their rent and the landlord doesn't mind, then it is converted to a Periodic Tenancy. Saying whatever the original term was, it is now a periodic tenancy for the current term. -Others say it will shift to a Tenancy at Will

Nuisance Law

Courts examine case-by-case and balance what legitimate activity A is doing with their property and if it is causing unreasonable, significant interference with how B is using his property. -Very court, jurisdiction, and jury-specific - outcomes are unknown and litigation risky Eggshell Plaintiff does NOT apply Lots of room for interpretation based off location (rural Wisconsin will be different than Los Angeles) Cases are often fact-driven (odor, noise analysis, soil analysis for pesticides etc.)

If there is doubt between Tenancy in Common or Joint Tenancy

Courts will assume Tenants in Common - no right of survivorship

Estate Tax

Created for people who make a certain amount of money at death (threshold is high AF ~150 people in 2019)

Purchase Agreements Include (2)

Description of Property - LEGAL description- including covenants and easements Transfer of all specific improvements and fixtures (Sally's underground irrigation system) Finding a brooch would be a piece of personal property in the house, so the Law of Finders does not apply, it is the new homeowner's property now because of the contractural Purchase Agreement.

Mortgages Jurisdictions

Different jurisdictions have different theories about what a mortgage is: 1. One theory the LIEN THEORY and a mortgage is just a lien (meaning the person who holds the mortgage, typically the bank, here the Simmonses, they don't have an ownership interest in the property at the time of creation of the mortgage, but when the mortgage isn't paid they can swoop in and take your ownership.) 2. Second theory of mortgages is the TITLE THEORY. Person who holds the mortgage takes the ownership interest in the property. So the bank is actually the owner of the property. Issue is we don't really see it this way, it's your house. Transferring 50% interest to someone else with the contractual idea that once the money is paid off, the ownership has to be transferred back.

Examples of what you should tell a buyer if you are selling a house (Duty to Disclose Defects)

Does not have to disclose history of criminal activity Servitudes (Constructive Notice for covenants in residential, harder to argue Implied in residential) Objective defects that would alter reasonable buyer's reason to buy property: 1. Materially affect the property's value (leaky roof) 2. Are not readily observable 3. Are not known to the buyer (Seller cannot have superior knowledge that leads the buyer on) Subjective defects that would deter buyer from purchasing property: 4. When there are defects that would impact buyer's desire to buy property (Johnson v. Davis) 5. If seller knows buyer has specific interest in the property, knowing the property won't work with those interests, seller has to disclose that (lemon trees) 5. Doesn't have to be physical - i.e. Ghosts

"Michael to Dwight for life, then to Jim"

Dwight = possessory estate in life estate Jim = Vested Remainder (because Jim is an ascertained person and it is not based on a condition precedent) in fee simple absolute

"Michael gives his car to Dwight for life, but Dwight gets Angela pregnant, Michael can decide if he wants the car back"

Dwight possessory - life estate subject to condition subsequent Has no future interest because the longest he can have possession is for life. Michael future - right of reentry if Angela gets pregnant by Dwight or automatic reversion if Dwight dies and never gets Angela pregnant

Tragedy of the Commons (Hardin)

Each human being is locked into a system that compels them to increase their herd without limit - in a world of finite resources. Tendency of individuals to deplete an unowned, rival resource for their own gain, even if they know that it will harm everyone involved in the long term. Each incurs all the cost and only part of the benefit of limiting his use of the resource, each "is locked into a system that compels him to increase" his own use.

Joint Tenancy

Each tenant (1) owns equal and undivided interest in the property, (2) each tenant is entitled to possession of the whole property, (3) each tenant has a right of survivorship in the other tenants' shares. Has the right to partition. E.g. in businesses, you may not want your shitty son taking over your business E.g. if you own property with your 4 siblings and one of them die, you may not want their shitty spouse dealing with it

"Lena to Leo for life, then to Elise's heirs"

Elise's heirs have a Contingent Remainder if Elise is still alive when Lena grants the right because Elise's heirs are unascertained (cannot be ascertained until Elise dies because things change i.e. divorce, more children, etc.)

Landlord Duties Jurisdictions

English Rule: landlord has to deliver actual possession (have to give you a key without anyone else in the property) of the property to you. American Rule: minority rule, landlord only has to deliver legal possession. If there is a hold-over tenant that is still occupying the area, they do not have to get rid of the hold-over tenant. New tenant would have to sue the hold-over tenant. -This is because landlords have lobbying power -Landlords would realistically be the best option for eviction because they have more power and experience

What do courts prefer when it comes to property disputes w Tenancy by the Entirety and Joint Tenancies?

Entirety: If couple has contracted to say that bc one party makes more money they can be more responsible for percentage of repairs, mortgage, etc., and the couple asks the court to enforce the agreement/default rules, Courts prefer to suggest partition because they don't want co-owners constantly fighting with eachother and bringing the Courts into their personal drama/affairs. Joint Tenancy: Partition in Kind is preferred over partition by sale (Delfino) -UNLESS impracticable (actually cannot split up property) or inequitable (significantly lowers value than property as a whole i.e. splitting between 80 people) - UNLESS interests of owners would better be promoted by partition by sale

Ways to fix RAP

Estate Planners like the Savings Clause: Requires everything to vest within 21 years of Sam's death - so say something like "Sally to Ron for life, then to Sam, then to our grandchildren who are alive within 21 years of Sam's death"

Just Compensation - Eminent Domain & Issues w it

Fair market value AT THE TIME DUE PROCESS/LITIGATION BEGINS. At the outset, gov will offer more than FMV ISSUES: Takings Clause does not consider what economic value actually is or define "fair" or "just" - does not consider generational history with property - does not make people whole bc it may cost double to relocate/rebuild -FMV can also shift once due process/litigation begins (Kelo) bc property value will depreciate as more properties are sold

Types of Defeasible Possessory Interests

Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple Subject to Executory Interest

"O to A while X happens"

Fee Simple Determinable Reversion goes back to O or O's heirs automatically

Sally donates books to Shane while Shane stays in law school

Fee Simple Determinable Reversion is automatic, books go back to Sally if she is alive or her heirs

"O to A so long as X happens"

Fee Simple Determinable Reversion goes back to O or O's heirs automatically if X does not happen

Elise to Sam, so long as Sam does not spend this on candy

Fee Simple Determinable if he does spend it on candy, then reversion is automatic and goes back to Sally or her heirs

"Sally to Ron so long as he remains a professor"

Fee Simple Determinable - O has right of reverter which AUTOMATICALLY terminates A's interest if X happens (A's possessory interest will terminate automatically if the condition happens, and it has to go back to the granter, O, automatically)

"I will give Shane my books once he enrolls in law school"

Fee Simple Subject to Condition Precedent

"Sally gives her law books to Shane, but if he drops out of law school, then Sally can retake the law books"

Fee Simple Subject to Condition Subsequent Sally can decide not to take them back if she wants, so there is a right for re-entry, NOT automatic/reverter

"Sally to Ron, but if he stops being a professor, then give the books to Tulane"

Fee Simple Subject to Executory Interest B has an AUTOMATIC Executory interest if X happens; it's not the grantor that gets the property back, it's someone else.

What are the types of Absolute Possessory Interests?

Fee Simple: O to A (alienable and heritable) Fee Tail: O to A and Heris of A's body (goes back to O's line when A's direct line terminates) Life Estate: O to A for life or O to A for life, then to B (creates a reversion to O or a remainder in B)

Compare/Contrast Owning Moon v. Owning Intellectual Property

General view is that the first to possess or claim that they have acquired, wins. Moon - you must possess the land. There are ethical issues with saying everybody owns the moon equally bc standards would not be equal. Tragedy of the commons. Domain name - First to file the patent gets to own it, and it is yours until you choose to sell it.

Are covenants good?

Generally, we think so. They are designed to increase the value of land (each house is worth more bc you can buy a house knowing your neighbor wont turn it into a junk yard), and houses in these neighborhoods are worth a lot of $ HISTORICALLY THO they have been pretty discriminatory (Shelley v. Kramer)

Defeasible Possessory Interest

Gives A an interest in the property now, but that property is subject to a condition

Tenancy by Sufferance (Hold over tenant)

Going beyond what the term was on the lease. You can say you have a periodic tenancy so long as the person keeps paying, but if you stop paying you are at a "hold over"

Virginia Coal example for Regulatory Taking Test

Gov said ppl in Virginia area cannot dig out coal from a certain distance. It wasn't physical. They use the balancing test: 1. Economic Impact on the individual landowner (large/small) 2. individual landowners' investment-backed expectations (bought the land for the coal) 3. what was the nature of the government action (to improve health, safety, welfare)

Requirements of Zoning Ordinances

Government can create zoning ordinances provided that (1) the ordinance is not arbitrary (or irrational) (2) it has to be significantly/ reasonably (lesser standard) related to the health, safety, [morals,] or welfare of the general public. - Police powers of the state via 10th Amendment says states have the right of police powers and they can use those powers to protect the health safety morals and welfare

Dissent in Vincent v. Lake Erie

Having a dock means you should have the knowledge that storms will happen and you therefore understand the risk. If the boat's captain exercised due care and lawfully tied the boat to the dock when the storm hit, he was not at fault and should not be liable for the damages.

Separate Property Jurisdiction Problem: One party makes substantially more than the other party and marriage dissolves. Can the party who owns more walk away with all that is his/hers?

Historically, yes. If I earn it, it's mine. -Norris v. Norris: Wife doesn't work, husband is breadwinner, husband buys all real estate [did not acquire in same title, possession, time, interest] married for 22 years. Wife gets $0 after dissolution of marriage, husband gets 100%. Wife gets nothing of real estate because did not meet all requirements for acquiring property. Equitable Distribution Statutes (only occurs at divorce): Identify assets acquired during marriage and divide equitably at divorce. Refuting Norris v. Norris - establishing rules, regardless who breadwinner was, that each party gets some shared interest in property.

Due Process - Eminent Domain

Homeowner can express their concerns about legitimacy of Taking and negotiate at City Council meetings e.g. if price offered to them is actually FMV

Loss of Bargain Example

Hypothetical: What happens when you buy a house and you decide to put a $1M offer down but then you back out of the contract. Now the seller is left high & dry. Seller sells the house. Turns out when you made your offer, the true fair market value of the property was only $750k. You back out, seller says they have to sell it lower and a reasonable person will only pay $750k. Seller sues for loss of the bargain damages of $250k.

John Locke's Labor Theory

Idea that "I own anything I put my labor into", provided that I'm not being wasteful and it's something that I actually use

Color of Title

Idea that you have SOME title because you TRIED to purchase the property through a real estate transfer. Some jurisdictions will say that your possession is adverse to everyone else's because you thought you bought the land. This is bc of the frequent inconsistencies and flaws in property descriptions: surveys are difficult to do (old surveys are copy and pasted over and over again) and old titles and descriptions weren't based on advancements we have today (they used old landmarks to describe the land that probably aren't here anymore - old church or stream that no longer exists in the same place).

Exception to Tenancy at Will

If there are restrictions/conditions that create a perpetual right to lease the land, then it is not a Tenancy at Will (Philpot v. Fields - lease said term of 20 years so long thereafter as the lessee uses the premises for maintaining natural gas equipment, and lessee did, so lease could not be terminated after 20 years were up)

"Bad Faith" Tresspass

If you do not know that property is private and you trespass, it is still a trespass Bad Faith trespass is when you obtain the knowledge that something is private property and you choose to disregard it and trespass anyway.

Partial Performance in Real Estate Contracts

If you engage in performance to further the contract then that would be considered partial performance E.g. Hickey v. Green, selling old house to buy new house

Limitations to Right to Destroy

If you say in your will "pls destroy all my dildos" the Court may find that your dildos are so valuable that they should not destroy them. E.g. Justice Black's legal writing probably wouldn't be destroyed if he said so in his will, but typically if people want their shit destroyed then they will just do it themselves before they die

What does NOT constitute a Taking?

Impermanent invasions E.g. temporarily flooding 10 farms in order to save 1,000 properties Fire zones in California - no due process bc needed in emergency, no time for litigation - just compensation provided, although does not consider sentimental value

Doctrine of Waste

Imposes a duty on the life tenant to use ordinary care when using the property so that such use does not cause material and permanent injury beyond ordinary wear and tear or infringe the rights of the future interest holders (committing waste)

What if you do not adversely possess the land for a long enough time?

In meeting the time period requirement for adverse possession, successive owners of a property may add their occupancy times together where they share privity in the ownership interest (Kunto) Tacking: If you do not have sufficient time and you have privity of contract with your Ancestors in Title (ppl who owned the property prior) you can "tack on" or add that time to yours. Privity: There is some sort of successive relationship with your ancestor in title (contractural relationship, inheritance, will, donation) E.g. Kunto's ancestors also possessed the incorrect property and there was a successive relationship, so there is privity and tacking is allowed.

Is an embryo property?

In the context of divorce, no. If one party does not want the embryo, it will be destroyed.

Alternative to Eviction

Increase rent due to serious renovations Some jurisdictions have caps on rent increase E.g. DC only allows 10% a year

Reversion

Interest that remains with the grantor upon granting any type of absolute interest (HAS to follow an absolute possessory interest). Any time the grantor grants someone else an interest, but still has a future interest, O has reversion. E.g. "O to A for life" = O has a reversion based on time which automatically comes into existence at termination of A's interest (aka death).

Elective Share

Limitation to right to Transfer If poolboy gets property in will, then the husband can say that he deserves a percentage of the property. Courts typically honor this and give roughly 50%

"Daenerys to John so long as John keeps bendin dat knee"

John has a Springing Executory Interest because John may get the property in the future, but only by cutting short Daenerys' interest. Daenerys' future interest is reversion in fee simple and applies when John becomes King.

Public Trust Doctrine

Land held in trust by government for the people to enjoy for purposes of navigation, commerce, and recreation. Doctrine prevents legislatures from granting private corporations title to submerged lands held in trust for the public. Strong public interest in maintaining land that is held for the public in trust because one person could be benefitting (company) at the expense of the public.

Indian Lands Case

Land title transfers are only valid when made under the rule of the currently prevailing government (Land title transferred by Indians to private individuals under foreign rule before American Revolution are not recognized in U.S.)

Eviction Limitations

Landlord cannot use statutory process of evicting a tenancy at sufferance without a legitimate business reason/ just bc you don't like the actions the tenant brought against the landlord. (Retaliation Case)

"Lena to Leo for life, then to Elise"

Leo = possessory interest in life estate Elise = future interest is Vested Indefeasible Remainder in fee simple absolute bc she is an ascertain person and it is not based on a condition precedent (she doesn't have to do anything before getting property)

Sally to her poolboy for life

Life Estate - when poolboy dies, property will revert back to Sally's heirs, like her daughter or husband

Why do we presume Fee Simple?

Life estates hold property up and keep it out of commerce. We are worried what the life tenant will do with the property and what it will cause for a remainder man.

Easement Termination

MA(CE)E RANA (1) Agreement (sometimes you can pay the DE to remove it) (2) Merger (buying property to remove servitude on it bc no servitudes on your own property) (3) Abandonment (on-use does NOT terminate servitude in Common Law; have to demonstrate you no longer want to use property e.g. telling someone ON TOP of not using it for X years) (4) Release (DE can release SE-not other way around- should be done in writing but if not writing then estoppel) (5) Condemnation & Eminent Domain (gov. can terminate) (6) Necessity (if servitude/easement created by necessity, it can be terminated when no longer needed) (7) Adverse Possession (SE can block off servitude so long that they acquire it back) (8) Estoppel

Right to Destroy

Make property non-consumable and render all value completely useless. Typically unlimited rights to destroy your own property - except for things like burning your house down

Joint Tenancy Jurisdiction

Many jurisdictions say JT is a win-win bet so they only recognize Tenancy in Common.

Examples of what you should tell a buyer if you are selling a house (Marketable/Merchantable)

Marketable/Merchantable Title: Encumbrance over the house, litigation surrounding the house, or some other defect with the title that would not be readily available to the buyer - Guarantees that there is not defect or probability that someone will make a claim that you would not reasonably be aware of if you are the buyer E.g. Seller would have to tell buyer that there was litigation, & if a neighbor is making a claim some of the property is theirs & any violations of restrictive covenants

Provisions for Remedies w Real Estate Contracts

Marketable/Merchantable Title: Notion that the title is not subject to reasonable doubt that would create a just apprehension of its validity in the mind of a reasonable, prudent, intelligent person. -When I sell title, there is nothing in the contract or about the house that I, as a reasonable person, should be suspicious of whether or not there are any issues. Reasonable buyer should not be suspicious of purchasing title.- Guarantees that there is not defect or probability that someone will make a claim that you would not reasonably be aware of if you are the buyer Duty to Disclose Defects: Seller has to tell buyer about any defects on the property. Defects are physical problems with the property, like leaky roofs. -There are some defects that you will not know about until much later under certain conditions

Tenants in Common

May have different ownership interests (does not have to be 50/50, can be 25/25/50). Always able to partition and get out of co-ownership No right of survivorship - goes to heirs of deceased. It's something you want to ensure you can leave to others. B would not receive A's interest unless B was the heir of A or A left the property/business to B in will

Waste Jurisdictions

Minority Rule: you cannot materially alter property at all, even if it increases in value. -Also say if you contribute to ameliorative waste, then changed conditions is a requirement Majority Rule (American idea of ameliorative waste): You can materially alter the property as a life tenant if the material alterations result in value of property going to the remainderman is worth more than it would have otherwise been worth if you had not made alterations. -Changed conditions is not a requirement, but a consideration. Can be ameliorative waste even without changed conditions and be ok

Leading case on body as property

Moore, cell line case You have to show ownership interest in body part, and Moore did not expect to retain possession of his cells after removal and they were not unique to him (everybody has them). This is not conversion because only property can be converted, and this was not Moore's property. Court worries that extending conversion law into research or cells will hinder productive and useful research & civil liability.

Purchase Agreements Include (4)

Mortgage Contingency Clause - saying that if the prospective buyer cannot get a mortgage within a fixed period of time with the specified terms, the buyer can call off the whole deal and get back his deposit. -Buyer will lose earnest money but will not have to pay for everything else. Remember: Cash sale = no mortgage needed

Future interest is held by someone other than the Grantor

Must assess the time at the moment the document creating these is executed (time of death or a will) Vested Remainder Contingent Remainder Executory Interest/Limitation

Right to Transfer Limitations

Must disclose information like leaky roof or presence of ghosts; tenancy by sufferance, warranty of habitability Cannot violate RAP Discrimination (although can contract around it) Jurisdiction Split Cannot happen if gov is exercising Eminent Domain Adverse Possession Separate Property Jurisdictions - UPC elective share

Right of Reentry

NOT AUTOMATIC "O to A, but if X happens, O has the right of reentry" -Grantor has to exercise right of reentry if X happens, it doesn't happen automatically - A has a current interest *Follows Defeasible -> Fee Simple Subject to Condition Subsequent

Purchase Agreement Clauses

Names & Identification Legal Description of Property Purchase Price - Earnest Money Mortgage Contingency Title Insurance Buyer's Right to Inspect Property

If spouse makes huge contribution and investments in other spouse's career, what constitutes marital property?

Nature/extent of the contribution by the spouse seeking equitable distribution, not nature of career (licensed or otherwise) that determines the status of marital property. (Elkus v. Elkus - opera singer case)

What if you damage something trying to protect yourself from a natural disaster?

Necessity caused by an "act of God" or other disaster resulting in an inability to control movements justifies entries upon land and interferences with personal property that would otherwise have been trespasses. Ploof v. Putnam HOWEVER, any time you damage property, you are liable for the damage you caused. Owner still gets damages for injury caused to property.

Arguments Pro and Con for Body as Property

No bright line rules, but we don't want to say body is property. Pro: Organs are property and can be donated - transferred Con: 14th Amendment concerns, we don't want to say humans are property and they can be sold because that coincides with slavery

Tenancy at Will

No set time period, landlord is in control. Either party can terminate for any reason at any time, but as a general matter (primarily bargaining matter), landlord is benefitted more and has more control. MUST GIVE NOTICE THO. Typically not very long, depends on jurisdiction. Usually 30 days notice but could be as short as 10 Courts typically avoid Tenancy at Will if there is a debate over the tenancy

RAP violation? "Sally to Ron for life, then to our children"

No. Children will receive property within 21 years of Ron's death under the two scenarios: -If one child is alive at the time of execution then the children are a Vested Remainder Subject to Open. Possession would happen automatically upon death bc a child is alive. -If no child is alive at the time of execution then children are a Contingent Remainder. They can still have it within 21 years if Ron left his sperm

Can someone demand a use to your property for business purposes?

No. A man can keep anyone off of his property that he wishes - trespassers. Jacque v. Steenberg Homes Established that without exclusion, ownership is hollow, and therefore it is the most important right to property

Does the Rule Against Perpetuities always apply?

No. Duke of Norfolk's Case - Henry Sr.'s will violated RAP and would have given his two properties to Henry Jr. The Court considered Sr.'s intentions and held that that giving both properties to one son was not what Henry Sr. wanted, so they ruled in favor of Charles.

Do you own the air above your house?

No. We own so much of the space above the ground as we can occupy or make use of Without possession, no right can be maintained. (Trespass to Land/ Conception of Property) Guy seeks injunction of planes over his house. Flight over the house is not trespass. Hinman v. Pacific Air Transport Ad coelom: Owner owns the ground below and the sky above - NOT the law

Limitations to Right of Reentry

Not automatic, only happens if Grantor exercises right Usually statute of limitations for reentry

"Sally to Ron but if Ron stops being a professor then Sally has a right of reentry"

O has right of reentry she must exercise if X happens (If condition occurs, O has to exercise her right to take back the thing, DOES NOT happen automatically)

Law of Finders

One who takes possession has a PRESUMPTION of ownership. Common law rule is "finders keepers" - finder of an object has superior rights to anyone except the rightful owner. Hannah v. Peel (finder of lost brooch on someone else's property has right to that chattel superior to the rights of the property owner bc property owner was never physically in possession of the house at the time and had no knowledge or control over brooch) Civil law - "finder keeps 50%"

Right to Transfer

Original right that everyone had. All ownership principles date back to the Norman Conquest of 1066, when the King owned all property, so when you died, property went back to King. Very unworkable system obvi so now we have the current system: Ways to transfer property: (1) Escheats - "returns to the State" - the state can allocate your property (2) You can transfer your property when you die (3) Real Estate Contracts - selling property

Right to Exclude

Owner has broad right to exclude any other persons from his property, subject to liability for trespass, if they intentionally enter or cause a thing or third party to - privilege is only exception

Bundle of Sticks

Ownership is the bundling of sticks that represent rights: Right to Transfer Right to Exclude Right to Include Right to Destroy Right to Divide Remember: because we all have these rights, people can use them against each other i.e. discrimination. Gov tries to prevent this.

Theoretical Arguments Pro and Con for Eminent Domain

PRO: Framers were concerned that the government might have a better understanding of how the property should be used. E.g. these are where the roads lead, this is where our trading post is, etc. -Framers believed that there are types of public services that we think government should be able to provide via developments/ improvements that individuals can pose a limit to CON: However, if you don't feel protected in your property rights, then you have no incentive to develop it. You won't invest in your property if you think the government might come and take your property

What constitutes a Taking?

Permanent, physical occupation of the property (however small) by the state or a condemnation of the property (Loretto)

Why would anyone encourage a "bad faith" state of mind in adverse possession?

Person intended to steal the land from their neighbor has actually substantially considered how to use the property. Maybe the person trying to steal the property is the person who is more deserving of the land because they would use the land more efficiently.

How do you measure RAP?

Pick the measuring life and add 21 years to the measuring life from the date of the measuring life's death. E.g. Sally to Ron for life, then to Sam if she reaches age 20 or older. Measuring Life = Ron Once Ron dies (regardless if it's today or in 10 years) Sam will be at least 20 years of age within 21 years, so her or her heirs (if she dies) will be able to acquire the property within 21 years. No violation of RAP

"Sally to Sam so long as Sam maintains above a 3.5"

Possessory Interest: Sam - Fee Simple Determinable Future Interest: Sally - Possibility of reverter Sally's possibility of reverter applies IF Sam stops having above a 3.5

Examples of reasonable objections by a landlord

Potential lessee wants to use the land for a different use The lessee cannot afford the cost of rent

Public Use - Eminent Domain

Pretty broad, anything where there is a public benefit. 1. Curing Blight - abandoned property becoming dilapidated Exception: if one un-blight home in a neighborhood of blight, gov can still take it (Kelo) 2. Giving land to someone else is considered public use (taking family private property to large housing development is part of public good = eminent domain allowed) 3. Prior to 2005 military use and interstates were considered public use Difficulty in defining it bc some say it should be for fighting a public problem, but that's open to interpretation e.g. poverty could be a general public problem used to justify it even if development took away people's homes

How do you prevent adverse possession?

Prevent squatters' adverse possession by allowing someone to patrol your land at least once a year to monitor it

Water Ownership (living near water)

Prior Appropriation (west of mississippi): Rule of Capture applies Riparianism: Rule of Capture does not apply because person first in line would consume and occupy all water/water resources. E.g. If you are a mill owner and you have always been using 100 gallons a day from the river (adverse possession, 20 years), you should still be able to use that same amount of resource. Tyler v. Wilkinson

Uniform Probate Law

Process of rules and regulations you go through for transferring your property at death. Your spouse can argue their right to some of your property based off of how long you have been together. E.g. 3 years together and getting little v. 15 years of being married and getting more

Private Property

Property owned by individuals or companies, not by the government or the people as a whole (no matter how many individuals own it)

Exceptions to the Right to Exclude

Property rights are not absolute. -Necessity: (1) when lives are at stake (Life-saving circumstances - Ploof v. Putnam) and (2) if human/fundamental rights are at stake (State v. Shack) -Discrimination -Nuisance law -Eminent Domain -Zoning ordinances

Common Property

Property that is not owned by an individual, gives many individuals the right to use the property, and no single user could exclude other authorized users (could also be property owned by the State). E.g. highways, roads, public parks

Limitations to Right to Include

Protecting natural resources. E.g. restricting offshore drilling because tourism brings in more money

Zoning Ordinances

Public law (local, country, or state gov) saying there are rules that are imposed on your property Remember covenants & servitudes are private law

First step in buying a house

Purchase Agreement

Purchase Agreements Include (3)

Purchase Price - Earnest Money (not the downpayment & nonrefundable - it is the money you put down to show you are serious about making the offer) -Subtract the earnest money payment from the purchase price to calculate what is owed. -Buyer get earnest money back if seller defaults - but if buyer backs out, likely will not get money back

If your property is being adversely possessed, what remedies do you have?

Quiet Title: action that individual land owner can take to establish title on their property. It is an attempt to kick ppl off the land by asking the Court to determine you as the owner of the land or establish the exact boundaries of the land to allow proper sale/comfort that you are selling the correct property. E.g. Mark Zuppiger in Hawaii You can sue your real estate agent for any mistakes on the boundaries, but there is a statute of limitations to breach of warranty claims against real estate agents. Typically, the defects of your property need to be recognized within a year of purchasing it.

"Jane to Adel for life, then to Lena, then to our grandchildren"

RAP violation because we don't know when grandchildren will be born. Fertile Octogenarian Theory. Must strike out "then to our grandchildren: and reinterpret statement Now Lena could have either life estate or in fee simple

Limits on Right to Transfer

RAP, defect disclosure, discrimination, Eminent Domain, Uniform Probate Code & Elective Share, jurisdiction split. Also, typically Market-based limitations. You can transfer to whomever you want, if transfer to spouse or child -> tax free But if you transfer while alive through or transfer too much property -> gift tax applies on everything transferred Estate Tax also exists for super welathy Gift Taxes are regulatory and meant to limit the amount of property transferred.

What is the relationship between property rights and fundamental rights?

Real property rights are not absolute; and "necessity, private or public, may justify entry upon the lands of another." State v. Shack Migrant farmworkers must be allowed to receive visitors of their choice, so long as there is no behavior harmful to others.

What other adjustments can be made to the Rule of Capture?

Reasonableness and pre-possessory interests. When a person takes significant steps to achieve possession of an item, but it thwarted due to unlawful conduct of another, that person is entitled to a pre-possessory interest of the item. Popov. v. Hayashi (bc Hayashi was not involved with the mob that attacked Popov, both Popov and Hayashi have an equal, undivided interest in the ball) Courts are worried about encouraging violence

Vested Remainder Subject to Open

Remainder vested in group of takers, at least one of whom qualified to take, but each class member's share is subject to partial reduction because additional possessors can still join in E.g. B's living children in "to A for life, then to B's children"

Test if something is a Taking

Require (1) economic impact on you (2) investment-backed expectation (much harder to establish zoning restrictions if property is already built, as opposed to undeveloped land bc developer has freedom to build what they want) (3) nature of government intrusion/action (applied to entire neighborhood or just a City? Is it "good" for the neighborhood?") If significant economic impact, large investment made on property, and not entirely useful for neighborhood - Taking rules apply. (due process, just compensation, public use) If NOT, then no Taking rules applied and it is just like any other ordinance.

"Planned Community" Restrictions

Require price of home to be consistent bc you can transfer your home however you want, even if it has an influence on the value of the surrounding homes.

Real Estate Contracts via Statute of Frauds

Requires: (1) Signature of parties (some place require a notary, issues are coming up with electronic signatures) (2) Description of the property (3) Name the price

Progressive Property Theory

Response to Law & Economic Theory re: Tragedy of the Commons. Nobody follows this theory, but it is commonly discussed. Says focus should be on the Right to Include rather than Exclude - on how we can work to create property laws that are inclusive of everyone & create more common property. I.e. local community gardens Says Right to Exclude could result in single person owning all of NYC. Land is scarce, people get displaced

Covenant

Restrictive Covenants Usually negative, preventing someone from doing something on your property.

Restrictive Covenants & marketability

Restrictive covenants themselves are not a statement of marketability, but a violation of them is. Even if they are not necessarily aware to the public, if a seller knows about it, a reasonable person may not. This impacts the quality of a buyer's ownership and the seller should disclose them because such violations could expose the new homeowner to the risk of litigation (Lohmeyer)

Sally to Sam for 10 years

Reversion Time limits are NOT conditions, so this is still an absolute interest. Sally's reversion applies in 10 years.

When the Grantor is the future interest

Reversion Possibility of Reverter Right of Reentry

Co-Ownership

Right to survivorship

"Sally to Ron for life, then to Sam so long as Sam graduates from High School"

Ron - Life Estate Sam Future - Vested Remainder or Contingent Remainder Sam Possessory - Determinable or Fee Simple Absolute Sally Future - Possibility of reverter Sally's possibility of reverter applies IF Sam does not graduate from High School

"Sally to Ron for life, then to Sam, if Sam survives Ron"

Ron has life estate Sam has a Contingent Remainder because it is based on a condition precedent (Sam surviving Ron) Sally's reversion MAY apply when Ron dies, but only if Sam predeceases Ron.

How are zoning ordinances legal?

SCOTUS says cities and counties can do this under their police powers (10th Amendment - use powers to protect health safety morals and welfare) Cannot discriminate protected classes via 14th Amendment (race, ethnicity, religion, country of origin, etc.) Permanent but not physical occupation of land so it is not a 5th Amendment Taking (but it is a regulatory taking) Difficult to strike them down - typically in cases where a particular ordinance hurts population (e.g. unnecessary buffer zone in Cambridge)

Argument FOR the Murphy Exception

SCOTUS says if you sell home to someone, we won't say that the sale was discriminatory bc you sold one house - it'll be difficult to prove. Renting economy could dampen if small-scale landlords are vulnerable to civil rights lawsuits = less housing bc landlords remove houses from market

"John to Sam for life, then to Arya if she reaches age 20 or older"

Sam has a life estate Arya has future interest in a Contingent Remainder because she is ascertained but there is a condition precedent of turning 20 years old. Possessory interest is defeasible-determinable because she has to live until 20. John has future interest in possibility of reverter. No RAP violation because either John or Arya will receive the property within 21 years of Sam's death

"Sally to Sam, but if Sam drops out of high school, Sally has the right of reentry"

Sam- has defeasible possessory interest, does not go back to grantor automatically so it is Fee Simple Subject to Condition Subsequent Sally- future interest is not automatic, so right of reentry

Law & Economics argument against Progressive Property

Says progressive property only works in small-scale examples, like community gardens because people can be held personally accountable. Like going to your neighbor Becky and being like "yo why didn't you water my lemons?!" Can't do that with any pass concept like an entire City, it would be infeasible and extremely difficult.

Trusts

Settlor (creates the trust) -> Trustee (holds fee simple of estate and manages estate pursuant to settlor's wishes) -> Beneficiary (receives the income or benefits of the estate)

Tenancy by the Entirety

Similar to Joint Tenancy, but parties must be married Benefit is that if one partner dies, other partner gets automatic interest in the house. -Right of Survivorship (deceased spouse's interest automatically goes to surviving spouse) -TITP requirements + applies ONLY to property acquired while married E.g. paycheck only goes to Sally, not Sally and Ron -not same title or same interest -Partition by Sale preferred bc divorcees don't want to live next to eachother

Harms v. Sprague - Tenancy in Common v. Joint Tenancy

Since it's a Joint Tenancy, John's brother should automatically get the property - you can't leave your JT interest to someone else If the brothers were Tenants in Common, the mortgage would have survived bc you can do whatever you want with your % of the property in TC - exclude people, transfer your interest, put an encumbrance on the interest

Executory Interest

Someone's interest is cut short, either the Grantor or someone other than the Grantor Shifting Interest Springing Interest

Heirs

Spouse, Descendants (children or grandchildren), Ancestors (parents, grandparents), collaterals (brothers, sisters, uncles, aunts, cousins)

Remedies for breach of real estate contract (Statute of Frauds)

Statute of Frauds 1. Partial performance: Hickey v. Green; what affirmative actions has the party taken that would further the contract? 2. Estoppel: Occurs if there is an unconscionable injury that would result in the denial of the enforcement of the contract (Hickey also has this argument, specifically given Gladys knew that they were going to sell their house as a result of buying her house) -Based on fundamental fairness 3. Damages: giving back the earnest money

Adverse Possession Jurisdictions

TIME PERIOD fluctuates between jurisdiction (average 7-10 years) -Common law is worried about theft - third parties that buy stolen goods, wants to protect people and their purchases. -Civil law: There is less time for personal property because as a general matter, personal property will be cheaper than land, the law wants to protect interests that are worth more money. In LA, you have to possess land for 30 years. If you want to possess a coffee cup, you have to own it for 10 years. Some jurisdictions consider the STATE OF MIND of the adverse possessor (1) Neutral (majority of jurisdictions)- doesn't matter what they're thinking, subjective state of mind is irrelevant. They may or may not know if they are stealing the property, still adverse possession. (2) Good Faith (1/4 to 1/3 jurisdictions) - when A builds over B's land by 5ft, A needs to subjectively believe that they are the owner of that 5ft part of land. A cannot know that they are taking B's property - sometimes Color of Title plays in here as well E..g. Must show that adverse possessor had good faith at the time possession commenced (very hard to prove as a general matter when they are speaking on behalf of themselves, let alone someone else) (3) Bad Faith - Need to know and intend to steal the land

Joint Tenancy Requirements

TIT-P (like titty but with a P) 1. Time - interest must vest simultaneously - at the same time as others 2. Title - co-tenants must derive their title from the same instrument - all have to sign the same paper/title/document 3. Interest - interest has to be the same (50% of the same part of the property) 4. Possession - have to take possession and have the right to possess the entirety of the property. Can't have A possess the front half and B possess the back half E.g. Bank accounts

Servitudes

TWO ESTATES OWNED BY TWO DIFFERENT PEOPLE Covenants & Easements; include Dominant (benefit) & Servient (burden) Estate In gross = personal easement that runs with person Appurtenant = easement that runs with land Covenants ALWAYS run with land and are therefore ALWAYS appurtenant

Partition in Kind

Take a line and draw it down the middle. If it's a 60/40 split, then a line would be drawn there and the property is split. -This is preferred because we assume people buy land for a particular reason and put effort/investments into it, so we want to honor that

Fifth Amendment Requirements

Takings Clause - Eminent Domain 1. Have to give you due process 2. Have to give you just compensation 3. The use that is being made must be a "public use"

Types of Tenancies

Tenancy for a Term (of years)- automatic Periodic Tenancy - automatic Tenancy at Will Tenancy by Sufferance (Hold over Tenancy)

Issues w Tenancy by Sufferance

Tenancy for a term -> Periodic Tenancy -> Tenancy by Sufferance Issues of "hold overs" is stability. Courts have said the longer the tenant is allowed to hold over, the more rights the tenant can get. Typically want to try to shift these into some other type of tenancy because there is not a lot of precedent on this. -Landlord has to go through an eviction process if they want to get the tenant out. -Have to get tenants out through eviction proceedings, which is more complicated of a process

How does privity work with squatters?

There is no successive relationship between squatters unless it is donated. If X starts living in a tent in someone's backyard and gifts the tent to Y (even though X doesn't actually own the property), this creates a successive relationship between X and Y, and therefore privity would exist.

Issues with Tenancy at Will

Tenant can lease the property until the landlord says that they cannot lease it any more. The tenant is at the will of the landlord. -They can say that the lease is up in a month - so you would have to be out April 26. Sometimes they only have to use a 15-day warning -There is not an unlimited amount of land in the world, so because people need places to live, Tenancy at Will creates issues because if a tenant cannot find a new place, they are homeless. -Landlords may be forced to lower the prices so that someone else will move in, or they're left without anyone renting and they will lose all income and lose the house. *But there is an imposition that the issues are more difficult for tenants than landlords.

How do you terminate a joint tenancy?

Terminated when any of the 4 TITP requirements are severed, such as buying out other ownership, selling property and distributing among owners, if partition action is filed so heir can sell his/her stake. Once it is terminated, it automatically becomes a Tenancy in Common.

Vested Remainder

The future interest has to be (1) given to a specific, known, and alive person (person has to be ASCERTAINED) and the future interest (2) cannot be based on the occurrence of a condition precedent *if these two conditions are NOT met, then it is automatically a Contingent Remainder*

Vested Indefeasible Remainder

The holder of this remainder is certain to acquire an estate in the future, with NO STRINGS ATTACHED. Know who the person is; no way for that person to change. "Sally for Ron for life, then to Sam"

Externality

The idea that you may not feel the negative consequences that you create - when property is used, you create those consequences from your actions. The consequences are passed onto the rest of the users of the resource. E.g. reducing amount of grass others can graze

How does Rule of Capture differ between property items? (water)

The industry and customs play a large impact with how the Courts will legally assign what it means to capture. Riparianism/Riparian Landowner - East of the Mississippi, has right to use water and take a reasonable amount of water as it passes through their property because it's easy to say that everybody can obtain some of the water when there is a generous/copious amount of it. There are "bowling lane" properties in these areas - small tracks of land abutting the water so multiple people can claim riparian ownership. (Tragedy of AntiCommons) Prior Appropriation (West of Mississippi), first to use and first to capture trumps others. Water resources are finite and limited, so if CA farmer A uses 100 gallons a day, farmer B can use water for their farm after A captures their 100 gallons. Pro: allows farmers to maintain consistency bc they built their farm with the ability to use the resource Con: does not mean this is a good use of the resource bc it encourages people to use it wastefully by being the first

Limit to Fee Simple Subject to Condition Subsequent

There is usually a limit to how long you have to go back and collect the books. The timeframe (depending on jurisdiction) is usually pretty short. You may also contract saying that you have the right to retake the property within 3 years

How does Rule of Capture differ between property items? (animals)

The industry and customs play a large impact with how the Courts will legally assign what it means to capture. Smaller land animals are easier to shoot and retrieve immediately, so "capturing" the animal is more likely to be taken at its literal sense with regard to the Rule of Capture. This is also more due to custom. Large marine mammals like a whale are not possible to allow for a literal view of the Rule of Capture. It's impossible to immediately retrieve a fin-back whale because they sink when killed, so "capturing" it is when the fatal blow is given. If it were taken in the literal sense, it would decrease whale hunting (I'm v ok w that) and serious competition would arise because people would merely wait on the shores for the carcasses to arrive.

Rule of Capture

The person who captures (takes possession) becomes the owner. Possession is 9/10ths of the law, and this is how people regularly come to acquire things. "First possession" is important to how we apply ownership because it becomes the underlying rationale for why we allow people to own certain things. e.g. The owner of an oil or gas well could claim all that is pumped from it, regardless of whether the oil or gas migrated from adjacent property

Future Interest Holders

The person who gets the property after the property interest is the future interest holder. Two types: (1) when the grantor is the future interest holder and (2) when someone other than the grantor is the future interest holder Keep in mind that future interest may never happen because it's based on a condition

Coase Theorem

The proposition that if private parties can bargain without cost over the allocation of resources, they can solve the problem of externalities on their own. If transaction costs are zero, individuals will reach an efficient solution regardless of how property rights are assigned.

Escheat

The state takes property upon an owners death if there is no will & no heirs exist.

Limitations to Right to Transfer

There are ways around discrimination, so realistically the ability to transfer is pretty unlimited. But it is limited to: Uniform Probate Code (UBC) Elective Share

Warranty of Habitability

There is a baseline level of habitability for apartments. Has to be safe, clean, and maintained. This is a duty that is implied in every lease and required, it cannot be waived. -Apartments cannot contain: Rodent infestations, security issues, lack of utilities (doesn't have to be affordable, just has to work) -Shifts the burden to the landlord for fixing problems.

How do Courts deal with RAP violations?

They remove the part of the statement that does violate RAP Some courts will even go against the wishes of the Grantor with RAP because they don't want people like Henry Sr. tying up land. Grandchildren will always be subject of RAP violations.

Law & Economics Theory

This is the dominant view in response to Tragedy of the Commons, says private ownership is the solution because that prevents overuse. Says Right to Exclude is the most important bundle of sticks, some even argue without it then you don't truly own property

How could the Court decide in Wilcox? (Civil War documents and selling to third party)

Three ways the court can go: (1) finders keepers, so Wilcox owns (2) these papers are public property and never could have been subject to private ownership, so they have always been owned by the State (3) Wilcox had a presumption of ownership, but it was defeated bc the State can show evidence (i.e. that these were written by a past government) so therefore they belong to the State

Squatter's Rights

Throwing squatter out that has been in possession of the property for a significant time would require some form of legal action. The court will have to determine the true owner and then evict the squatter. Squatter may be able to recover for the improvements to the home. Once the civil suit begins, the squatter's counting of time stops.

Purchase Agreements Include (5)

Title Insurance: Guarantees what the seller is selling the buyer is what the seller owns. Protects against Howard v. Kunto cases where there are incorrect titles and douches making it a problem

Right to Divide Issues

Tragedy of the Anti-Commons (dividing your lot between your 30 children) Subdivision is restricted bc of this

Consequences of Common Property

Tragedy of the Commons

Consequence of Private Property

Tragedy of the Uncommons

When is Partition by Sale preferred?

Two times that a Partition by Sale would be preferred: 1. The physical attributes of the land are such that a partition in kind if impracticable or inequitable; -Impracticable: if you actually cannot split up the property -Inequitable: if the pieces partitioned are significantly lower in value than the value of the property as a whole (e.g. if property is owned by 80 people and splitting it up would leave each person with tiny portions of the land) 2. The interests of the owners would better be promoted by a partition by sale

Temporal Effect of Zoning

Typically when there is a new ordinance in conflict with old ordinance - "first in time" gets to win Ordinances can grandfather in anybody who is there or you engage in a Taking

Courts' preference with types of Tenancies

Typically will interpret as Tenancy for a Term or Periodic Tenancy because they want to give stability to tenants

Tenant Remedies

Typically, withhold rent. 1. Tenant stays on the property and sue the landlord for damages. Damages would be the harm that you experienced as a consequence of the poor living conditions -This would require the tenant to still pay rent, though 2. Tenant can move out, stop paying rent, terminate the lease. Landlord may sue for breaking the lease. Tenant would say in violation of the warranty of habitability, the lease was cut. 3. Tenant can stay on the property and not pay rent. Landlord would sue for eviction, but now litigation will discover that rent was withheld because warranty of habitability was violated. 4. Tenant could repair the defects. Subtract the cost of repair from the rent. -E.g. if extermination costed $800 and rent was $1000, then only pay $200 rent.

Covenant Termination

U-MARCEL REM - same as Easements 1. Release of Covenant (covenant leaves when ppl leave property - commercial typically includes release in lease - must b in writing) 2. Estoppel (made promise and you have to follow through) 3. Merger (buy property that has covenant) ^^ THESE ARE THE SAME AS EASEMENTS ^^ vv THESE ARE NOT vv 4. Acquiesce (no enforcement and enough people violating it, entire covenant removed - hard to prove tho bc no bright line rules w time and # of people) 5. "Unclean Hands" Idea (can't be a hypocrite asking for enforcement if you too are in violation) 6. Latches - involves ONE person, unlike Acquiesce (if single house violates it long enough then it is gone for THAT particular house) 7. Changed Conditions (usually in residential context, Courts look narrowly - has to be nearly impossible/seriously impractical to enforce covenant & land would be devalued by enforcement)

Separate Property Jurisdiction Problem: Sally dies and leaves entire bank account to pool boy, not her spouse.

Uniform Probate Code: Elective Share (only occurs at death) = When Sally dies, identify assets and value of estate. Elective share multiplies value of assets by a % (based on how long married identified by Uniform Probate Code). I.e. $1,000,000 x 15% (if had been married for 5 years). Under Uniform Probate Code, party can claim owe elective share because marriage ended by death. Party owed 15% because have been married for less than 5 years. If married for 15 years or more, elective share is 50%. -Why? Do not want breadwinning spouse to not give any more to non-breadwinning spouse (same reasons as giving money to one party during divorce). -Why divvy up by how long have been married? Accustomed to certain life style; non-breadwinning spouse may have contributed more over longer course of marriage by supporting the other spouse. Longer married = longer interest in marriage.

How does Law of Finders apply to historical documents that the State has an interest in?

Unless the State can show a stronger case of ownership through evidentiary reasons to establish title (e.g. via showing receipt of product or a witness who saw someone steal it), the presumptive, rightful owner is the finder who possess the item. Wilcox v. Stroup

Right of Survivorship

Upon the death of a joint tenant or tenant by the entirety, the deceased's interest does not pass to the tenant's heirs but to the other surviving tenant(s), respectively

Zoning Ordinances and Discrimination

Used to be discriminatory like covenants, but now they discriminate on economic class rather than race. There are zones for "single family dwellings" based on size of house, which in-turn pushes poor people out and keeps rich people in (Euclid v. Amber)

Easements

Usually affirming someone's right to do something i.e. right of passage, common driveway -Not always reciprocal (e.g. Raising Cane's not allowing customers to drive into strip mall)

Issues with Transferring Property

Vast amounts of property remain within one wealthy family for generations.

When does RAP apply?

Vested Remainder Subject to Open Contingent Remainder Executory Interest/Limitation - Springing & Shifting

Why is RAP important?

We are concerned with one individual person being able to make restrictions on property that will affect people and the world 100 years from now. Dead Hand Control.

Issues with Life Estates

We are worried what the Life Tenant could do with the property because he could gamble all of the money away and leave the Remainder Man with nothing. (but the Remainder Man does have some rights)

Testator's Intent

What O, the writer of the will, really meant and intended

Tragedy of the Anti-Commons

When numerous economic agents have divided property rights in a particular resource, they will not act in accordance with the group's best interest This dividing of property becomes infeasible because extreme private ownership would result in 1. underuse of the property because splitting up the land would create small, useless portions of land and 2. difficulty to use the property because attempting to have multiple people contract into combining land to graze would be expensive and difficult to manage

Unjust Enrichment

When one party has benefitted at someone else's expense/detriment. That party is expected to pay that person back for the harm done. *related to the Right to Exclude

What if a will is ambiguous? (possessory interest)

When the terms of a will are ambiguous, there is a strong presumption that a fee simple absolute was intended (White v. Brown) So, be specific in the will and avoid all ambiguity

Dead Hand Control

When you're dead or alive, you can dictate property

Duty to Disclose (Desirability)

Where a seller of property knows of facts materially affecting the value or desirability of the property that are not observable or known to the buyer, the seller has the duty to disclose them to the buyer. (Johnson v. Davis) E.g. When there is a defect that would impact this particular buyer's desire to buy the property (e.g. they buy it because they want to grow a garden but the seller put gallons of RoundUp on the land) - Seller has to know the buyer's purpose

What if you hunt down an animal and it dies on private property?

Wild animals in theory belong to the hunter, but once it is on private property, by reason of the soil, the property belongs to the private owner. However, using John Locke's Labor Theory, the hunter put labor and energy into hunting the animal down. He was not being wasteful and the animal was something he could use in the nature of hunting, so it is the hunters. Changing the rules would result in wasteful and inefficient hunting, as well as change people's expectations.

Are "all tenants created equal"?

With regard to high-rise apartments, yes. Usually the same rules apply: mitigation applies, landlords have to to try re-let the units, and there is an incentive to have all rooms rented. Members of military: landlords used to discriminate against them because assignments were short-term in nature and they moved frequently. Congress passed statute saying landlords have to mitigate damages and automatically eat costs if military personnel had to cut their leases short. Migrant workers: No. Congress has yet to pass a statute to protect them. This puts workers who are likely to leave at a disadvantage to find housing.

Tenancy in Perpetuity Issues

Worried that businesses will have a lease continue for a specific reason even when things change. E.g. Exxon having a lease in perpetuity, but oil is no longer popular, so the land should be used in other ways Typically will be shifted to a Tenancy at Will

RAP violation? "Sally to Ron for life, then to our children once they turn 25"

Yes, RAP violation. Ron has a life estate - he is the Measuring Life. Children have a Contingent Remainder because they are subject to condition Precedent (being 25) -Sally could have a child the day before Ron dies, so therefore the children will not all be 25 within 21 years of Ron's death. ~This now translates to "Sally to Ron for life" - you remove the violative clause - and once Ron dies, it falls to Sally's heirs who have a Reversion in Fee Simple. *Remember: since this said "our children" as B, the entire classification of people have to fit the RAP requirement. So ALL of the children have to be 25, not just Sam or the eldest.

RAP violation? "Sally to Ron for life, then to Sam, then to Sally & Ron's grandchildren"

Yes, RAP violation. "Fertile Octogenarian" If any grandchildren are alive at the time of execution, then the grandchildren have a Vested Remainder If no grandchildren are alive/born at time of execution, then Contingent Remainder. Using Sam as the Measuring Life: If Sally has a child in 2050 named Ben and she has no grandchildren, and Ben doesn't have children until 2080, the grandchildren will not receive property within 21 years of Sam's death. Using Ron as the Measuring Life: Sally has Ben in 2050 and Ron dies, again, it is possible that the grandchildren will not be born within 21 years. ~It would become "Sally to Ron for life, then to Sam" *Remember, Common law looks at the possibility that Sally will continue to have children, so the entire class of grandchildren can be indefinitely open as long as Sally is alive. Grandchildren can be born after Sally dies.

Is sperm property? What happens to sperm at divorce?

Yes, in Hecht, sperm is property (although it is not distinguished directly with spleen from Colavito). In many jurisdictions, sperm/eggs are property that will be treated as such, but parties must express intent of what to do with it. In minority jurisdictions, everything made/acquired by one party during marriage is considered joint property.

Can you still own a whale if you kill it and it washes up on the shore where other people are?

Yes. We follow the custom of the industry. In Ghen v. Rich, plaintiff shot the fatal shot and therefore was the owner, he also took practical steps to secure it in accordance with local custom, so D's claim to the Rule of Capture does not apply.

Mrs. Murphy Exception & Exception to Murphy Rule

You CAN discriminate if you have "any single family house sold or rented by an owner, provided that such individual does not own more than 3 such single family houses at one time." -If landlord lives in one of the four units under one roof, landlord can discriminate however he or she wants EXCEPTION to Murphy Rule: you cannot advertise your discriminatory practices, but you can tell people about it. Started bc in 1970's ppl started saying they were the Mrs. Murphys of the world and were facially discriminating.

Right to Divide Jurisdictions

You can divide your land based off "type" - selling oak trees, pine, coal, oil, to different people for each type Common Law: Party can sell bottom half of land underground to oil company 1 and top half of land underground to company 2 Civil Law: does not allow you to divide your property vertically

Right to Include

You can invite whomever you want into your property.

"Pay purchase price in cash" or "all cash offer"

You have to have the money ready by closing. Buyer is saying even if they cannot get a loan, they can still get enough money to pay the entirety of the purchase price by closing. -Sellers like this because there is no contingency

Where does your property go if you do not have a will?

Your property and debt will go to spouse, children, siblings/parents If no heirs, Escheat (State will take it)

Zoning ordinances & marketability

Zoning ordinances do not impact marketability because a reasonable person can research a City's zoning ordinance and discover the various zoning classifications.