Property Law Midterm

Adverse Possession - Running of Statute of Limitations

15 - 20 years in most jurisdictions. In TN it is 20 years to get legal title Statute begins to run when claimant goes adversely into possession of true owner's land. Entry on to the land (entry that creates the action for trespass) Suit by owner to eject does not stop the running of the statute, the owner must take case to judgment. But if suit filed before running of statute, and owner obtains judgment after the statute runs, the judgment will relate back to the time that the complaint was filed

Problem 2 pg 177

2005

O to A and B B to C and his heirs C passes away leaving everything to D his wife

A and D each have 50% - tenancy in common

Fee Simple Determinable (and possibility of reverter)

A fee simple determinable is an estate that automatically terminates upon the happening of a stated event and goes back to the grantor. Fee simple determinable is created by the use of durational, adverbial language, such as "for so long as," "while," "during" or "until." Example - O conveys land "to A for so long as no alcoholic beverages are consumed on the premises." -- This gives A a fee simple estate b/c the estate may last forever if no one ever quaffs a brew; A can transfer the estate inter vivos, and the estate will on A's death pass by will or intestate succession. However if someone ever consumes a beer on the premises the estate will end and O will immediately and automatically become the owner in fee simple. Example - O conveys land "to A for so long as no alcoholic beverages are consumed on the premises." What happens if "A then conveys to B and her heirs" - what does B get? - B gets a fee simple determinable as well because A cannot convey more than she has. What happens if after B has received a conveyance from A, alcoholic beverages are consumed on the premises? - goes back to O Distinguish (i) based on the words of temporal limitation - "for so long as, until, while, during" - and (ii) from a grammatical standpoint, usually the words of limitation are placed within the description of grantee's estate. Possibility of Reverter (correlative future interest in grantor) - since the grantee's estate may end upon the happening of the stated event, there is a possibility that the land may revert back to the grantor. The interest that is left in a grantor who conveys an estate in fee simple determinable is called a possibility of reverter. It is a future interest because it becomes possessory only upon the occurrence of the stated event. Possibility of Reverter need not be expressly retained. It arises automatically in the grantor as a consequence of his conveying a fee simple determinable. today, in most jurisdictions, the possibility of reverter can be transferred inter vivos or devised by will, and descends to the owner's heirs if she dies intestate.

Fee Simple Subject to an Executory Interest

A fee simple subject to an executory interest is an estate that, upon the happening of a stated event, is automatically divested in favor of a third person rather than the grantor. Example - O conveys land to A church; provided, however, that if the premises shall ever cease to be used for church purposes, title shall pass to the American Heart Association. -- O does not have a right of entry because no such entry was limited in the conveyance. -- Note the similarity in the language to the Fee Simply Subject to Condition Subsequent. The difference here is in who received the future interest. Here the future interest goes to some one other than the grantor. -- Also note that the transfer is automatic upon happening of the condition.

Future Interests

A future interest is a presently existing property interest, protected by the legal system Ex: "O conveys blackacre to A for life, then to B and her heirs." B has presently existing legal rights. B can sell or give away her remainder. She can devise it by will (and it will transmitted to her heirs). She can bring action against A for committing waste. So, while a future interest does not give present possession of the estate, it is a presently existing legal interest that may become possessory in the future.

O conveys to A and her heirs (B is A's only child)

A has fee simple absolute

"To A for life, then to such of A's children as attain the age of 21" RAP

A has life estate, A's children have contingent remainder (don't know if children exist yet/could have more kids), O has reversion.

"To A for life, then to A's children for their lives, and on the death of the last survivor of A's children, to B in fee simple." RAP

A has life estate, A's children have contingent remainder for life (we don't know who A's children are so makes it contingent), B has vested remainder in Fee Simple (ascertained and no condition precedent to B taking so B is vested)

"To A for life, then to B, but if at B's death she is not survived by children, then in that event to C." RAP

A has life estate, B has vested remainder subject to complete divestment (no condition precedent but the exception for children), C has shifting executory interest

"To A for life, then to such of my nephews and nieces as attain the age of 21." (grantor's parents are still alive). Grantor has 6 brothers and 2 sisters at time of grant. RAP What if T's parents are dead? RAP

A has life estate, nephews and nieces have contingent remainder (not identified/ascertained and have condition precedent) --- Can't have anymore children. Is there a life in being now that is certain will close within 21 years? Yes brothers and sisters. Will know upon death of last bro/sis whether the nieces/nephews attained the age of 21.

Life estate pur autre vie

A life estate measured by the life of someone other than the life tenant Such an estate can be granted directly - "to A for the life of B" A's estate ends when B dies It can also be created indirectly, as when initial conveyance is "to A for life," and then A conveys to B. B has an estate which ends when A dies - Note that if all A has is a life estate, all that A can convey is a life estate. A cannot convey more than she owns. What happens if B dies and A is still alive? - goes to B's heirs

Tenancy In Common

A tenancy in common is a concurrent estate with no right of survivorship. Each owner has a distinct, proportionate, undivided interest in the property. The interest is freely alienable inter vivos and testamentary transfer. Each interest is subject to claim of creditors. Each tenant in a tenant-in-common ownership is entitled to possession of the whole estate. Example - T devises Blackacre "To A and B" .. A and B are tenants in common. If immediately following that conveyance, A conveys his interest to C, B and C are tenants in common. If B then dies intestate, B's heirs are tenants in common with C. Typical construct would be "to John J. Jones and Richard E. Roe, residents of Davidson County, Tennessee, as tenants in common." Unless otherwise specified, a deed to two or more individuals not married to each other creates a tenancy in common and conveys an equal interest to each. If the parties do not intend for each co-tenant to hold an equal interest, then the deed should specify the particular interest - for example: "to John J. Jones an undivided forty percent (40%) interest and to Richard E. Roe an undivided sixty percent (60%) interest."

Problem 2 pg 176

A wins

Ewing v. Burnet 36 US 1837

Adverse possession of an unimproved lot used principally for digging sand and gravel; adverse possession established when claimant paid taxes on lot, from time to time dug sand and gravel, permitted others to do so and stop others who didn't have permission

TCA 66-1-112

Alienability of certain future interests for purpose of merger of interests in grantee - applicability A transfer of a possibility of reverter or right of entry by a holder other than the original grantor is invalid; provided, holders of a possibility of reverter or right of entry may freely transfer the interests to the holders of the corresponding fee simple determinable or fee simple subject to condition subsequent for the purpose of merger of the interests in any grantee. This sections applies to future interests regardless of whether the interests were created before, on, or after July 1, 2015; provided, this section does not apply to any future interest, the validity of which has been determined by a final judgment in a judicial proceeding or by a settlement among interested persons prior to July 1, 2015.

Life Estate

An estate for life is an estate that is not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more person. It may arise by operation of law or may be created by an act or agreement of the parties. Life Estate is freely transferable Since life estate terminates at the end of the measuring life, there must be a subsequent interest - which interest is either a reversion or a remainder Ex: A conveys "to B for life" B has an estate in land for as long as B lives "to A for life, then to B" this is a life estate because it is measured by the life of A "to A for 15 years if A lives that long" This is an estate for years and not a life estate since the estate in A will end in 15 years.

Shortly before their wedding, a man and a woman bought a tract of land, taking title in both names They had intended to build a summer cottage there, but many years after their marriage the land was still a vacant lot. The man decided that their introverted son would have more confidence if he were a landowner; thus, the man drew up a deed conveying a one-quarter interest in the land to him. Not wanting to show favoritism, two weeks later the man drew a deed conveying a one-quarter interest in the same land to their daughter. Who owns the land? A The man and woman share ownership of the land with rights of survivorship, and the son and daughter have no interests B The son has a one-quarter interest, the daughter has a one-quarter interest, and the woman has a one-half interest C The son has a one-quarter interest, the daughter has a one-quarter interest, ad the woman has a one-half interest, with rights of survivorship D The woman owns the land

B

O conveys to A for life then A conveys to B

B has life estate measured by A's life

O conveys to A for life then A dies devising her entire interest in the property to B

B has nothing. A has nothing. O has the property

A landowner conveyed her parcel of land to "my brother and my sister jointly, with right of survivorship." Shortly thereafter, the brother was in an automobile accident. The driver of the other vehicle sued the brother on a theory of negligence, and obtained a judgment in the amount of $250,000. Because the brother did not have insurance or enough cash to satisfy the judgment, the driver levied on the brother's interest in the land. The driver will get: (a) Nothing, because the brother's interest in the land cannot be partitioned (b) An undivided one-half interest, regardless of whether the brother and the sister's title to the land is construed as a joint tenancy or a tenancy in common (c) An undivided one-half interest, assuming the brother and the sister's interest is construed as a tenancy in common and not a joint tenancy (d) A contingent right of survivorship that will vest is the brother survives the sister

B. Between sister and whoever bough brothers interest. If tenancy in common then when there's a sever you can transfer the tenancy in common during life. Either way will be 1/2 interest

A brother and a sister held real property as joint tenants. The sister was involved in an automobile accident and was sued by a motorist who had received serious bodily injuries. The jury ruled against the sister and assessed a large damages award that the sister was unable to pay in full. Therefore, the motorist went back into court and secured a statutory lien on the property. Shortly thereafter, the sister died. What are the respective interests of the brother and the motorist in the property? (a) The brother is the sole owner of the property, but the property is subject to the motorist's statutory lien (b) The brother is the sole owner of the property, and the property is not subject to the motorist's statutory lien (c) The brother and the motorist own the property as tenants in common (d) The brother and the motorist own the property in joint tenancy

B. It wasn't foreclosed so lien doesn't sever the joint tenancy

Application of the RAP to Class Gifts

Bad as to One, Bad as to All Rule The general principle that the Rule does not invalidate interests that vest within the perpetuities period does not apply to vested remainders subject to open. The class gift rule, sometimes known as the all or nothing rule, requires: the class must close within the perpetuities period [that is each and every member of the class must be in existence and identified], and All conditions precedent to every member of the class must be satisfied, if at all, within the perpetuities period. Example - O devises land "to A's children who survive to age 25" [suppose that at O's death A is alive and has 3 children, all of whom are younger than 25 and at least one of whom is younger than 4] - a's children = springing EI, will class close within 21 yrs after death? no. A could have another child. Class is void. Rule of Convenience - under the rule of convenience, a class will close as soon as one member of the class is entitled to immediate possession or enjoyment, even if this means closing the class before it closes naturally, or physiologically - that is the possibility of births (or adoptions) ends. When the class closes prematurely under the rule of convenience no person born (conceived) thereafter can share in the gift. Example - "to such of A's children as survive to age 25" [Assume at O's death, A was alive and had 3 children, the eldest of whom had reach age 25 by the time of O's death] (rule applies because one is 25 and has fee simple right then not contingent on a's death) Compare with this example: "To A for life, then to such of A's children who reach age 35." [at the time of this disposition A is alive and has two children -- X (age 38), and Y (age 33)] (x vested remainder subject to open, y shifting EI, void because of afterborn child. does rule of convenience apply? no bad as one bad as all

Joint Tenancy

Creation of Joint Tenancy - "to A and B as joint tenants with the right of survivorship, and not as tenants in common" "to A and B as joint tenants" -- in some states this would be insufficient to create a joint tenancy with right of survivorship because "survivorship" is not expressly provided for. "to A and B jointly" also might not be sufficient to create a joint tenancy b/c word "jointly" is ambiguous In Tennessee must be specific with language - "A and B as joint tenants with the right of survivorship" If don't have specific language, then tenancy in common is created. Some jurisdictions have abolished the need for 4 unities, and instead by statute a joint tenancy may be created simply by stating explicitly the intent to do so. (Tennessee follows this rule by case law) If the 4 unities exist at the time the joint tenancy are created but are later severed, the joint tenancy turns into a tenancy in common when the unities cease to exist. Examples of ways to terminate joint tenancy (and some which will not): Inter vivos conveyance by 1 joint tenant to a third party severs the joint tenancy and creates a tenancy in common between such third party and the non-transferring joint tenant. Action for partition - this is a legal action brought by one of the parties and requires the court to either (i) physically partition the property into separately owned parcels, or (ii) sale the land and divide the proceeds of the sale between the co-tenants. (note tenants in common also can bring an action for partition) Judgment lien - in most jurisdictions a judgment lien recorded against one joint tenant in a joint tenancy with right of survivorship will not sever the joint tenancy and create a tenancy in common, until such time as the judgment lien is foreclosed on and a sheriff's deed issued to new buyer. Example - A and B are joint tenants with right of survivorship. P sues A and obtains a judgment and records the judgment. The recording of the judgment does not sever the joint tenancy and if A then dies, B owns the property free and clear of the judgment lien. However, if P forecloses and sheriff issues a sheriff deed to Q who buys at the sale, B and Q each own a one-half interest in the land as tenants in common. Usually mortgage is considered a lien and not a transfer of title, and therefore usually mortgage does not sever joint tenancy If one joint tenant leases her interest in jointly held property, there is a split of authority: (i) some states hold that the lease severs the joint tenancy; (ii) some states hold that the lease does not destroy the joint tenancy but merely suspends the joint tenancy until the length of the lease. In these states, there is a split as to what happens if the lessor/joint tenant dies before the end of the lease. Some courts say that since joint tenant's right to possession would terminate on death, so must the lessee's right to possession. Others hold that the lease operates as a "temporary severance" and the remaining tenant's survivorship rights are therefore postponed until the end of the term. What about a contract to convey executed by one joint tenant? In most states where one joint tenant executes a valid contract to convey her interest to another, a severance results even though no actual transfer of title has occurred. The contract to convey is enforceable in equity and hence is treated as an effective transfer of an equitable interest. [thus if seller dies before the title is transferred, the purchaser is entitled to a deed from the seller's estate and becomes a tenant in common with the original joint tenant or tenants] What about executory contract by all joint tenants? What happens if one of them dies before the closing, who get the proceeds? There is a split of authority as to whether the execution of the contract severs the joint tenancy with right of survivorship. Ex. Jan. 1 A and B, as joint tenants, contract with X to sell and deliver title to Blackacre to X on February 1. A dies on Jan 15. Courts are split as to whether signing the contract created a tenancy in common (If a tenancy in common was created than A gets 50% of the proceeds and A's administrator will have to sign deed). If no severance occurred, B gets all the property by right of survivorship and 100% of the proceeds of the sale. A joint tenancy is not terminated where a joint tenant executes a will devising her interest to another or dies with such a will in effect. A will is a testamentary conveyance that comes into effect only upon death and is inoperative as to joint tenancy property, because at the instant of decedent's death the decedent's rights in the property held as joint tenant with right of survivorship evaporates Note page 348 - unequal shares. One of the 4 unities of joint tenancy is equal shares. At common law both joint tenants had to have equal ownership. Today, this requirement gives away to evidence of contrary intent, and possible that one joint tenant may be entitled to 1/3 of proceeds of sale and another co-tenant entitled to 2/3.

A, B, and C own blackacre as co-tenants. C constructs a home on blackacre. What right does C have against A and B with respect to the improvement? A C is entitled to the contribution from A and B for the cost of the improvement B C is entitled to the contribution from A and B for the value of the improvement has added to blackacre C If the land is partitioned and sold, C is entitled to the cost of the home before the proceeds from the sale are divided among the co-tenants D If the land is partitioned and sold, C is entitled to the value of the home has added to the property before the proceeds from the sale are divided among the co-tenants

D

Fee Simple Absolute Terminology

Decedent - dead person Testate and Intestate - a decedent dies "testate" if he or she dies with a will. A decedent dies "intestate" if he or she dies without a will Heirs - heirs are people who inherit property from a decedent who dies "intestate" They are identified by statute in each state, but they usually include the person's spouse and children Devise and Devisee - to devise is to pass real property by will. The person receiving the property by will is the "devisee" A will does not create any interest in property until death of the testator Issue - synonymous with "descendants"; means descendants all the way down the line (children, grandchildren, all other lineal descendants) Ancestors - a person's biological forebears all the way up the line (include parents, grandparents, great-grandparents, and all other lineal forebears) Collaterals - all blood relatives other than issue or ancestors (includes siblings, cousins, aunts, uncles, and nieces) Escheat - if a decedent has no heirs or devisees, interest escheats to the State

Defeasable Fees

Defeasible fees are fee simple estates of potentially infinite duration that can be terminated by the happening of a specified event. [contrast this again with the fee simple absolute (discussed earlier) which cannot be divested, nor will it end upon the occurrence of a particular event] Stated another way, defeasible fees are fee simple estates in which the grantor has added a limitation to the estate The primary purpose of the defeasible fees is land use control; to a lesser extent they are used to control behavior not related to any particular use of the land. There are three (3) types of defeasible fee simple - the fee simple determinable, the fee simple subject to condition subsequent, and the fee simple subject to executory limitation.

Incidents of Co-Ownership

Each co-tenant has the right to possess all portions of the property - no co-tenant has the right to exclusive possession of any part. [each co-tenant right to partition] Delfino v. Vealencis In all states a co-tenant who collects from third party rents and other payments arising from the co-owned land must account to cotenants for the amounts received, net of expenses. Spiller v. Mackereth ; co-tenant in sole possession need not share profits with co-tenant out of possession, nor reimburse them for the rental value of her use of the land, unless there has been an ouster or an agreement to pay rental value. Discuss one tenant encumbering the property - Harms v. Sprague Taxes/mortgage payments/other carrying charges - Each co-tenant has a duty to pay her share of taxes and payments due on mortgages on the entire property. A tenant who is not in sole possession can pay the taxes and mortgage payments and then compel contribution from the other co-tenants. However, a co-tenant in exclusive possession will receive reimbursement only of the amount that exceeds the rental value of the property. Repairs - As to necessary repairs, some jurisdictions provide for contribution if the repairing co-tenant gives notice to the other co-tenants; many however do not in the absence of an agreement as to the repairs. Rationale being that there could easily be disagreement over what constitutes necessary/reasonable repairs. -- when accounting for rents, the co-tenant in possession can set-off repair costs from amount (over and above her share) spent on repairs. In a partition sale, she may be reimbursed for repair expenses over and above her share before the sale proceeds are distributed. Improvements - A co-tenant has no right of contribution from other co-tenants for expenditures for improvements. However, in an action for partition by sale if it can be shown that the improvements increased the value of the property, improver would get added value of the improvements. In a partition in kind the improved portion is awarded to the improving tenant if feasible.

Common Pitfall Cases - RAP

Executory Interest following a defeasible fee Example: O conveys blackacre "to School so long as used for educational purposes, and when it is no longer so used, to A" School has fee simple subject to executory limitation (not fee simple determinable because of A), A has shifting executory interest Example: O conveys blackacre "to School; provided, that, it is used for educational purposes, and if it is not used for educational purposes, to A." School has fee simple subject to executory limitation, A shifting executory interest Age contingency beyond the age twenty-one in Open Class Example: "To A for life, then to such of A's children as live to attain the age of 25." At time of disposition A has two (2) children: X (age 12) and Y (age 9). A has life estate, children Fertile Octogenarian Example: Suppose in the preceding example X and Y were age 24 and 22 respectively and A was a 95 year old woman. The Unborn Widow or Widower Example: O conveys "To A for life, then to his widow for life, and on the death of A's widow, to such of A's descendants as are then living." ** Assume A is presently married to B and A has one child C. Grandchildren Example: O to A for life, then to A's grandchildren. (assume A has one child (B) and one grandchild (C) A life estate B has contingent remainder C has vested remainder subject to open A must die and all children of A must die and then we'll know grandchildren. Do we know for sure the class will close within 21 years after all the lives in being at the time the interest was created were dead? No. Contingent remainder could still be contingent more than 21 years after death of lives in being so strike it. O to A for life and O has reversion Options and Rights of First Refusal Example: A is a subdivision developer, and gives B an option to purchase a lot in the subdivision "to be exercised within 60 days after the City Council grants approval for the filing of a subdivision plat."

Fee Simple Subject to Condition Subsequent (and right of entry)

Fee Simple Subject to a Condition Subsequent is created when the grantor retains the power to terminate the estate upon the happening of a specified event. Upon the happening of the event stated in the conveyance, the estate of the grantee continues until the grantor exercises her power of termination (right of entry) by bringing suit or making reentry. The following words are usually held to create conditions subsequent - "upon condition that," "provided that," "but if," and "if it happens that" Example - A, owning Blackacre in fee simple, conveys to B and his heirs, on the express condition that the premises are never to be used for the sale of liquor and in the event that they are so used, then A or her heirs may enter and terminate the estate hereby conveyed." What happens if liquor is sold on the premises? Right of Entry - a right of entry (also known as "right of reentry" or power of termination" is the future interest retained by the transferor who conveys an estate subject to condition subsequent. It is necessary to raise expressly the right of entry in the transferor/grantor. This retained interest does not automatically arise as in the case of a fee simple determinable. [NOT ENTIRELY CORRECT - TAKE A LOOK AT BOTTOM OF PAGE 246 OF CASEBOOK] Today, in most jurisdictions, a right of entry is alienable inter vivos. But in most states, rights of entry are devisable, and in all states they descend to the owner's heirs.

RAP - Options and Rights of First Refusal

General rule is that RAP applies to commercial purchase options and such options are void if exercisable beyond lives in being plus 21 years. There is a reform movement to eliminate the application of RAP to commercial options. The Uniform Statutory Rule Against Perpetuities (USRAP) abolishes the application of the Rule Against Perpetuities to options and other commercial transactions. General rule option to renew a lease is not subject to RAP no matter how long the term. Casebook points out that option to renew is exercisable pursuant to a lease agreement and therefore is appurtenant to the lease, and such option lacks the power to divest title to the property to the holder of the option. Right of first refusal generally not subject to RAP b/c holder of right only has a right to purchase the property on the same terms and conditions if the owner desires to sell. Holder of ROFR has no power to encumber the owner's ability to sell the property for a long period of time.

Future Interests in Transferees - Executory Interests

Good shorthand rule for classifying executory interests - remember that there are two and only two future interests that can be created in a transferee: remainders (vested and contingent) and executory interests. If it's not a remainder because the preceding estate is not a life estate, then it must be an executory interest. If the future interest is not capable of taking on the natural termination of the preceding life estate, it is an executory interest. Instead of waiting patiently for the prior estate to end (which is the characteristic of a remainder), an executory interest divests the interest of another Shifting Executory Interest - this is an executory interest that divests the interest of another transferee - ie, it cuts short a prior estate created in the same conveyance. Springing Executory Interest - this is an executory interest that follows a gap in possession or divests the estate of the transferor.

Baker v. Weedon

Her children have a remainder Authors of the casebook make the point that when client proposes or wants to establish a legal life estate you should almost always consider creating a trust and conveying the fee simple interest into the trust (with a trustee to manage the trust) which is a much more flexible and desirable property arrangement. Weedon could have put the property in a trust and made Anna the trustee, giving her power to sell, mortgage, lease (do whatever is prudent to do with respect to the property etc..) the property for the benefit of the life tenant and the remainderman. If trustee sales the property, the trustee invests the proceeds of the sale and pays the income therefrom to the life tenant. Trustee of the trust is like a property manager, with Trustee's powers spelled out in the trust instrument.

Rules - Destroying Contingent Remainders - Doctrine of Merger

If the life estate and the next vested estate in fee simple come into the hands of one person, the lesser estate is merged into the larger. Example "to A for life, then remainder to B and her heirs" If A conveys her life estate to B, the life estate and the remainder merge, giving B a fee simple. Example "to A for life, then to B for life if B has reached 21, then to C" If A conveys her life estate to C, the interests merge and the contingent remainder in B is destroyed, leaving C with fee simple absolute.

Judy Murray, mother of Andy Murray, is a long time client. She wants to enter into a thirty-five (35) year lease on property located in Gallatin, Tennessee, which lease will allow her to build anything on the property. Judy would like to use the property for tennis club, and she was going to talk to an architect about drawing up some plans to build the new indoor tennis facility. Judy comes to you to ask you to review the lease and give her some thoughts on how to protect her interests. As part of your diligence you discover that the deed to the landlord (a fellow named Johnny Sandygren) on the lease reads as follows: "I Sally Sandygren hereby convey Blackacre to Johnny Sandygren for life."

Johnny Sandygren has a life estate. What if Johnny dies and he's leasing the property? The property goes back to where Johnny got the property from so the tennis club she just built, the landlord no longer owns the property so she can get kicked out. Can Johnny Sandygren give the right to build the tennis club on the property without the consent from the grantor? -The grantor can kick her off unless there is signature of both of them on the lease.

Adverse Possession - Hostile - Minority, bad faith or intentional trespasser view

Look at intent of the possessor, and mistaken possession does not constitute hostility. These courts hold if possessor mistakenly believes property was their property and would not have adversely possessed if she had known otherwise, then does not have the requisite adversity. No adverse possession.

Adverse Possession - Hostile - Majority view

Majority view won't look at the state of mind, only whether the adverse possessor used someone else's land without permission. The state of mind of the adverse possessor is irrelevant (in most states, and TN.) By the large majority view, it does not matter whether the possessor believes she is on her own land, knows she is trespassing on someone else's land, or has no idea who owns the land

Adverse Possession - Continuous Possession

Must be continuous throughout the statutory period (possession must only be the kind of occupancy that a true owner would use - so in some circumstances, seasonal use would be okay (summer cabin) Intermittent periods of occupancy not sufficient (but again only kind of occupancy that customary owner would use is required) i.e. intermittent grazing of cattle probably okay if that is typical Abandonment by adverse possessor (leaves with no intention to return) before statute has run, the statute stops, a new entry is required and whole process begins anew Tacking permitted - adverse possession does not need to be continuous possession by the same party, ordinarily you can add time period of the adverse possession of prior party (but generally there must be privity of estate to tack) Privity of estate - satisfied if subsequent possessor takes by descent, devise, or by deed purporting to convey title (tacking not permitted where one adverse claimant ousts a preceding adverse claimant or where one adverse claimant abandons and then a new adverse claimant goes into possession Formalities on transfer - even an oral transfer of possession is sufficient to satisfy the privity requirement

Problem 1 pg 176

No privity because there is an ouster so you can't tack

Problem 3 pg 219

No. Don't have heirs

Color of Title Question 1

O owns and has been in possession of a 100-acre farm since 1975. In 1994 A entered the back 40 acres under color of an invalid deed from Z (who had no claim to the land) for the entire 100 acres. Since her entry, A has occupied and improved the back 40 in the usual manner for the period required by the statute of limitations. A brings suit to evict O from the farm, claiming title by constructive adverse possession. What result? ---- occupied in part by the real owner. A gets the 40 acres. Even if O is also an adverse possessor but is a prior adverse possessor O would still win as to the 60 and A would get the 40.

Pettis v. Lozier 349 N.W.2d 372

Occasional use of land for variety of purposes throughout statutory period not sufficient for adverse possession (kept geese and livestock, put some crates up as sheds for animals, plants trees, did vegetable gardening, dumped trash and cars, property signage etc.)

Van Valkenburg v. Lutz 106 N.E.2d 28

Once title has vested by virtue of adverse possession, it is elementary that it may be divested, not by an oral disclaimer, but only by a transfer complying with the formalities prescribed by law. (dissent) Rule - for at least 15 years there was an actual occupation under a claim of title, the essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved ---only the rule in this case though, not in Tennessee.

Concurrent Interests

Ownership may be divided among 2 or more persons in the sense that they have consecutive rights of possession. This is the case when you have present possessory interests and future interests. This is not the same though as co-ownership/concurrent ownership. In this section, we are reviewing situations where 2 or more persons have concurrent ownership of a present or future possession. Here we are going to discuss three (3) forms of concurrent ownership - -- tenancy in common -- joint tenancy -- tenancy by the entirety

Analysis of RAP

Perpetuities Period begins to run from the creation of the interest -- deed - begins to run on date of delivery of deed; -- will - begins to run on date of death of testator revocable trusts - when the trust becomes irrevocable irrevocable trusts - the date the trust is created Must Vest (or fail) - must be shown that the interest in the transferee must vest (or fail) within lives in being plus 21 years Lives in Being The "life in being" or "validating life" is the person that can prove that the interest in question must necessarily vest, if at all, within that life plus 21 years thereafter. The "life in being" or "validating life" must be alive at the creation of the interest and must be ascertainable.

Color of Title

Refers to a claim of possession founded on a written instrument (deed or will) or a judgment or decree that is defective or invalid. For example, the Grantor of the deed did not own the property the deed purported to convey; the deed is defective for some reason - unsigned, or owner who signed deed was incompetent when signed The benefit of adverse possession under color of title is that actual possession of only a portion of property described in defective deed or will is constructive possession of all that such deed or will purports to convey. So the activities that are relied upon to establish adverse possession reach not all the part of the premises occupied but all of the premises described in the defective writing In some states, gaining by color of title also shortens the statute of limitations period Land already in the constructive possession of another possessor under color of title cannot be included. When the land involved described in the colorable instrument is occupied in part by the real owner (or by a prior adverse possessor) the adverse possession is confined to the area actually possessed by the claimant Constructive possession does not occur when the property that is constructively possessed is owned separately from the property that is actually possessed

Future Interests in Transferees - Remainders

Remainders - (i) vested remainders, and (ii) contingent remainders Remainder arises in a situation where Grantor has conveyed an inherently limited estate (like a life estate or term of years) and instead of Grantor retaining the future interest that follows the life estate (or term of years), Grantor conveys that interest to another party. -- Notice that remainder is not located on fee simple side of the chart (only life estate) -- So if the prior estate is a life estate, need to consider whether it is a remainder [it will be a remainder unless there is a reversion that occurs in between the life estate and the next interest]. "A remainder is a future interest that is capable of becoming possessory at the termination of the prior estate. It is not required that the future interest become possessory when the prior estate ends. If, at the time the future interest is created it is not possible for it to become possessory upon the termination of the prior estate, the future interest is not a remainder." The difference between taking possession as soon as the prior estate ends and divesting the prior estate is the essential difference between a remainder and an executory interest. Unlike a reversion which arises by operation of law, a remainder must be expressly created in the instrument creating the intermediate possessory estate. A remainder is vested if (1) given to an ascertained person and (2) it is not subject to a condition precedent (other than the natural termination of the preceding estates). A vested remainder is certain to become possessory at the end of the prior estate. A remainder is contingent if (1) it is given to an unascertained person or (2) it is made contingent upon some event occurring other than the natural termination of the preceding estates. A contingent remainder may or may not become possessory at the end of the prior estate. If the remainder is vested, it is possible, depending on the language of the grant, that such vested remainder could be subject to either partial or total divestment. A remainder is contingent if it is given to an unascertained person or if it has a condition precedent. Ascertained person - a person is ascertained if he or she has been born and is identified. If the remainder is given to a person who is born and can be identified now, that person is ascertained. Condition precedent - is a condition other than the ending of the prior estate that must be met before the remainder is ready to become possessory. Ex. "O to A for life, then to B if B has reached 21". For B's interest to become possessory, B must have reached 21 by the time A dies. Therefore B's interest is contingent. Condition precedents are found within the language that creates the remainder itself. They are not found in the subsequent estate Condition precedents are found within the language that creates the remainder itself. They are not found in the subsequent estate Vested Remainder Subject to Open/Partial Divestment - this is a vested remainder created in a class of persons ("children," "brothers and sisters" etc..) that is certain to take on the termination of the preceding estates, but is subject to diminution by reason of other persons becoming entitled to share in the remainder. It is also called a vested remainder subject to partial divestment. Vested Remainders Subject to Total Divestment - a vested remainder subject to total divestment arises when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his/her right of possession and enjoyment is subject to being defeated by the happening of some condition subsequent.

Rules - Destroying Contingent Remainders - Destructability of Contingent Remainders

Rule - "A legal remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate." "O to A for life, then to B and her heirs if B reaches 21" If A dies before B reaches 21, under the doctrine of the destructability of contingent remainders B's contingent remainder is destroyed and O has reversion. Most jurisdictions have abolished the rule of destructibility of contingent remainders - so in those jurisdictions, if A dies and B is 10, what is the state of title? Tennessee - not aware of any statute or case abolishing this rule but probably follow other states and abolish if the issue presented.

TCA § 28-2-103

Seven year period runs from time right accrued - extent of possession (a)No person or anyone claiming under such person shall have any action, either at law or in equity, for the recovery of any lands, tenements or hereditaments, but within seven (7) years after the right of action accrued. (b)No possession of lands, tenements or hereditaments shall be deemed to extend beyond the actual possession of an adverse holder until the muniment of title, if any, under which such adverse holder claims such lands, tenements or hereditaments is duly recorded in the county in which the lands are located. Statute bars the right of the title owner to recover property that has been adversely held for more than seven years.

Michael v. Jakes - Defensive Statute

TCA 28-2-103 "A party adversely possessing land for the requisite seven years obtains a possessory interest in the real property so possessed. "This possessory right, or defensive title as it is sometimes called, continues as long as the actual possession is maintained. The possessory right is complete by reason of the statute and is unrelated to title. Thus, if Mr. Michael has adversely held the disputed property since his purchase of the Michael Lot, he has a possessory interest in that property, contrary to the trial court's ruling that he had no interest" "Because the statute creates a possessory right, it gives the adverse holder the right to sue for trespass or for an injunction to prevent repossession. It creates a defensive right in the adverse possessor against anyone, including the title owner, seeking to dispossess the adverse possessor. After the required seven years of adverse possession, "until the possession [of the adverse holder] . . . is surrendered, the right to possession of said lot is not remitted to the holder of the legal title." Same elements to establish AP under the statute as under "common law." unless muniment (color of title), any possessory interest that he has by virtue of Tenn. Code Ann. § 28-2-103 applies only to the area he actually adversely possessed for the requisite seven years. Holding - . "For the same reasons that led us to determine that Mr. Michael and his predecessors exercised ownership over the land under the driveway, we find that Mr. Michael adversely possessed the land under his driveway for the requisite seven year period and is entitled to the protection of Tenn. Code Ann. § 28-2-103. With regard to the land adjacent to but not covered by the driveway, the Northeast Section, there is a dispute of material fact about the character of the possession by Mr. Michael. He asserts he used it as part of his yard. Whether his use of that strip of land was sufficiently exclusive, continuous, open and notorious to constitute adverse possession must be determined after trial. There are facts in dispute which are relevant to whether Mr. Michael exercised dominion and control over that property or whether his conduct toward that strip of land provided sufficient indication that he was claiming it and treating it as his own. In addition, the extent of the property adversely possessed, if any, must be determined after trial. "

Rule Against Perpetuities

The Rule Against Perpetuities is essentially a hypothetical measuring period in which a contingent interest must be certain to vest (or fail) or else it is void, but the period is measured from the date of the conveyance or the date the will takes effect. See the rule as a compromise between grantors who are trying to tie up and control the use of property long into the future and those trying to eliminate restraints on alienation. Consider this example "O to A, but if the land ever ceases to be used for farm land, then to B" Who would buy the shifting executory interest from B? Who would lend money to B? Similarly what about A if that property is located/surrounded by a growing city. So the rule is a kind of compromise between competing interests - the grantor being able to do what he/she wants with what she owns, and the policy of promoting alienation of property. The Rule applies to the following legal and equitable future interests in personal or real property: Contingent Remainders Executory Interests Vested remainders subject to open (ie class gifts) Options and rights of first refusal DOESN'T APPLY TO - defeasible fees, vested remainders, vested remainders subject to complete divestment, reversions, possibility of reverter, right of entry. Vesting in interest means that there is no contingency to ultimate possession other than the termination of prior estates. The essential thing to grasp about the Rule is that it is a rule of logical proof. You must prove that a contingent interest is certain to vest or terminate no later than 21 years after the death of some person alive at the creation of the interest. If any situation can be imagined in which the interest might not vest or terminate within the perpetuities period, the interest is void. This is the result even though the circumstances that might bring about the remote vesting are unlikely to occur or are unrealistic.

Rule Against Perpetuities - Rule

The Rule Against Perpetuities may be stated as follows: "No interest in property is valid [good] unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest." Perhaps better stated this way: "An [contingent] interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of the interest." [What the RAP does is limit the period of time between the creation of a contingent future interest in a third party, and its vesting in interest. Notice - vesting in interest, not possession. RAP is not concerned when an interest becomes possessory] Another formulation: A future interest is void the moment it's created if: It is in a grantee (a remainder or an executory interest); It is either contingent or subject to open; and It might still exist and still be contingent or subject to open longer than 21 years after the death of the last person alive at the time of the conveyance

Adverse Possession

The ability to by trespass if the certain elements are made to take an interest in property. Way to acquire property without the proper transfer of property.

Adverse Possession - Hostile

The claimant's possession must be hostile (adverse) to the owner. Claimant does not have true owner's permission to be on the property

Life Estate - Waste

The law of waste becomes relevant whenever 2 or more persons have the right to possess the property at the same time (concurrent ownership) or consecutively (as in Baker v. Weedon, or in case of present and future interests generally) The central idea is that A (which could be the owner of the present estate) should not be to use property in a manner that unreasonably interferes with the expectations of B (which could be the owner of the future estate) Three different types of waste recognized: -Affirmative (voluntary) waste - life tenant actively causes permanent injury - destroying buildings or ornamental trees on the land or removing natural resources -Permissive (involuntary) waste - land is allowed to fall into disrepair or tenant fails to take reasonable measures to protect the land from the elements. (failing to pay taxes and allowing the property to be sold at a tax sale in treated as permissive waste) -Ameliorating waste - occurs when principal use of the land is substantially changed - usually by tearing down a building - but the change increases the value of the land Under modern authorities, however, a life tenant can substantially alter or even demolish existing buildings if: - the market value of the future interest is not diminished - the remaindermen do not object; or - a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness

Adverse Possession Rule

The possessor must show (i) an actual entry giving exclusive possession that is (ii) open and notorious, (iii) adverse and under a claim of right, and (iv) continuous, (v) for the statutory period *must have every element to win

Adverse Possession - Disabilities

The statute of limitations does not begin to run for adverse possession if the true owner was under some disability to sue when the cause of action first accrued (disabilities are determined by statute but are typically minority, imprisonment, insanity) No tacking of disabilities - only a disability existing at the time the action first accused are considered. Thus disabilities of successor owners of subsequent additional disabilities of the current owner have no effect on the statute

Restraints on Alienation (applies to both fee simple interests and life estates)

There are 3 types - (a) disabling restraint, under which any attempted transfer is ineffective, (b) forfeiture restraints, under which any attempted transfer forfeits the interest, and (c) promissory restraints, under which an attempted transfer breaches the covenant Disabling restraint - "O conveys blackacre to A and his heirs but any transfer hereafter in any manner of an interest in blackacre shall be null and void" Forfeiture restraint - "O conveys to A and his heirs, but if A attempts to transfer the property by any means whatsoever, then to B and her heirs" Promissory restraint - "O conveys blackacre to A and his heirs, and A promises for himself, his heirs and his successors in interest that blackacre will not be transferred by any means" Any total restraint on alienation (of whatever type) on fee simple are void. The grantee may therefore alienate the estate and suffer no penalty. Rationale - restraints on alienation take property out of the market, making it unusable for the best use dictated by the market. Restraints on alienation make the property difficult to finance (b/c lender won't put a mortgage down_ and therefore difficult to improve, to concentrate wealth in class already rich, and to prevent creditors from reaching property to pay the owner's debts All disabling restraints on alienation (both life estate and fee simple) are void Limited/partial restraints on alienation are valid if reasonable (ex. preemptive option/right of first refusal) The restraint must have a reasonable purpose and be limited duration

Estates in Land

There are only four present estates in land - fee simple, fee tail, life estate, and leasehold Estates in land may be of potentially infinite duration, as in the case of a fee simple, or they may be of limited duration as in the case of an estate for years. In other words, the estate system is able to divide up ownership in land into time periods

Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v Toscano

Toscano conveys to Mountain Brow - "said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns" Issue is whether the restrictive language amounts to an absolute restraint on alienation and therefore is void (non-profit argues this) or whether it creates a fee simple subject to a condition subsequent (trustees and administrators of estate argue)? Court reasons that the second part of the clause "or in the event of sale or transfer by second party" was a restraint on alienation and is therefore void, but the first part "in the event the same fails to be used by the second party" created a defeasible fee (fee simple subject to condition subsequent). The grantor intended that the property be conveyed based on the condition that it be used by the by the non-profit corporation (ie for lodge, fraternal and other purposes). So the property reverts - [though believe the court meant creates a right of entry ??] - if the property ceases to be used for lodge, fraternal and similar purposes. At a broader level case demonstrates that if the limitation or condition contained in a defeasible fee is viewed as a restriction on land use, then under the general rule it is valid. If viewed as restraint on alienation (b/c limits future transfers of property) then under general rule invalid unless reasonable under the circumstances.

Color of Title Question 2

Two contiguous lots, 1 and 2, are owned by X and Y respectively. (X and Y are not in possession.) The lots are conveyed by an invalid deed from Z to A, who enters lot 1 and occupies it in the usual manner for the period required by the statute of limitations. Subsequently A sues X and Y to quiet title to lots 1 and 2. What result? ---- A gets lot 1.

Statutory Reform Rule Against Perpetuities

Uniform Statutory Rule Against Perpetuities - "if at the end of 90 years following the creation of the interest, the interest is still in existence and unvested it is invalid. " This is a wait and see approach. If at the end of 90 years the interest is not vested it would violate USRAP -- the textbook in footnote 36 goes further and says if interest invalid at end of 90 years period, court probably reforms that disposition in a way designed most closely to approximate the transferors intent GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY Tenn. Code Ann. § 66-1-202 (2016) 66-1-202. Validity of nonvested property interests and powers of appointment. (a) A nonvested property interest is invalid unless one (1) of the following conditions is satisfied: (1) When the interest is created, it is certain to vest or terminate no later than twenty-one (21) years after the death of an individual then alive; (2) The interest either vests or terminates within ninety (90) years after its creation; or (3) The interest satisfies the conditions set forth in subsection (f) f) As to any trust created after June 30, 2007, or that becomes irrevocable after June 30, 2007, the terms of the trust shall require that all beneficial interests in the trust vest or terminate or the power of appointment is exercised within three hundred sixty (360) years.

Joint Tenancy (With Right of Survivorship)

Unlike tenants in common, joint tenants have right of survivorship. By common law fiction, joint tenants together are regarded as a single owner; each tenant is seized "by the share or moiety and by the whole". In theory then each owns the undivided whole of the property. This being so, when one joint tenant dies, nothing passes to the surviving joint tenant. Rather the estate simply continues in the survivors freed from participation of the decedent, whose interest is extinguished. Since joint tenants were considered one owner, common law required the following four (4) unities to exist: Time - the interest of each joint tenant must be acquired or vest at the same time; Title - all joint tenants must acquire title by the same instrument or by joint adverse possession; Title - all joint tenants must acquire title by the same instrument or by joint adverse possession; At common law this meant that a conveyance by H to "H and W as joint tenants with right of survivorship" violated the unities of time and title. At common law one could not convey property to himself, so this conveyance was viewed as a conveyance of a one-half interest by H to W. They held as tenants in common. At common law you needed to use a strawperson. H to Agent; then Agent to "H and W as joint tenants with right of survivorship" Some states by statute have abolished this rule, and allow a conveyance from Husband to "Husband and Wife as joint tenant with right of survivorship." Interest - all must have equal undivided shares and identical interests measured by duration To create a joint tenancy, the shares of each co-tenant must be equal. One joint tenant cannot be given a one-third share and the other a two-third share. (however, upon the sale of the property in equity, the court - acting to achieve fairness - may divide up the proceeds in proportion to the contributions made by each co-tenant. Possession - each must have right to possession of the whole. (after a joint tenancy is created, however, one joint tenant can voluntarily give exclusive possession to the other joint tenant) Note - unity of possession exists in tenancy in common, but none of the other 3 unities exist. If these 4 unities do not exist, a joint tenancy is not created; instead a tenancy in common is created.

Adverse Possession - Tacking

You can tack if there is privity of estate. Privity of estate in this context means that a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession. Where the transfer is not voluntary, as in the case of someone ousting the prior possessor, there is no privity of estate

Steps to Analyze RAP Problem

a. Determine state of title of the conveyance; grant (who has what interest) b. From state of title, determine what interests the RAP applies to. c. What must happen for the contingent interest subject to RAP to vest? d. List the lives in being at the time of conveyance/devise e. Analyze - determine whether there is any possibility that the interest subject to the RAP may not vest/fail - ie., may still be contingent - more than 21 years after the lives in being. If it could be contingent beyond that period, the interest violates RAP.

Tenancy by the Entirety

can only be created in husband and wife the tenancy by entirety is like the joint tenancy in that the 4 unities (plus a fifth - marriage) is required, and the surviving tenant has the right of survivorship. tenancy be entirety, however, husband and wife are deemed to hold as one person. they are both seized as to the entirety A tenancy by the entirety cannot be terminated by involuntary partition or voluntary conveyance by one tenant to a third party. Tenancy by entirety can be terminated only by (i) the death of either spouse (leaving the survivor as sole owner of the fee); (ii) divorce (leaving the parties as tenants in common with no right of survivorship); (iii) mutual agreement; or (iv) execution by a joint creditor of both husband and wife (a creditor of one or the other could not execute). In most states an individual spouse may not convey or encumber tenancy by the entirety property. A deed or mortgage executed by one spouse is ineffective. tenancy by entirety is not recognized in most states; but it is recognized in Tennessee

Mannillo v. Gorski 255 A.2d 258

hostility and what standard applies. Open and notorious (if encroachment is minor enough doesn't meet standard) -Plaintiff argues no adverse possession because wasn't hostile Whether a distinct adverse possession defeats the claim because it wasn't hostile. Supreme court says whether or not the entry is caused by mistake or intent the same result eventuates - the true owner is ousted from possession. In either event his neglect to seek recovery of possession within the requisite time is in all probability the result of a lack of knowledge that he is being deprived of possession of lands to which he has title. Accordingly we discard the requirement that the entry and continued possession must be accompanied by a knowing intentional hostility and hold that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession. Defendant loses because it was such a minor trespass it wouldn't be open and notorious.

Rules - Destroying Contingent Remainders - The Rule in Shelley's Case

one instrument creates a life estate in land in A, and purports to create a remainder in in persons described as A's heirs (or the heirs of A's body), and the life estate and remainder are both legal or both equitable, then the remainder becomes a remainder in fee simple in A. Example - O to "A for life, then to A's heirs." The Rule in Shelley's case gives A a vested remainder in fee simple. The Rule in Shelley's Case has been abolished in most jurisdictions, including Tennessee (See T.C.A 66-1-103)

Rules - Destroying Contingent Remainders - The Doctrine of Worthier Title

one inter vivos transfer conveys an inherently limited estate to a grantee, and a remainder or an executory interest in the grantor's heirs, then the conveyance to the grantor's heirs is read as a conveyance to the grantor. Example: O to A for life, then to O's heirs. The Doctrine of Worthier Title essentially strikes the words "O's heirs" and substitutes O in their place. The Doctrine of Worthier Title has been abolished in most jurisdictions, including Tennessee (see T.C.A 66-1-111)

White v. Brown

"I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold" This case is discussing a reversion Court says fee simple absolute without restraint on alienation

Fee Tail

"O to A and the heirs of her body" Historically the land would pass automatically to A's issue at A's death. A had a right of possession but could not sell or transfer the right of possession after his/her life (nor devise by will) and land would continue to pass to A's issue until there were no issue, and at that point the land would go back to O Abolished in Tennessee. This conveyance creates a fee simple absolute

Michael v. Jakes

"The possession may be continuously in one person, or there may be several successive possessions. In the case of successive possessions they must be connected without any hiatus, but there need be no privity of contract or other legal privity between the successive occupants,...." Court will allow tacking in this case - note that prior owners must also meet elements of adverse possession What about adverse under claim of right/intent? "Mistake as to the property line does not make the possession other than adverse ... In the absence of positive proof or unambiguous circumstances showing that a possession is or is not adverse, the exclusive possession and use of the land are presumed to be adverse, it is not necessary to show an intention to hold and claim the property in spite of the fact that the legal title may be in another. The possession of one who holds property as his own is adverse to all the world, although he never heard of an adverse claim. The possession, use, and dominion may be as absolute and exclusive where there is no dispute as to boundary, and hence the occupant has no actual intention to claim adversely to anyone, as where such an intention exists. . . . The fact that the occupant might, if he knew that he was on his neighbor's land, recognize and accede to the latter's title, does not affect the adverse character of his possession, where, because there has never been any question or doubt as to the location of the boundary, he possesses and uses the property as his own, and does not recognize or accede to any superior title." What about open and notorious? "The possession must be of such a character as to leave no doubt of claim of ownership by adverse possession and to give notice to the public of the possession and the claim ... The possessors must have openly and adversely claimed ownership of the land and utilized it as their own." 1981 prior owner (Loftin) purchased property and there was a gravel driveway to house. Prior owner testified that he thought gravel driveway was part of property and in 1983 paved it. When Mr. Michael purchased property (in 1987) he assumed driveway and land adjacent to it were part of deed .. and since purchasing property he used it has exclusively his own. Neighbors (including one of 37 years) testified that gravel driveway has been there since 1978 and he observed Mr. Michael using strip next to driveway and parking several cars in strip While enclosing by fence helps, don't have to do that. Has defendant exerted dominion and control to suggest someone claiming it. Holding on AP - With regard to the land under the driveway, we find that Mr. Michael has presented undisputed evidence that he and his predecessors exercised such dominion over that property and acted toward it in such a way as to unmistakably indicate they were claiming ownership of it. Grading, paving, maintaining and using the entire driveway, including that portion on Mr. Jakes's land, demonstrate exercise of ownership, not just use of the land under the driveway for access. The driveway was constructed, improved, and maintained to provide access to the Michael Lot, conduct consistent with ownership. We disagree with Mr. Jakes's position that Mr. Michael and his predecessors only used, but did not possess, the land under the driveway. We also disagree with his position that, as a matter of law, the type of possession exercised did not sufficiently denote claim of ownership so as to establish adverse possession

Problem 1 On 336 - A, B & C as joint tenants. A conveys to D. B dies leaving H as his heirs.

(D tenant in common with B and C) (B and C joint tenants with right of survivorship) D 1/3 B and C 2/3 After B dies, D owns 1/3 and C owns 2/3

Problem 1 pg 177

(a) 2013 (b) 2013 - no tacking of disabilities

Future Interests in the Transferor

(a) Reversion --Reversion is the interest left in an owner when she carves out of her estate a lesser estate and does not provide in the same conveyance who is to take the property when the lesser estate ends. The reversion arises by operation of law. --So if O owning a fee simple, conveys a life estate or a term of years and does not at the same time convey away a vested remainder in fee simple, O has a reversion. --Example - O owning land in fee simple conveys it to (i) A for life, or (ii) to A for 99 years. --Reversion is transferable inter vivos, and it is descendible and devisable at death. --All reversionary interests are vested. (because it is a vested interest, it is not subject to the Rule Against Perpetuities) Note that while some reversions are only "possible" ones, they are never called "possibility of reversion." So long as there is a possibility that the grantee of the future interest will not take, O's interest is called a reversion (even though it is possible that O might never get that reversion. Ex. "O to A for life, then to B and his heirs if B has reached 21."

Adverse Possession - Entry that is Actual and Exclusive

(i) Actual possession gives true owner notice of the trespass (ii) Actual possession is also intended to give true owner notice of the extent of the trespass. As a general rule the adverse possessor will gain title only to the land she actually occupies (iii) Exclusive Possession - means trespasser is not sharing with the true owner or the public at large

Fee Simple Absolute

(i) An estate in fee simple absolute is the largest estate permitted by law. It invests the holder of the fee with full possessory rights now and in the future (ii) The fee simple has an indefinite or potentially infinite duration (therefore no future interest) (iii) At common law a fee simple was created by grantor conveying "to A and his heirs." "and her heir" were words of limitation, meaning that the words defined the estate granted to A - i.e. a fee simple absolute - but "her heirs" had no interest in the property (iv) "to A" are words of purchase, meaning they describe who is taking the interest (v) Under modern law, a deed or will is presumed to pass the largest estate the grantor or testator owned. Thus a conveyance "to A" conveys a fee simple if the grantor had a fee simple (vi) Under modern law, example of conveyances that create fee simple: "O to A" "O to A and her heirs" "O to A" in fee simple

Adverse Possession - Open and Notorious Possession

(i) Possession is open and notorious when it is the possession that a usual owner would make of the land (ii) The adverse possessor's occupation must be sufficiently apparent to put true owner on notice that a trespass is occurring (iii) The type of acts required to establish "open and notorious" will vary based on type of land. Totality of acts must give picture of person claiming dominion. (on farmland, fencing, cultivating, and erecting a building usually would be enough)

Mahrenholz v County Board of School Trustees

-- (1941) Hutton conveys to 1.5 acres to Trustee of School District No.1; "this land to be used for school purposes only; otherwise to revert to Grantors herein" created a determinable fee with possibility of reverter, or a fee simply subject to condition subsequent with right of reentry." [Property used for Hutton School] -- (1941) Hutton conveys 38.5 acres (surrounding the school) to Jacqmains (along with the reversionary interest) -- (1959) Jacqmains convey 38.5 acres (surrounding the school) to Mahrenholz (along with the reversionary interest) -- (1973) School stops having classes - property used for storage purposes only. -- Hutton's son (and sole heir to W.E and Jennie Hutton) conveyed to Mahrenholz all interest in 1.5 acre land in May 1977. Recorded Sep 7, 1977 -- Hutton disclaimed his interest in property in favor of school recorded Sept 6, 1977 -- Mahrenholz files action seeking quiet title. Issue is whether the conveyance created a fee simple determinable or a fee simple subject to condition subsequent -- in this state, neither possibility of reverter or right of entry could be conveyed inter vivos (only transferable by intestacy). So this future interest never went to Jaqmains or Mahrenholz. -- If future interest never went to Mahrenholtz, question is what did Hutton have to convey to Mahrenholz in May 1977. If the property had automatically reverted to him because he had a possibility of reverter, than he conveyed the property to Mahrenholtz per his deed in May 1977. If all he had was a right of entry, then he would have to exercise the right of entry and terminate the school's interest in the property before he could convey, which he did not do. Right to entry could not be transferred to Mahrenholtz because not transferable inter vivos. -- Arguments whether the word "only" should be construed as a limitation or a condition. Typical language not used. [School District also argues that where ambiguity exists fee simple subject to condition subsequent should be found] -- Holding - fee simple determinable followed by possibility of reverter. The word "only" following the grant for school purposes indicated intent Huttons wanted to give the land to school district only as long as it was needed and no longer.

Future Interests in Transferees

-- Three types of future interests in transferees (ie grantees) - vested remainders, contingent remainders, executory interests. -- Rule of Construction to Keep in Mind - "you must classify interests in sequence as they are written. You start reading to the right, classify the first interest, then move on to the second interest and classify it, and then move to the next interest."