Glossary of Property I
Other Decks By This User
- What are the 12 TRAITS OF PROPERTY
-to make a profit
--use, allow others to use
-prevent use by others
-gift at death, gift while alive (inter vivos)
-to recover from an unauthorized taker
-can destroy/alter/improve it
-can divide it
-can use it as collaterall
- Is the right to own property absolute?
Can the Government sieze your land?
- PROPERTY IS NOT ABSOLUTE-cannot exist in a civilized society
-imminant domain= the government takes your property for public safety, they must repay you.(with cash usually)
- What is the tragedy of the Commons?
- it is the proven observation that when property is open to use by all, each person overuses it, thus depletes it.
- STATE VS SHACK
- STATE VS SHACK
The ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the state penal statute.
- 5 THEORIES OF PROPERTY
- 1. Occupation theoryprimitive theory that property belongs to the first person who takes it. ( the theory of criminals)
-today, unoccupied or unutilized, diving into a dumpster, you can take the property (usually)
2. Natural rights theoryProperty law is part of Nature, (very vague), changes all the time.
3.Labor Theory- property results from toil and trouble, you can make your own property( doesnt include land).
4. Legal Theory- property is property because the law protect is, whatever the law recognizes(very vague)
5. Social Utility Theorygood for society to have private property because it gives you an incentive to work for it.
--law is constantly balancing rights of one vs. another.
--private property is a source of freedom
- JONES v. Mayer CASE (racism, not being allowed to by a house)
May Congress ban private owners from racially descriminating in the sale of private property?
- BLACK LETTER RULE: Congress may ban private owners from racially descriminating
-this is another example of restrictions on property rights. The right to own property, the right of disposition(not letting people buy from you)
-needs of many outweight the needs of a few. (not letting people rent or buy from you because of their race, their needs outweight yours)
- Real Property
Chose in Possession
Chose in Action
- Chattel real-interest that has a basis in land but is treated as personal property, (a lease).
Chose in Possession- chose means thing, personal property that you can actually possess, tangible.
Chose in Action- intangible personal property, cannot actually possess.
Fixture-started as a chattel, has later become affixed to the land, but not so much that it is totally real property.(caught in-between personal and real property.) (not a fixture= .bricks, mortar, cement(personal property)=transformed into a building(real property).
(Fixture did not go all the way, caught in-between=chairs, you can remove them without serious damage to the building, all you have to do is unscrew them) AC, water heater,(anything built into a place, than can be removed)
-all kinds of areas where ownership occurs- underground land, and air rights above your property., support rights(thing that supports your house, if they dig under your house, they cant cause it to collapse), (mineral rights.(underground)
- Edwards v. Simms
May a court order a survey of a cave to see if it passes under another's land?
- Edwards seeking a (writ of prohibition)-prevent judge from enforcing the order to let surveyors under his land.
According to majority opinion, this was trespassing, (mineral rights cases said Lee owned the part of the cave under his property)
Awarded $$$ to Lees estate, 2000+ feet of cave, 1/3 of all revenue from commercialization over the years + 6% interest.
(dissent-believed Edwards should get the benefits of the property(ownership belongs to those who possess it, whoever has the cave entrance should have the rights to the cave) (Mine cases were different because you can take the goods out, the cave was just used for commercialization)
- 4 Non-traditional classifications of property
- -not be covering these areas in class
1. intellectual property-copyrights, patents, trademarks, trade secrets, ect.(ideas themselves are not property, but the products of the ideas may be protected by the law. (video, trademark)
2. New Property- developed because of government and government regulations(entitlements)licenses, right to own franchise, right to harvest timber, SS benefits, ability to have an airline route, TV channels, right to broadcast on a certain chanell, medicare, medicade.
3. Reliance interests as becoming property-(not caught on yet), example-right of a community that a big business will stay there and continue to hire their citizens. (not contractually mandated, courts have not gone that far yet).
4. The human body and its parts-law has been going from all different views. At one time, the body was property, could be bought and sold, gave rise to slavery. No longer property, can not transfer, started to cause problems now. Every state now has uniform something gift act, can donate organs, portions of liver. Federal prevents getting any $$$ for this, you cannot sell your organs.(sperm and blood doesnt count)
- Moore v. Regents of the university of California
- Moores theory is based on Conversion- basically taking his property without permission(theft), except it doesnt require an evil state of mind(like theft).
Court rejects conversion
Saying he didnt intend to keep them anymore.
It would hinder medical research by restricting them
Persona propertyright to use name, sig, photograph, ect(important for famous people)
Concept of property is constantly changing.
- Shelly v. Kramer
Does the Equal protection Clause of the 14th amendment prohibit enforcement by states courts of race realted covenants?
- State Judicial enforcement of private agreements is "state action" as the term is construed under the 14th Amendment
- 6 Ways to aquire personal property
- Big issue-different in which people can aquire personal property.
1.you can find it
2.you can receive it as a bailee
3.you can purchase it
4.you can take it in an unauthorized manner
5.you can benefit from anothers mistaken improvement
6.you can receive it as a donative(gratuitous) transfer.
Donative- could be while alive(inter vivos)Or a gift causa mortis-in contemplation of death.
Intestate- without a will, inherit the property
Could take it by will-document
Or could take it by non-probate transfer.
Transfer-is the gift outright, or subject to conditions of some sort(trust)
- What is a finder?
What are the 5 types of found property?
- What is a finder-someone who aquires rightful possession, not ownership, of personal property. Dont find owned property, because you already have ownership.
When property is found, must find out what kind of property was found. 1-5 catagories
1.First occupant property(never belonged to anyone before)
2.Lost property-owner parted with possession but not voluntarily so.
3.Mislaid or Misplaced property-owner put it somewhere on purpose but then forgot where it was. (intentially put it somewhere, but unintentially left it there or forgot it)
4.Abandonded property-owner has intentially relinquished possession to the property. (trash) on purpose.
5.Treasure trove-refers to money concealed in the ground or other hiding place that has no known owner.
- Goddard V. Windchell
Is a foriegn object that falls to the earth and embeds in the soil a moveable object to which a person may claim tittle by occupancy?
- Black LetteR Rule: An object deposited on the soil through natural process is part of that soil, not a moveable object and therefore is not subject to the rule of title by occupancy.
- Goddard v. Winchell (meteorite case)Vocabulary and Notes
the 2 main things to remember
- Alienation: the voluntary transfer of property especially by conveyence.
main things to remember-
if the catagorization is real property, its more likely that the landowner will win,
if the property is first occupant, then it is more likely that the finder will win.
- If A finds an abandoned ship and marks it intending to return and recover it. But before he does so B swoops in and steals that bitch will the court find A's marking as an act of possession that can give him title by occupancy? Eads v. Brazelton
- Black Letter Rule: when property is lost, abondonded, or without an owner, occupation or possessionof it requires an actual taking of it with the intent to posses it.
If you want to occupy it you gots to take it right then and there.
- Eads v. Brazlton class notes
do the true owners have rights
what is the interests of the parties in dispute
- this was an abandoned property case
-true owners rights are out of the picture because he abandoned the property.
-this case=fight between 2 finders.
-discoverer finder vs salvager finder.
-rule of law applied by court=actually take property, with an intent to make it a possession.
-between finders of abandoned property-(it belongs to the one who takes possession with intent to take possesion.)
- If Master P finds some bling and takes to Leon's jewlry shop to get the ice appraised, and Leon refuses to give it back, can Master P sue to get it back even though he is not the owner?
Armory v. Delamire
- Black Letter Rule: The finder of lost property has superior title over all but the true owner.
- Master P goes into Bruce's shop for old men and finds a parcel filled with bank notes. He tells Bruce to hold it and give it to the true owner. After 3 years the owner never shows and no Bruce is being a little bitch and wont give it back so Master P sue
- Black Letter Rule: When lost property is found in a shop, the finder's claim to the property is greater than that of all but the true owner, including the shopowner.
- P-Diddy needs his pool cleaned for the video shoot of his latest re-mix video "Bitches and Hoes", so he hires Scooter to clean it. While cleaning the pool Scooter finds two earrings. P-Diddy sues Scooter for them. Who has rights to the earrings
- Black Letter Rule: Where a person has possession of land with a manifest intent to exercise control over it and the things in or on it, he is presumed to own anything found on it.
bottom line, the landowner prevailed. In this case the courts said that whatever is in the land, belongs to the landowner and they were employees.
This limits the finder rule to locations that are open to the public
- Dubs's house (which he has never occupied) was requisitioned and used by troops. One of the troops, Major Fresh found a broach, After 2 years the owner was not found and the cops gave the broach back to Dub, who sold it. Dub offered Major Fresh a reward
- Black Letter Rule:Where the owner has had no prior possession or control over property lost in his house the property belongs to the finder, not the owner.
Rulesgenerally finder wins, unless he is an employee of a landowner
- Tucker is a construction worker who goes over to Lanes house to lay some pipe. In doing so he discovers some money buried in a jar in Lane's garage.
Who will win if Lane sues Tucker for the $$$?
Could Couch be found as a Bailee?
- In the 1st case the jury found the property was mislaid and considered Lane a Bailee.
Black Letter Law: Property found embedded in the soil Under the circumstances repelling the idea that it has been lost is mislaid property.
- Vocabulary & Notes:
-lost= usually the finder gets it
-mislaid=usually the land owner gets it
Lost Property: Property which the owner has unintentionally left in some location unknown to him. Finder has title superior to all but the true owner. Example- PAT everday when he tries to find his truck.
Mislaid Property: Property which the owner has intentionally placed where he could return for it, but then forgot where that was. If it is found underground or on the land the owner has rights. Example- Dub intentionally putting his balls in Brandy's purse but forgets they are there and cant find them. since they are in her purse they are now hers.
Treasure Trove: aka Treasure Found; money; coin; anything valuable that was hidden by an unknown owner and later found. Example: Leon hides his bling in fear of being jacked, and then Master P Finds it
- The 3 basic elements of Bailments
- There are 3 basic elements:
1. Rightful possession (no thieves)
2. Of personal property (not a real property concept)
3. Possession is by someone not the true owner.
(credit card) (car-can be repossessed)
Bailor-the person who is the true owner, a true owner or a person with prior possession, who might not be the true owner.
Finders are bailees (person in rightful possession, but not the true owner)
- The 3 Basic Types of Bailments and their duties
- There are 3 basic types of Bailments:
1.Bailment for the sole benefit for the bailor(finding is for the benefit of the bailor, he is used to help find the bailor, giving someone your cat for a week to watch(gratuitously), they are benefiting the bailor.(dont have to take care of the cat as well as the bailor, but you do have to feed it, ect) (liable for gross negligence)
2.Bailment for the benefit of the bailee(need a car to go down to the store, borrow your friends car, it is for your benefit, but the bailor), law imposes a high standard of care on you for the property, liable for any slightly negligent act you do with the property
3.Bailment for mutual benefit/Bailment for higher-Go to the airport, rent a car on vacation, PAY someone to take care of your cat, you are liable for ordinary negligence.
-Agreement of the parties, very common for the bailment agreement to be in a contract, if this happens, we use contract law to decide.
-There is an implied agreement between the parties (this is what we are looking at)-law imposes duties for finders and bailees.
-Property, Contract, and Tort law, all overlapping.
-Bailee is usually responsible for things normally found inside the bailed items, not normal, then you can say that they didnt agree to bail those items, (valet parking)- for instancestuff in the truck(family heirlooms, in trunk, ect.) (if living in car--not normal)
- Chip parks his fly ass ride in an enclosed garage with a guy in the booth by the name of toll booth Willy and security gaurds, but chips pimp-mobile was still stolen. Does parking a car in an enclosed, attended parking garage create a bailment?
- Black Letter LAW: The degree of control and possession a customer delivers to the operator in this circumstance is sufficient to create a bailment
- Bona Fide Purchaser: BFP EXAMPLE
- Bona Fide Purchaser:
Bailor = true owner ..
Bailes it to Bailee .
transfers it(sells it)to someone else.(assume this person is innocent)
(normally the true owner wins the lawsuit between the 2 innocent persons)
(not all going to be bailment scenarios)
(if the transferee can qualify as a bona fide purchaser, sometimes they will have superior rights to the true owner.)Common law rule:
·Person didnt receive it as gift, they paid something for it
·Transferee has to be Bona Fide, no knowledge of the true owners claim.
- Chip parks his fly ass ride in an enclosed garage with a guy in the booth by the name of toll booth Willy and security guards, but chips pimp-mobile was still stolen. Does parking a car in an enclosed, attended parking garage create a bailment?
- Black Letter LAW: The degree of control and possession a customer delivers to the operator in this circumstance is sufficient to create a bailment
Parking garages always put up these signs, not liable for theft, they do this to scare lay people from lawsuits, you CAN sue to recover since you never agreed.
No written and signed contract.
- BFP expanded by the UCC 2-403
- ·(Pg 123 in book,UCC 2-403) .A purchaser of goods, gets all title that the transferer actually had or had the power to transfer. Possible to transfer better title than you have under certain situations
- To achieve bona fide purchaser protection, you need:
- 1.You need a true owner who Entrusts goods.
2.Bailee must be a Merchant, no bona fide protection when you buy from a non-merchant.
3.This merchant must also be a merchant dealing with goods of the kind (buying a car at HEB wouldnt work) (Sells similar stuff)
4.Must have a purchaser who is a Buyer in the Ordinary course of business:
a.Must be in good faith-honesty in fact if you are a non-merchant, person thought it was honest, what was inside your head, not that it was reasonable---if you are a merchant, you need honesty in fact, and it must be reasonable, objectively in good faith, held to a higher standard,)
b.You must buy without knowledge
c.You must pay value, cant be a gift
- Porter gave Von Maker a painting to hold while he decided whether to buy it, but Von Maker through Wertz, a deli employe, sold it to Feigen.
1. Is the buyer a BFP by UCC 2-204 STANDARDS if he is indiferent as to the seller's status as a merch
- Black Letter Rule of Law:
1. The buyer is not a BFP under UCC 2-403 if he is indifferent as to the seller's status as an art dealer and his authority to sell art.
2. Transferring possession of property to another, without more, is insufficient to equitabley estop an owner from asserting his title against a BFP
- 3 TYPES OF Estoppel
- -estoppel--Because of something you did or didnt do that someone relied on (to their detriment), you now dont have a claim to exert rights that are yours, you are estopped from exerting those rights.
Statutory estoppelthe estoppel requirements are derived from a statute.(Feign doesn not fit the definition of a buyer in the ordinary course of business)..pg 126(not applicable to porter(plaintiff))
Equitable estoppel- definition like espottel, they are blameworthy, did something, should not be allowed to continue their claim.(not applicable to Porter, he didnt do anything wrong)
- Scooter bought a Suzuki with a bad check and then sold it to Wills Point's very Cooter Brown Auto Sales group before he recieved title.
Can a Scooter who only has voidable title pass good title to the bike to a BFP for value if he does not ha
- Black Letter Rule: A person with only voidable title to a motor vehicle cant pass good title to a BFP for value if he does not have the Certificate of Title.
Shame on you scooter!!!
- Notes from Suziki Case
- Under the UCC, If this were a big screen tv or something else like that, the bonafide purchaser would of won.
However, this was a motor vehicle, and a certificate of title was needed under the UVCTA
--Car, Boat, Motorhome-have certificates of title.
(UCC is a state statute)
Two state laws here, there is a more specialized law for motor vehicles so this law prevails over the UCC law. Have to appropriately transfer the title.(signing on the back of the title) Bouton did not possess the piece of paper when he sold it to Caruso, buyer beware, Caruso should of known.
UCC statute deals with a lot of issues we dont talk about, only study the issues and subsections that we have studied. (bad check, ect)
- Define: Unauthorized possessor
- Finder Is an UP, someone who intemperately converts property(take a book that isnt yours, by accident), then there are on purpose converters(thieves).
- A dispute arose when Bruce took possession of Dub's log.........which he had cut while trespassing on an unkown persons land. Is bare possession of property, though wrongfully obtained, sufficient title to enable the possessing party to maintain replevin
- Black Letter Rule: One who has aquired possession of property, by whatever means, has a right to retain that possession against all others but the rightful owner.
- Tucker files suit against Porter after Porter unlawfully converted and sold $700 bucks worth of crack cocaine Tucker thought belonged to him. Can a party who has possession but not ownership of certian personal property recover damages from another who u
- Black Letter Rule: In order to recover the value of personal property from a party who unlawfully converts it for his own benefit, a suing party must show both title to the possession and possession or a present right of possession of the property.
- Differences between
Anderson v Goldberg (1ST CASE)
Russel v. Hill(2ND CASE)
- two wrongfull posessorsIN each case Hill is opposite from the Gouldberg
in this Hill, the 2nd unauthorized possessor is entitled to posses the property over the first unauthorized possessor.
Since the 1st possessor is not the true owner, they can not have any kind of possession,
they dont have possession over everyone but the true owner.
They know the first possessor is not the true owner.
Both cases start with same principle, possession gives you apparent ownership,
Gouldberg case says it gives you rights above the true owner,
Hill case, first wrongful possessor cant claim they are the true owner.
Gouldberg case policy was to prevent the taking of property by everyone.
Hill case says they dont want a double jeopardy situation.
If the 2nd unlawful possessor has to give it back to the 1st, he can still be sued by the true owner if he is ever made known.
In Gouldberg, the true owner was known, this case the true owner was not known, this was the distinguishing fact between the two cases.
(if a thief is caught with a lot of items, and a true owner claims possession, how can they prove it? They cant the items will usually stay in the possession of the thief because you cant prove it)
- Unauthorized Possession / Adverse Possession
- Can someone who is an unauthorized possessor ever evolve into the true owner (adverse possession)
- 4 Texas Rules for Adverse possession
- Texas Rules for Adverse possession
1.Need a 2 year holding(adverse possessor must hold the property for 2 years)(The 2 year period is the statute of limitations, true owner can not collect from you after 2 years).(even if they can prove without a doubt that they are the owner)
2.Claiment must possess and use the property
3.Your holding must be exclusive and hostile to the true owner ,not holding with permission, cant borrow something and then claim ownership after 2 years. You have to be holding it for 2 years claiming ownership. Cant be adverse to co-owners(both own a car, one cant claim ownership after 2 years)
4.When the cause of action accrues, when the statue of limitations starts to run. (most litigated) In Texas we follow a discovery rule (directly to the true owner, or the acts have to be so obvious that the true owner would know about the adverse holding. Only when the owner knows that someone has ownership. This is when the statute starts. Must know or should know who has it, then the 2 year statute starts.
- A lawsuit arose when the purported owner of a counter entered Master P's bitness, which was where the gold plated tank was located, and took it back without notice or permission. When the statute of limitations for an action for replevin of property has
- Black letter Rule: When the statute of limitations for an action for repliven of property has run, the original owner cant circumvent the statute by physically taking his shit back.
- A lawsuit arose when three finger paintings, allegedly stolen from the artist 30 years ago, were discovered in the possession of an art collector who refused to give them back. Is application of the doctine of adverse possession the most appropriate way
- Black Letter Rule:In order to avoid harsh application of the statute of limitations, a cuase of action for replevin does not accrue until the injuried party discovers, or by exercise of reasonable dilligence and intelligence should have discovered, facts from the basis of the cause of action.
--if she finds the person who has it, and they give it to someone else after a year and a half, the statute doesnt start over, they are added together(assuming the 2nd possession is open and hostile,i.e. she knows they have it)
- Vocabulary from Okeefe:
- Adverse Possession: A way of obtaining good title to real or personal property by possessing the property in a certian manner for a fixed amt of time.
BFP: A person who buys something for value without notice that another person has a legitamite claim to the property and or that the seller's title is defective.
- Green sues Weatherbee when he discovers that Wetherbee was making a profit harvesting timer from his land. Can a party who in good faith reliance upon a supposed right takes another party's property and improves it ever acquire an interest in the improve
- Black Letter Rule: When nature of converted property is changed enough that it becomes a different species of property, and the conversion is not an intentional wrong, the appropriating party is only required to make satisfaction to the former owner for the materials converted and does not have to turn over the property.
- A tree harvester filed suit against a land owner when the land took control of a quantity of wood mistakenly harvested from his land.
When a person mistakenly performs labor on another's property and the owner recieves a benefit from that mistake, i
- Black Letter Rule: When a person mistakenly performs labor on another's property and the owner recieves a benefit from that mistake, the laborer is not entitled to compensation for the benefit recieved unless the doctrine of accession is found to apply.
Hertins labor and value of the newly transformed corn wood was not that much more than the value of the trees themselves.
Corn wood costs more, but the owner may not of wanted to make cornwood out of the trees, or cut the trees at all.
- A lawsuit arose when a Fresh mistakenly pitched a tent on another persons property and the landowner both refused to pay for the construction and to sell the property to Fresh.When a person has made good faith improvements to property prior to being evic
- Black Letter Rule: Where an occupant has in good faith, made improvements to property prior to eviction, he is premitted to sue in equity for the value of those improvements
- Intestate succession
descent and distribution
- Intestate succession OR descent and distribution(a fixed set of rules that dictate where a persons property goes upon death)
didnt really care about the dead persons intent.
Intestate= without a will,
succession = where the property goes.
Texas has a difference with where your separate personal property goes, and where your real property goes. Most states make no difference between personal and real, but Texas does.
Descent- succesion to real property, distribution was succession to personal property
- Define Heir
- Heir- person who takes from intestacy, A person who takes under a will is NOT an heir. If you are an heir, you are dead, and died without a will. Heirs could be any family member, anyone who gets your property when you didnt have a will.
75-80% die without a will. The way in which property goes by intestacy varies from state to state.
As society developed, they allowed the person to write a will, and give intent to where they want their property to go. Writing a will is a privilege, not a right, they can pass a law and say no more wills if they want. (any state can regulate it any way they want)
Most modern mechanismwill substitutes or probate avoidance techniques. Indicate where the property goes, but often contractual transfers at death (beneficiary of a life insurance policy, survivorship rights on bank accounts, pay on death designations, transfers by trust-in trust for)
Test a Tricks- Im not even gonna go there but I had some good shit.
- Testate dieing with a will.
Testator if male,
test a tricks if female.
A gift of real property is a devise(devisee)
A legacy is a gift of money.
(legatee)A gift of any personal property is a bequest.
(all are beneficiaries)
- Requirements of a WILL: (AIM For)
- Requirements of a WILL: (AIM For) no effect until death, will must be proved in court because it can transfer anything.
1.Person executing the will must have legal capacity.(being 18 or older) AGE
2.Have to have testamentary intent. (has to intend for that be your will when you make the will, not just instructions for a will)(please write me a will saying, ect.) INTENT
3.Testamentary capacity- being of sound mind(know who your family is, what your property is. MENTAL CAPACITY
4.Formalities (in writing, signed, and witnessed) FORMALITIES
- Three Types of Wills that will be recognized: (H-FAN)
- Three Types of Wills that will be recognized: (H-FAN)
a. Holographic will -(one entirely in your own hand writing, not typed, usually valid without a witness)-could just write, I hereby leave so and so to so and so, it would be a will in Texas.
b. Formal or Attested to -(will that is witnessed, attested to)
c. Non Cupative will - (an oral will), requirements are very strict, have to make it on your death bed if you make it, (ONLY for personal property) (need 3 witnesses, has to be for more than 30$)
- Freehold Estates:
- Look for characteristics in someones interest in property:
1.Duration how long does the interest last-(how long does the estate last)
b. for life
c. specified number of years
d. until a condition is satisfied
2.Ability to transfer ability to transfer while alive and after death (inver vivos gift, sale, Death -by will or by intestacy.
3.Limitations on use
seisin have a right greater than possession. (NO seisin = a lease)
- Fee Simple Estates
- This is the big one, everything the law allows you to have, biggest estate, best, closest to true ownership that the law allows. Biggest interest.
1.Present right to possession
2.The right to posses until you die
3.No conditions on your possession,(other than law..i.e. zoning, nuisance)
4.Transferable while you are alive.(can sell or give away)
5.Inheritable by your heirs if you dont have a will
6.Divisible by will
- How do you know if you have a fee simple absolute?
- Read DEED and look for phrase: To A and his heirs
To A = words of purchase(tell who gets it.)-(doesnt mean who bought it)
and his heirs- words of limitation(this is telling us what)-(not giving anything to his heirs, just telling us what is being granted, what estate)(dont need these magic words anymore in Texas, but every deed will probably still have it)
5.001 of property codewords previously necessary at common law to convey a fee simple absolute, are not longer needed, dont need the magic words anymore.To A would be fine in Texas.
The words are there in every deed in Texas, usually.
- Willy and his wife sure the purchaser of property sues Chip for the return of thier earnest money on the grounds that a previous deed in the chan of title that lacked the words "and Heirs" made the title unmarketable.
Does a deed tha
- Black Letter Law: Purchasers are justified in rejecting as unmarketable a deed that is preceeded in the chain of title by another deed that lacks the specific language necessary to create a fee simple
The law in the state where the real property is physically located governs the rules of transfer and other laws. (law of citus)
- How to create a Life estate:
There are 2 Categories:
- ·Conventional Life estate (created voluntarily by the property owner)-will, deed (property transfer mechanisms = deed, will)
·Legal Life estates (not created voluntarily by the parties, created by the law)-(all arise because of a MARITAL relationship)-(homestead rights)-(ex. You move into a house, you have no sticks, no rights, you just live there, but if your spouse dies, you have a homestead right to remain living in the house for the rest of your life, with a new spouse even.-(will learn about later)
- An unmarried divisee who inherited all of the testrix's real property so long as she remained single, sought a declaratory judgement that she took a fee simple estate and not a life eastate.
1. Is a provision that devises real property to a person
- Black Letter Rule:
1. A will provision that limits a devise upon the marriagfe of the devisee is valid when the purpose is to provide support to the devisee.
2. A devise will be considered a fee simple absent express language indicating a life estate or creating a further devise following the devisee's death
- 7 Life Tenant Duties:
Quasi trustee or
Quasi fiduciary role = life tenant
- 1. Must keep the property in repair.
2. must pay property tax
3.Must pay interest on the mortgage, but not principle.
4. Life tenant is entitled to all the rents and profits
5. Life tenant cannot give anyone an interest for longer than their life. Cant give away more than what you own
6. Have to allow reasonable inspection by reversioner.
7. Cannot commit waste. Causes material damage to or loss to the property, neglect or misconduct. (not ordinary depreciation)
- 3 TYPES OF WASTE
- 1.Voluntary waste:take deliberate or destructive action, putting holes in the wall
2.Permissive waste: failing to exercise ordinary care in upkeep, preserving the property.
Doctrine of meliorationg waste: If the waste improves the value of the property, than its not property. (strict though), cant tear down a house and put up a better one , usually need consent of reversioner.
- 1. Fee Simple Determinable:
- ex. To A and his Heirs as long as no alcoholic beverages are sold on the property words of purchase A, words of limitation: and his heirs as long as
(Fee Simple Absolute would say and his Heirs PERIOD)
Magic words of limitation for determinable: MEMORIZE (so long as, until, while.)
Grantor owns a Possiblity of reverter (can only have with fee simple determinable)
Automatic divestmentAutomatically goes to the grantor. However, A might not leave so you should probably involve the court. Cant legally hire goons to drag them off the property.
Might also need court action if you want to sell or mortgage the property so whoever you are selling it to knows the past.
May also need court action to avoid adverse possession.
- Fee Simple Subject to a condition subsequent
- To A and his heirs, but if alcohol is sold on the premises, the owner may re-enter and claim the land.
Magic words: but if, then provided that, if on the condition that if
The Grantor owns a Right to re-enter or a Power of termination
Divestment is NOT automatic, requires the grantors affirmative act.
-could lose property through waiver and estoppel here because it is just a right, not automatic, requires an affirmative act.
- Fee Simple Subject to an executory limitation:
- To A and his heirs, so long as no alcoholic beverages are sold on the property, then to B and his heirs
Property doesnt go back to the grantor If breached. B and his heirs will get the property.
3rd party has a shiftingExecutory Interest
Property is NORMALLY automatically conveyed.
B does not have to obey the no alcohol rule.
- City residents and taxpayers sued to invalidate city resolutionsextending the time under which a purchaser of land from the city had to complete obligations and to hace the purchaser forfiet the land back.
Does a deed from a city under which
- Black Letter Law: A deed provision stating tht buyers failure to perform certian requirements would make the title revert was not sufficient to create a F.S.D. where other deed provisions and surrounding circumstances indicated that the parties intended to create a FSSCS.
- The heir of the original grantor of property conveyed to a school "school purposes"is suing for the return of the land now that it is no longer being used for the "Patrick Upton Skool for Kids who Dont Read so Good."
- Black Letter of Law: Where a deed conveyed property for school purposes but without provision for reversion, and the granteee used it for 60 years for school purposes the grantee has a fee simple estateFee simple abosolute was created because there were NO defeasible language used. Precatory language, words that are suggested as a hope, desire, wish, understood, but are NOT mandatory.
Words must be mandatory or the language wont be binding. This is the NORMAL rule today, if you simply indicate it should be used for a particular purpose, it is NOT any kind of fee simple defeasible. It is a fee simple absolute.
Being understood is not binding.
- Successors of grantor sued to compel the grantee city to perform a condition sub. under a 75 yr. old deed.
1. Does the passage of time render unenforceable the grantee's obligations in a condition sub. in a deed of land?
2. Does a city's refus
- Black letter Law: Absent prejudice to the grantee, the passage of time does not terminate the grantee's obligations to preform or grantor's rights to forfiet lands under a fee simple subject to a condition sub. On appeal the S.C said the grantor must act within a REASONABLE TIME after the grantees' breach of the condition.
2. When a city's refusal to perform a condition sub. destroys the value of a graontor's rights under a deed, the city has committed an unconstitutional taking, and owes the grantor the fair value of his right.
- Several years after the grantee's city's alleged breach of a condition sub., the grantor's heir sued to terminate city's estate in deeded property.
Is a grantor's or his heirs' suit to reenter and terminate the grantee's estate for failure to
- Black letter Law: Grantor's suit to reenter and take possession of lands due to grantee's breach of a condition sub. IS barred when NOT filed within the statutory limitations period
- Grantor Appealed a trial court decision that the grantee needed to pay grantor only nominal damages when it condemned the grantor's future interest in land the county wanted to develop without restriction. May a grantee condemn the reversionary interest
- Black letter Law:To condemn a grantor's reversionary interest in a property for which it holds the defeasible fee, a governmental entity must pay grantor the difference between the fee simple and the defeasible fee interest in the land.
- Common law divided Fee tail into 3 catagories
- 1.Fee tail male (restricted to male decendants)
2.Fee tail female (restricted to female)
3.Fee tail special (restricted it to decendents from a particular spouse)
There would be a reversion back to the grantor if there were no decendents
(This caused lots of problems, property divided into many parts)
Common recovery and the find these were fictitious lawsuits, to get around the statute and get rid of fee tails.
- FUTURE INTERESTS:definition
- Something that will or may become possessory at a future time. You cant possess right now, but you will or might get it in the future. (possibility) you will have a right to possess the property.
If the future interest is created in a 3rd party it is either a remainder or and executory interest.
- (Grantor could never have one, always in 3rd parties) (cant follow a condition subsequent)
Future interest held by a 3rd party (grantee). (if doesnt qualify as a remainder, then it is an executory interest, can only be one or the other.)
(owner doesnt have possession now, may never get it)
(remainder is something given away by the grantor, not a retained interest)
(remainder can come before a condition subsequent, but not after)
- Key elements of a remainder
- 1.Held by a 3rd party
2.Created in the same instrument as the posessory interest. (will or deed)
3.Must be come possesory immediately upon NATURAL expiration of the prior estate, can be no gap between the prior estate and the remainder. (The big one from distinguishing from executory) ex. (To A for life and 1 year after As death, to B and Bs heirs, cant be a remainder because there is a gap)-(for that year it would revert to the Grantor)-(if As dies, Grantor owns a fee simple subject to executory interest for that year.) -(B will eventually end up with a fee simple absolute, after the year)
4.Remainder cant shorten or divest a prior estate. (cant follow a condition subsequent)-ex (To A for life, but if X becomes president, then to B and his heirs)- A remainder can not cut short a prior estate. A has to die, then the remainder can take effect. A has a life estate subject to an executory interest. B cant have a remainder. Just takes effect when it ends on its own, if X becomes president before A dies, then As estate is cut short. If there is a condition subsequent or determinable, the interest that follows can not be a remainder
- Condition subsequent, takes away what you have. You have it but if you breach the condition, they take it away from you.(passing and staying in law school or you are out)
-Condition precedent, you dont have it until you satisfy the condition, have to satisfy the condition first before you get the property.(applying to law school to get in)
- Vested remainder:
- One where the owner is entitled to possession when the preceding estate ends and there are no conditions preceding. Person who is going to have the remainder can own it right now without any conditions. (dont have to do anything to earn it) Can go grab the person, we know who he is, he is born with no conditions.
1.Has a taker (born and ascertained)
2.not subject to a condition preceding.
- 3 types of vested remainders:
- 1.Indefeasibly vested: Nobody can take it away(nothing will make their interest smaller, as strong as an interest as you can get as a remainder, its yours, not going away or getting smaller) (To A for life, then to B and her heirs)
2.Subject to open: (APPLY RAP) To A for life, then to Bs Children . Its open because there is a chance of having multiple kids. 50% 25%, ect. -If B is dead with one kid. then it is an indefeasibly vested remainder (assuming there is one kid alive) If B dies without any kids, there is a reversion. (look for a class gift, with one living member with the potential of having more members)
3.Vested Subject to Total Divestment To A for life, then to B and her heirs, but if B predeceases A, then to C and his heirs. there is a condition subsequent.(but if) .B has a vested remainder, but it can be taken away entirely. Subject to total divestment, can be completely taken away. Then to C and his heirs is a shifting executory interest, because it follows a condition subsequent.
Contingent Remainders: (APPLY RAP) Cant look at anyone and say that they have it, They may not ever get it. Only have a conditional possibility of gaining possession of the property, do not right now know who will actually get the property. There is always a reversion in the grantor with contingent remainders.
- Contingent unborn scenario
- To A for life, then to Bs children and their heirs, assuming B has no children and B is still alive. (Bs children are unborn, they only have a contingent remainder) (If B is dead, he cant have any kids, in that case we have a reversion back to the grantor)
- Contingent unascertained scenario
- To A for life Then to Bs heirs Assuming B is alive. (We have no idea who the heirs are until B dies) (most common example = gift to heirs.)
- Contingent subject to condition precedent scenario
- To A for life, then to B an her heirs if B marries before As death assuming B is still unmarried. (B and the heirs have nothing at the moment, subject to a condition precedent, so it is a contingent remainder. (if condition is satisfied, it turns into an indefeasibly vested remainder)-
- Destructibility of Contingent Remainders scenarios
- possible that the contingency could still happen. Common law, if condition hadnt been met, remainder evaporated. Modern law Does not destroy the remainder, instead the grantor has a reversion until the condition is satisfied (springing executory interest)
- Can contingent remainders be destroyed?
The destructibility of contingent remainders.
-What happens if the prior estate expires but yet the contingency can sill happen in the future?
- To A for life, remainder to B and her heirs if B marries X A could die with both B and X surviving but not yet married. (Still possible for the contingency to happen)
To A for life, then to B and his heirs if B attains age 21 A could die while B is alive but under age 21. (The contingency could still happen)-(B has an executory interest)B a reversion upon As death and would have a fee simple subject to an executory interest/limitation, assuming they are not married. Grantor owns it but if B marries X eventually, he loses it. If they never marry, fee simple absolute in grantor.
At common law the contingent remainder was destroyed. If the life estate ended and the contingency hadnt occurred yet but could in the future. The property just reverted to the grantor.
Modern approach: Contingent remainder is not destroyed.
You can do anything under modern law with remainders, they are freely transferable Can give them away, sell them, pass them under will, pass under intestacy. Certain types under common law, you could not do this.
- Grantee's kids unsuccessfully argued that the conveyence of a deed of 1/7th of the family's property to a 3rd party was void because the bankrupt child from whom the interest derived held only a contingent remainder in the property, rather than a vested
- Black Letter of Law: A remainder in real property is vested when a there is a 3rd person capable of being ascertained and ready to take, who has a present right of future enjoyment, which is not dependent upon any uncertain event or contingency, while in case of a contingent remainder the right itself is uncertain.
A future interest is vested if the remaindermen are capable of taking immediate possession upon the natural termination of the prior estate
- Review of Subsequent and Precedent
- You will get into law school if,
You will be dropped from law school if Subsequent
If you are getting anything it is precedent. If you have something, but can lose it, it is a condition subsequent.
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