Property Outline observable fact of possession

certain amount of actual control over property intent to possess the prop and exclude others

PERSONAL PROPERTY

Wild Animals mere chasing, although hot pursuit, does not give right of possession over another who intervenes and

captures animal if animal mortally wounded or capture is certain, hunter acquires a right to possession and title which

can not be defeated by another’s possession Pierson v Post (NY 1805) – interference with hunting of a foxOccupancy (deprivation of natural liberty):1) maintaining pursuit2) mortal wounding3) physical taking almost inevitable

Buster v Newkirk (NY 1822) – 6 mile wounded deerUses occupancy rule of Pierson in ruling P had not sufficiently deprived deer of natural liberty to be considered occupier

Keble v Hickeringill (QB 1707) Decoy pond“every man that hath a property may employ it for his pleasure and profit” Action lies b/c it imports damage to livelihood [malicious interference]. Ratione soli.

Liesner v Wanie (1914) – wounded deer in a cornerInstant wild animal brought under control of a person so that actual possession is practically inevitable, vested property interest accrues which cannot be divested by another’s intervening and killing it – differs from ancient law where vested interest cam at point of actual taking. “Practically inevitable” rule.

Dapson v Daly (Mass 1926) unlicensed hunterClarifies rule of Pierson.1) court not convinced P’s initial wounding of deer = occupancy2) unless licensed, P not entitled to rights of huntsmen. First step in proving title is proving he was

licensed.

Clucas v State of Alaska (1991) re: set nets and drift nets in fishingRule: “first in time, first in right” if net is set. If net is drift, then set net = stable net against which distance is to be measuredIntent to possess an area of fish established by placing of net.

State of Ohio v Shaw (1902) fish stolen from netsUses Pierson occupancy rule but expands in reference to fishRule: to acquire property, it is enough that he has confined them within his own private enclosure where they are subjected to his use, and that he maintains reasonable precautions to prevent escape.

Sollers v Sollers (1893) gathering of fish into cove1) to complete right of property, actual appropriation must be made

2) if animal voluntarily restored to natural habitat after capture such that can only be regained in manner they were obtained, property is lost

a) all water is owned by state and not have possession of fish ratione solib) P not have possession of fish in any meaningful way if restored to natural element so can only be regained in manner originally taken, property is lost

(deals with wild animals, but can argue possession doctrine is similar)

Ghen v Rich (1881) beached whaleTrade usage allows to get around Pierson rule of pursuitIf a fisherman does all that is possible to make the animal his own, that is sufficient. Rule depends on what it reasonably takes to secure a wild animal.

North Dakota v Dickinson Cheese (1972) antipollution statute waterState sues for polluted water – dead fish. Suit for damages. Rule: state can regulate how persons obtain ownership of fish but state property rights not sufficient to sustain civil action. Statute can only give penalties (no right to reimbursement for fish)

Citing:Commonwealth of Penn v Agway (1967)Suit for value of fish killed as result of pollution. Exclusive remedy for states = penal provisions of statute. “Ownership theory” is a myth – state only has power to regulate and preserve exploitation of a resource.But…In re: Steuart Transp. (1980)State sues for loss of wildfowl as result of an oil spill. State can recover – right not depend on ownership, but on sovereign right to protect public interest in preserving wildlife resources. Can recover on a) public trust doctrine b) parens patriae (just not ‘ownership’)

Classifying Property as Real or Personal

FindersLaw of Finds: finder of lost articles, even when they are found on the property of third person, is the owner against all except the true owner. lost property: personal prop whose possession has been parted with casually, involuntarily or

subconsciously misplaced prop refers to personal property which has been intentionally placed somewhere and then

unintentionally left or forgotten abandoned prop consists of prop that is no longer in possession of the prior possessor who has

intentionally relinquished, given up, or released the prop treasure trove = coin or money concealed in the earth or another private place, with the owner

unknown Rights of a finder:

a. Finder of lost prop acquires title against all but true owner. Can’t convert to personal use if reasonably able to find true owner and fail to do so. In general, finder of lost personal prop on land of another is entitled to personal prop unless he is a trespasser

b. Finder of misplaced prop not entitled to retain possession of prop as against the owner of the land on which the prop found. Owner of ‘locus in quo’ bailee of goods for the true owner

c. Finder of abandoned prop entitled to possession and ownership against all others.d. Treasure trove in US treated as lost property

statutes have eliminated distinction between types of lost property. Statutes can give process for gaining possession of found property.

Haslem v Lockwood (1871) gathering of manure on a public highwayManure = personal property. Rule of abandonment: possession = change nature or enhance value, plus intent to possess. Only person who could bring action would be state (but not have cause of action for interference unless had passed statute claiming power to regulate)

Goddard v Winchell (1892) fallen meteoritePersonal property which is affixed (embedded) to land. Action in replevin only for personal property. Language of opinion = treat as part of land, but can only rule on basis of personal property. No intent to abandon + ownership of land + no other true owner = landowner keeps possession.

Acquiring Abandoned PropertyEads v Brazelton (1861) sunken steamboat retrievalLead in boat abandoned by owners. Rule: in order to establish possession, needed to place his boat over wreckage with means of raising lead (need to maintain possession – give notice to other parties, ie lance in Ghen, nets in Shaw, manure piles in Haslem). Nature of the profession – can’t just mark shipwreck and leave it indefinitely. Columbus-American: abandonment assumes intent to abandon Law of Finds: key to ownership = whether owner has abandoned property (either express or implied).

Lapse of time and non-use by the owner can give inference of intent to abandon. Law of Salvage: when property rescued is in marine peril, is rescued voluntarily, and the salvage

successful – salvor gets a salvage award (but still has to establish possession in doing this). Court also considers due diligence and ongoing efforts.

Finder’s Rights = physical taking + intent to possess Winkfield doctrine: Bailee must account for thing bailed, and must account for that which is its

equivalent and represents it. P still accountable to true owner, even if others were accountable to him in interim. Wrongdoer, having once paid full damages, has an answer to any action by true owner.

Court places premium on luck rather than industry; looks at honorable intention of the finderLost [involuntary parting]

Finder keepsClark v Maloney – finder who gathers logs and floats them has preferable right of possession. Rule: finder of chattel not acquire absolute property, but has a right against all other. Loss of chattel does not change right of property. [this is contrary to rule in wild animal cases and well-established in chattel cases]Bridges v Hawkesworth – bank notes never in protection of shopowner – unintentionally left on floor. Rule: finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule.Favorite v Miller – finder trespassed and property (statue of King George) was embedded in soil. Court looks at where property was found and uses reasonable person standard to determine mental state of true owner who parted with possession. Property is embedded because it is not (a) gold or silver and (b) is buried in the ground under circumstances indicating the owner will not return.

Property Owner/EmployerBarker v Bates – finders were trespassing and property owner had preferable right of timber lodged in soil. (ratione soli) [no rule as to whether nontrespasser will prevail over owner of land]South Staffordsville v Sherman – property (rings) goes to employer, not finder. “Manifest intention to exercise control over [the land]” – this not established law in US cases

Abandoned [voluntary relinquishment]Elwes v Brigg – prehistoric boat embedded in property belongs to owner, not lesseeEads v Brazelton – sunken steamboat goes to finder who establishes clear possessionMislaid [intentionally placed but later forgotten]

Treasure trove is personal property that is (1) not lost or mislaid, b/c owner meant to put it where it was for safekeeping (2) money or precious metals (3) an antiquity (owner dead or long gone). Most cases give treasure trove to finder.

FinderArmory v Delamirie – 2 rings found by chimney sweep apprentice belong to him (has possession against all but rightful owner)Hannah v Peel – finder gets broach from requisitioned, nonoccupied house. D never in physical possession of the house – never had prior possession of the house

Property Owner/EmployerMcAvoy v Medina – wallet left on table at barbershop property of owner, not client who found it (true owner intentionally placed it on table). This differs from Bridges because property mislaid, not lost. Public policy argument that better to give shop owner possession in order to make it easier for true owner to reclaim it.

BAILMENTRightful possession of goods by one who is not true owner occurs when there is delivery of personal prop to a subsequent possessor for a particular purpose with

an express or implied understanding that when the purpose is completed the prop will be returned bailee must be in possession of goods

possession = physical control plus intention to exercise that control lease of space for use by tenant = not bailment park and lock = no bailment; if keys surrendered to attendant who assumes control of the car, then

bailment Liability:

For sole benefit of bailor, bailee only liable for gross negligence For sole benefit of bailee, bailee liable for even slight negligence If for mutual benefit, bailee only liable for ordinary negligence – failure to observe ordinary care

(this is predominant standard for all cases) Can alter standard of care if not against public policy and if terms consented to by both parties Bailee liable for conversion if wrongfully refuses to return goods or returns goods to wrong

person If goods destroyed or damaged, then liable for negligence

bailee entitled to possession of the bailed property or damages against 3rd parties who wrongfully take or damage the property. Wrongdoer cannot defeat the bailee’s claim by showing title in another with whom the wrongdoer has no connection

ordinarily, bailee cannot transfer property to another person – cannot transfer title to a 3rd person greater than the transferor has except, if the bailee is a dealer of the kind of goods bailed and the transferee is a BFP for value,

then bailee can transfer good title to a 3rd party even though transfer is wrongfulBailment is NOT:1. bank 2. agency (agent has custody, not absolute control over item)3. chattel mortgage (ie, contract entered into to purchase car). As long as keep up payments, can’t take

away. In bailment, bailor has right to take back item whenever wishes4. Lease (ie, U-Store It) – closer to line, but no control over your articles consequences of liability substantial depending on how you classify the transaction

Applicable Rules:1. Bailment contract requires mutual assent by both parties. Mutual assent can be expressed by conduct

or words (Peet v Roth)

2. Where identity of item is concealed from the bailee, bailee has not consented and there is no bailment (opposite of facts in Peet)

3. When bailment for reciprocal benefit of both parties, bailee under duty to exercise “ordinary care” (Peet v Roth)

4. Should consider “possession and control elements” in defining duty of care of a garage operator to its customers. A presumption of negligence is created from proof of damage to a car parked in an enclosed garage – obligation on D to prove not negligent (Allen v Hyatt)

5. In park and lock cases, expectations of the parties and their conduct can cause differing legal results. Expectations of the parties and the facts giving rise to this expectation are important in determining whether a bailment was created (Allen v Hyatt)

6. Bailment = active delivery and acceptance7. Acceptance is absent when the property is not such as is usually and customarily left with a custodian

in like circumstances and no disclosure of this fact is made (Swarth v Barney’s Clothes)8. An implied contract of bailment with its component obligations arises only where a person in

possession of the property of another does some act which is inconsistent with the view that he does not accept the possession which has been thrust upon him.

9. Bailee has responsibility to re-deliver full value of the goods.

many cases decided by burden of proof. Bailee must prove its own due care -- if bailee can’t show what happened, then this decides case. But if shifting burden of proof, once bailee shows what happened, burden shifts to bailor to show this was negligence.

Peet v RothHotel guest gives ring to cashier to give to jeweler. Ring lost by hotel. When bailment for reciprocal benefit of both parties, bailee under duty to exercise ordinary care. Liability is for negligence – ordinary person standard. Burden on bailee to prove negligence did not cause the loss. Cashier saw the ring and therefore accepted the bailment. Even if ring was already in envelope, still responsible for value of contents – can argue should have known something of value was in it (knew that it was going to a jeweler).

Degree of Care/NegligenceSlight: beneficial only to baileeOrdinary: mutually beneficial Gross: gratuitous – beneficial only to bailor

distinctions all but disregarded now, line between them too fuzzy

Allen v Hyatt Regency – theft of vehicle in parking garageTicket with limited liability clause. Facts (limited access, security guard) show that car owner had expectation of bailment situation – expectation not clearly negated. Issues: what do the facts tend to create and is that expectation clearly negated (like by a very big sign)

* Pierson v Post: have to have physical, manual control of item – occupancy – court rules that facts show garage had control

Swarth v Barneys ClothesBailee not responsible for wallet left in car to be parked – presence of wallet neither disclosed nor reasonably expected.

Cowen v PressprichWhen agent discovers messenger delivered wrong bond, stranger messenger comes forward to reclaim it. Court holds for P – exercised dominion over thing and thus had duty to return it only to P. Higher court eventually reverses opinion, stating that D had not consented to accept the bond and tried to redeliver it in good faith – all that is required of them since they had no duty of care.

GIFTS: intention, delivery, acceptance present transfer of an interest in property. If transfer is to take effect in the future, it is a mere promise

to make a gift and unenforceable in the absence of consideration a present gift of either a present or future interest is valid. Gift not have to be entire interest in the

property gift of property during donor’s lifetime is valid only if there was intent, delivery and acceptance delivery is essential, but definition of it depends on circumstances (can be actual, constructive, or

symbolic) delivery must divest donor of dominion and control over the property

acceptance essential (presumed if gift beneficial to the donee) inter vivos: irrevocable transfer of prop made to the donee during the donor’s lifetime causa mortis: made in contemplation of the donor’s imminent death. Revocable at any point before

donor dies. 4 categories

contracts gifts [absence of consideration] trust [1 person holds property for benefit of someone else – dispenses with problem of delivery] will [formal document: written, witnessed, complies with statute of wills]

* Statute of Frauds requires real property to be transferred in writing

Gifts inter Vivos delivery should be consistent with thing being given

Irons v Smallpiece – actual delivery requiredVerbal gift to give 2 horse, but father retains possession. Rule: in order to transfer property by gift, there must be a deed or instrument of gift (not just letter of intent to give), or there must be actual delivery of the thing to the donee (even if intention clear, must be actual delivery)

Gruen v Gruen – constructive delivery OKLetter giving painting to son, but retaining life estate. Rule: To make a valid inter vivos gift, must be:a. intent on part of donor to make present transfer [requires ability to make gift] – can be a present gift

of a future interestb. delivery of gift, either actual, constructive or symbolic, sufficient to divest owner of dominion and

control over the property – sufficiency of delivery “must be tailored to suit circumstances of the case”c. acceptance by donee – when gift of value, acceptance presumed [ignorance of gift not impediment to

acceptance] proponent of gift has burden to prove each element absence consideration, promise to make a future gift is unenforceableTest = whether the donor intended to the gift to have no effect until after the maker’s death, or whether intended to transfer it to some present interest

Gifts Causa MortisWoo v Smart – gift not made until it is irrevocableDecedent gives 3 checks to life partner before his death. Checks not cashed until after his death. Rule:a. intent to make giftb. gift must be personal propertyc. gift must be made while donor under apprehension of imminent death, and not revoked in meantime

d. possession of property must be delivered at time of death and donee must accept gift burden on donee to establish by clear and convincing evidenceHere, transfer of check does not operate as assignment of money on deposit – until check cashed, not beyond power of donor’s revocation. Thus, not valid gift – was just nonenforceable promise to make gift.

UNAUTHORIZED POSSESSION AND BONA FIDE PURCHASERS no person may transfer a better title to chattel than she has UCC:

a purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchasedVoidable title:A gives silver to B, B to pay A soon. B sells to P. P = BFP.P has full title, B had voidable title and full power of transfer. A can still sue B for fraud, but can’t get actual silver back.

any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business

Anderson v GouldbergRule: to maintain replevin, plaintiffs possession must have been lawful against the person as against the

person who deprived him of it – possession is good title against all the world except those having a better title.

One who has acquired the possession of property whether by finding, bailment, or by mere tort, has a right to retain that possession against a mere wrongdoer who is a stranger to the property [a thief cannot steal from a thief] – wrongdoer cannot claim as a defense that there is title in a 3 rd party

Russell v HillPossession gives only a presumption of title. Opposite rule from Anderson – “to maintain trover, plaintiff must show title and possession, or a present right of possession”

Porter v WertzP loans painting to D (with possibility of purchase). D sells to another person, unknowing to P and without every paying P. [Nemo dat quod non habit – no man giveth that which he hath not.] when decide to buy something but pay later, title yours immediately (like a debt) loan: title remains in lender, possession in lendeeCourt holds that purchasers did not do so in good faith (under UCC, D not “merchant who deals in goods of that kind” and purchasers did not inquire as to rightful ownership of the painting) and that P can get the painting back, not just the value of it.* case shows that a BFP of personal property may transfer property to another who can then defeat the right of its true owner – BFP may transfer more rights than they acquire. Chapin v Freeland – Holmes opinionAction of replevin for 2 counters. Rule: when the statute would bar a direct proceeding by the original owner, then the owner cannot retake possession by other means. If you buy from a person against whom a remedy is barred, the remedy is also barred against you.General rule for adverse possession of personal property:1) action accrues when the P discovers the injury by D2) when applied to personal property, the law of adverse possession required that stolen animals be held

“openly and notoriously” in vicinity of the theft3) for other types of residential property, some courts required use “as openly as an ordinary owner

would”

fraudulent concealment: if person liable to personal action fraudulently conceals the cause of action from person he is liable to, then statute not run

“title which will not sustain a cause of action will not sustain a plea”: since D could not have recovered counters by a cause of action, he cannot defend his retaking through a cause of action

Statute of Limitations: generally, courts look to what is externally obvious in deciding when S/L begins to run. Mortgage: private office shuffling of paper Foreclosure: public change of ownership which ‘should’ be obvious to person who has interest in

the property

Law of FixturesWyoming State Farm v Farm Credit Sys.Ownership rights of a gated irrigation pipe repossessed by bank after farm foreclosure Law of Fixtures: chattel, which by becoming annexed to soil or equivalent, becomes part of real

property for most purposes. Default rule which can be changed by specification. Three Part Fixture Test:a. real or constructive annexation of the article in question to the realtyb. appropriation or adaptation to the use or purpose of that part of the realty with which it is connectedc. the intention of the party making the annexation to make the article a permanent accession of the

freehold [sufficient objective intent – looks at actions to determine intent]

Lehman v KellerA fixture is an article…of personal property which has been so annexed to the realty that it is regarded as part and parcel of the land. When a fixture is attached to leased property by the lessor, cannot be removed during duration if lease. Strong presumption that trade fixtures installed by lessee remain the lessee’s property. chattels not physically attached to realty are always personalty chattels which are annexed to realty in such a way as they cannot be removed without materially

damaging either the chattel or the realty are always fixtures chattels physically connected to the realty that can be removed = question (answered by looking at the

objective intent of the owner)Test:a. length of time chattels attached to realtyb. whether the chattels are essential to the purpose for which realty usedc. whether the parties to the lease treated the chattels as part of the leasehold estate

what “title” a person has in mortgaged property depends on how the jurisdiction classifies mortgage – lien or title.

LAW OF NEIGHBORS

ADVERSE POSSESSION in order to constitute possession, acts of dominion and control must reasonably correspond to the size

and condition of land. Acts must be consistent with how a reasonable owner of similar land might have used it

cannot acquire greater title than the person who had the cause of action during the period of possession

title relates back to the time of the possessor’s entry when the true owner’s cause of action accrued title is an original title – adverse possessor takes title and possession free of all claims which could

have been asserted against the former owner during the statutory period

if the true owner is under a disability at the time the cause of action against the adverse possessor accrues, most states extend the time to bring a cause of action beyond the removal of the disability

In order to acquire title to real prop by adverse possession, possession throughout the statutory period must be:1) actual2) open visible and notorious3) exclusive4) continuous and peaceable (unbroken continuity of possession for the statutory period)5) hostile [and under claim of right] color of title: paper or instrument that does not qualify as an effective legal conveyance but that the

claimant may believe is effective) relation back doctrine : once S/L run, adverse possessor’s title treated as though it had existed from

moment possession began. Holder of record title has no claim to damages to the land during the period of adverse possession. But, if a lien is on the property being adversely possessed, lien goes with the property. Former possessor can only transfer that which he has

Fleming v GriswoldCourt rules that statutory exceptions for statute of limitation (married, under age, or insane) not change law of S/L for adverse possession. Disability of Fleming (married) not stop S/L because had already begun to run when land conveyed to her. when S/L gives longer time than disability exception, not have to invoke disability – longer time

prevails future interests: If X starts to adversely possesses A’s life estate and A dies, then S/L starts again

when estate changes hands. Thus, X would not gain possession until 20 years after B got the remainder. However, if S/L ran during A’s life estate, then B’s remainder extinguished – X would have possession

jurisdictions differ as to how treat disabilities under statute doctrine of tacking: period of one adverse possessor can be tacked to the period of another adverse

possessor if possession in privity with each other privity: successor party must succeed to same interest (no privity if interruption)

thus, if A starts to adversely possess and B ousts him as another adverse possessor, B not get to claim A’s years against S/L

Anderson v Cold Spring TungstenRule: a showing of force or actual dispute not necessary to constitute hostile entry. Hostile does not require violence or any actual dispute as to ownership between adverse possessor and owner. Hostility – arises from intention of adverse possessor to claim exclusive ownership of property.

not need to fence property to claim hostile intent, lack of fence can limit amount of land can claim.

Actual occupancy means ordinary use to which the land is capable and such as the owner would make of it; not require visible encroachments and improvements to every bit of land (thus, can adversely possess a vacation home by being the only people to vacation there for 20 years).

In order for possession to be exclusive, not necessary that all use of property from public be prevented (ok to allow picnicking)

Hostility Test: declaration of parties and reasonable deductions from the factsReasonability test: did the adverse possessor exercise all control that could be expected in view of the character of the land?

Taxes: unless required by statute, payment of taxes not important

Dillaha v Temple avulsion: river moves suddenly – rights of land owners do not change

accretion: gradual accreting of property on one side of river or another – property owners lose rights they once had to land

Rule: in order to acquire title by adverse possession, possession must be hostile and adverse. If possession is in subordination to the rights of true owner, then S/L does not run. Occupancy, payment of taxes, improvements not establish title be themselves. Intention is controlling factor. Intention must be distinct, clear and unequivocal.

possession presumed subservient to true owner offer to purchase land in dispute can go either way – some courts see as legitimate effort to

quiet title, others see it as indicative of lack of hostility (ie Dillaha) except where permitted by statute, cannot acquire gov’t land by adverse possession

Meyer v LawRule: By statute, those who do not pay taxes on the property claiming to adversely possess cannot claim title to it. Can only claim title to that property on which taxes are paid and deed is recorded (color of title)

color of title = entry under a deed where deed seems to give you more than you actually own claim of right = belief property is yours, with or without title showing that all property is

actually yours** Court attacking adverse possession on basis of wilderness, public policy; more restrictive policy for adverse possessionPolicy reasons for adverse possession:(1) bar stale claims(2) law for the have-nots(3) keep the peace(4) promotion of efficiency – awards party that values it most(5) taming the wilderness – encourages use of land(6) personality theory – personhood becomes bound up with object over time

RIGHTS OF LATERAL AND SUBJACENT SUPPORTA. Lateral Support: right to have land supported by the adjoining land or soil beneath it; adjoining land

owner has duty to not change his land (ie lowering it) so as to cause this support to be weakened or removed; right is incidental to ownership – not depend on words of conveyance liability in strict sense – exists although no subsidence is intended or foreseeable liable for natural state of land, liable for damages to buildings if land would have fallen regardless

of presence of buildings [natural state: what is or may foreseeably be on land] Land With Buildings

B. Subjacent Support: support that the surface of the land receives from the underlying strata only have to support land in its natural state strictly liable for injury, not matter how careful might have excavated – right of support absolute natural state = land as is, not ability to support future buildings = what parties expect ordinarily at

time of severance Land Without Buildings

removal of either results in strict liability: but only to land in its natural state – if land in its natural state could support the buildings, then owner can recover for injuries to both land and structures negligence: statutes change normal SL rule -- courts allow to excavate property, but must do so

in non-negligent way. Statutes can require giving reasonable notice of excavation to take measure to protect land; give damages when fail to give notice; provides for direct protection when excavation lower than normal…

Noone v PriceRule: an adjacent landowner has an obligation only to support his neighbors property in its raw or natural condition. If the support for land in its raw, natural condition is insufficient and the land slips, the

adjacent landowner is liable for both the damages to the land and the damages to any buildings that are on land.

Island Creek Coal v RodgersStrict liability for operations directly below landNegligence for operations nearby, but not directly under land which is damages owner or possessor not liable for withdrawal of lateral support unless he is the one who withdraws

support (ie, where excavator did not provide artificial support to replace natural support removed). Contrasts with acts of god. But, subsequent owners of land have duty to uphold what is already on land.

Adverse possessor probably liable for damages, but probably not have right to damages (though this is questionable)

AIR AND LIGHTA. Airspace“to whomever the soil belongs, he owns also to the sky and to the depths” title to subsurface and airspace can be severed from the property

Murphy v BolgerNeighbor with protruding barn roof over adjoining property must remove it.

US v CausbyRule: flights over private land are not a taking unless they are so law and frequent as to be direct and immediate interference with the enjoyment and use of the land.

gov’t has taken an easement – owners only entitled to damages, not ejectment dissent: doctrine of sovereign immunity: gov’t can’t be sued except on terms sovereign itself

defines – have to consent to be sued landowner owns at least as much of airspace above ground as he can use in connection with land

– unclear what boundaries are to this rule more narrow rule than in Murphy – can only object to intrusion if harms you in some way or

takes part of the airspace that you need for your purposes

B. Rights in Air and LightSundowner v King – spite fenceSunlight as a natural rightRule: no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor – “so use your property as to not injure anothers”

rule applicable only to structures which serve no useful purpose and are erected for sole purpose of injuring adjoining property owners

statutory changes: codify common law, add arbitrary height limit remedy: action to recover damages, not abatement

Fountainebleau v Forty-FiveRule: more limited than Sundowner – one must use his property in such a way as to not injure the lawful rights of another – use cannot be a nuisance no right to free flow of air and light from adjoining land if a structure serves a useful purpose, it does not give rise to action for damages or injunction even if

structure might cause injury to another, and regardless of fact it might have been erected partly from spite [ok as long as structure has economic utility]

Doctrine of ancient lights : ability to have scenic view enhances property value – eco asset

court here reject doctrine; obstructing view is not a nuisance.

Prah v MarettiHouse built on adjoining land blocks sunlight to house with solar panels. rights of neighboring land are relative – court will not say that one person’s right to build on land

superior to neighbor’s right to access to sunlight court prefers to view case as one of nuisance rather than apply Fountainebleau rule of no right to

sunlight from adjoining land – holds that P has a cause of action for nuisance and remands But dissent takes alternate view (solar energy = idiosyncratic):

Nuisance: liable for nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose. If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular P may make it unendurable to him

NUISANCE protects property owner’s right to use and enjoyment of property – can be infringed without a

physical intrusion – right not absolute – must prove damages nuisance per se: act or thing that is nuisance whenever it occurs (ie toxic waste) nuisance per accidens (nuisance in fact): lawful activity that constitutes nuisance only because of

where or when it takes place (hog farm in a city) Nuisance Factors

(1) balancing process – weigh reasonability of neighbor’s conduct against harm to you (what it utility of act to him?)

(2) define “unreasonable conduct”: circumstances; fit & appropriate; not excessive; unnecessary for accomplishing end (degree of care used by defendant important)

(3) need nexus between injury suffered and land itself Checklist for Behavior

a. utilityb. suitability for purposec. contextd. malice

“Coming to the Nuisance” Doctrine: cannot complain something a nuisance when person entered property knowing a nuisance – have to take premises in way you find them priority of possession – important who was there first

Causation: was D responsible for all of harm? Special sensibilities of P Analogize cases by nature of conduct which has previously been found a nuisance

Think of remedy: injunction or damages Annoyance and inconvenience not necessarily grounds for nuisance action

Bove v Donner-Hanna CokeP cannot recover for smoke and soot of adjoining factory because P bought land knowing it was industrial area – area is zoned industrial and actions of factory are not nuisance per se or because of the nature of their operations.Rule: Inconvenience cannot be fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinary reasonable personTest:a. Has P suffered substantial harm?b. Is D’s conduct unreasonable?

Griffin v Northridge – really obnoxious neighbors

Court allows recovery for repeated acts of neighbors – acts done with sheer malicious intent. Sum total of acts = important, even if acts themselves lawful. In calculating damages, can consider sentimental and aesthetic value of house. Maliciousness can increase award.

RIPARIAN AND LITTORAL RIGHTSA. Appropriation doctrine: government agency apportions water to contesting claimants – not limited to

riparian landowners1) Doctrine of prior appropriation: “first in time, first in right” – allocates rights of water in western

U.S. Provides for use of water beyond riparian parcel. Has 5 elements:a. qualified person must acquire the right (includes legal entities)b. person must establish that he or she is the first to appropriate the waterc. appropriation statutes and cases define what waters and water courses are subject to doctrined. water appropriated must be put to actual and beneficial use (more than purely economic

determination)e. element of priority – last appropriated right is first to be terminated in event of a water

shortage

B. Riparian Doctrine: based on common law which gave the owner of land bordering on streams the right to use the water therefrom for certain purposes, and this right was considered an incident to ownership of land. Riparian rights can’t be separated from the land – water is not an object of commerce (can’t sell your water to neighbor). principle of sharing: everyone along water has to share in consequences of drought – must make

adjustment for reciprocal rights1) natural flow theory: riparian owner can take water for domestic purposes only – entitled to have

water in stream or lake at the normal level2) reasonable use theory: no reason for maintaining water at normal level when water can be

beneficially used without causing unreasonable damage to other riparian owners. Rights are mutual, common, or correlative. Use of water by each owner limited to what is reasonable, having regard for rights of others above, below, or on opposite shore.

SALE OF LAND* executory period: time between signing of K and closing. Investigates title and property, prepares financing – obligation to purchase conditioned on success of these investigations. Broker’s Contracts traditional view: broker earns commission when produces a buyer “ready, willing and able” to buy.

Sale need not be consummated minority view, but more recent trend: earns commission when produces buyer who is “ready willing

and able”, purchaser enters into binding contract, purchaser completes the transaction. If transaction fail because of fault of seller, broker still has valid claim for commission.

Tristam’s Landing v WaitBrokerage commission dependent on actual sale of land. Broker must produce a customer ready, willing and able to buy. Court arguably overturns common law rule that sale not have to finish before agent can get commission. buyers remorse/sellers remorse: if buyer has remorse, seller has right to enforce a contract signed and

require specific performance problem with test = depends of fault – complex to figure out who is at fault when sale not completedRULE: When a broker is engaged by an owner of property to find a purchaser for it, the broker earns his commission when(a) he produces a purchaser ready, willing and able to buy on the terms fixed by the owner

(b) the purchaser enters into a binding contract with the owner to do so(c) purchaser completes the transaction by closing the title in accordance with the provisions of the

contract. If contract not consummated because of lack of financial ability of the buyer to perform or because of any other default of his… there is no right to commission against the seller. If the failure of completion of the contract results from the wrongful act or interference of the seller, the brokers claim is valid and must be paid.

Statute of FraudsRequires that contracts for sale of lands be in writing. Original English statute: “no action shall be brought upon any contract for the sale of lands or any interest in them…unless the agreement upon which such action is bought…shall be in writing and signed by the party to be charged” writing requirement

(1) specify the parties to the transaction, the legal description of the property, and the consideration (essential terms) OR

(2) include all the material terms of the transaction prevention of fraud; preventing person from fabricating contract where none exists = either Statute

cannot be used to effect a fraud or it is an evidentiary device Doctrine of Part Performance: when buyer pays consideration for land and takes possession of it or

improves it, those actions constitute an adequate substitute for a writing – payment alone is never sufficient to satisfy doctrine – most courts also require possession, or improvements to land

Cash v Maddox – formalistic treatment of S of F – most courts more lenient in allowing reform by parol* writings must establish essential terms of the contract without resort to parol – land must be described to indicate with reasonable certainty land to be conveyed (degree of certainty required depends on subject matter of the K) – parol cannot be used to supplement a vague and uncertain description -- court will not decree specific performance unless writing contains essential terms

Partial Performance diversity among the states as to what constitutes part performance such that contract will be enforced

in equity: payment of all or part consideration, building improvements, delivery of possession. Most states require a combination of at least two of these.

Doctrine of Equitable Conversion and Risk of Loss doctrine treats interests in land as if the land had already been converted into personal property. Applies when there is an enforceable obligation to sell land Purchaser is regarded as owner of the land for many purposes, and the vendor is regarded as the

beneficial owner of personal property, primarily the right to the purchase price and to impose a security interest on the legal title to enforce the payment of the purchase money

If vendor dies, interest descends as personal property – heir gets only a bare legal title which he must convey to purchaser when purchaser performs

If purchaser dies, right to receive land goes to heir but duty to purchase goes to representative of estate

Traditional view: risk of loss on vendee for losses occurring without the fault of either party Minority view: risk on vendor – but Uniform Acts place risk of loss on one in possession Obligation to pay taxes usually on one in possession, and vendor continues to receive rents, etc until

transfer of deed unless contract provides otherwise, buyer has equitable interest and seller holds legal title in trust for

buyer. Buyer has real property interest, seller has personal property interest Vendor Purchaser and Risk Act

(1) no transfer of possession

(2) were there contractual provisions as to risk (question left for court to decide if parties had contracted around risk)

(3) material part destroyed if met, then contract can be nullified

Insurance: if vendor holds insurance, vendor holds proceeds of insurance policy in constructive trust for purchaser (but he can take out premium payments that he’s paid)

in some jurisdictions, unsatisfied conditions delay the applicability of equitable conversion

Bryant v Willison Real EstateShows how courts will interpret contracts re: assumption of risk. Limited rule of case: where contract places the risk of loss on the vendor and insubstantial damage to the property occurs without the fault of either party, purchaser may recover his down payment where the vendor refuses to repair the damage or give an abatement in price.

Disclosures about PropertySeller must disclose material defect in the property, known to seller, not reasonably discoverable by tenant – law in area unsettled as to what has to be disclosed (haunted = yes; cellar floods = not necessarily; previous owners criminal = yes, if activity in house). “As is” provisions not uniformly interpreted by courts as negating warranty of habitability. Non disclosure not invalidate sale, but vendor or agent is liable for damages.

Time of Performance where time is not of essence, court will allow a reasonable time can make time of essence by providing for it in contract, but parties can waive that provision later if

wanted unless specify time of the essence, court will read into contract permission to extend contract length –

because so many things can go wrong, court tries to allow flexibility

Express “Subject to Financing” Contract Terms purchaser conditions obligation to purchase on ability to obtain loan – delays enforceability of

contract until condition met Equitable conversion only applies if contract is specifically enforceable

condition precedent: contract only enforceable after financing happens (no contract until condition met

condition subsequent: contract in effect unless condition not met later (present obligation which can be undone)

Bruyere v Jade RealtyDivorcing P not entitled to return of down payment (in theory, could have been liable for SP)Rule: intent of the financing clause is to protect the buyer from involuntary breach. Where the condition precedent of financing is first satisfied, but then fails because of some action voluntarily undertaken by the buyer, risk of the failure of the transaction is placed upon the party who so acts

Marketable Title a title not likely to result in litigation – “reasonably free of encumbrances and other title defects, and

free of risk of litigation”. Definitions involve probability that claim will be made against owner. If any significant question exists concerning the seller’s title to land, marketable title provision is violated, and the purchaser cannot be compelled to purchase the property.

vendor required to deliver marketable title at closing – purchaser cannot rescind before closing can require vendor to provide abstract of title showing marketability Can become unmarketable:

If vendor had title but lost it in an action or proceeding

If vendor never acquired title because of flaw in chain of title Encumbrance on the title (lien or other nonpossessory interest or a nonfreehold possessory

interest – affects use or possession of the land). Zoning ordinance not encumbrance unless it materially affects the next sale of the property.

can contract around marketable title some courts allow rescission if the purchaser discovers that vendor knew of unmarketability of title at

time of contract (tortious misrepresentation) quitclaim deed not waive marketable title covenant Marketable title “of record”: each link in chain of title documented in public records and given to

vendee by vendor before sale complete

Breaks in Chain of Title adverse possession is marketable, even if no suit to quiet title (as long as possession is clear) however, should obtain affidavits documenting facts of adverse possession and should keep track of

vendor’s whereaboutsTrimboli v KinkelLawyer not mention flaw in chain of title. P brings action against lawyer for letting them believe title was marketable, sues for negligence. Court holds that lawyer was negligent and allows P to recover reliance damages (fruitless contract of resale). Quantity of Acreage DisputesTurner v FerrinContract for deed (here, down payment and then monthly payments – like installment contract – if don’t make payments, property forfeited). Sale was made “in gross” and variation from that listed was not material – title could easily be fixed by employing a surveyor.Rule for Sale in Gross: generally, a variation in acreage from what the parties had contemplated is not grounds for rescission or other relief. If want just equitable relief, need to consider whether variation material. Lump sum price – presumption of sale in gross (also, observation of property and lack of statement of price per acre). Court says 50% or more is material discrepancy.Grounds for Rescission: Rescission allowed(1) if the consent of the party was given by mistake or obtained through fraud, duress, or undue influence(2) if, through the fault of the party as to whom he rescinds, consideration of his obligation fails in whole

or in partDefinition of Mistake: unintentional act or omission arising from ignorance, surprise, or misplaced confidence; mistake must be material – so substantial and fundamental as to defeat the object of the partiesRule for Mistake Relief: equity will provide a remedy when by mutual mistake the land contains materially more or less acreage than the parties believed. A slight disparity will justify equitable relief if the sale is by the acre, but if the sale is in gross a great disparity must exist to authorize relief

Merger By DeedContractual promises merge into deed and disappear. If contract to sell 1 acre and only convey .76 acre, remedy is on the deed, not on the contract. Promise to convey 1 acre is subsumed into the deed. If Turners had paid full price for the property, would have had the amount of property listed on the deed, not just the land as described initially. Once deed conveyed, then not look at contract anymore. Info-forcing rule to force parties to state exact terms of sale of deed at closing. [does allow promises to be put into deed] Can contract around this expressly.

CONTRACT REMEDIESI. Damages

a. nominal: traditional measure, measured on the day of the breach. Includes non-defaulting party’s reasonable out-of-pocket costs, which can be reduced by any amounts recoupable when property is later resold. Assumes that defaulting party was not a vendor intentionally misrepresenting facts

b. If vendor gives total misrepresentation of ownership, this bad faith provides damages measured by the lost benefit of the bargain (increased costs in the second transaction are recoverable)

c. In majority of states, seller can keep down payment of a defaulting purchaser d. Three dates for determining vendor’s damages when land values are falling

1. date of purchaser’s breach (majority of states)2. date of contract3. date vendor resells property , if diligently attempted to do so

II. Specific Performancea. courts traditionally grant to purchasers, but not to sellersb. in order to grant, contract must be legally binding and damages must be inadequate remedy.c. Specific performance is an equitable remedy – court has discretion in giving or denying

III. Rescissiona. grounds for rescission: mutual mistake of fact, failure of consideration, fraud, intentional

misrepresentation, undue influence, duressb. courts divided on whether rescission is an equitable remedyc. person seeking rescission must offer to restore all that he received under the contract (“tender back”

requirement). Parties often go to court to get this to force other party to giver back all that they’ve received as well

IV. Equitable lien of both vendor and purchaser

LAND TRANSFERSLivery of seisin: symbolic delivery of land -- gives possession under claim of freehold estate. Historically, could never be suspended – someone must always be seised who could discharge feudal obligations (land descends to heir of last person seised).1535: Statute of Uses: made other modes of alienation legal that didn’t require ceremony1677: Statute of Frauds

even after this passed, writing did not transfer the property – still technically needed livery of seisin until Real Property Act of 1845

Statute of Enrollments: purpose was to prevent clandestine conveyances – made a deed of bargain and sale of a freehold interest void unless within six months it was enrolled in a court of record (once Real Property Act passed, not need to do this)

Deed Covenants for Title1. General Warranty (provides most protection) Present covenants: breached, if at all, when deed is delivered – S/L begins to run even if grantee

unaware of breach: seisin : grantor owns the title that the deed purports to convey right to convey : generally, same as seisin: grantor owns the estate deed conveys. Lack of title

important, though this differs from seisin because having current possession of property not important – holding title with right to convey is enough

against encumbrances : guarantee that property conveyed is not subject to outstanding rights or interests that would diminish value of the land (existence of zoning law does not breach, but a violation of the law is a breach). Remedy is against immediate grantor.

future covenants: breach after deed is delivered (run with the land) – not breached until an ‘eviction’ has occurred quiet enjoyment : protects against outstanding interests in land when the adverse interest holder

asserts his rights in the land. Assertion of rights must rise to level of constructive eviction. Can

sue original grantor but adverse interest holder must assert right and must be constructive eviction.

general warranty : same legal effect as quiet enjoyment: defend grantee against all lawful claims of the grantor or 3rd persons who would evict the grantee, actually or constructively

further assurances : not used much in US – undertaking on part of grantor to do such further acts as necessary to perfect grantee’s title – requires grantor to execute any document or take such action as necessary to perfect grantee’s interest in property

more than one remote grantee may enforce a covenant that runs with the land against the original grantor

damages must be shown in order to get recovery (covenants of indemnity) generally, can’t claim damages over price of land plus interest. Can only recover full damages once. Covenants look good on paper, but case law shows not much recovery under them2. Special Warranty (limited warranty): most common limitation is that has all covenants, but is limited to grantor’s period of ownership – grantor hasn’t created any encumbrances3. Quitclaim: no title covenants. Transfers whatever interest grantor has in property, if any

most common form does make a difference in outcome (estoppel by deed)

Anderson v AndersonCourt finds that cancellation of deed proper where consideration was a promise which grantee did not intend to fulfill.Promise or obligation of the grantee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by language of instrument

Covenant: breach = damagesCondition subsequent: failure = forfeiture

Rule: mere failure of consideration is not sufficient ground for forfeiture of property. Law dislikes forfeiture if just covenant – damages can better assess what real harm to parties has been (as opposed to complete loss of property). However, cancellation of deed proper remedy if the promise of support was fraudulently made with no intention to carry it out at the time of its execution. where the particular circumstances impose on a person a duty to speak and he deliberately remains

silent, his silence is equivalent to a false representation voidable title: title is not a nullity until person being defrauded raises objection – w/out suit, grantee

has title and can give voidable title to another

Brown v Lober1/3 interest in subsurface coal rights. Rule: Covenant of warranty or quiet enjoyment is breached only when there is an actual or constructive eviction of the covenantee by the paramount titleholder – mere want of title not enough, must be an ouster. Knowledge of the paramount title holder not enough – person has to actually come upon land (here, begin excavating coal) before have an action. Actual eviction: disturbs possession. Constructive eviction: assertion of rights.

Proffitt v Isley – rule used here changed by many states by statute or judicial decisionRule: unless evicted, can only sue for nominal damages – can’t recover for mere existence of encumbrance, unless evicted for it. Must pay off encumbrance before can sue for damages. Remedy is against the immediate grantor, who can then sue his grantor, and back up the chain of title. Covenant is a choses in action, not assignable at common law.

Measure of damages for breach of covenant against incumbrances = amount necessary to remove the incumbrance.

most courts changed this rule and have made a breach of present covenant assignable

can ask for a bill of sale conveying any causes of action relating to the property, such as causes of action for a breach of covenant (since they are choses in action, and therefore personal property giving rise to cause of action for damages)

St. Paul Title Insurance v OwensDamages: when complete failure of title, and grantee seeks recovery from immediate grantor, max recovery is purchase price. With remote grantor, not a clear rule. when a covenant of title runs with the land, all grantors, back to and including the original grantor-

covenantor, become liable upon a breach of the covenant of to the grantee in possession or entitled to possession at the time – person in possession can sue the original or remote grantor, regardless of whether he has taken from the immediate grantor with a warranty.

An outstanding title which could be asserted in a judicial proceeding against the party in possession is equivalent to an eviction.

Implied covenants of title in a statutory warranty deed: more limited than a general warranty deed. Are a covenant only against acts done or suffered by the grantor and his heirs – do not include defects to title anterior to immediate grantor.

“Betterment Acts” or “Innocent Improver Acts” if improvement on land made in good faith (you think you’re the owner and have a right to do something on property), then can recover value of improvement (usually in form of a lien on the property when resold). Objective standard: look to benefit of title owner.

Attorneys Fees: generally recoverable for a breach of deed covenant, but only if incurred while defending the title. Also not recoverable if grantee successfully defends title and shows that adverse claimant has no interest in the property.

Marketable title gives more protection than covenants – marketable standard is violated not just by actual defects, but by apparent defects – even if later proven to have no effect on title. Doctrine of merger: once purchaser accepts a deed to the property, the title representations in

contract are unenforceable. Shouldn’t close the sale until all questions about title have been resolved or provide in the closing documents that the doctrine of merger will not apply.

Differences between Will and Deed1. present v future conveyance2. will = gratuitous – no consideration3. will must be probated to be effective – deed is effective between parties even if not recorded4. subject to different laws5. at common law, livery of seisin required for delivery of deed but not of will6. statutory formalities : lots for Wills; Deeds only under S of F – lessor degree of formality required

Estoppel by Deed/ Doctrine of After-Acquired Title doctrine by which a person executes a deed purporting to convey an estate which she does not have or

which is larger than she has, and such a person at a later date acquires such estate in that land, then the subsequently acquired estate will, by estoppel, pass to the grantee

grantor who gives a deed warranting the title is estopped from later denying that title passed to the grantee

normally not apply when grantor gives a quitclaim deed, unless makes express representations that the quitclaim is in fact conveying title

LEGAL DESCRIPTIONS transposed numbers, missing info, etc in legal description can render title unmarketable no particular form of description required as long as accurate – deed can incorporate other documents

of description street addresses alone are not legally sufficient

A. Government Survey System/ Rectangular Survey system uses east-west/north-south lines to subdivide land – land divided into townships (36 square miles)

which is then further subdivided into 36 sections which can also be divided fractionally works well for dividing large farmland, but not good for describing irregularly shaped or small

lots, ie residential subdivisionsB. Metes and Bounds

describes each boundary line of the property by a series of “calls” which consist of the distance and direction of travel (“bearing”) of each boundary.

Starts with a “point of beginning” Descriptions are best prepared from a survey of the property that describes the length of each

boundary line and its bearing in relation to the points of a compassC. Recorded Subdivision Plat landowner must submit map of property showing proposed boundary lines of the new parcels,

proposed location of any new streets and easements, and anything else required by subdivision regulations. Before land subdivided, must be approved by local zoning and other relevant departments.

Canons of Construction of Land Descriptions1. construction prevails which is most favorable to grantee (presumption that grantor drafted deed and any

ambiguity is his mistake)2. if deed contains 2 descriptions, one ambiguous and one clear, the latter prevails (not so likely to happen now

with modern short form deeds). Specific language controls general language. Law seeks to sustain deed rather than upset it.

3. extrinsic evidence will be allowed to explain a latent ambiguity but a patent ambiguity (can see ambiguity on face of deed) must be resolved within 4 corners of the deed

4. monuments control distance and courses; courses control distances; and quantity is the least reliable of all (used in prioritizing a metes and bounds description)

5. useless or contradictory words may be disregarded as mere surplussage (but problem is deciding what language is surplussage)

6. particular descriptions control over general descriptions, although a false particular may be disregarded to give effect to a true general description. False descriptions can be disregarded.

7. a description, insufficient in itself, may be made certain through incorporation by reference8. if an exception to a deed is erroneously described, the conveyance is good for the whole tract and title to all of

the land passes (canon sustains the larger grant at the expense of the grantor who made the mistake in describing the exception)

9. when a tract of land is bound by a monument which has width (such as highway or stream), the boundary line extends to the center, provided the grantor owns that far, unless the deed manifests an intention to the contrary

10. A description in a deed includes the appurtenances (That which belongs to something else; an adjunct; an appendage. Something annexed to another thing more worthy as principal, and which passes as incident to it, as a right of way or other easement to land; an outhouse, barn, garden, or orchard, to a house) to the tract even though they are not specifically mentioned in the deed

many of these overlap but, most lead you to intent of parties, which is what court is primarily interested in

Priorities and Recording at common law, first in time = first in right. But, a BFP for value without notice takes priority over a

former equitable interest. Common law rules apply when controversy not governed by recording act when statute fails, common law prevails “Shelter doctrine”: important component of ownership is ability to transfer. If grantor shielded by the

recording act, then grantee is as well, even if they wouldn’t meet requirements (ie notice) consideration important – if B takes property without notice but pays no consideration (ie thru a will),

then statute not apply to him. However, if B conveys to C, then C can still get protection from the

statute. If C looks at the index and sees only a devise to B and no prior conveyance to A, then C prevails, even though B couldn’t prevail against A.

clear possession of the property gives notice – statute applies when possession not apparent Big question: what would C find when constructing the chain of title? [difference between tract index

and grantor-grantee in outcome] Statutes apply to sale or mortgage, but not to easements (only to purchasers)

A. Recording Acts Notice : unrecorded conveyance or other instrument is invalid against a subsequent BFP for value and

without notice, whether or not subsequent BFP records. Priority determined upon status at the time he acquires deed or mortgage.

Race : no conveyance or other instrument is valid as against purchasers for valuable consideration until after it is recorded. First to record wins, and subsequent purchaser need not be bona fide and without notice, since she will prevail if record first. Priority determined by who wins race to recording office.

Race-Notice : an unrecorded conveyance or other instrument is invalid against a subsequent BFP for value without notice who first records. In order to prevail, must be BFP for value without notice of the prior interest and must record first.

B. Constructive NoticeClear possession gives notice

recorded instrument gives constructive notice of its contents to subsequent purchasers. Notice is implied by law and not dependent on actual notice from which knowledge of an unrecorded instrument would be implied. Constructive notice is a rule of law.

Constructive notice prevents a subsequent purchaser or incumbrancer from being a BFP Types of notice:

Subsequent purchaser has actual notice when he knows of the existance of a prior, unrecorded deed

Has constructive notice of a prior deed if deed is properly recorded Has actual and constructive notice if he knows of the existence of a properly recorded deed

C. Adverse Possession recording acts have no application to title procured by adverse possession – apply only to a title

procured by instruments of conveyance which can be recordedD. Chain of title every purchaser takes his interest in the property conveyed subject to prior interests properly

recorded. An instrument which does not constitute a regular link in the chain of title or which is not identified

by a recital in an instrument in such chain, is not considered properly recorded and does not give constructive notice to subsequent purchasers or incumbrancers

E. Bone Fide Purchaser to be a BFP with protection under recording act, must

be subsequent pay value (more than nominal consideration) be without notice (value paid before notice) be of good faith

one who takes a mortgage to secure a pre-existing debt without further consideration is not a purchaser for value

cases are divided as to whether one who takes an absolute conveyance of land in satisfaction of an antecedent debt is a purchaser for value

if a person is in possession of land, then others are charged with notice of the interest of the possessor recording acts protect purchasers with quit claims mortgagee is protected as long as meet requirements of BFP status

To qualify as BFP, purchaser 1. must not have had notice of the conflicting claim when it acquired its interest in the property actual constructive: charged with notice by statute or rule of law, irrespective of any knowledge he might

actually have. If deed properly recorded, all future purchasers have constructive knowledge inquiry: follows from the duty of a purchaser when he has actual or constructive knowledge of facts

which would lead a prudent person to suspect that another person might have an interest in the property, to conduct a further investigation into the facts

2. must have given consideration for the conveyanceF. Hazards not covered by Recording ActsGenerally, recording acts not cover against:

forged deeds or instruments deeds by incompetents adverse possessionand often recording mistakes indexing mistakes possibly other undisclosed interests

Notes from Book:Notice: B must be a purchaser for value and without noticeRace: B must record his own conveyance before A recordsRace-Notice: B must be both a purchaser for value and without notice, and also record before A applies even if deed conveys less than fee simple

CASES BFP pro tanto: partial purchaser – entitled you BFP status for as much as paid (ie, lien on blackacre

for ½ of value). Payments can be enough to make you full BFP, as long as payment large enough Recording is required to protect real property interests from conflicting claims. Conveyance must be

recorded to protect from subsequent claims, and in many states recording necessary to protect against prior claims. Issue can be whether something was properly recorded within meaning of statute

Marital rights, implied easements, and short term leases not subject to recording acts – purchasers take notice of these interests without notice of their existence

In re BarnacleBy accident, mortgage only signed by 1 person. General (majority) rule: instruments not properly signed do not provide constructive noticeRule in case (and beginning to be followed by more courts): improperly signed documents do provide constructive notice – put title searcher on inquiry notice* happy medium of some courts: patent defects (ie absence of acknowledgement) = constructive notice; latent defects (ie a false acknowledgement) = no notice.

JC Penney v Giant EagleShopping center leased to drugstore with lease provision for exclusive drugstore rights. Deed not contain restriction. Court rules that common for exclusive rights to be at work in shopping centers – sophisticated lessees are on inquiry notice. RULE: In cases of shopping centers and subdivisions, take property on notice that there are likely restrictions. (lessees/buyers should check title and ask about restrictions)

Methonen v Stone – unrecorded water agreement for subdivision platHolding: intention to create servitude must be clear on face of the instrument – ambiguities are resolved in favor of use of land free of easements – no documents from time of deed showed this servitude. However, buyer was put on inquiry notice.

Applicable recording act: unrecorded conveyance valid as to parties to it and as against one who has actual notice of it. deed and words used put purchaser on inquiry notice that might be something from having the well

on the property court imports into statute a common law standard of enforcing restrictions when purchaser should

have known that they might have existed must inquire with people who had adverse interest, not just the real estate agent

Doctrine of Easement by Implication:When there is a severance/splitting up of property in which servient tenant is subject to burden for benefit of other lot, easement is implied (servient and dominant tenants) this is what happened in case – even without water agreement, would still have had easement by

implication (who would buy land if had not water supply?) – implies easement if necessary to keep property from being useless

Geo McDonald v Johns a conveyance of real or personal property as security for an antecedent debt does not, upon principle,

render the transferee a BFP, since the creditor parts with no value, surrenders no right, and places himself in no worse legal position than before. Such a transfer is not made upon a valuable consideration, within the meaning of BFP

Rule: a creditor who takes a mortgage on realty merely as security for the payment of a debt or demand already due to him, and without giving any new consideration or being induced to change his condition in any manner, is not entitled to the protection accorded to a BFP (recording act) for value, as against prior liens or equities

Extension of time for payment can be sufficient consideration Most states don’t include donees under recording act protection

Chergosky v Crosstown BellApplicable recording act: conveyance void against subsequent BFPs if not recordedBFP filter rule: in case, BFP conveys mortgage on property back to person with an unrecorded interest in the property. law requires that you be BFP at the moment of transaction – rule allows you to always have BFP

status, even if prior interest comes to light later. Filter allows BFP to pass title to others without encumbrance, even though future purchasers would have notice of prior unrecorded interest.

Exception to rule: grantor or former owner or property cannot acquire rights of a BFP – cannot use a BFP to cleanse defective ownership Illustration:

O A unrecordedO B BFP w/o noticeB O recordedO v A: O can’t cleanse his interest through another BFP – can’t use filter to defraud

but courts only protect within statute – if purchaser has notice of prior interest, then can’t claim filter? QUESTION: THIS CONTRADICTS ITSELF – HOW DOES THE BFP FILTER WORK?

Zimmer v Sundell Ps entire chain of title was not recorded until after Ds entire chain of title recording act does not protect those who purchase from strangers to the title – act gives superior title

to those who rely upon the record, not those who purchase from strangers to the title problem with Ps case is that their line of title to the common ancestor was not first recorded. Were not

purchasers in good faith – had they done title search, would have seen that title was in a stranger chain of title rules apply to all types of recording acts

Indexes purchaser acquires title subject to all matters included in the public record – not just in indexes

(probate, pending lawsuits, tax assessments)A. Grantor-GranteeConsists of 2 indexes – one arranged alphabetically by name of grantee of each recorded instrument and one that is arranged alphabetically by the name of the grantor of each recorded instrument. Can discover all the property interests conveyed by each owner. Should look at each interest given by owners, and then check to see if those interests have been discharged. Have to look at other gov’t offices to get complete interests in propertyB. Tract IndexEach parcel of land in the county is assigned an index page that lists every recorded document affecting title to the land (but still have to check other record offices). Less available form of index; most recording acts provide for grantor/ee as official index.

CASESFrank v StorerModification of deed filed, but not indexed. Clerk sends back to parties with a note that minor referencing problem had to be fixed. Party knew there was a deficiency in the indexing. Court rules in their favor anyway. Rule: an unindexed instrument is still a recorded instrument

Though this seems strange, it is probably ok because:- B doesn’t just check index - Have to know who is currently in possession of land- Process of title search complex – just missing an index doesn’t mean won’t know status of

property- Tract index in addition to grantor/grantee- Plus, with marriages and name changes, can’t just look at the names to do search – system

has to be able to handle complexities* but, some courts not adhere to this rule – think party presenting deed for recording is cheapest cost avoider

Doctrine of Idem Sonans: Sounding the sameDocument indexed under misspelled name that sounds same as correct spelling is valid problem with this is when sounds same but starts with completely different letter (Sapata v Zapata).

Possible party wouldn’t have notice with this situation… question of whether this renders title unmarketable for future purchasers looking at a chain of title with two different names.

Skelton v MartinParty uses county internet site to do title search – site doesn’t show full state of title. Rule: statutes only require written records. Purchasers not have right to accurate info from other sources, even if computers beginning to be widely used. D had just as much notice as other purchasers

Mugaas v SmithP: adverse possessor. When D bought land, there was no evidence of adverse possessorRule: recording acts not apply to title by adverse possessionOther Off-Record Risks:1. Community Property: husband and wife own property together, not matter which one has name on

deed – joint ownership recording act in Mugaas requires recording of community property and protects against spouse

trying to sell ½ of property – protects from this off record risk2. mechanics liens3. forged documents (which are on record)

4. deed executed by incompetent person

Mountain States Telephone v KeltonRule: contractor not bound to search records – constructive notice applies only to those people bound to search records – only have to do this when have interest in title to land

Torrens RegistrationDesigned to give certificate of title that can’t be impeachedTitle itself is registered with government – gov’t acts as a custodian of documents affecting title. if property interest not included, doesn’t exist (in general) if gov’t improperly certifies title, gov’t liable to injured interest owner, but interest still extinguished if boundaries not disputed at time of registration and description conclusive of boundaries, Torrens

property cannot be lost to adverse possession

Marketable title acts1900 O A1910 A mortgage to X1930 A B1955 B CIf 40 year unbroken chain of title on record. Purpose of act is to allow C to have good title. If C can trace unbroken title for more than 40 years, prior interest is cut off. Purpose is to get rid of stale claims. 40 year period generally starts at time of transfer.

Title Insurance policy indemnifies insured if the title to the land is less than that described in the policy policy usually contains exceptions for defects of title not shown by public record, zoning restrictions,

rights of parties in possession policy insurer obliged to provide legal defense of title policy usually insures only against title defects which arose before date of policy, not against defects

that come into existence after the policy issues. Policy generally limited to face amount of policy or fraction thereof

if lender has title insurance, it is to insure title to land and also priority of its security interest in the land

usually require that buyer must acquire title by warranty deed and must pay full consideration for the property

title insurance usually pays for title being vested other than how described in deed any defect in or lien or encumbrance on the title unmarketability of title lack of right of access to and from land

exclusions from coverage defects or encumbrances “created, suffered (knows about it but not like it --unwilling

acceptance), assumed or agreed to by the insured claimant law, ordinance, etc relating to occupancy (zoning ordinances)

insured = named in the policy plus those who succeed to interest by operation of law, not by purchase. To claim protection from insurance, original insured must retain interest in land

policy protects against occurrence of fraud when discover defect in title, must give prompt notice in writing to insurer in order to keep coverage need consent of company before settling claim on own insurer retains subrogation rights

Swanson v SafecoAction for damages against title insurance company arising from cloud on title (that limits ability to obtain refinancing). prompt notice required of defect in order for Safeco to be liable proof of loss requiredRule: if cloud on title impairs market value of land, insureds are entitled to whatever damage resulted from that cloud. Title insurance does not guarantee perfect title; instead, it pays damages, if any, caused by the defects to title that the title company should have discovered but did not.Calculating damages: difference between fair market value of property with and without impairment. Measured from the date defect was discovered.

Greenberg v Stewart TitleInsurance indemnifies the insured up to the policy limit against loss if the title is not as stated in the policy. Company not saying there won’t be fraud, just that they will pay if it occurs. Not liable in tort for failure to find an encumbrance during the title search – only liable under the policy. title insurance company and its agents not liable in negligence for an alleged defect in title when it

issues a title insurance policy unless it has voluntarily assumed a duty to conduct a reasonable search in addition to the mere contract to insure title.

Only ½ of courts have dealt with this issue, and a slight majority agree with this case.

Conveyancing by Deed

Written Deed common law ceremony of feoffment was oral – no writing required Statute of Frauds requires writing and signature by the conveyor of an interest in real property,

excluding short term leases

Description and Boundaries to be effective, deed must describe land sufficiently so as to identify it if deed refers to a map or plat, then map of plat is considered part of deed metes and bounds system: uses compass directions and distances from an ascertainable starting point.

Intent of the parties is the controlling factor and all rules of construction are mere aids in determining intent

parol evidence not admissible to determine identity of land described in deed unless it is first found that the description is ambiguous. Then only admissible to explain the ambiguity, not to alter deed.

When a landowner owns to the edge of a stream, his boundary line and land area may be extended by accretion

When a river by sudden and violent change alters its course and overtakes privately owned land, title to lands is not changed

ESTATES IN LAND

Johnson v Whiton here, Sarah held legal title [equitable title has to be created by express words; need someone named in

document as trustee] nemo est haeres viventis – no one is an heir of the living english laws of primogeniture and descent – must be of blood of the first purchaser (not take by

inheritance) but in case, can’t create a type of inheritance limiting property to pass along a single family line (heirs

on her fathers side) – can pass to both sides under Mass law opinion allows Sarah to take fee simple – allows for alienability of land

Hall v HallFee simple subject to executory interest created when husband conveys property with a “no remarriage” clause to his wife. Wife acquired a fee simple subject to executory interest – when she conveys the property to 3rd party, 3rd party also subject to forfeiture clause condition on restraint of marriage (in some states, this condition invalid) Rule of Construction: all of the provisions of an instrument be considered together and the intent of

the grantor of a deed be ascertained from the entire document

Peters v East Penn TownshipWords “so long as” in conveyance create fee simple determinable – technical words of limitation. contingent interests retained by grantor passes to the heirs words “ as long as” create fee simple determinable. Reverter clause would have been better, but

words impose limitation which is directly connected with declared purpose of the grant (words are clear regarding intent of the grantor

implicit that land will revert to original grantor or heirs General rule: words of purpose do not limit fee by themselves. Statements of purpose can be

construed as easement. Can also be construed as a covenant – P could sue for damages if condition broken, but could not retake land.

Mountain Brow Lodge v ToscanoConveyance can restrict alienation if purpose is to create a fee subject to condition subsequentHabendum clause – land reverts if a. fails to be used by lodge

valid restriction creating condition subsequentb. in event of sale or transfer

this is invalid restraint against alienation [conditions restraining alienation, when repugnant to the interest created, are void – absolute restraints are void]

court severs the restrictions still, effect is that they can’t sell it because then they arguably wouldn’t be using it though language used seems to create determinable fee, court agrees that it’s a condition subsequent –

court has predilection to find this rather than defeasible fee – suspicion of forfeiture clauses – want to allow for more discretion and not automatic forfeiture

Dissent: consequences of restriction = title may be fragmented in the interests of heirs numbering in 100s and scattered about the globe (if have large class of persons w/o real contact with land, defeasible fee very hard to operate)

Alienation rules: essence of having a fee is ability to sell it:“Conditions are not sustained when they are repugnant to the nature of the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience” policy: harm to creditors – not want people w/o right to pretend they do and defraud creditors modern: rules encourage transfers of property to person who values it most (though this is weak

reason – could get rid of lots of property rules if wanted this outcome) taking land out of the flow of commerce does injury to the economya. indirect v directb. disabling (usually invalid) v forfeiture (usually valid)c. promissory restraint – not prohibit alienation, just promises to pay someone else $ is alienateHypos:O A for life, but if A alienates then to B and heirs. [B takes fee simple upon alienation, O retains reversion] In order for C to purchase fee simple, have to get permission of both B and A and wouldn’t be bad idea to get quit claim from O – make sure B was conveyed fee simple upon alienation.

O A & heirs in fee, but no alienation. Law: restriction stricken, A takes in fee** Law making inroads (but results not harmonious) – condo restrictions OK

Bank of Powhattan v RooneyCan creditors levy against his 1/9 interest in land that can’t be sold for three years b/c of clause in fathers will? Answer: Yes

restraint, though limited to time, is void – in order to be valid, must be some practical reason provision in a will that property may not be alienated except to a particular class or group of

persons is void a life estate or an undivided interest in land may be sold on execution to pay a judgment (interest

in land vested in Rooney at date of fathers death) Will: under english law, not need technical words of limitation to create a fee simple – with out

express limitation, fee simple assumed Heirs determined by statute of descent and distribution – if die intestate, estate passes to specific

persons. Each state has own statute.Rooney v Mountain Brow

distinction between restraint on use [MB] and alienation [R] Rooney: cannot alienate property and any attempt to do so is void: almost always invalid MB: if there is attempt to alienate, property goes to someone else [plus restraint in Hall v Hall where

land goes to someone else] – these are usually validated by courts

Estate of Elizabeth Beck“Spendthrift trust” – devise in will can exempt creditors from gaining possession for a period. But once Beck has possession, creditors can take. Difference from Rooney is the creation of a trust arrangement. Here, not create spendthrift trust, just protected funds in transit to her (but could have created trust). Property subject to trust cannot be alienated until it reaches hands of beneficiary.

Fee Tail:Estate that lasts as long as there are heirs or descendants of the grantee – upon failure of heirs, land reverts to the donor and his heirs. This basically has been eliminated by statute in the US. What used to be a fee tail has been converted by statute to:

fee simple in the grantee (most common) a life estate in the grantee and a remainder in fee simple to heirs of the grantee estate in tail to the donee for his lifetime and then fee simple to his heirs in states which recognize fee tail, grantee can convey as if it were a fee simple, but cannot

dispose of the estate by will

Fee tail female specialO A and his heirs female of his body begotten by X

Fee tail special4 ways to convert fee tail by statute(a) converts fee tail into a fee simple absolute in the first taker (most common solution)(b) converts fee tail into a life estate in the first taker, with a remainder in fee simple in the first taker’s

lineal descendants(c) preserves the fee tail in the hands of the first taker, but converts it into a fee simple absolute in the

hands of the lineal descendants(d) preserves the fee tail but allows any taker to convert it into a fee simple by making an inter vivos

conveyance of the property

Armstrong v SmithThough language of deed created fee tail, by statute land taken was in fee simple.

Dispute between mother and kids. Mother claims fee simple. Kids each claim 1/5 interest plus ¼ in the remainder. O A and her children. If no children living at time, could create fee tail, life estate and remainder, or fee simple and remainder. But if A had children at time of conveyance, land goes to A and her kids (children = shorthand for the names) – RULE IN WILD’S CASE – if she had more children later, then probable that they would be excluded (promotes alienability – if afterborn included, couldn’t alienate until mother died and class closed) creation of fee tail requires words of procreation – “of the body” “offspring” “issue” “children”

LIFE ESTATESEstate which has its duration measured by the lives of one or more persons. Can be created by deed, will, by operation of law. Freehold estate at common law (thus words “heirs, administrators and assigns” could be used in creating the estate)

Life Estate by Deed or Will:“to B during his life”: creates life estate“to B with right to use or dispose as he sees fit: creates fee simple“to B with power to sell or mortgage if he finds it necessary” creates life estate the power given is inconsistent with a fee simple, and thus grantor conveys less than fee

simple can give a life estate with additional powers to mortgage, etc. however, devisee still has to

power to devise land and it is not inheritable by his heirs life estate: measured by life of grantee life estate pour autre vie: measured by life of person other than grantee (can be more than one

person) life estates can be determinable or subject to condition subsequent or executory limitation can be alienated inter vivos Waste: tenant has duty to maintain property in reasonable state of repair as necessary to

preserve property’s value for the holders of future interest following. Failure to do so is permissive waste. Future interest holders have action against tenant, as long as rents and profits from land enable tenant to make repair. Can cut timber sufficient to carry out repair Cannot take out mines, cut or clear timber, etc without getting consent of future interest

holders No duty to make extraordinary repairs Improvements destroyed by earthquake or fire need not be rebuilt – if tenant decides to

rebuild, future interest holders are not liable for costs of rebuilding

“so long as waters of Delaware River runs” – held to be a life estate – life estate tends to be a residual category for when court can’t figure out what the estate is – default category.

Life Estate by Operation of Law:A. Tenancy in fee tail after possibility of issue extinct (rarely found in modern law):

Tenant in fee tail special, upon death of designated spouse without issue, has only a life estate in the land

B. Estate by marital rightAt common law, husband had life estate in all lands of his wife

Thompson v BakerLease’s term determined by life of lessee = life estate with rent [measuring period was the wish of tenant to remain in Albert Lea]Life estate may be created by a deed, lease, devise, either with or without stipulation for payment of rent

Tenancy at Will1) indefinite period2) landlord can terminate at any time

Tenancy at SufferenceTenant wrongfully holds over after expiration of term

Periodic TenancyNo definite time, rent fixed at so much per month or year – renewable at every month – continues unless one party terminates

Term of YearsFor definite term of time

Smith v Smith re: permissive waste partial intestacy: testator made no provision for devolution of land after death of her daughter

(no remainder interest stated) and hence daughter argues that fee simple given. This is weak argument in favor of fee simple, but easily overcome

court in case assumes life estate, since she was given less than a fee simple permissive waste: P claims rotten flooring, leaking roof, etc and D won’t make repairs. Rule:

have to make reasonable repairs, but not need to make improvements. Just have to keep property in condition you received it – preserve value for holders of future interest. No duty to make extraordinary repairs.

permanent improvements/big expenses to land apportioned to life tenant and remaindermen. If rents and profits insufficient to pay for repairs, then not have to make them. Not have to rebuild improvements you made if destroyed by act of god, unless property will be further damages. But, life tenant has duty to protect against acts of God.

Basically, duty to do what is reasonable under the circumstances Cases are divided on who gets insurance money from damaged property or if tenant is

obligated to repair Can draft around permissive waste obligation. But if not mentioned in creating instrument,

default rules apply.Remedies:

damages where waste causes loss injunction against future waste receivership partition: division of property between people who have an interest (but often can occur only

where parties have current possessory interest, not future interest) forfeiture

Brokaw v FairchildSon brings DJ action to declare that he can tear down house on property in order to build apartment building because upkeep and taxes on house too expensive. Court says even if house on life estate property eco unfeasible, cannot be torn down if remaindermen not consent.

standard for waste can be affected by language creating life estate – “ my residence” = house, not just land

can’t just do bare cost-benefit analysis – just because apartment building worth more money not mean will be subjectively worth more to remaindermen

in Melms v Pabst, house was worthless as a residence. Complete change of circumstances – surrounding property industrial area. Court gives permission to tear down – assume testators intention would change if he knew of changes. Issue: how big change has been and how likely it is that testator would have changed his

mind had he known the circumstances

New York Co RR v LivingstonRR holds estate pour autre vie, but they think they have a fee simple. Make improvements to land. Issue is whether improvements RR made to land added to value RR has to pay family when purchasing by eminent domain. Court says no – changes weren’t really waste, but improvements. Family only gets value of original life estate – the farm (same as with Brokaw) “who shall then be living” = contingent remainder (not vested) If vested, would go thru estate and be taxed. When contingent, only pay taxes when event occurs.

Law of ImprovementsDifferent than waste – improver treated differently than waster – look at question of bona fide of improver when deciding what remaindermen get But, remaindermen get mesne profits – compensated for delay from death of life tenant to taking of property – get fair market value as a RR

Tillman v Richton TieLife tenant allows land to be taken b/c of unpaid taxes. Buys back later from the tax title purchaser. When buy back, court says he is only redeeming his life estate – not buying the fee. Thus, when he sells to subsequent BFP, he is only selling life estate.

Mechanics of tax title: when not pay, state threatens and initiates proceedings – leave you on property for awhile and you still have interest in land – ability to pay taxes and take back full title until time for redemption expires

Normally, person who purchases title from tax sale buys fee. But here, D can’t profit from his own wrong and can’t be better off than when he started

MARITAL ESTATES at common law, husband and wife hold title to property they acquire during marriage, each in

his or her own name, just as they hold property brought to the marriage. They may choose to take title as joint tenants or tenants by the entirety – but if they do not, their income and the property purchased with their income belong to them individually.

Dower: widow entitled to 1/3 life estate share of lands which husband had been seised of an estate of inheritance at any time during their marriage. Widower entitled to life estate on any lands wife held in fee simple or tail during the marriage, provided a child had been born to them. Thus, if husband alienated land that belonged to his wife without her consent, she remained entitled to a life estate in 1/3 of lands even though it was in hands of purchaser

Could contract around dower with wife’s consent Dower not attach to life estate (not estate of inheritance), estate for years (not a freehold

estate)Modern Statutory Changes to Dower and Curtesy

Making surviving spouse an heir upon intestacy Widening coverage to include both personal and real property Equalizing rights of husband and wife Restricting property subject to them to that held at death Changing the estate from a life estate to a fee simple interest in a percentage of the

decedent’s estate Giving the surviving spouse an election to take under the will of the first to die, or to take

a statutory share as decedent’s heirUniform Probate Code right to elect on a sliding scale percentage based on length of marriage elective share is a right to take against the will

Melenky v MelenFather conveys land to son with oral promise to reconvey land when father wants. Son refuses to reconvey property and instead offers only a life estate. Wife tries to claim dower right. Problem: life estate not an estate of inheritance

Cardozo says if oral agreement had been written, father would have had a chose in action – right to bring action on the K. Still, dower does not attach to choses in action, only to estate. So father would still have had to enforce it before wife could get dower. In order for wife to get estate, husband has to have legal title [compare to statute of uses cases where son is trustee and father is beneficiary – if it was in writing, statute of uses would have kicked in and created legal title in the father] Statute of frauds here makes oral agreement unenforceable.

Seisin there is none either in deed [current possessory right] or in law [right to immediate possession, but before you’ve actually taken possession]

COMMUNITY PROPERTYHusband and wife form community – each ½ owner of community – what one spouse gets during marriage should be owned by the community – each entitled to ½Excluded:1) premarital property2) what either spouse gets by gift or devise during marriage (not a fruit of the marriage)3) unless parties agree to it

states split over gains from separate property (dividends) and personal injury awards property acquired under community property regime retains that character even if move to a

common law state have a choice as to what tenancy to take (joint or in common)

In Re Kessler’s EstateHusband acquires shares of stock in his name in community property state but then moves. Husband dies in common law jurisdiction. Embedded in facts: difficulty of tracing property – what you buy with money retains same character as money – if bought stock with money he inherited, then would be separate property. Law often presumes that if can’t show the reverse, property assumed to be part of community.Issue: after taxes, should wife have to pay taxes on the stock ½ that was hers/ that she gained full possession of? Court says yes

husband stood between wife and complete possession of stocks – by statute, husband had full control and management of property

when this significant change in ownership occurs, it is a taxable event – wife gets immediate ownership of the whole of her ½ share (before death, each only has a qualified interest in their ½)

real property passes according to law of site – if live in CA and buy land in Ohio, then passes according to Ohio law

courts opinion as gender neutral – even though have management powers, still only have qualified interest – whoever dies first, the other gets full power over their shares

HOMESTEAD RIGHTS[established by statute or state constitution] Property interest that cannot be defeated by the conveyance of one spouse without the other’s consent. Generally applies to married couple’s principal residence. Objective is to protect the eligible property from the claims of creditors and from alienation by one of the spouses – to insure home during the marriage and for the life of the surviving spouse. May not be defeated by will of deceased spouse. Claims for $ that made purchase or improvement of homestead property not defeated by this right.

CONCURRENT ESTATES right of each tenant to possess the whole

A. Joint TenancyEach owns undivided interest in the whole, and upon death of one tenant, the property passes automatically to the survivors (outside probate). 4 Unities:(1) title : all must acquire by same instrument or by joint adverse possession(2) time: interest acquired at same time(3) interest: shares must be equal, undivided, and identical in duration(4) possession: all tenants have equal rights to possess whole, in absence of express agreement to the

contrary wife of joint tenant not get dower (not estate of inheritance) but does get in tenancy in

common cotenants may not exclude other tenants from enjoying right to possession of the whole. If

they do, ousted cotenants can sue in ejectment to recover possession and to recover mesne profits. Action for waste also available.

Divorce not severB. Tenancy in Common

Only unity of possession necessary to create this. Undivided interest in land, but no survivorship right. Undivided share passes to takers under deceased’s will or by intestacyAt common law, presumption was joint tenancy. Now, presumption is tenancy in common.

C. Tenancy by the EntiretyExists only between husband and wife – hold as one and surviving spouse takes whole upon death of the other. Neither can sever acting alone. Divorce terminates.

TerminationsCome to an end when property subject to them is conveyed to a third person. Joint tenancies severed by sale or by agreement. By conveying to 3rd party, each joint tenant has right to sever tenancy and destroy survivorship feature without agreement of the others. Conveyance destroys four unities. But, statement in a will cannot sever joint tenancy.

Camp v CampDeed language: “tenants in common with rights of survivorship as at common law”Court holds tenancy in common, applying rule of construction that prefers 1st clause over 2nd if 2 clauses are in opposite

for deed to create joint tenancy in VA, need manifest intent. When there is no manifest intent [when intent not made explicitly clear], then it’s a tenancy in common (default according to statute)

here, 2 conflicting clauses do not equal manifest intent to create joint tenancy subtle point: better to say “joint tenants, and not as tenants in common” (as opposed to “joint

tenants with right of survivorship”) because other is saying something twice, which may lead people to think you meant to different things

Riddle v HarmonDeceased attempted to sever joint tenancy by conveying to herself as tenant in common. Court allows this direct severance of a joint tenancy – not have to use strawman.

shouldn’t be harder to get out of joint tenancy than to make one compare to antiquated livery of seisin no additional power being given to cotenant – no more power than if used a strawman

Opinion allows for secret severance – no notice given to joint tenant – allows for suppression of severance until, and if, needed

Allison v PowellP and D joint tenants with right of survivorship. P files complaint to partition. Court holds that action to partition joint tenancy not survive death of tenant. If there was a binding agreement to partition and pay $ (which executor tried to show by letter), then would have equitable conversion. Purchaser would be owner and would break 4 unities. But here, agreement not enforceable because of statute of frauds and commencement of action alone not sever – joint tenant can retreat from case until judgment entered.

REVERSIONS, REVERTERS AND POWERS OF TERMINATIONReversion: life estate or leaseVested, but not necessarily become possessory in futureVested:1. someone born2. person identified3. no express or implied condition precedent to that person taking

Reverter: determinable fee

Power of Termination: fee upon condition subsequent (right of reentry for condition broken)Majority of courts hold that right not lost by attempt to alienate. Minority of courts say that do lose right- kind of estoppel.Can only transfers right if coupled with right of reversion

all of these exempt from rule against perpetuities in absence of statute, they exist indefinitely law of escheat: state takes unowned property (but not adverse possessed property)

Village of Peoria Heights v KeithleyFee on condition subsequent (court has preference for condition subsequent because less forfeiture; no words creating fee simple determinable)Rule: can’t convey a right of reentry – just a contingent interest that won’t necessarily happen. Breach of condition can only be taken advantage of by grantor or his heirs

Trustees of Calvary Presbyterian v PutnamCondition subsequent where all heirs quitclaim right of reentry to grantee. Court rules that if Original grantor can convey his right of re-entry to grantee – heirs can also convey right to grantee. Rule: all rights, titles and actions may be released by the living heirs to the terre-tenant for securing his repose and quiet and for avoiding contentions and suits

courts dislike of forfeiture – conveyance makes forfeiture impossible public policy encourages release of remote contingent rights to those already possessed of the

estate right of reentry is an asset, just one with special prohibitions – can waive right, but can’t

alienate it policy: hurry up moment of alienation

Long v LongConveyance of property in fee tail to Jessie – “and children is his body begotten” – fee tail because of rule in Wild’s case. Original grantor retains power of reversion (vested reversion) if Jessie has no children.Issue: where have some kind of reversionary interest in grantor, what happens to it and what can be done with it.

Reversion retained by grantor of fee tail is a vested estate. This reversion passes to heirs that are living, and descends to their lineal descendants

Descendable Devisable Assignable Alienable

Will has residuary clause that encompasses real property, but court says that right of reversion not covered by clause

Jessie had inheritable estate – could convey as fee simple but could not dispose of it by will. Jessie Long could convey his 1/3 reversionary interest in the land that descended to him when his dad (the grantor of the fee tail) died. Hence, when Jessie conveyed all the interest he had in his land (fee tail), he was just conveying his 1/3 reversionary interest that would occur if he died without issue.

Statute de Donis – concerning gifts of land made upon conditionThat the will of the giver according to the form of the gift shall be manifestly observed, so that they to whom land was given under such condition shall have no power to alienate the land, but that it will remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail

created the fee tail after statute, gift of land to B and heirs of the body created estate in fee tail. B can convey

land, but only a life estate rights of issue could later be barred by an action for common recovery

First Rule in Wild’s Case:A by will makes gift of land to “B and his children” but at testators death B has no children. In absence of expressed contrary intent, words are limitation and B takes a fee tail.

This has been generally repudiated because no more fee tail Modern view, B takes a life estate and children take a remainder

Second Rule in Wild’s Case:If at the time of devise to B and his children takes effect B has living children, then B and children take concurrent interests as joint tenants for life.

modern view, take as tenants in common (though a few courts hold that B takes life estate and kids get remainder

REMAINDERS“any future interest limited in favor of a transferee in such a manner that it can become a present interest upon the expiration of all prior interests simultaneously created, and cannot divest any interest except an interest left in the transferor”

can be created in chattels and real property remainder limited to unknown person is void where remainder conditioned upon illegal act, condition disregarded and remainder held

absoluteMay be held in:

- estate in fee simple (absolute, determinable, subject to a condition subsequent or executory limitation)

- for life- for a term of years

4 features:(1) created simultaneously with and in same document as a prior possessory interest, and are what

remains after the prior interest

(2) prior interest must be immediately prior to remainder and there must be no gap in seisin between them ( if there is, can only take as an executory interest)

(3) prior estate must end naturally and it cannot be cut short by a divesting event (4) must be held by person or persons other than grantor of the document in which they are created

Vested: transferor has created in an ascertained person(s) a present right to take in the future. Not a right to immediate possession, not mean transferee will actually take. Present right to a future interest.

common law presumption in favor of vested remaindersContingent: either subject to condition precedent or is a transfer to a person unascertained or unborn either at the time of transfer or later, up to the time the prior estate ends

contingent remainders can’t be accelerated McRorie v Creswell – creation of remainders by implication[Holographic will: entirely in handwriting of testator – no witnesses necessary]*any interest not disposed of is retainedM Rosanna for life. If no heirs, then to C.W.: no remainder explicitly stated, but not sensible to think M wanted reversion if Rosanna died with children. [problem is use of ‘heirs’ when really mean children – Rule in Shelleys case not apply.

Rule in Shelleys Case“ when in the same conveyance an estate for life is given to a person with remainder to that person’s heirs (or heirs of his body), then the person to whom the life estate is conveyed takes the remainder in either fee

simple (or fee tail) and the persons heirs take nothing”“if a life estate in land is conveyed or devised to a person, and by the same conveyance or devise, a

remainder in land is limited, mediately of immediately, to the heirs of A, or to the heirs of A’s body, and the life estate and remainder are of the same quality, then the person to whom the life estate is conveyed

has, in addition to the life estate, a reminder in fee simple or tail” A B for life, then to B’s heirs

Rule changes this to A B for life, then to B orA B and his heirs

[doesn’t allow you to create remainder in heirs of grantee in same instrument] probably a result of feudal system so lord gets his feudal dues when land transferred and so

heirs are also liable for dues since property passes by descent rule of law, not construction (means rule applies even if results contrary to intent of grantor).

If were a rule of construction, would give way to intent of grantor. To B for life, then to C for life, then to B’s heirs – intervening life estate not change

operation; merger occurs if C dies before B. If B predeceases C, then remainder passes to B’s estate

5 Requirements(1) ancestor must take freehold estate (2) must be by same instrument(3) only land covered by the rule(4) estates must be of same quality (both equitable or both legal)(5) heirs must be meant in the technical sense – those persons who take if the person dies intestate –

defined by statute (not apply if heirs used to mean children or issue)* relation back doctrine applies when dealing with powers of appointment – if A has life estate and appoints by will to his heirs, rule still applies and A takes fee simple.

rule abolished by statute (but not apply to cases where rule applied when conveyance written – if interest valid at moment of creation, then future legislators can’t change the property rights

Doctrine of Worthier TitleAny limitation in an inter vivos conveyance of real property to the heirs of the grantor is void and the

grantor has a reversion. [at common law applied to devises as well]* converts a remainder limited to the heirs of grantor into a reversionary interest in grantor

O B for life, then to heirs of OB – life estate

O has reversionO’s heirs have nothing

also protected feudal interests by having O’s heirs take by descent and not by purchase requires

(a) conveyance of real property(b) limitation to grantors heirs or equivalent – sometimes word children or issue is used to

mean heirs has no application if conveyance to a named person, even if that person turns out to be an heir not apply when heirs are used to mean children – heirs must be used in its technical sense estate which precedes the limitation to the heirs is immaterial – can be life estate, estate for

years, or determinable fee type of estate given to the grantors heirs is immaterial interest can be equitable or legal modern law: rule of construction under which intention of grantor is given effect. But grantor

must use words in deed to overcome presumption and show that heirs take as purchasers some states have abolished or modified doctrine (Uniform Probate code abolishes) since interest in property passes by descent, means O had interest to pass to heirs. Thus, O’s

creditors can reach the property because O has reversionary interest until he dies O can alienate

Differs from Rule in Shelleys Case:- rule covered real and personal property (Shelley only applies to land)- not always necessary to use word ‘heirs’ in technical sense- doctrine purports to carry out intention of grantor

Stewart v Merchants BankStewart trying to revoke trust. Issue: is Stewart the sole beneficiary, even though his heirs take remainder if Stewart dies intestate?Stewart Trustee for 10 years for Stewart, subject to spendthrift provision, then to persons designated by will or heirs at law if dies intestate.

cannot alienate because of spendthrift provision anything not disposed of in instrument is retained by Stewart – If Stewart outlives 10 years,

then he gets reversion.Rule: if all beneficiaries of trust are ascertained and they agree, can terminate trust even if irrevocable

if there’s a present interest reversion in O, creditors can reach if remainder in O’s heirs, then O retains no interest

** can’t ascertain heirs during Stewarts life – can’t consent b/c not know who they are**case comes down to question of whether remainder supposedly created was a remainder or a reversion. Under doctrine of worthier title, Stewart would have retained all interest (but here statute changes doctrine – heirs supposed to take by purchase)

court allows Stewart to revoke trust – his intent was to keep control – all clauses leave an interest in him

Ryan v Monaghan: remainder must vest or fail at termination of prior estateLife estate to the wife, alternate contingent remainders [to heirs of testators son or to testators siblings]. Incomplete intestacy during life of son before son has kids. Thus, whole fee not given away and testator

retained reversion. As heir at law, son inherits reversion when alternate contingent remainders fall to ground. Thus, son gets fee simple when contingent remainders fail.** Case no longer majority rule. Under modern view, son would take, but remainder not destroyed (will take at death of son without kids)

Doctrine of destructibility of contingent interests – when they fail, they go awayCommon law: in order to take, contingent remainder has to vest at termination of prior estate – destroyed if can’t vest at that time. Not applicable in most states. Where rule abrogated, if the condition occurs after the death of the life tenant, the remainder becomes possessory, thus permitting it to be effective as a springing or shifting use under the statute of uses.At common law, three ways by which a contingent remainder could be destroyed(1) by condition precedent failing to happen which permitted the contingent remainder to vest at or

before the termination of the prior estate(2) by merger (when life estate and next vested estate comes into same hands)(3) by forfeiture (ie tortious enfeoffment)

Artificial Destruction DoctrineAt early common law, if a life tenant purported to convey the fee (tortious enfeoffment), the next estate presently entitled would vest in possession immediately. Contingent remainders not being limited to take immediately were destroyed.

Buckley v BuckleyRemainder vests at time of testators death, not at death of the life tenant. Hence, heirs of remaindermen took interest in property as well.

words used not create a contingency, so must be vested policy interests favor vested estate (unless manifest clear intent otherwise) hence, once the remaindermen born, they take a vested interest subject to open

Problems with vested remainder:(1) creation means property may be passed to strangers(2) taxation: vested remainder is real asset and subject to taxation

no limit to # of contingent remainders that can create in the alternative grantors intent = super important

Danz v DanzWill: determinable life estate to widow, on her death or remarriage property goes to niece and nephew. Widow renounces and takes statutory share.

vested or contingent depends on formal language distinctions formal difference between condition precedent and condition subsequent preference to vested remainders

acceleration of remainders depends on intent of grantor executory devise is destructible by arrival of period for distribution, for if the period for

division is reached before the happening of the contingency upon which the remainder is to be divested, the executory devise is defeated

when widow renounced will, time for distribution arrived because widow no longer needs life estate, contingency no longer exists, and remainder vests absolutely

O A for life, then to B’s children. A dies, B has 3 kids. If B has another child, it won’t take. Class closes at the moment prior estate comes to an end.O A for life, then to B’s children, or if they all die to C. as long as B has kids when A dies, then C’s interest extinguished.

Black v ToddLife estate in Corrina, contingent remainder in surviving children. If none take, then to Mary Brown for life, with remainder to her kids, if any. If none take, then to Samuel Black. Rule: 2nd interest was transmissible. Contingent remainder transmissible where contingency depends on event and not on person.O A for life, then to B if B becomes an M.D.

Contingent as to event – know who will take if event happensCan join all interests and alienate fee

O A for life, then to heirs of BContingent as to person – until B dies, not know who heirs will beCan’t join anyone to alienate fee – uncertain who people will be

O Corrina for life, then to Mary and kids if Corrina dies w/o issueBecomes certain who will take after Mary dies – class closes but still contingent – only condition outstanding was Corrina’s death w/o kids. Hence, Corrina’s kids can transfer their interest after Mary died but before Corrina died.

O A for life, then to issue of BContingent as to event. Remainder vests, but can’t transmit. Uncertainty as to person until B dies and class closes. But if one of kids transmits by warranty deed, would be estopped from denying deed if property comes into his hands. [estoppel by deed: if convey interest away by warranty deed, are estopped from ever going back on deed]

Browning v SacrisonO Ada for life, then to Franklin and Robert, but if either of them be dead then all to the other. Issue is when interest vests (at death of testator or of life tenant)1) consequences of treating something as vested or contingent

if brothers took a vested remainder, then widow of brother would get interest. If contingent upon surviving life tenant, then all interest goes to surviving brother.

2) good example of kinds of reasoning available to lawyers to make decision

(a) Preference for vested remainders not absolute – modern rule agnostic as to presumption of vesting – Ryan v Monaghan no longer majority rule No longer need doctrine that hurries up moment of vesting When have ambiguous remainder, no longer need to save it from destruction by treating

it as vested rather than contingent – survives in either case(b) should look at intent commonly prevalent to conveyors similarly situated – to avoid taxes,

most people prefer contingent(c) inclusion of words in one place is exclusion of words in another(d) disinheritance of kids’ dad – if vested at time of testator death, more likely that the dad could

take if kids died intestate Uniform Probate Code (applies only to trusts): reverses traditional presumption in favor of

vested construction – “a future interest under the terms of a trust is contingent on the beneficiary’s surviving the distribution date”

STATUTE OF USESWhere one person is seised of land to use of another, the other person shall be seised of a like estate as he had in use – converts equitable estate into corresponding legal estateIntroduces new methods of creating and transferring estates:

- converts equitable future interest into legal future interest = executory interest (legal future interest created by means of an executed springing or shifting use)

- can now be gap in seisin between limitations of freehold estate to successive grantees

- future interest can now take effect by cutting short prior estate in another grantor- can create contingent future interest preceded by a terms of years

O A and heirs in fee for the use of B and B’s heirsStatute executes the use – gives B legal and equitable title and removes A from picture

O A and heirs for 99 years for the use of …Not under statute – A not seised of the land [legal term of years in A, equitable term of years in B]

O bargain and sells to A and heirsAt common law, was just a contract – hadn’t transferred land by going onto land (though

contracts were specifically enforceable in equity). After statute, O holds legal title but must convey it to A – no longer need seisin.O A and heirs for use of B for life, remainder to Bs kids

Life estate and remainder both executedO A & heirs for use of B for 99 years, remainder to Bs kids

Statute only requires seisin in cestqui ce use, not in future interests given to BOnly A has to be seised.

O b&s A & heirs for use of B & heirsStatute exercises first use, but not subsequent uses

Blackman v FyshWill: creates life estate in sonClause 1: contingent remainder – property goes to kids who have reached 21 or girls who have married before 21Clause 2: executory interest -- but if grandsons or granddaughters attempt to alienate, etc, gift void and goes to their kids

court not consider this invalid restraint on alienation – dealing with a life estate and remainder – easier to impose a forfeiture when not dealing with fee simple

“when child reaches 21” – enjoyment of estate postponed until reaches age, not a condition precedent – estate still vests under court’s decision – all children take who reach age 21, either before or after testator

dies. Language not exclude anything except those who don’t reach age 21. Kids who reach 21 but die before life

estate ends would still take. Class continues to be open. Alienability postponed until 21 years after death of life tenant (dad of remaindermen). However, at death of life tenant know the maximum number of kids

if son dies and no kid yet 21, property would go into receivership until kids reached 21Class Gifts: O A for life, then to B’s children and heirsPrevious rule: Class closes at A’s death – no more afterborn members can share – hurries up moment of alienation. But, no reason to do this – really just need to determine maximum # of people who could take. Different case if remainder was in B’s issue – no way to close class unless closes at A’s death. Rule of convenience – closes a parents death if remainder in children, closes at life tenants death if goes to heirs or to issue

Rule in Purefoy v RogersIf an interest, when created, can take effect as either a contingent remainder or as an executory interest, it will be treated as a contingent remainder for all purposesExamples of Contingent Remainders:(a) O A for life, then to B and heirs(b) O A for life, then to children of B

If A dies and B has no kids, then property reverts to ORyan v Monaghan – even if B has kids later, won’t take b/c remainder fell to ground

(c) O A for life, then to children of B if they survive A

(d) O A for life, then to children of B if they graduate from law school(e) O A for life, then to children of B if they attend A’s funeral

Gap between As death and funeral = executory interest [remainder must vest or fail at end of prior estate]

(f) O A for life, then to heirs of A ascertained 1 year after A’s deathAvoids rule in Shelleys case because heirs not used in technical senseExecutory interest

POWERS OF APPOINTMENT4 Parties: donor, donee, taker in default, appointee(a) - general power: donee can name whoever he wishes

- special power: limits appointees to a certain class creditors of a donee of general but unexercised power cannot reach the affected property

unless:(1) donee is also the donor of the power and the conveyance is fraudulent(2) donee who is also the donor creates the power by transferring property in trust and

reserves for himself the life income and a general power to appoint the corpus(b) - testamentary: can only be exercised in a will

- presently exercisable : can exercise whenever wants(c) – mandatory: if no taker in default, then discretionary. Can’t force person to do anything, but law will

do it for them- discretionary

(d) - exclusive: power to exclude a member of the class (“then to such children”)- nonexclusive: “then to children in such shares”. If all the permissible objects do not receive a substantial share as a result of an appointment, the appointment is void as illusory (though this is difficult in application and not universally followed)

Failure to exercise a power of appointment means property passes to takers in default or, if none, to the donor or her estateDoctrine of Capture: if general power of appointment exercised invalidly, then property passes under A’s estate, unless contrary to the intention of grantor (ie, default to B might mean contrary to intention)Relation Back Doctrine: what A is doing is filling in blank O has supplied – act by A relates back to creation of remainder – simple discretionary act on part of A, but A never had any real control over property. Even if A exercises power through his will, B not owe inheritance tax because he is taking directly from O. Legislatures have closed this loophole and made transfer taxable at A’s death.Defective Exercise of Powers:If special testamentary power, then defective exercise is appointing to person not named in class – Gilman says this subjects assets to creditorsIf general power, defective if appoint to person who not exist.

Gilman v Bell O Ellen for life of Robert, but Robert has power of appointmentPower not a property right – title and interest in thing not vest in donee until he exercises power. Creditors can’t force you to exercise power – can’t reach property until Robert accepts.

but for bankruptcy purposes, unexercised power of appointment is an asset dower: just a chose in action, not seised of an estate of inheritance

Bank of Dallas v Republic Nat’l Bank1971 trust: revocable trust for use and benefit of A and A’s kidsamendment: trustee gives interest to A during life, and can give A or her kids principal if needed; A has testamentary power of appointment.

Rule: creditors can reach spendthrift trust made be beneficiary where income/interest goes only to the settlor.beneficiary. Here, settlor’s kids have a remainder which can be defeated by exercise of the power of appointment. Same person who created power holds the power. [as opposed to Gilman, where court can’t force you to exercise power over someone else’s assets].

if A had given herself special power of appointment (to choose among her kids), then remainder would be vested and creditors couldn’t reach

In re Rowlands Estate “friends” = general discretionary power of appointment – terms friends too vague to create

certain class but when name a certain person within that otherwise vague class, power becomes imperative

Common Law Rule Against Perpetuities – Rule of Law“ No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest”

under relation back doctrine, must be lives in being at original conveyance. Thus, if O A for life, and A appoints to his grandkids who reach 21, appointment not valid – grandkids not lives in being when O gave to A (though would be OK if looked at point where A appoints). Not know who A’s grandkids are as a class until A dies.

Rule about possibilities, not what actually happens. Common law preferred indefinite failure of issue construction (assume you meant to create a

fee tail); Modern law prefers definite failure of issue construction Adaptations to rule:

a. wait and see: allows 21 years to run before deciding caseb. cy pres: court reforms a written instrument to comply with the rule (usually with gift to

charity) as close to donor’s intention as possiblec. Uniform Statute: changes limitation to 90 yearsd. Second Look doctrine: assumes relation back – look at facts known at death with

testamentary power of appointment. Validity of the remainders determined in light of facts existing at death.

Exceptions to Rule:a. gifts from one charity to anotherb. rights of reverterc. right of re-entry for condition brokend. reversions

Measuring Lives can use any lives (even a large group) as long as not too indefinite/group ascertainable have to think “what if everyone died?” every person capable of reproducing until death

*

United Virginia Bank v Union OilOption to buy parcel of land after a road and highway built beside it. Court holds that violates Rule because no guarantee that road or highway will ever be built. When party is a corporation, rule is 21 years flat, since no clear lives to use as measuring. Court also allows grantor to contrue rule against himself – invalidate his own conveyance.

Jee v Audley – fertile octogenarianRemainder in daughters then living of John & Elizabeth Jee: violates rule because chance that Jees will have kids after testator dies.

stranger to the adoption doctrine at common law : if stranger gives gift to children, means bio kids, not adopted

In Re Manson’s EstateProblem of unborn widow: possibility that might be born after testator death = can’t be measuring lifeRule: where a secondary life estate is limited upon the life of any wife whom the primary life tenant might marry, it is void