 Prop rights protection by state for claimed resource. held by individual, group or in common.

 1st in time principle: 1st person to possess owns it. Implements important social policies rewarding labor &
protecting investment/resources.
 Bundled Property rights- to posses, use, exclude, transfer & possibly destroy
o Right to exclude most important (Jacques – delivery of mobile home through prop, nominal damage
not sufficent)
 Prop rights not to be exercised to endanger rights of others (State v. Shack- migrant worker
case, owner didn’t want gov’t workers on land)
Acquisition by Discovery
 Discovery by grant from U.S results in absolute title (right to settle, possess,& govern law) & grants exclusive
right of dominion. Superior to land bought from Indians- had right of occupancy. Johnson v. M’intosh If turned
other way: would have disrupted foundational concepts tracing to grants given by kings.
o Res nullius /terra nullius – thing/territory belonging to noone – can be discovered.
o Chain of title: links = transactions/conveyance by which parcel of land moves from owner to owner
over time.If good title conveyable- if not broken link in chain.
 law of accession: when one adds to property of another with labor. Manurecase: labor of piling.
Acquisition by Capture

Ferae naturae (wild animal).

 hunter must capture, trap, or mortally wound manu capture to acquire valid claim of ownership; pursuit
insufficent. Pierson v. Post (fox to finder)
o Contra Pierson v. Post: Favors sportsmanship, fox = nuisances, 1 who cornered animal should enjoy
fruits of labor- local custom contrary to majority
 Title acquired when hunter apprehends beast in accord w/ custom valid. Ghen v. Rich (whale)
o Custom compelling b/c custom affects few, relied on for yrs, req’d hunter to act, compensated finder
& w/o protection industry dies.
 Malicious interference: person in process of capturing animal can have competitor interfer, non-competitor
can’t. Keeble duck decoy
 Tamed animals: Animal w/ tendency to return .If someone carries off conversion
 Not native wild animals (tiger): can’t establish ownership unlike w/ local wild animal.
 Fugitive resources (wander) treated as wild animals b/c have power & tendency to escape w/o owner
violating anything.
o Oil+ gas belong to owner & subject to control but if escape into another’s control/land former
owner’s title gone = possession of land possession of gas
o Water (riparian rights): Rule of capture + rule of reasonableness (not harmful/wasteful)
Acquisition by Creation – Common law
 expend of mental/physical effort which entity created (in/tangible) creates proprietary right to com. exploit.
 Quasi property right: company expended resources in creating news & info, can exclude others from copying
until commercial value passed. Property rights relational. B/w news service & public 1 prop right & different
prop right b/w 2 competitors. International News
 Idea behind patents, copyrights, & trademarks: grant limited monopoly over protected material.
o Patents: grant privilege for novel, useful, & non-obvious processes/products. Last 20 years from date
of original application NOT renewable & when they expire enters public domain & may be exploited
by anyone.
 Courts grant for genetically engineered bacteria b/c product of ingenuity + not naturally
occurring manufacture. Diamond v. Chakabarty
o Copyrights: protect expression of ideas (not ideas) in books, articles, music, & artistic works etc.
Protection begins once work in question set down in tangible medium & lasts 70 yrs after death of
author/creator. Subjects of copyrights must be original.
 Must limit copyright infringement when simply similar idea. Stock characters (stereotypes)
NOT unique. Nicholas v. Universal
  One who distributes device w/ object of promoting infringement liable for resulting acts of
infringement by 3rd parties. Metro Studios peer-to-peer software
o Trademarks: words & symbols indicting source of product / service. aid to consumers b/c verify
product they like/trust. Aid businesses in providing way of advertising products,services, &
reputation.
 Avoid monopoly & encourage competition, common law usually allows copying/imitation of ideas b/c similar
product for cheaper benefits society. Cheney brother copying fabric designs. Can advertise product is “as
good as” another product -Chanel No. 5
o Exception: Right of publicity: person may not use celebrities name, likeness, voice or signature w/o
consent b/c celebrity’s labor in creating persona protected. Vanna White
 Excised body parts are not considered property subject to conversion. Moore v. regents
o No ownership interest: no case law, Cali. Statutes limit patient’s control over parts, can’t be property
b/c factually & legally different than organ it once was, & lympnodes are not unique; same in
everyone. Locke’s theory on property and ones person: may have ownership doesn’t mean rights to
sell, labor & organs are mine but doesn’t mean have right to sell them.
o Shouldn’t be extended: Policy: could impose researchers to strict liability = companies unlikely to
invest & would slow progress, legislator’s concern, duty of doctor to disclose is adequate to protect
the patient’s right of self determination for parts.
Subsequent Possession

Acquisition by find
 General rule/ prior possessor: Finder has title superior to everyone but real owner has absolute title over
everyone
o Ex) Armory v. Delamire- jewel taken to shop for apprasial, trover action for jewel taken out of socket,
trover is action for $ damages based on conversion
o Acheives social goals, protects individuals who entrust goods to others, promotes social welfare, and
peaceful possessions, otherwise people would steal & hope that law would protect
 Replevin action for return of property….If owner has never occupied land then not in constructive possession
& finder has superior title to property that owner is unware of found therein
o Hannah v. Peel- solider found brooch, gave it to police, 2 yrs later wanted it back, owner of house
never knew, finder wins
 Exceptions- when principles agent finds property in soil acting on employers behalf, &
property goes to employer because it discoruages digging in search of treasure (Stafford v.
Sharman- rings at bottom of pool)
 Objects found in public places are subject to lost/mislaid distinction
o Lost property belongs to finder because store owner never had possession of item left in public area ,
accidentally and casually lost, (Bridges) pocketbook on floor
o Mislaid: store owner has duty to hold until true owner returns, if not then to store owner, idea is that
it was intetionally placed then forgotten & the true owner will remember and come back for it,
(McAvoy) pocketbook on counter
o Abandoned property- owner voluntarily relinquishes title & possession, finder obtains both

Adverse posession
 Elements: COAH
o open and notorious ( well known to anyone in vicinity), sort of possession usual owner would make
under circumstances
o actual & exclusive possession under claim of right, and (not permissive or invited) entry can’t be
hypothetical/ficticious. Not symbolic entry.
 no written instrument is Claim of Title, just superior right to have land
 to be distinguished from Color of Title which is based on invalid deed or perscriptive
easement,
 o continues for statutory period
 used to be 20, majority of states now have 10 yr limits
 interruption w/ sucessful ejectement action or reentry by owner,
o Hostile: no permission.
 Possessor’s state of mind
o Objective standard- Subjective state of mind is irrelevant. Doesn’t matter what thinking @ time.
majority of states. Once entry against true Owner, cause of action & hostility is implied.
o (Manillo v. Gorski- CT doctrine, 15 inches of stairs on other land case )
o Good faith standard- thought I owned it. 1 enters claiming good faith right to do so. Some claim
this standard plays larger role then courts admit b/c they tend to give rights to innocent one
more then someone who knew. (Georgia)
o Aggressive possessor- knew not mine, took anyway. (Maine doctrine)
 Tacking: may tack onto time from predecessor’s time if PRIVITY. Satisfied by any blood, contract, deed, or will.
o Not allowed when ouster. Ouster starts new stat period- can’t benefit from his act of ousting. Ouster
defeats privity- no tacking.
 Disabilities: SOL will not run against true owner afflicted by disability at inception of adverse possession as
matter of fairness. Disabilites can’t be tacked; focus on when accrued state of Owner. Disabilities can’t be
transferred.
o Common disabilities: infancy, insanity, imprisonment , medical

Cases in adverse possession

 AP isn’t sucessful when lacks such a manner to show substanital improvement, or cultivation or enclosure of
premises claimed (small moving garden not substantial to claim land – VanValkenburg)
 AP not favored, necessary for clearing inconsistent disputed titles & doesn’t reward sleeping on prop interests
 Regardless of mututal mistake failure to assert rights means you lose them – (Walling v. Pryzblo)
 Adverse possession of unimproved land sucessful when claimant pays taxes on land, this is Ewing (common
out west)
 Seasonal possession if usual for area satisfies elements Howard v. Kunto, summer beach house
 Doctrine of Actual possesion based on Color of Title- under a defective writing (invalid deed or judicial decree)
for part of land for required statutory period results in possession of entire plot described
 Claim of right- either perscriptive easement or part of land, no writing, different from Color of Title.
 Mistaken improvers recently allowed to recover mkt value for improvements
 Generally no adverse possession againt gov’t, no time runs against King,

Adverse possession of chattels

 Discovery rule – statute of limitations begins when owner makes diligent efforts to locate & recover lost
chattel b/c open & notorious element (provides notice to owner) hard to satisfy (O’Keefe case)
o Owners can file police report or register w/ stolen art registry
 Guggenheim case- court (NY) thought discovery rule was inappropriate to require action on true owner so
burden on potential owner to investigate origin of art

Boundary Dispute resolution

 Agreed boundaries- if uncertainty neighbors can orally agree to settle on acceptable boundary line
 Aquiesence- if evidence of long standing practice of fixing boundary line
 Estoppel- when 1 neighbor makes representations about common boundary line & neighbor changes
position in reliance, other party estopped from action, also applies when 1 neighbor is silent
Acquistion by Gift
 3 Elements- intention, delivery, acceptance (presumed)
 Delivery is very technical
 o General rule—if handing over item possible you must; makes vivid & concrete, donor realizes
irrevocable gift & delivery is evidence of alleged gift, if manual delivery isn’t practicable b/c of
size, weight or inaccesability constructive or symbolic delivery may be permitted (Newman v.
Bost- will in bureau)
 Constructive delivery- handing key or object that allows access to gift
 Symbolic delivery- handing over evidence of property given ex) written instrument
declaring subject matter of gift
 Symbolic ceremony called for livery of seisin, SOF abolished this, replaced with writing in deed, can’t
transfer land w/o deed
 Courts wary of Causa Mortis gifts (gifts given because of death), on death bed not in right mind or may be
subject to improper pressures, can be used to circumvent will (NY 2 witnesses to execute a will)
 Inter vivos- while living gift, up to $12,000 tax free/ year
 Gruen- dad gave son painting through letter, he could’ve handed it over, son got it anyway- party may
give present interest in chattel w/ ownership to occur in future after fathers life estate ends, intent
evidenced in letter, symbolic delivery would’ve been silly, acceptance presumed through lawsuit [future
interest ex)given in will- can be terminated]
Types of Estates
 Present posessory interests (FSA, FT, LE & Leasehold) look to tech language & consider duration
Fee Simple
Fee simple Absolute: is as close to absolute ownership as law recognizes
 Created by “To A” and “To A & his heirs”. (req. under common law, now to A= heirs implied)
 Distinguishing attributes: absolute ownership of potentially infinite duration. Best anyone could hope
for(largest). Freely divisible (can leave it in your will). Will pass by the statutes of intestacy (if you should die
w/o a will). Alienable (sell it or give it away during lifetime). Spouse gets fraction now, used to only get dower/
curtesy= abolished.
 Accompanying future interest? NO! No person has heirs while alive; ascertainable at death.
o Heirs are ppl who survive decedent who died intestate (w/o will) no present int. (no will and
no heirs goes to state- escheats) devisees(land) + legatees( get bequeathed personal
property) inherit under will
 Only way to lose: default, failure to pay taxes, or imminent domain.
 Unless other intention is expressly laid out- courts favor fee simple. White v. Brown (P is to live in my home +
house NOT to be sold). Contra white- clearly life estate b/c alienable rights are important rights in bundle for
fee simple.
o Objections to restraints on alienation: property unmarketable, creates of wealth, discourages
improvements, prevents owner’s creditors from reaching property.
o Types: disabling: makes transfer void, forfeiture: if transfer lose rights.
The defeasible fee 2 rules: must have durational language & absolute restraints on alienation (to sell or transfer)
void by public policy. FS b/c have chance to go infinitly, not certainty. Encountered w/ trying to restrict land usage
 Fee simple determinable: must use clear durational language
o Created by:” To A for so long as” or “To A during” or “To A until” or “A while” If the stated
condition is violated forfeiture is automatic.
 Any language providing that upon happening of stated event land reverts to O
(Marenholz v. County Board of trustees- for school purposes only otherwise revert to
grantors, what is defined as school purpose? Storage ok? )
o Distinguishable attributes: Is divisible, descendible & alienable. However, always subject to condition.
May transfer but conditions will follow
 o Accompanying future interest? Yes. called possibility of reverter. Exists in the grantor (O). Only one
interest. F.S.D.P.O.R (Frank Sinatra didn’t prefer orville redenbacher – fee simple determinable
possibility of reverter)
o Statements of motive/purpose don’t create FSD, ex) for purpose of…, to be used for…
 Fee simple subject to condition subsequent
o Created by: “To A but if X event occurs, grantor reserves right to reenter & retake”. Grantor must use
clear durational language & must carve out ability to re-enter.
o Distinguishable attributes: divisible, descendible, & alienable- but subject to condition. not auto
terminated but can cut short at grantor’s election if condition met. grantor’s prerogative to
terminate, have to act on it.
o Accompanying future interest” Yes. Grantor has right of entry/power of termination.
 Fee simple subject to executory limitation
o Created by: “To A, but if X event occurs THEN to B”
o Distinguishable attributes: similar to FSD b/c forfeiture in automatic. if condition broken estate auto
divested to 3rd party not O.
o Accompanying future interest? Yes. Shifting accompanying future interest

Fee tail: descends from generation to generation until bloodline runs out.
 Created by “To A and the heirs of his body”. Virtually abolished in U.S- replaced by fee simple.
o Only 4 remaining states: Delaware, Maine, Mass., and Rhode Island.
 Historically passes to lineal descendants (other than collaterals)
 Accompanying future interest? Yes. Every fee tail has remainder or reversion.

Life estate
 Created by explicit life terms & never in terms of years. “To A for life”. (usually though trusts)
o Pur autre vie: life estate measured by life other than grantee (ex: to A for life of B)
 Distinguishing attributes: Life tenants ownership linked to doctrine of W.A.S.T.E: entitled to all ordinary uses &
profits but must not commit waste (do anything to harm future interest holders
 3 kinds of waste:
o Voluntary/affirmative: actual overt conduct that causes decrease in value (destruction)
 Exception- Open mines doctrine: minerals can be extracted if they were being extracted at
time future interest was created.
o Permissive: land allowed to fall into disrepair or fails to reasonably protect land (neglect)
o Ameliorative: must not engage in acts that will enhance prop’s value unless all future interests
consent. Ex: can’t be entrepreneur.
 Equitable intervention, equity may intervene &order sale of in best interest of all parties-
Baker v. Weedon (freehold wants to sell b/c econ distress, future tenants want to wait till
property appreciates- must do whats best for all interests involved.)
 Accompanying future interest? Yes. If grantor- reversion. if 3 rd party- remainder.

Rule against restraints

 Types of restraints
o Forfieture provides: if grantee attempts to transfer interest forfieted to another
o Disabling: grantee witholds power of transferring
o Promissory restraint: grantee promises not to transfer his interest
 Restriants on fee simple
 o Total restraints: any restraint on FS is VOID; can alienate, take property out of market, tend to make
unmortgageable/ unimprovable, concentrates wealth, prevents creditors
o Partial restraint: restrains power to transfer to specific persons, by specific method, or until specfic
time. CanNOT specify who sale must go to.
 Restraint on use: make less alienable by eliminating prospective purchasers in a manner
forbidden by restraint (Mountain Brow Lodge of Oddfellows v. Toscano- only this lodge
could use it, upheld b/c conditions not void)
 Racial restraints: void if prohibit transfer based on race, religion, or ethnicity.
Future interests
 Solve a problem:
o Classify present estate
o Look who has future interest- if retained by grantor then reversion/ right of reentry/ possibility of
reverter. If someone else then remainder or executory interest
o Think how future interest will become posessory- interests in grantee waits patiently, executory
interest divests or springs out of O’s interest. If in O, reversion follows natural termination, POR
doesn’t cut short preceeding determinable estate. right of reentry divests preceeding estate
o Identify posessory estate in which future interest will be held - always held in some posessory
estate. Ex) O gives FSD to A, then O has poss. of reverter in FSA.
o Determine if interest is vested or contingent- Contingent is in some unascertained person OR
subject to condition precedent. Condition precedent comes “b/w the commas” and condition
subsequent which divests vested interest.
 Distinguish condition precedent which comes b/w commas & condition subsequent
which divests vested interest
o Then apply the following rules:
 Destructibility of contingent remainders
 RAP
Future Interests – nonposessory interest capable of becoming posessory in future. Present interest in
that presently existing. Can create future legal or equitable interest- equitable through trust. If
transferable then creditors can reach it.

Retained by O/grantor
 Possibility of reverter:arises when grantor carves out of estate a determinable estate of same quantum.
Almost always follows fee simple determinable (durational terms- so long as). Frank Sinatra Didn’t Perfer
Orville Redenbacher. FSD-POR. Automatic back to O
o If FSD POR unless transfer to 3rd party
o Not viewed as “thing” just a possibility, unless it was being passed on in will then “it” descended,
Modern view is as property interest, freely alienable
o When eminent domain when FSD in A, possibility of reverter in B- its necessary to value SEPARATE
interests, Majority rule entire award goes to A unless expire w/in reasonably short period. Minority
rule- value = fair mkt price for all uses minus value for uses permitted, value of possibility of reverter
is the difference b/w the 2 (Ink )
o Common law not transferred inter vivos. Most jurisdictions under common law freely alienable
( transferable, descedable, divisable).
 Right of entry synonymous w/ power of termination: retained when grantor creates fee simple subject to
condition subsequent & retains power to cut short estate. (“but if”- reserves right to enter & retake). Usually
expressed in grant of FSSCS . O must exercise option.
 o common law was inalienable inter vivos but inheritable by heirs of grantor
o Modern some states right of entry is now alienable, (descendable and divisable but some hold not
transferable above it)
 Reversion: future interest left in grantor after conveys vested estate of lesser quantum. leftover called
REVERSION (left over- ex) life estate, to B for x yrs). Alienable (transferable, descedable, divisable).&
accelerates into posession upon termination of preceeding estate. Automatic back to O
o Lesser defined by heirarchy
o All vested even though may/not become posessory

Created in Grantee/ not O

Remainder: future interest in grantee that has capacity of becoming posessory @ expiration of
prior estates & never divests prior estates, patient, express grant in same instrument as
proceeding posessory estate created, NOT FSA,

 A vested remainder (future interest created in grantee)- possession waits till natural conclusion of proceeding
life estate/term of years. {Remainder Man-Forest Gump}: sociable- always follow prev estate of fixed
durational period, patient & polite – remainders never follow defeasible fees; will wait patiently. Must be
ascertained person & not subject to ANY condition precedent. Favored. Alienable inter vivos + divisible +
descendable. No reversion in O if vested in FS.
o Indefeasibly vested remainder: Holder CERTAIN to acquire in future w/ no conditions attached. Best
future interest b/c certain & permanent. To A for life, remainder to B. (B is known & no strings
attached). N’Sync
o Vested remainder subject to complete defeasance (aka sub. to total divestment): Remainder man
EXISTS- taking not subject to ANY condition prereqs, HOWEVER- right to possession divested b/c of
condition SUBSEQUENT or inherent limit of estate in remainder. Comma rule: condition subsequent
when follows language taken alone & set off by punctuation creates vested remainder in 1st place.
 Condition sub--Ex: O conveys to A for life, then to B, but if B doesn’t survive A, to C
 Vested remainder in B subject to total divestment on occurance on condition
subsequent of B dying leaving A surviving, C’s executory interest will divest B if
condition subsequent happens
 Inherent limt—ex: O conveys to A for life, then to B for life, then to C and his heirs
 B has vested remainder for life subject to total divestment if B fails to survive A; it
fails if doesn’t become posessory within life tenents life. C has indefeasibly vested
remainder in Fee Simple
o Vest remainder subject to open: Remainder vested in group of takers, at least 1 of whom is qualified
to take possesion, HOWEVER, class members share subject to partial diminution b/c addt’l takers (not
yet ascertained) can still qualify as class members.
 Ex: To A for life, then to B’s children (C+D). C+D have vested remainders subject to open b/c
their share may be decreased if B has another child.
 A class is either open (possible for others to enter) or closed (max. membership has been
set- persons born thereafter are excluded). Apply bright line rule convenience: class closes
whenever any member can demand possession or upon death of qualifying life.
 Class closes in Ex: at B’s death and also at A’s death even though B still alive b/c
that is when they can demand possession.
 Exception to rule of conveniance: child of B in womb at A’s death will get to share
w/ C + D. treated as alive at conception.
 Remainder can be both subject to open + to complete divestment!!!
 Contingent remainder (future interest created in grantee): in UN-born/UN-ascertained person OR is subject to
condition precedent OR both. (Law historically detested so created rules). Whenever O creates contingent
remainder in FS reversion in O until condition is satisfied.
o Unborn/Unascertained- unborn or can’t be determined until happening of an event. Contingent. Ex:
to A for life then to B’s first child. A is alive and B has NO children yet- dependant on B having
children.
o Condition precedent = prerequisite Ex: To A for life and if B is 21 to B, B is 19. Express condition set
forth in instrument which MUST occur before remainder becomes posessory.
o Law historically detested insecure contingent remainder so created rules to limit b/c made land
alienable earlier:
 Destructibility of contingent remainders:
 At common law (historically) contingent remainder was destroyed IF it was
contingent at or before proceeding estate ended; B still 19 didn’t require
prerequisite so O or O’s heirs would take in fee simple absolute. (never takes
effect)
 Today, destructibility ABOLISHED so contingent remainder takes effect if
contingency occurs before/after termination of LE. Therefore, if B still under 21
when A dies, O or O’s heirs take subject to B’s springing executory’s interest. When
B reaches 21, takes.
 Reasoning- holder of remainder not able to take seisin. Doesn’t apply to leasehold,
don’t need seisin.
 Doesn’t apply to vested remainders & executory interests b/c not destroyed by gap
in seisin. Not to personal property or leasehold. Also not to trusts b/c sesin already-
legal FS. ONLY contingent!
 Avoidable by term of years or trustees to preserve contingent remainders.
contingent remainders + executory interests were not alienable inter vivos at common law (except in equity) .
most jurisidcitions Modern are alienable inter vivos or when divisible by law. If alienable creditors can reach.
 Executory interest: future interest created in transferee which is NOT remainder, & which takes effect by
cutting SHORT interest in another person (shifting executory interest) or in grantor or his heirs (springing
executory interest). ALWAYS divests {Dr. Evil}. If no preceeding or follows a FS must be executory. Becomes
posessory estate.
 Springing springs out of grantor, shifting shifts the estate from one grantee to another
o Shifting executory interest: Always follows defeasible fee & cuts short someone not grantor upon
happening of some uncertain event. To 3rd party!
o Springing executory interest: cuts short O (grantor). Used to assure groom that bride would come to
alter endowed w/ property.

Rule Against Perpetutites (RAP): certain kinds of future interests are VOID
 No interest is good unless it must vest, if at all, not later than 21 years after some life in being at creation of
interest. = best understood as comprising position.
o Reason: 2 forces at war (rabble rousers wants free unencumbered land from elders vs. elders who
appreciate conditions & control- frank sinatra) 3 rd party arbitrator deals within REASON to limit
perpetuities.
 No longer than measure life in being + additional grace period of 21 yrs.
 Steps to tackling problems: Ex: to A for life then to A’s children. A is alive & has no children.
 o 1: determine which future interests have been created by conveyance
 RAP - Potentially applies only to contingent remainders, executory interests, & certain
vested remainders subject to open. Class gifts for example- not vested under RAP until all
are ID’d and all conditions precedent have been satisfied.
 Doesn’t apply to future interests created in: O-grantor. RAP wont apply to: possibility of
reverter, to right of entry, to reversion, indefeasibly vested remainders, or to vested
remainders subject to complete defeasance.
 Ex: unborn children have contingent remainder.
o 2: Identify conditions precedent to vesting of that vesting future interest. (ex: what MUST happen
commonsensally before future interest can take).
 Ex: A must die leaving a child.
o 3: Find a measuring life (look for person alive at date of conveyance+ ask whether that person’s
life/death to conditions occurance).
 Lives in being- are people alive at time interest is created, diff than a measuring life which
can affect vesting, lives are to be determined @ creation of contingent interest, if interest is
created by will validating life must be person alive @ testators death, if inter vivos validating
life must be person alive at date of trasfer, don’t have to be named in instrument per se.
child in womb is treated as life in being if born alive later.
 Measuring life qualified: must be relevant in life or death to conditions occurrence.
 Ex: person’s life who is relevant A.
o 4: Will we know w/ certainty within 21 years of death of measuring life if future interest can or
cannot take? Outcome determinative,
 If so- conveyance is good. If not- FUTURE INTEREST IS VOID.
 Ex: our conveyance is good b/c we will know @ A’s death whether or not A has
children.
 Remote possibilities:
o Fertile Octogenarian rule- fertile regardless of age, presumes person can have kids long as alive
o Unborn Widow- law assumes persons surviving spouse might be a person not yet born
 Another illustration: To A for life, then to first of kids to reach age of 30.
o A is 70. Only child= B (29). 1- Future interest: contingent remainder b/c future interest created in
unknown taker. 2: conditions precedent to vesting: A must die & must have a child to reach 30. 3.
Measuring life- A b/c life & death are relevant & must have child to reach 30. Not based on B b/c not
B specific. 4. NO!
 At common law, routed in world of what if where anything is possible- think about a parade
of horribles- to invalidate. Ex: B who is 29 could die tomorrow, A (70) thereafter could’ve
another child (fertile octogenarian rule- fertile regardless of age) A could die in labor - don’t
know whether condition precedent to any newborns taken will be taken w/in 21 years of A’s
death b/c of uncertainty our contingent remainder is void. Therefore, we are left w/ life
estate & O has a reversion.
 Bright line rule: many shifting executory interest will violate RAP meaning if you have an executory interest
w/no limit on time w/in it will vest will VIOLATE.
 Common law rule has been reformed by statute in majority of states. 2 efforts that embrace CY PRES (as near
as possible) tells us if a given disposition violates RAP court may reform in way that most closely matches
grantor’s intent while still compiling with RAP. Power to recast/redraft. Both will reduce offensive age to 21
years.
 o 1. Wait and see (second look doctrine): validity of any suspect future interest determined on facts as
NOW exist @ conclusion of measuring life. Eliminates what if/anything is possible inquiry. Helpful- b/c
no parade of horribles to invalidate asks us to wait & see. Majority
o Uniform Statutory Rule Against Perpetuities (USRAP): codifies common law & provides for an
alternative 90 year vesting period. Criticized b/c not sure if interest is valid or void. Doctrine results in
motre main, and $$ tied up in trusts

Application to options
 Option creates in optionee a right to repurchase property on terms provided on terms in option. It creates
an equitable interest in property. An option is void if possible to exercise option more then 21 yrs after
some life in being @ creation. Suports policy that owner will not improve & noone will buy so makes
condition void. (Symphony Space v. Pergola)

Trusts
 Fiduciary relationship w/ repsect to property in which trustee holds legal title subject to equitable rights &
beneficiaries.
o Benefits: allows for flexible property management & for wealth to be transferred to future
generations.
 Powers of trustee- broad powers of management. Trustee can sell assests and invest the proceeds in
other assests, can give leases, mortgages on real property. Same power as intelligent person would
manage own property.
 Duties: held ot highest standards of conduct in administering trust, if breaches personally liable.

Co-ownership and marital interests

 Tenency in common- separate but undivided interests, no survivorship rights, court can order partition
of so needed, equal shares are not necessary
 Joint tenency- have right of survivorship, sometimes need EXPRESS words about survivorship, regarded
as single owner, by the share and by the whole, nothing passes when 1 dies, estate continues which
avoids probating will, cant pass by will, 4 essential unities must exist in order for JT (DISCUSS THESE ON
EXAM IN DEPTH)
o Time- vest @ same time
o Title- acquire by same instrument (watch for strawperson),
o Interest- equal undivided shares,
o Posession- right to posess whole, can give exclusive right to 1 JT
 When 1 of unities is severed it becomes a TiC (Riddle case- wife severed by conveying to herself @ diff
time, no need for strawman anymore)
 Leins on JT do NOT survive death (Harms case- lein dies when JT dies & survivor gets it)
 Act of 1 JT doesn’t bind others (Swartbaugh case-husband leased land for boxing ring, wife hated,
couldn’t void lease)
 Tenency by the entirety- only in husband & wife, 4 unities plus marriage, can’t be conveyed to 3 rd
party, neither can get judical partition, only divorce can split it, can’t be severed by 1 tenent EVER,
presume this when conveyed to H & W,
o Married womens Prop Act- can now handle prop as if single whereas before couldn’t, Neither
spouse can convey seperatly (Sawada case- creditors of 1 can’t reach prop b/c can’t transfer
 interest w/o spouse) (Jordan case- no leins on prop for separate debts, derogate title) ( Hurd v.
Hughes- H&W own whole thing as 1 entity w/ = rights)

Partitions
 Partition in kind- favored, land gets split (Delfino case- land was awkward shaped, lower ct ordered sale,
higher ct said that in kind was better)
 Partition by sale- land sold, profits split, used when hard to divide or interest is served better
 Applies to JT and TiC

Benefits/ duties of co-tenency

 Can agree among themselves that 1 has exclusive posession
 No need to pay cotenents unless there is an ouster (depriving another co-tenent of right to posession)
 There must be evidence of ouster before any cotenent is liable to others for rent
 Any rent received by 3rd party mustbe split among cotenents
 Spiller v. Mackereth- put new locks on warehouse to protect merchandise, other cotenent wanted rent,
no rent was owed because there was no ouster

Bank accounts
 Joint and survivor- either party can withdraw, survivor takes all, presumption is this, can be overcome by
clear & convincing for Convenience,
 Convenience- if depositor is sick then someone else can write checks/ pa bills but NO right of survivorship
in regards to money
 Trust- opened by O as trustee for A, A can reach when O dies only

Divorce
 Degrees are not divisible in some jurisdictions ( In Re Marriage of Graham)
 NY however has said that it IS divisible (O’Brien & Elkus cases)

Marital rights on death

 Common law wife has dower- in all freehold land which H has seised during marriage & is inhiertable by
issue born of marriage
 Until H dies land is inchoate = W has interest that is not posessory yet, once attached can’t lose it unless
consents or divorced
 Dower gives W 1/3 of each parcel owned by H ( NOT in NY)
 H gets curtesy when W dies however only if issue born of marriage & H gets all land not 1/3
 Almost all give election to spouse upon other spouse’s death of some fraction of land
 Separate property is – aquired before marriage or after by gift, devise, or descent
 If parties agree then community prop can become separate or vice versa

Rights of unmarried partners

 Common law marriage has all rights as couples married by clergy
 May recover based on quantum meruit to avoid unjust enrichment
 Same sex couples can not get married
o Exception is Massachusetts
o Goodridge v. dep’t of public health- residents of state can get married as same sex couple,
o other states provide for domestic partnerships NOT marriage
Landlord/ tenent
  developed in feudal times
 blend of prop & K law, both conveyance of land & K containing promises
 lease convenants are seen as mutually dependent
 right to posession distinguishes it from easement, license or profit

tenency for years

 lasts for fixed years or calander dates, can be for any period of time!
 Can end w/o either party giving notice

Periodic Tenancy
 Tenecy for fixed period of yrs that keeps going for suceeding periods UNLESS notice is given, MUST have
notice,
 if no notice then auto continues for another term,
 same tenency each time not new,
 must be expressly stated
 holdover tenents- landlord must make election about consenting and extending lease
 proper notice must be given, notice equal to length of K,
 exception is yr to yr then 6 mths
 notice must fix end date as last day of period

Tenency at will
 no stated duration, lasts as long as both parties will it, NOT terminable on 1 end only (if only 1 can
terminate then determinable tenency)
 Can terminate at any time
 Has possession
 Leases w/ no duration courts are split
o Some say tenency at will
o Others say determinable life estate ( Garner v. Gerrish- only tenent could terminate )

Holdover tenents
 Rightfully in possession but holds over is Tenent at sufferance
 Landlord then elects to evict OR hold tenent to another term
 When beyond tenents control modern courts do NOT hold them to another term
 Length of new term is either when rent is due or whole term of K, courts differ
o Crechale v Polles- landlord elected to accept month to month rent from holdover, can NOT
change mind after election

Selection of tenents
 Federal/ state statutes prohibit discrimination based on race, religion or national origin
 Civil Rights Act of 1982 forbids racial or ethnic discrimination on sale/ rental of ALL property, NO
exceptions

Fair Housing Act- 1968

 Makes unlawful to refuse to rent/ sell dwelling based on race, color, religion, or national origin
 Amended 1988- can’t discriminate against families w/ kids EXCEPT for senior housing and handicapped
people protected
 Prohibits advertising any discriminatory statements
 Exceptions:
o Single family dwelling: if own no more then 3, doesn’t use a broker, and doesn’t advertise
discriminating statements
o Small owner occupied: building of 4 units or less, 1 of which owner lives in, cant advertise in
discriminatory manner
o There is NO exemption under Civil rights act of 1866- must sue under that
  Must prove prima facie case, P must show: 1) member of protected class, 2) applied & was qualified to
rent place, 3) denied chance to rent & 4) place remained open to others for rent
o Burden shifts to D to show it was for legit reasons w/ NO relation to P’s protected status
o Once D presents evidence of reasons, P’s burden to show reasons pretextual= NOT real
 FHA protects handicapped people- recovering addicts/ alcoholics & ppl w/ AIDS are handicapped
 55 & older exemption- occupied solely by ppl 62 & older & housing units at least 80% occupied by 1
person 55 or older

Landlords duty to deliver posession

 Landlord has duty to transfer legal right to posession

 Majority view (English rule)- landlord has duty to deliver actual posession along w/ right
o Carries out intention b/c renter bargains for use
o Renter can terminate lease & get damages, or keep lease but not pay rent & recover damages
 Minority view (American rule)- no duty to deliver actual posession, (Hannan v. Dusch)
o Rationale- up to renter to take posession after it was conveyed, there are remedies that don’t
include landlord,
o Remedies- renter can sue to evict holdover, or treat it as new term w/ rent paid to renter

Landlord’s duty to not interefere w/ Quiet enjoyment

 Quiet enjoyment is always implied in EVERY lease if not expressly stated
 If this is breached then renter doesn’t have to pay rent
 If evicted then obligation to pay rent ceases, this applies if only evicted from portion of land rented. Idea
is to protect tenent
 Constructive eviction can happen through substantial interference- use & enojyment must be
substantially interfered with, there must be notice to landlord & renter can NOT have known about it
beforehand. (Reste realty v. Cooper- water flooded basement office that was rented, landlord was told
about it & did nothing)
o Tenent must vacate to claim
o Vacating terminates lease but can get damages
o Must result from interference by LANDLORD, ie) no heat
o Landlord has duty to not permit nusiances & control common areas
 Implied warranty of habitability- usually none, its caveat lessee
o Exceptions: 1) short term housing, 2) hidden defects (landlord must disclose if known & not easily
discoverable), 3)maintain safe common areas 4) buildings under construction
o Tenent must sue, NOT excused from paying rent
o More places are saying there is always an implied covenant & if breached no rent is due

Tenents duties
 Paying rent is a duty & independent obligation
 Must make ordinary repairs & ordinary wear& tear is exception

Landlord remedies
 Security deposits- returned only if no covenants were breached
 Prepaid rent- prepayment of last months rent may be retained if lease terminated early
 Rent accel clauses- rent for term is payable in full upon default of lessee paying rent or some other
obligation
  Can evict tenent- can happen during or after lease in case of holdover, limited during lease term, must
give tenent & reasonable time to pay rent. Judicial remedies to do such :
o Can sue for ejectment- takes a long time, rarely brought
o Summary procedings- quicker, must give tenent notice to quit premises before bringing action,
limited issues that can be raised,
 Defense for tenent is lease is illegal
 Self help- at common law it was allowed. Must be peaceable and use only reasonable force.
o Modern trend is against this (Berg v. Wiley- landlord must use judical remedy)
 Abandonment- landlord can 1)terminate lease, 2) let premises sit & sue for rent, 3) or retake & relet
o Is there duty to mitigate damages on part of landlord? Modern trend is yes (Sommer v. Kridel- )

Assignments and Subleases

 Assignment is for WHOLE term
o Assignee is in privity of estate w/ Landlord meaning sue/ be sued on covenants of lease
o There is also privity of K meaning that Landlord can possibly sue both renters
 Sublease is for part
o Sublessee is NOT in privity of estate = can NOT be sued/sue landlord
o Can NOT be sued on K either
 Some cases say that do NOT need right of reversion to create a sublease nor is it necessary. Instead intent
of parties controls ( Ernst v. Conditt- )
 Rent can be had from either party who is in EITHER privity of estate or privity of K
 Sublessee is NOT personally liable however, but is still obligated to pay rent
 Leaseholds are freely transferable, assigned or subleased w/o landlords consent
o There can be valid express convenants against them
o Landlord can historically deny consent for any reason. Minority modern view is that it must be
reasonable (Kendall v. Ernest Pestana) must be RPP standard