Property I Outline- Hirsch

I. Acquisition of Property
a. Acquisition by Capture:
i. Ferae naturae (wild animals): 1. Occupancy- possession; get ownership by occupancy 2. Tests for Determining Occupancy: a. Certain Control- unequivocal intention of appropriating the animal to his individual use, deprived him of his natural liberty, and brought him w/in his certain control (Pierson Majority) i. Prevents quarrels in society & preserves peace in society; no incentive for productive behavior from society b. Reasonable Prospect- pursue the property, want to capture animal, then its yours; pursuit not abandoned; animal within reach (Pierson Dissent) i. Fairness in investment (time) of hunters; promotes quarrels in society b/c of ambiguity c. Actual Control- must have actual capture and control of animal for occupancy. i. Unfair, but least ambiguous ii. Ex: A sets up a net, animal is captured in the net, B takes the animal-> B has property rights over A d. Ohio v. Shaw- departs from majority Pierson holding i. Escape impossible is no longer necessary ii. Now must take reasonable precautions to prevent escape 3. Local Customs & occupancy: a. Follow custom when custom is reasonable, it supports a local industry, custom works for people involved, custom is long-standing, law is of limited application to the group that is already following the custom, requires you to do everything possible to capture 4. Private Property & Occupancy: a. If animal is on own property, then creates an occupancy right. Once animal leaves, it is no longer yours. b. Ratione Stoli (by reason of the sort)- if an animal comes onto your property, you constructively possess it. c. Promotes fair competition

b. Acquisition by Find:
i. Trover v. Replevin 1. Trover- Action for monetary value of an item 2. Replevin- Seek to get actual item back ii. Rule: One who finds chattel has title against the world except the true owner 1. Cant give full right to finders b/c would promote stealing 2. Want to promote finders bringing chattel back into commerce iii. Mislaid, Abandoned, Lost 1. Lost- Goes to finder (unless true owner) a. Likely the true owner will not come back b. Involuntary- true owner did not intend to set item down

2. Mislaid- Goes to Locus Owner (more likely to come back to claim) a. One voluntarily set this property down and forgot to pick it up b. Should stay with person who owns the dwelling where it is found 3. Abandoned- Finder even has better rights than true owner a. True owner voluntarily relinquishes his rights to the property 4. Attached to or under land-> goes to locus owner 5. Principal/Agent: if agent of principal finds something, should go to locus owner 6. Bailment- If bailment, goes to locus owner a. Bailment- Relationship created when one person delivers a piece of personal property to another in trust for a specific purpose to be returned later when purpose is accomplished b. Can be created expressly or implied by actions of parties c. Bailor-> delivers property. Bailee-> holds property in trust d. rights & duties of bailee: return/account for item & respect instructions of bailor e. Duty of care w/ respect to that object i. If both benefit-> duty of ordinary care ii. If only bailee benefits-> great duty of care iii. If only bailor benefits-> lesser duty of care Placed intentionally Placed Unintentionally Left behind Abandoned Abandoned intentionally Left behind Mislaid Lost unintentionally

c. Acquisition by Creation:
i. Intellectual Property Overview: ingenuity, insight can lead to property rights (but not always); typically regulated by states 1. Patent Law: protections for inventions of new or improved products or new way to make a product a. Property right given by congress to prevent others from your invention for 20 yrs. Gives limited monopoly from when apply to patent and trademarks office b. Idea must be: sufficiently original, cant patent obvious inventions, cant parent fundamental ideas (such as law of physics) b/c cost to society to exclude people is too great. 2. Copyright Law: protection of works of authorship a. Not ideas, but the particular way they are expressed. b. Grants author rights for his life+70 years, but not absolute restriction (fair use of copyrighted works for schools, parodies okay) 3. Trademark Law: exclusive use to word or design used to identify your products a. Lasts as long as the product lasts, cannot trademark generic names ii. Fair v. Unfair competition 1. Difference between passing your own good off as some one elses (fair & allowed) & taking someone elses goods and passing them off as your own(unfair, not allowed) 2. Want to promote fair competition (not monopoly) or consumers lose out 3. Others can use your ideas to make their own imitation product, but cannot use someone elses product and sell it ask their own

4. INS News v. AP-> raw news/current events=public property; a story made from that news= ones property iii. Property Rights to Ones Body: 1. Conversion- unlawful exercise of property rights over someone elses property 2. No right to own cells or organs unless there is a statute in place or agreement between doctor/patient 3. Strict Liability Tort- if court extended conversion to cells, would extend liability to all doctors and researchers. Dont want this b/c it would deter research & industry depends on research 4. Right of Publicity- others cant use your image/identity for commercial purposes

d. Bundle of Rights:
i. Socially recognized and enforceable rights to property; helps determine whos is whos ii. Different sticks in the bundle of rights: 1. Right to Exclude- prevent someone from entering or using your object/property 2. Right to Include- can invite people 3. Right to Transfer- gives property rights to another in transaction, gift, leave in will, etc. 4. Right to Possess & Use- in ways you want to use your property 5. Right to be free from Nuisance- prevents neighbors from promoting a nuisance on you by their use of their property. (unreasonable interference with someone elses right to use their property) iii. Can have easements, trustees that only enjoy some of the bundle of rights iv. These rights have limitations: 1. Right of necessity- fire or child hit by car 2. Cant transfer property for fraud to not let creditors get owed money 3. Trustee cant sell property for pennies on the dollar 4. Can give organs, but not sell them 5. Cant break residential zoning laws 6. Cant be nuisance for neighbors 7. Some limits to destroy property you won

e. Acquisition by Discovery:
i. Legal Positivism v. Natural Law 1. Legal Positivism: Present Day a. Law begins in human society not in nature. Can be different for different societies. b. Rights come from govt enacted laws; promotes general welfare of society 2. Natural Law: Early American Law a. Government should not make the law but they should enforce and discover natural law. b. People to first discover a property justify ownership right in property c. Perfect that right by settling, occupying and laboring the land ii. The Struggle: 1. Natives may have occupied the land first (natural law), but Americans put it to a use that better benefited it for general society (legal positivism). (Johnson)

f. Acquisition by Adverse Possession:

i. Apply adverse possession standards in terms of a reasonable user, of that particular plot of land, under the circumstances.

ii. Rule Criteria: H.E.L.U.V.A (Adverse Possession is a HELUVA way to lose property!) 1. Hostile: a. Also referred to as adverse b. Refers to non-permissive: Possession w/o having first getting permission. If get permission, then it is not hostile. c. Possessors State of Mind: i. Majority Rule: State of mind irrelevant. Claim of Right not part of test ii. Minority Rule #1: Good Faith State of Mind 1. Thought I owned it (Most claim of right jurisdictions follow) iii. Minority Rule #2: Bad Faith state of mind 1. I know I do not own it, & I intend to take it by adverse possession (Only a few jurisdictions follow this) 2. Exclusive: a. Possessor must exercise his right to exclude b. Cannot be a property open to the public at large c. Must exclude as much as a reasonable land owner would under circumstances 3. Lasting: a. Possession must last for the statutory period (10, 15, 20 yrs) b. Exception i. Disability Exception- where person entitled to bring the action (true land owner) is subject to a disability 1. If true owner has disability, SoL stops until the disability ends. Then true owner must get action for ejectment to get adverse possessor off the land. 2. Age (minor), insane, incarcerated/imprisoned ii. Tacking Exception- a person may add onto a predecessors possession of land to ones own possession of land (chain-possession) if it is done so in privity. iii. Privity- a tool to prevent squatters/bad-faith people from claiming adverse possession. 1. Rule: there must be a deed (valid or invalid) that purports title to the land, even though the deed is faulty (i.e., under color of title) 2. If privity color of title must be in good faith 4. Uninterrupted: Continuous a. Possession must be uninterrupted for duration of statutory period b. Cannot possess for awhile, take a break, then possess again (each possess restarts statutory clock again) c. Measured by the nature of the land- as continuous as a reasonable owner would be on that land d. Only Exception is Tacking 5. Visible: Open and Notorious a. Must make possession obvious to the world b. Sufficiently visible that reasonable owner would see it if inspected (need not have actually been seen by the true owner, just be capable of being seen)

c. If minor encroachment not immediately visible, then cant get it by adverse possession & may have to remove encroachment. IF imposes undue hardship, then true owner may have to convey land to defendant in exchange for true market value 6. Actual: a. Must actually be in possession (cant claim from afar) b. Must physically use land (act differs depending on nature of the land) c. Can only claim that which you actually occupy d. Exception is Color of Title: If actually possess part, with color of title to the whole (e.g. faulty deed), then actual possession of portion constitutes constructive possession of whole iii. Privity: Requires a document for valid tacking 1. Prevents squatters and other bad-faith possessors from getting title to land 2. Rule: there must be a document (valid/invalid) that purports a significant amount of land other than the deed actually conveys (i.e., a faulty deed under color of title) 3. Typical Scenario: A originally owned Blackacre; A honestly though he conveyed it to B, but turns out the deed was faulty; B stays on the land for 10 years (thinking he owns the land legally); B passes the land to C; C stays on the land for 6 years; D comes along to claim title to the land; In reaction, B tacks onto As tenure (16 years); Assuming a 15 years SoL, A and Bs tacking outlast the SoL iv. Policy Considerations: 1. Sleeping Theory of adverse Possession or Notice Theory- essence of adverse possession is that the landowner should be give notice someone is on her land and has opportunity to eject them. If have opportunity & sleep on that right, then lose that right to eject. 2. Earning Theory- if someone uses land in productive way, they have earned the right to it rather than person who ignores the land enough to that cant eject people using it. Want to reward productive owners of land. 3. Quieting of Title- can have a cleansing effect on the title of the land making sure person really gets what they are paying for (corrects errors in conveyance).

g. Acquisition by Gift
i. Inter Vivos Gift: a gift made during life 1. Intent: intent on part of donor to make a present irrevocable transfer a. Can be present interest or after future interest (creating life estate in donor) 2. Delivery: Objective act showing theyre giving it to them (3 Types) a. Manual Delivery- hand to hand delivery. if something is capable of manual delivery, then is MUST be delivered this way for law to recognize as gift b. Constructive Delivery- give someone means of access to gift (such as keys) c. Symbolic Delivery- use symbols (such as a letter) to give the gift 3. Acceptance: Show acceptance (acceptance is assumed unless expressly denied) ii. Testamentary Gift: a gift left after death iii. Policy Considerations: 1. To prevent fraud- if only considered intent, could be interpreted many ways 2. Only delivery doesnt always indicate donors intent (ex. give the desk, but there is an insurance policy inside one of the drawers. Intent to give ins. Policy as well?)

II.

Estates in Land

a. Overview:
i. Freehold v. Nonfreehold Estates: 1. Freehold: no specific or ascertainable termination date a. Absolute: they will exist for their full duration b. Defeasible: they may exist for their full duration, but might end prematurely 2. Nonfreehold: specific and ascertainable termination date ii. Possessory v. Future Interests: 1. Possessory: give right to possess land right now; at this moment 2. Future: get property interest now, but no right to possess until some later time iii. Transfer Attributes: 1. Alienable: transfer by sale 2. Devisable: transfer as guided by a will 3. Descendible: transfer via intestate succession (w/o will) iv. Family Lineage Terminology: 1. Spouse: not really considered an heir; has statutory right to share of estate-> 2. Issue: children (includes children out of wedlock & adopted children)-> 3. Ancestor: parents, grandparents, great-grandparents, etc.-> 4. Collateral: Brothers & sisters, followed by others in order of closest relation-> 5. Escheat: if no issue, ancestor, collateral, will-> land escheats to the state 6. A living person has no heirs 7. Inherit by representation: a. Right by which secondary issue represent(stand in shoes of) primary issue who predeceased O b. Per Stirpes (by the stocks): if one of Os issue predeceases O, then interest goes by the stocks on down to their issue 8. Rule of Primogeniture in England until 1925-> eldest son inherits, then sons issue if predeceased O, then Os daughters v. Waste: 1. If more than one party has an interest in the land simultaneously, cant destroy the value of interest by not taking care of property, etc. 2. Acts that would technically constitute waste as defined under common law would not be enjoined when they resulted in improving rather than injuring property 3. 2 Types: a. Affirmative: voluntary action that reduces the value of the land (ex: taking all the timber from the land) b. Permissive: failing to act to take steps to stop the decrease in propertys value (ex: not taking care of the property so falls into disrepair)

b. Possessory Estates i. Fee Simple:

1. Potentially unlimited duration a. Passes automatically to heirs unless transferred or devised b. Only ends if O dies intestate AND w/o heirs-> escheats to the State 2. Unlimited right to transfer a. Freely alienable, freely inheritable and devisable 3. Language to create a. Common Law: To A and his/her heirs

b. Modern Practice: To A 4. Inheritance a. If O dies w/o will: intestate succession; w/ will: devisees to people named

ii. Fee Tail:

1. Requires grantee to pass on to his/her own issue a. Grantee does not have right to convey entire interest (can only convey life estate) b. Grantee does not have right to devise interest (must pass to issue) 2. If grantee dies w/o issue: property reverts to O (unless o has named another party as remainder) 3. Language to Create a. Common Law: To A and the heirs of his/her body b. Modern Practice: Abolition of the Fee Tail (except Delaware, Maine, Massachusetts, & Rhode Island) so common law language usually creates a Fee Simple Absolute

iii. Life Estate:

1. Lasts for duration of Life a. Can be for grantees life (To A for life) b. Can be for 3rd partys life (To A for the life of B) i. As interest-> life estate per autre vie ii. B-> Cestui qui vie c. Always followed by a future interest (reversion in O or Remainder in 3rd party 2. Language to Create a. Common Law: To A or To A Forever b. Modern Practice: To A for Life

iv. Leasehold Estates: v. Defeasible Estates:

1. Overview: a. An estate in land that is subject to be annulled or revoked upon the happening of some future event b. Gives the grantor control over the property after his death or ability to control the behavior of the grantee c. fee simple, life estate, fee tail-> call all be defeasible estates 2. Two Types of Defeasible Estates: a. Fee Simple Determinable i. When the stated event happens, the estate ends AUTOMATICALLY ii. At that point, it immediately and automatically reverts back to O (or Os heirs or devisees) iii. Future Interest in O-> Possibility of Reverter 1. Freely alienable, devisable and inheritable iv. Language to Create: 1. Ex: To A, for so long as Blackacre is used as a park 2. Must have durational language: so long as, while used for, until such time as

3. Words that merely state the purpose of the conveyance are insufficient to create FSD (Ex: To A, to be used for park purposes is NOT FSD) 4. Careful drafter will expressly include Os possibility of reverter b. Fee Simple Subject to Condition Subsequent i. When the stated even happens, the estate does not automatically terminate-> O has the right to terminate and re-take the estate ii. O must exercise this right for the estate to terminate-> must take legal action to gain possession (common law must have actual entry to land) iii. Until O exercises right of entry, grantee remains owner of estate iv. Future Interest associated w/ FSSCS-> Right of entry 1. Freely alienable, devisable, and inheritable v. Language to create: 1. Ex: To A, but if alcohol is served on the premises then O reserves a right to enter and retake the property 2. Must use Conditional language to create: but if, provided, however, that if, on the condition that if c. FSD and FSSCS: i. Choice is relevant to Adverse Possession 1. With FSD, the Adverse Possession clock starts running at the moment the stated event happens since O automatically and immediately regains possession at that moment 2. With FSSCS, the AP clock does not start to run until O exercises her right of entry (some grantors choose FSSCS for this reason) ii. Choice relevant to distribution of profits from land 1. With FSD, O is entitled to profits (ex: rental value or value of crops) as of moment that stated event happened (some choose FSD for this reason) 2. With FSSCS, O is entitled to profits only as of the moment that she exercised right of entry

c. Future Interests i. Future Interests in the Transferor/Grantor: 1. Reversion

a. A future interest retained by the grantor or her successors in interest when the grantor transfers a vested estate of lesser quantum than she initially owns b. Hierarchy of estates (from greater to lesser)-> fee simple, fee tail, life estate, term of years c. Alienable, devisable, and inheritable d. Ex: O devises To A for 75 years creates a reversion in Os heirs

2. Possibility of Reverter
a. The interest remaining in O (or Os heirs) when O transfers a determinable estate of the same or lesser quantum as that which he owns b. Os interest automatically and immediately becomes possessory when the stated even occurs c. Alienable, devisable, and descendable in most jurisdictions d. Need durational language to create (ex: so long as)

e. Ex: O conveys To A, so long as A does not smoke cigarettes. Creates a possibility of reverter in O

3. Right of Entry
a. A power retained by O to cut short an estate conveyed subject to a condition subsequent and to resume possession of that estate, upon the happening of some stated event b. O must exercise this right, not automatic. c. Alienable, devisable, and descendable in most jurisdictions d. Need conditional language to create (ex: but if) e. Ex: O conveys To A, on the condition that if A drinks alcohol then O retain the right to re-enter and re-take the property. Creates a right of entry in O

ii. Future Interests in Transferees/Grantee: 1. Executory Interests

a. A future interest in grantee (someone other than O), that upon the happening of the stated event, divests or cuts short the interest of another grantee or the grantor (rude new Yorker) b. Becomes possessory automatically; freely alienable, devisable, descendable c. Can use durations OR conditional language d. Terminology i. Future Interest-> Executory Interest ii. Possessory Interest-> *Estate+ subject to executor limitation e. Ex: To A, but if A ceases using the property as an orphanage, then to B i. Fee simple subject to executor limitation in A ii. Executory interest in fee simple in B f. 2 Types of Executory Interests: i. Shifting Executory Interest 1. Divests or cuts short some interest in another grantee 2. Ex: To A, but if A ceases using the property as an orphanage then to B and his heirs. a. A has fee simple subject to executory limitation b. B has shifting executory interest in fee simple ii. Springing Executory interest 1. Divests or cuts short an interest in the grantor 2. Ex: To A and her heirs when A marries. A is not married at the time of the grant a. Springing executory interest in A b. Fee simple subject to executory limitation in O

2. Remainder Interests
a. Generally i. A future interest in a grantee that can become possessory upon the full completion of a prior possessory estate ii. A remainder interest waits patiently and does not become possessory until the prior possessory estate has reached its full completion (nice mid-westerner) iii. Alienable, devisable, and descendable

iv. No stated event other than the full completion of the prior possessory estate v. Ex: To A for life, then to B for life, then to C and his heirs 1. Possessory Interest- life estate in A 2. Future interests- Remainder in life estate in B, remainder in fee simple absolute in C b. 4 types of Remainder Interests: i. Vested 1. At time of conveyance, we know who is going to eventually take possession, and that this person (or her heirs) is definitely going to do so. (future possession Is assured) 2. Ex: O conveys To A for life, and then to B where B is named in the instrument of conveyance and is presently alive. a. A gets life estate b. B has vested remainder (clear he will take possession, no condition precedent) 3. Vested remainder has 2 key elements: a. Ascertainable person (holder of interest must be presently alive and specifically identifiable) b. No condition precedent (other than completion of prior estate)-> no condition that must be satisfied before the estate will become possessory ii. Vested Subject to Complete Divestment 1. A remainder that has vested but is defeasible upon the occurrence of a stated event or condition (subject to a condition subsequent) 2. Ex: O conveys To A for life, then to B and her heirs, but if B moves out of Columbus then to C and his heirs. a. A has life estate b. B has a vested remainder in fee simple subject to complete divestment (vests in B, but B may lose it if B moves out of Columbus-> condition subsequent) c. C has shifting executory interest in fee simple iii. Vested Subject to Open (or to partial divestment) 1. Deals with situation where future interest vest in one who may have to share it with others who are not yet ascertainable (gifts to a class of people that may come to include more members) 2. A remainder created in a class of persons that may increase in numbers, where at least one of the members of the class has already met the criteria for a vested remainder(ascertainable, no condition precedent)-> subject to open since the class is still open and others may enter it 3. When another enters the class, the interest of those whose interest has already vested diminishes proportionately (partially divested of their interest in this estate so also called vested remainder subject to partial divestment)

4. Ex: O grants To A for life, and then to As children and their heirs. At the time of the grant A has one child, B. a. A gets a life estate b. B has a vested remainder subject to open (Bs interest vested (ascertainable, no condition precedent) subject to open (A may have more children before she dies)) c. Upon As death, the class is said to Close 5. Rule of convenience a. Ex: O conveys To A for life, and then to Bs children. i. Class does not automatically close with As death since B can continue having children. ii. Risk: prospective purchaser does not know who he should contract with. Makes land inalienable iii. Rule: Class closes as soon as any member of the class becomes entitled to immediate possession or enjoyment of his interest in the property. (When one of Bs children survives A, class closes. If B continues having children, they do not get an interest in the property) iv. Contingent 1. At time of conveyance, either do not know who is going to eventually take possession, whether this person is definitely going to do so, or both. (future possession is less certain, it is contingent on these uncertainties being cleared up) 2. Always followed by another remainder or by a reversion in O (something must happen to the estate if the contingency is not resolved and the contingent remainder does not become possessory) 3. Ex: O conveys To A for life, and then to As eldest surviving child. A is alive at the time of the conveyance. a. A gets life estate b. As eldest surviving child gets contingent remainder (not sure who As eldest surviving child will be, and contingent on figuring out who the eldest surviving child will be) 4. Contingent remainder has 2 key elements: a. Either held by an unascertainable person, OR b. Is subject to a condition precedent

iii. The Trust:

1. Where one person holds the legal property interest (trustee) for the benefit of another persons interest (beneficiary)

iv. Rules Furthering Marketability:

1. Destructibility of Contingent Remainders (en pass for the most part) a. Rule: a remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate

i. Prefers reversion over waiting for the remainder to free itself on uncertainty ii. e.g., O conveys Blackacre to A for life, then to B and her heir if B reaches 21. Here, if at As death B is under the age of 21, Bs remainder is destroyed. Thus, O has the right of possession. 2. Merger Rule (majority rule) a. Rule: if a life estate and the next vested estate in fee simple come into the hands of one person, the lesser estate is merged into the larger. i. If a person holding a life estate acquires a vested remainder in the same property in the same property , the 2 estates merge into one larger estate FSA ii. e.g., O conveys Whiteacre to A for life, then to B and her heir if B survives A. A conveys his life estate to O. Thus, the life estate merges into a reversion, destroying Bs contingent remainder. 3. Rule in Shelleys Case (en pass) a. Rule: if a grantor conveys a life estate to A, and by the same instrument, purports to create a remainder in As heirs, then the remainder in A is FSA b. Elements: i. A freehold estate (usually a life estate) ii. A remainder limited to the heirs of the first transferee in the same instrument iii. The freehold and remainder are both legal or both equitable c. e.g., O conveys Magentaacre to A for life, remainder to As heirs. Under Shellys Case, A has a vested remainder in FSA. As life estate merges into the remainder, giving A a FSA. Now, the land is freely alienable by A, not tied up for As lifetime. 4. Doctrine of Worthier Title (en pass) a. Rule: where an inter vivos conveyance or devise of land to a person, w/ a remainder or executory interest to the grantors heirs, no future interest is created in the grantors heirs; rather, grantor retains a reversion. b. e.g., O conveys Cyanacre to A for life, then to Os heirs. Under Worthier Title, no contingent remainder exists in Os heirs; rather, O simply has a reversion

v. The Rule Against Perpetuities:

1. No interest is good unless it must necessarily vest, if it is to vest at all, not later than 21 years after the death of some person who was alive at the creation of the interest. 2. Interests subject to RAP: contingent remainder, vested remainder subject to open, executory interest 3. Use RAP b/c like vested interest not contingent interest b/c vested interest in alienable 4. Want land to vest so can facilitate vigorous markets, but also want land owner to do what she wants with her land a. RAP strikes a balance: can have contingencies but only for certain time period not forever (must vest within 21 years after the death of someone alive at the creation of the interest 5. Know people that are alive at the time of conveyance (can control who want it to go to b/c know them) and can control 21 years after (or until the next generation meets the age of majority

6. Burden is on the grantor to prove that must necessarily vest within 21 years after death of someone that was alive at time of conveyance. a. Identify someone alive at time of conveyance, then show will vest within that 21 years of death of that person b. If can prove this, then the interest is valid 7. if it is going to vest at all = interest could fail! Conveyance could fail if all grantees predecease, so reversion back to O. (could fail to vest b/c no one is left to grant land to) this is allowed and okay. 8. Has to be someone within the problem-> those are only living people that can affect the vesting, but everyone from problem doesnt have to affect vesting 9. Steps for doing RAP problems: a. Indentify each interest created b. Determine whether the RAP applies to any of these interests c. For each interest to which the RAP applies, identify the conditional event (ie the even upon the happening of which the interest will vest) d. Identify all relevant lives in being e. For each relevant life in being, ask and answer the perpetuities question f. If interest is void under RAP, strike it from grant and see what you are left with 10. Example 1: To A for life, and then to the heirs of O a. Contingent remainder in heirs of O. Courts said cant do this wont accept-> will void and then to the heirs of O so it will be a reversion in O. Will still go to Os heirs but will have to pay tax (Doctrine of worthier title- where an inter vivos conveyance or devise of land to a person, w/ a remainder or executory interest to the grantors heirs, no future interest is created in the grantors heirs; rather, grantor retains a reversion. ) Makes land more alienable. 11. Example 2: To A for life, and then to Bs children then living a. Will vest within 21 years b/c will vest at time A dies. A is alive at time of conveyance, so must be 21 years within someones death. (Once A dies, she cant have any more children, so all of her children, if she has any, will be 21 within 21 years) 12. Example 3: To A for life then to Bs children who reach 25 years B has 2 children: C age 10, D age 20 a. What if C & D dies, A dies, and next day B has another child E-> will not vest within 21 years of As death (so A cant be validating life). Also cannot be B b/c what if C & D dies, A dies, next day B dies -> more than 21 years b. Cannot be C or D b/c if B has child E and C or D dies next day, not within 21 yrs c. So none are validating lives, so interest fails and is VOID. 13. Modern RAP reform: Wait and See a. First: test the unvested future interest under the common law RAP to see if it is valid-> if it is then your done, it is valid b. Second: if not valid under common law, then interest is valid if it vests or terminates w/in the permissible vesting period. If it is still in existence at the end of that vesting period and has not vested, then it is invalid. (90 yrs?)

d. Co-ownership and Marital Interests i. Common Law Concurrent Interests: 1. Types of Concurrent Interests:

a. Tenants in Common: i. Doesnt avoid probate at death ii. No right to survivorship iii. Not protected from others creditors iv. Easy to sell each share of the ownership v. Divorce doesnt effect tenants in common vi. To A and B as tenants in common b. Joint Tenancy: i. Avoids probate ii. Right of survivorship iii. Protected from creditors after you die, but not before iv. Can sell, but it will turn the interest into a tenancy at common for whoever buys it (if there is more than 2 owners, then the other owners will still be joint tenants) v. Isnt effected by divorce, but can go to court to force division of property vi. Must be expressly said: 1. As joint tenants with right of survivorship; OR 2. As joint tenants and not tenants in common vii. Common Law-> if ambiguous, created joint tenancy 1. Modern View-> if ambiguous then create tenancy in common viii. Traditionally, needed 4 Unities to Create: a. Time (must vest at same time) b. Interest (have exact same interest, equal shares) c. Title (get from same title) d. Possession (have possession at same time of whole property) 2. Modern courts move away from this and allow joint tenancy even when interest is not same amount ix. Have to use a 3rd person (srawman) to go from one spouse owning property then to being joint tenants 1. Spouse owning conveys to strawman 2. Strawman convey back to husband & wife as joint tenants c. Tenancy by the Entirety: i. Must be married for a tenancy by the entirety ii. Avoids probate iii. Has right of survivorship iv. Protected from creditors v. MUST agree to sell together, cant sell separate interests vi. Terminates with a divorce vii. Not a valid way to hold title in Ohio (doesnt exist)

2. Severance of Joint Tenancies:

a. Want to privilege intent of property owner over formalities of property transfer b. If any of 4 unities are broken, then joint tenancy becomes tenants in common c. Majority Rule: i. Must use a strawman or 3rd person to convey the land to yourself

d. Minority Rule: i. Strawman is not needed to convey your interest in the land to yourself and sever the join tenancy (no intermediary device needed) ii. There are NO notice requirements to sever the joint tenancy

3. Relations Among Concurrent Owners:

a. Each cotenant has equal right to the whole property-> must to work out between themselves how to divide it up b. Share rights to the whole, but also share responsibilities to the whole c. Law tries to set itself up so that if you do the work to improve the property, then you get those benefits-> tries to create incentive to maintain property d. Gives incentive to shirk responsibilities & exclude the other co-tenant which isnt good, so law creates mechanisms to deal with these difficulties i. Partition (voluntary or judicial decision) 1. Partition in kind: a. Actual division of the land b. Preferred over partition by sale c. Might still be able to be sole, but might have to pay idiosyncratic value (worth more to her than fair market value) 2. Partition by sale: a. Sell land and divide the proceeds b. only when 2 conditions are met i. The physical attributes of the land are such that a partition in kind is impracticable or inequitable ii. The interests of the owners would better be promoted by a partition by sale c. Burden is on party requesting a partition by sale to demonstrate that such a sale would better promote owners interest d. Sell for fair market value ii. Actions for Rents 1. Distributes benefits iii. Actions for Contribution 1. Distributes Expenses iv. Ouster 1. Action of Ejectment a. If one has been ousted b. To put themselves back in equal possession of property 2. Used in 2 ways: a. Adverse Possession- a claim of absolute ownership and a denial of the co-tenancy relationship by occupying tenant (Other tenant doesnt bring action of ejectment within statutory period) b. Liability for rent- occupying co-tenant refuses a demand of the other cotenants to be allowed into use and

enjoyment of the land regardless of a claim of absolute ownership (MUST deny co-tenant the right to enter) (merely asking to vacate is not a request to enter property)

ii. Marital Interests: 1. Common Law Marital Property System:

a. 2 systems for holding land as a married couple: i. Community Property ii. Common Law English Approach (we focus on this) 1. Common law period 2. Modern approach b. How held by couples in Common Law England: i. Keep property in male line, so rights stay with husband ii. All land is concentrated in the oldest male of family iii. Wife gets no property rights-> she owes domestic duties to family & in exchange she gets protection-> referred to as coverture iv. Upon marriage, she ceased to be a person even in respect to property she held before marriage (husband gets Estate by Marital Right) after husbands death, wife regains her right to that property 1. If wife predeceases him, he still gets right to property during his life-> curtesy v. Husband got full title to all personal property except for paraphernalia (clothes & ornaments) vi. Property acquired during marriage-> tenancy by entirety (only way for couple to hold property at common law) could only hold together, but husband acted for both w/o wifes consent 1. Still subject to right of survivorship c. Modern Form: Married Womens Property Acts i. Restore property rights to women (trying to create equality & remove Common Law disabilities of wives) ii. Can hold property in their own name free from husbands debt iii. Abolish Estate by Marital Right AND Curtesy iv. What about Tenancy by Entirety? 1. Majority: a. Some jurisdictions said Acts abolished Tenancy by Entirety Completely b. Some abolished Tenancy by Entirety by statute 2. Minority: Some still have Tenancy by Entirety (2 models): a. They could each have right (like joint tenancy) b. Neither could have right alone, only right is by acting together (act together by mutual consent to convey)

2. Termination of Marriage by Divorce or Death of a Spouse:

a. Divorce: i. Historically at Common Law: 1. Divorce is very rare, only if one spouse committed marital fault

2. Property held in co-ownership remained that way at common law (joint tenant or tenants in common) 3. If held as tenants by entirety-> upon divorce would be tenants in common 4. If one spouse held property separately, then that spouse would keep their property separately after divorce (stays with spouse that previously held title to that property) 5. If husband was one at fault, she would get alimony (extension of her right to support) ii. Modern Times: 1. Divorce is easier to get-> no fault divorce statutes a. Fault doesnt enter into calculations of alimony 2. Done away with idea that whoever holds title should keep it after divorce a. More like a partnership-> property should be distributed among former spouses b. Equitable distribution of marital property (w/o regard to marital conduct in most states) c. Courts consider: how long marriage lasted; needs of each spouse; how employable are they; how much did each contribute to accumulation of asset; debts of spouses; contribution as homemaker; & other factors when splitting property up equitably d. Presumption in favor of equal distribution but will take into consideration above factors e. Co-owned property-> remain co-owned f. Tenants by entirety-> become tenants in common g. If held separately-> equitable distribution of property h. Alimony i. No longer permanent support, only temporary until spouses can re-establish him/herself ii. Called maintenance now i. Some jurisdictions split all property regardless of when it was acquired; some jurisdictions distribute only marital property (acquired during the marriage) 3. What counts as marital property? a. An education is not itself property subject to division under the act although it is one factor to consider in determining maintenance or in arriving at an equitable property division. b. An interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-titleholding spouse, including financial contributions and non-financial contributions made by caring for the home and family.

b. Death of a Spouse: i. Historically at Common Law: 1. Wife had interest (Dower)- entitled to life estate in 1/3 of his real property 2. Husband acquired future interest (curtesy)- he would have a life estate in all of her real property (then goes to her heirs or devisees upon his death) 3. Most jurisdictions abolished dower and curtesy after Married Womans Protection Act a. Some states did away with curtesy and apply dower to both husband and wife (OHIO) ii. Modern: 1. Most statutes give elective share that husband or wife gets in other spouses real and personal property 2. Can elect to get elective share or what will leaves them 3. Will cannot trump elective share (spouse is entitled AT LEAST to the elective share if the will tries to give him/her less)

III.

Landlord-Tenant Law
a. Private Arrangements (within Common Law):
i. The Leasehold Estates: 1. Term of Years: a. Nature: tenant is in possession for a fixed term b. Creation: lease needs to state a defined period i. Term of 1 year or more must be in writing; if shorter than 1 year can be oral c. Duration: lasts for the fixed term d. Termination: terminates automatically at end of that term (no notice required) e. Extension: expressly agree to extend to a new term of years (if over 1 year, needs to be in writing again) 2. Tenancy at Sufferance: a. Nature: if tenant stays on term of years after the term is over (continues possession) without consent b. Landlord can either evict or agree to new tenancy i. Either option ends tenancy at sufferance ii. If do neither and dont act within a reasonable time, then clock on adverse possession starts iii. Consent can be expressed or implied (cashing rent check) when landlord consents, tenant becomes periodic tenant 3. Tenancy at Will: a. Nature: terminable at will by either party b. Creation: expressly or implied (enter w/ consent but w/o intention to pay rent) c. Duration: however long both want to continue d. Common Law: could end whenever i. Modern: most states have statute saying need 30 days notice e. If begin to pay rent and it is accepted-> then becomes periodic tenancy

Can be terminated b implication if one dies or one tries to transfer their interest to another 4. Periodic Tenancy: a. Nature: tenant in possession with consent for reoccurring period b. Creation: expressly in lease or implication (term of years consent or tenancy at will) c. Duration: lasts for duration of period d. Extension: extends automatically unless someone acts to terminate it e. Termination: must give notice of at least one period or 6 months (whichever is shorter) i. Must count backwards from last day of period

f.

ii. Basics of Landlord-Tenant Relationship: 1. The Lease:

a. Conveyance of property interest and a set of promises i. Nature of property conveyance and contract (dual nature) 1. Property-> only looking w/in 4 corners of document (expressed) 2. Contract-> inferring further intent (implied) of parties ii. Trend is to move toward contract way of interpretation b. Assignment vs. sublease i. Assignment- if tenant, can assign interest to another (entire interest) ii. Sublease- convey something less than your entire interest

2. Delivery and Possession:

a. American Rule: recognizes the lessees legal right to possession, but implies no such duty upon the lessor as against wrongdoers i. Looking through property law lens ii. Landlord is not bound to put the tenant into actual possession, but is bound only to put him in legal possession) b. English Rule: implies a covenant requiring the lessor to put the lessee in actual possession. i. Action would be against the landlord ii. Looking through contract law lens c. Legal possession vs. physical possession i. Legal possession 1. quiet possession 2. Good title to property ii. Physical possession 1. Actually make property available 2. Actual possession of property

3. Sublease and Assignment:

a. Assignment vs. Sublease i. Assignment- if tenant, can assign interest to another (entire interest) ii. Sublease- convey something less than your entire interest b. Rule for blocking assignments: i. Minority/RSM Rule: Where a lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the

assignment, even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably withheld. ii. Majority/Common Law Rule: landlord doesnt need commercially reasonable objection, and can arbitrarily refuse to approve a proposed assignee, no matter how unreasonable the landlords objections are.

4. The Tenant who Defaults:

a. Tenant in Possession: i. Common Law vs. Modern Rule: 1. Common Law: Landlord may rightfully use self-help to retake leased premises from a tenant in possession w/o incurring liability for wrongful eviction provided 2 conditions are met: a. Landlord is legally entitled to possession (such as where tenant holdsover or breaches lease) b. Landlords means of re-entry are peaceful 2. Modern Rule: Only way to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims possession adversely to a landlords claim of breach of a written lease is by resort to judicial process (no self-help) ii. Rationale: 1. Want to get rid of altercations and violence caused by self-help 2. Dont want landlords to take law into their own hands iii. Summary Eviction Proceedings: A way for the landlord to get the tenant out of the premises quickly if the lease is breached b. Tenant who Abandoned Possession: i. Common Law vs. Modern Rule: 1. Common Law: landlord is under no duty to mitigate damages caused by a defaulting tenant 2. Modern Rule: a landlord has a duty to mitigate damages where he seeks to recover rents due from a defaulting tenant ii. Now follow the modern rule iii. Landlord can: 1. Accept Surrender a. If landlord accepts surrender, then the lease is over 2. Deny Surrender a. Landlord must then mitigate damages

b. Judicially Determined Duties of Landlord and Tenant: i. Landlords Duties, Tenants Rights: 1. Constructive Eviction:
a. Traditionally i. Common Law: if landlord didnt agree to keep property repaired, it was tenants duty to repair(Caveat Lessee) ii. If landlord didnt repair when he agreed to, then Independence of Covenants-> agreement to pay and agreement to fix were kept separate. 1. Tenant still had to pay even if landlord didnt fix. 2. Had to sue landlord for damages if wanted recovery

iii. Covenant of Quiet Enjoyment (historically): if lease gives quiet enjoyment then means no one has superior title over tenant (there is no interference with tenants legal title) 1. ONLY this covenant was dependant with obligation to pay rent. If this covenant was breached, then tenant could withhold rents. iv. If place is inhabitable, then have to leave-> this is constructively like an eviction (this is like an eviction which means dont have to pay rent)-> v. Constructive Eviction: If landlord violates express commitment to repair AND renders property uninhabitable AND tenant moves out within reasonable time 1. If there was constructive eviction, then landlord has violated covenant of quiet enjoyment and tenant can stop paying rent vi. If no landlord expressed commitment in lease? 1. No Constructive Eviction UNLESS: (exceptions) a. Affirmative act by landlord (ex: take windows out in winter) b. Latent defects in property (ex: couldnt see when agreed to rent premises) c. Lewd behavior allowed by landlord b. After Reste Realty Case: i. Rule: Any act or omission of the landlord or of anyone who acts under authority or legal right of landlord, or of someone having superior title to that of landlord, which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant (tenants claim will be lost if he does not vacate within a reasonable time) ii. Changes landlords commitment to IMPLIED commitment-> dont have to qualify for exceptions anymore iii. Implies obligation to keep premises repaired-> gets rid of caveat lessee

2. Implied Warranty of Habitability:

a. Common Law vs. Modern Rule: i. Common Law: the landlord was under no duty to render the premises habitable unless there was an express covenant to repair in the written lease ii. Modern Rule: in the rental of any residential dwelling unit, an implied warranty exists in the lease, whether oral or written, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean, and fit for human habitation. (Majority) b. Dont have to move out anymore i. Can stay and stop paying rent OR ii. Move out and stop paying rent c. Typical scenario: tenant tries to argue this at summary eviction hearings d. CANNOT contract around implied warranty of habitability

e. Have to give landlord reasonable time to fix

3. Landlords Tort Liability:

a. At C/L: landlords liability ended once the landlord delivered the premises to the tenant b. Modern: exceptions that produce more liability for the landlord are: i. Latent defects ii. Prior conditions dangerous to persons off the premises iii. Leases for public use iv. Negligence in maintaining public areas v. Landlord contracts to repair the leased premises vi. Negligent repairs

ii. Tenants Duties, Landlords Rights:

1. Tenant can default and abandon premises a. Landlord can sue, but has duty to mitigate 2. Can accept tenants surrender 3. Tenant could breach lease obligation a. Landlord can sue for damages b. Sue for back rent c. Evict tenant (through court) 4. Landlord can take security deposit so dont have to go to court to get damages a. Landlord is obligated to return deposit if no damages 5. Tenants responsibilities will be set out in lease a. If lease doesnt say, common law said tenant must not commit waste while using property i. Cant make changes substantially effecting value of property ii. Affirmative waste or permissive waste iii. At common law: tenant had duty to make basic repairs. Had to repair things to the extent that they wouldnt commit waste.

c. Legislative Regulation of the Landlord-Tenant Relationship: i. Selection of Tenants: The Fair Housing Act:
1. Cannot discriminate based on race, national origin, sex, familial status, handicap, or religion 2. Related to housing because housing is an essential need for people 3. Process for bringing a claim: a. Starts with plaintiff trying to make out a prima facie case: i. Plaintiff is member of protected class ii. Applied for and qualified for premises iii. Rejected even though premise was available b. Burden then shifts to defendant to show a permissible purpose (justify action) i. Private Landlord: must prove rational and necessary business purpose ii. Government housing: must prove compelling interest with no less discriminatory alternative c. If defendant can meet that standard-> then burden shifts back to plaintiff to show pretext: i. The real reason for denial was not given by defendant; defendants reason was just pretextual

4. Can discriminate against unmarried couples if single bedroom rental

ii. The Problem of Decent Affordable Housing:

1. Statute restricting landlords on increasing rent to promote public health, safety, welfare and quality of housing-> really may do the opposite a. Forbidding landlords from charging market rate interest on late payments-> will reduce resources landlords devote to improving and maintaining housing b/c makes renting more costly b. Landlords will try to raise rents to offset the costs-> so tenants will be worst off or at least in no better position c. Will make landlords screen tenants more carefully so marginal tenants will not be able to rent as easily d. More of existing stick of housing could be converted to condo or co-op b/c of increased cost of renting e. Wanting to transfer wealth, but this could readily be undone by increasing the rents f. Any benefits likely to be undone by higher costs which means increased rents and less rental housing g. Not in best interest of poor people because can have adverse effects h. Economists agree-> ceiling on rents reduces the quantity and quality of housing available