LAW 515-001 – Property I
Look at the OneNote stuff
Majority: He who owns the surface owns everything below and everything below.
Minority: He who owns the surface is the owner of everything that may be taken from the earth and used for his profit, pleasure, or happiness—anything over which he can exert dominion and control—thus, he who owns entrance to cave owns the extent of the cave to its utmost reaches; first-in-time possession of entrance to cave and exploration/dominion and control of cave.
A rightful possession of an object by someone who is not the true owner.
Carries the right to possess and exclude, but not use or transfer.
- Delivery without the transfer of ownership
- Implied or express acceptance
- An implied or express agreement that the goods be returned
- Element that differentiates from gift.
Carries the duty to:
- Standard of care is that of a reasonably prudent person under the same or similar circumstances.
- Paying raises the standard of care or a reasonably prudent person. Depends on the benefits and burdens
- Strict liability
Can be voluntary (taking care of a friend's dog) or involuntary (finding lost or mislaid property).
One can only transfer the title rights that he has himself.
A voidable title is a valid title that can be voided.
Voidable title is usually acquired by fraud or duress.
Merchant still cannot transfer rights that the entruster did not have the power to give.
A gift is transferring property for nothing in return.
There are four types of gifts:
An inter vivos gift is the immediate, voluntary, gratuitous, and irrevocable transfer of title between living persons.
It has three requirements:
- The donor must have donative intent.
- The donor must deliver the object of the gift.
- Delivery can be actual or constructive. Actual delivery is required unless it is not possible.
- Usually concluded to require giving up dominion and control to the donee.
- The donee must accept the object of the gift.
- Acceptance is assumed when the gift is valuable and unconditional.
- The donor changes his mind and revokes the gift.
- The donor does not actually die as a result of the particular peril that placed him in contemplation of imminent death.
Possessory estate is the right to possess a piece of property now.
A fee tail estate allows the grantee to posses the land for the remainder of his life, but limits him from selling, giving, or devising the right of possession after his death. Instead the title is automatically inherited by the grantee's next lineal descendant. As it relies on having lineal descendants, at some point the law presumes that one will not be available and the estate will naturally end.
A defeasible estate is one that is capable of being ended by the occurrence of a particular event.
Three kinds of limitations can accomplish this:
A determinable estate may end early automatically upon the happening of the limiting event.
If the future interest is retained by the grantor, it gives him a possibility of reverter.
- subject to an Executory Limitation
An estate subject to a condition subsequent requires the grantor to take some action to reclaim the property.
It relies on a condition happening. Words of condition are like: "but if", "provided that", "on condition that", or "however". The words of limitation will usually be separated from the original conveyance by punctuation, instead attached to the following future interest.
It gives a right of entry as a future interest.
A future interest is the right to possess a piece of property in the future.
- with a condition precedent before the remainder-holder can take possession or
- one that is given to an unascertained person.
It's like being subject to a condition subsequent, but backwards. Something has to happen before the natural termination of the preceding estate.
e.g. O to A for life, then to B if B has reached 25 years old.
An executory interest automatically takes effect upon the happening of the condition.
When the same person holds both a present possessory estate (or vested future interest) and the next vested future interest (i.e., no other person hold an intervening vested future interest), and the interests were not created by the same conveyance, then the present possessory estate (or vested future interest) merges with the vested future interest (lesser merges into greater) and destroys any intervening contingent remainders.
No interest is good unless it must vest and close, if at all, not later than twenty-one years after some life in being at the creation of the interest.
Does not apply to future interests in the grantor.
A future interest is void the moment it is created if:
- It is given to a grantee (a remainder or an executory interest);
- It is either contingent (given to an unascertained taker or subject to a condition precedent or both) or subject to open [or executory]; and
- It might still be contingent or subject to open longer than 21 years after the death of the last person alive at the time of the conveyance.
The Wait & See reform does not test for possibilities at the time of conveyance.
It will test after one of two times:
- Wait & see for the common law period (lives in being plus 21 years)
- Wait & see for 90 years
Interest is valid if at least one of the following is true:
- It complies with the original Rule against Perpetuities
- It is certain to either vest and close or fail within 90 years
- It actually vests and closes or fails within 90 years (a "wait and see" approach)
The common law recognized three types of concurrent ownership that have continuing relevance:
Tenants in common share an undivided interest as co-owners. Each tenant in common has a distinct share that belongs to him. Each can use it to the same extent as if he owned it individually, although neither can take unilateral action to defeat other tenants in common's rights.
Upon death of one of the co-owners, the interest in the property does not pass to the other co-owners but to the person named in the will of the deceased, who will then become a tenant-in-common with the surviving co-owners.
Joint tenancy is similar to a tenancy in common in that each co-owner holds a separate and undivided right to possession, but joint tenant also have a right of survivorship. The death of one tenant will result in ownership of the land by the surviving joint tenants, passing outside probate.
Interest must be acquired by both tenants at the same time.
The interests held by the co-owners must arise out of the same instrument.
Both tenants must have the same interest in the property.
Both must have the same type of interest, and the interest must run for the same duration.
Both tenants must have the right to possess the whole property.
States are split as to how a lien is handled. They are split between two theories:
Tenancy by the entirety does not exist in all states and is usually only the default form of ownership for married couples in regards to real estate.
Each co-tenant has four rights concerning the property:
Partition is when a cotenant asks the court to terminate the cotenancy and to divide the cotenancy property, either in kind (physical division of the property) or by sale (with division of the proceeds).
Some types of estates are held exclusively by spouses:
Community property is a type of estate some states have created that gives spouses concurrent ownership. Neither spouse can unilaterally convey his share to someone other than his spouse. Neither spouse has a right of survivorship in community property.
Most states have statues, under which property acquired during marriage is divided fairly at divorce.
Jure uxoris no longer exists. It gave a husband an estate jure uxoris in all of the land by his wife at the time of marriage.
Curtesy was a common law estate that gave a husband all of the land owned by his wife at any time during their marriage upon her death.