Property Outline

Property rights (divisible): use, transfer, exclude and destroy

I. ACQUISITION OF PROPERTY

-DOCTRINE OF DISCOVERY: Positive, not natural law.

-Discovery: property goes to first occupier (NAs ‘civilized’)

-Conquest: alternate, property taken by force.

=> Aboriginal title: NAs only have right to possession (no transfer rights) s/t control/revocation by the Feds (Johnson)

-Improper conveyances (even if 100s of years ago) can give risk to a cause of action. Remedy only money damages, ejectment not practical. (Oneida)

*cannot adversely possess aboriginal title land.

-TRESPASS: voluntary wrongful entry onto another’s land.

-Right to exclude critical, damages incalculable.

=> Punitive damages allowed for intentional trespass

Needed for sufficient protection, and for legitimacy of legal system (avoiding self-help) (Jacque)

-BUT property law serves real values. (Shack)

-licensees have some rights (if fed interest at stake?)

-ADVERSE POSSESSION: (punishes, rewards, practicality)

1) Entry: Acquire estate existing at time of entry.

2) Open and notorious: (reasonably attentive owner)

*minor boundary disputes: if unclear, no presumption that true owner had knowledge (Manillo)

3) Continuous and uninterrupted for the SOL period.

-continuity depends on nature of the property

*Tacking: privity required, not successive trespassers

4) Adverse and Hostile: inconsistent w/ title holder’s rights, no permission. (Under a claim of right)

*watch out for conflicting claims admitting permission

*Color of title, paying taxes: helps satisfy

*boundary disputes: (usually objective, see notes)

-interruption in part of land by true owner can cancel this element for the whole land.

*State of mind (3 SPLIT)

-Objective: acts of a true owner.

-Good faith that has title

-Bad faith (Maine) (actual hostile intent)

(some) 5) occupant paid taxes assessed against the land.

=EFFECTS

*Before title: possessory rights, can eject trespassers and transfer property.

-Title passes by op. of law; relates to date of initial entry.

-Get land possessed UNLESS

*color of title=> whole land.

*boundary dispute: failed APer can get land if removal impractical, just has to pay.

-GIFTS: Inter vivos and causa mortis

*SOF for real property.

*0) causa mortis donor’s anticipation of imminent death.

*other elements enforced more strictly.

1) Donative Intent to presently pass title: *IMPORTANT

-can be inferred from delivery + circumstances

-ability to revoke can suggest lack of intent

2) Delivery:

1. (some) manual delivery required if practicable

*others relax if clear evidence of intent

2. If manual delivery not practical

=> Constructive (means of obtaining possession) or symbolic (represents thing given, writing) delivery.

3) Donee Acceptance: (generally presumed from benefit)

=Irrevocable if inter vivos

=Revocable if causa mortis, unless intent contrary

II. ESTATES

Most FULLY TRANSFERABLE (alienable, devisable, descendible)

*0) SOF required for land transfers (unless lease <1yr)

1. Classify the present estate:

*Presumption in favor of free simple, against restraints on alienation.

-Fee simple: “its successors and assigns”/”and his heirs”

Absolute: no future interest.

All others have a future interest

Defeasible

(limiting words should be in granting clause, if not, then they might just denote purpose of grant, so its still FSA bc of presumption)

-Determinable: auto revert (pos of reverter)

-s/t condition subsequent: ‘right of re-entry’

-s/t executory limitation: (in third party)

-Fee tail: (min) iff “to X and the heirs of his/her body”

*can only go to issue: direct lineal descendants. so not devisable. (Can be special: male, by certain spouse etc)

-Life estate: “for life”/”until dies” etc. (no descend)

-pur autre vie: measured by life of another.

2. Look at who has the future interest: Presently existing, possessory in the future.

-Grantor: reversion, possibility of reverter, or a right of entry

-Other transferee: remainder or executory interest.

3. HOW the future interest will become possessory

-Grantor:

-Reversion: usually follows natural termination of prior estate (like life tenant dying)

-Possibility of reverter: doesn’t cut short preceding determinable estate but automatically succeeds it.

-Right of entry: divests preceding estate if grantor enters.

-Grantee:

-Remainders: 0) cannot follow a vested fee simple (s/t cond, or determ) AND 1) doesn’t divest the prior estate prematurely (waits patiently, “then if”); AND 2) capable (legal possibility) of becoming possessory immediately at expiration of prior estate

-Executory interest: 1) divests ‘cuts short’ the prior estate OR 2) incapable of immediately becoming possessory

-Shifting (follows transferee)

-Springing (follows transferor)

***=>so prior estate is ‘s/t executory limitation’

4. Identify the possessory estate in which the future interest will be held. What interest does this person have, and can it be transferred?

5. Determine whether the interest is vested or contingent

-Executory interests are only springing/shifting

-Contingent interest: EITHER

1) Given to an unascertainable (at time of conveyance you can’t ‘point’ to them) person (heirs, widows/ers)

-OR 2) is subject to a condition precedent (basically if in same clause as the condition, if condition instead is after and separated by comma then maybe vested s/t executory limitation instead)

=> grantor likely holds a reversion. (always seisin)

*even for alternative contingent remainders

Vested: Sure a particular person owns, bc have met all conditions of owning it.

*s/t open (class gift): 1+ living mem of grp that could +

*subject to divestment:

6. Rules furthering marketability: SEE BELOW

-Rule in Shelley’s Case; Doctrine of Worthier Title; Destructibility of contingent remainders; RAP

7. AND: must end in FS (often reversion in grantor)

RULES FURTHERING MARKETABILITY

-Goal=alienability. Prevent tying up prop, find all future possessors

-Rule in Shelley’s Case:

1) One instrument. 2)...

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