LAW SCHOOL ESSENTIALS PROPERTY PROFESSOR ZACHARY KRAMER ARIZONA STATE UNIVERSITY SANDRA DAY O CONNOR COLLEGE OF LAW CHAPTER 1: INTRODUCTION & REAL V. PERSONAL PROPERTY A. First Year Prperty Exams Skills that lawyers need t have: (1) (2) Issue Sptting Keys Knw the. Knw cmmn. Apply Facts t Law Identify imprtant. Distinguish facts frm red herrings. Assess strengths and f bth sides f a case. Exam Tip: Dn t give up n ne side f the case! A cmmn mistake made by students is fcusing n ne argument and giving up n the ther. Be as bjective as pssible, identifying what each side will argue, and identifying the strengths and weaknesses f bth. Giving up n ne side f the argument is giving up pints. Exam Preparatin Knw the f the exam: simulate the exam and practice as much as pssible. If prfessr has nt discussed exam structure,! Plicy issues: distinctin may exist fr exam purpses, s knw what yur prfessr expects. If yur prfessr has nt identified whether plicy shuld be discussed, ask! : what will be n the exam?
Ask prfessr whether everything assigned in the reading will be tested r just class discussins. Check t see if ld exams are available n file. Bad, Gd, & Great Exams Step 1: Black letter law Bad exams: The student desn t knw the black letter law. The law is the f yur answer. Yu need t knw the law t be able t apply the facts. Prevent a bad exam by knwing the law. Step 2: Knw the One reasn students will nt d well n an exam is because they miss issues entirely. Failure t spt an imprtant issue culd cst pints. Step 3: Organizatin The best exams are the nes that are. Organizatin Methd Editrs Nte: Check with yur prfessr t verify what methd yu shuld fllw. IRAC - The issue in this prblem is - The rules gverning this issue are - A new paragraph, in this case and discuss facts. - A wins r lses OR A has a better argument than B, but B culd stand n the fllwing Cme t sme cnclusin. 2 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Step 4: Applicatin Analysis sectin f IRAC Gd exams will take the time t cnsider the specific facts and applicable rule. Step 5: Nvelty Great exams recgnize why the factual issue being tested is. New prblems that need t be reslved by applying the law Step 6: Big picture Great exams spt the big picture and see the ramificatins f a. Step 7: What s missing The best exams spt what is missing; If we knew X abut this case, it wuld cme ut differently. Understanding why having missing facts are imprtant Exam Tip: Practice! Yu can get better at taking exams by practicing! B. Prperty Key Terms Real Prperty Land and stuff t land Persnal Prperty is the legal definitin. Highly mveable, but nt always. Tangible Prperty Prperty yu can. Intangible Prperty Symblic items such as a stck certificate Alienate Prperty synnym fr the f prperty. This can be dne by sale, gift, trade, (devise), inherit (intestate successin). 3 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Big Picture Basic framewrk that American prperty law is based upn. When nn-lawyers talk abut prperty, they are referring t. Lawyers dn t mean stuff; they mean rights t stuff. Prperty is amng peple t things. 1. Rights prperty is a bundle f sticks including the right t exclude, right t, right t alienate, right t. 2. Amng peple prperty rights are relatinal and are limited by smene else s rights. Example 1.1: Casebk was purchased at the bkstre and yu wn it. Yu can exclude thers frm it, yu can use it, yu can trade it, yu can it, and yu can destry it. But yu can t put its cntents n the internet because that wuld n the rights f the authr and the publisher. Yur rights are limited by their rights. 3. Things are the stuff, the real and prperty Example 1.2: Yu wn a hme, and as a hmewner, yu have the right t exclude thers frm yur prperty. A man has been living in the tl shed behind yur huse and is a squatter. As hmewner, yu have the right t him; yur rights are better. Nte: The right t exclude is nt. Example 1.3: The plice are in ht pursuit f a suspect and fllw the suspect nt yur prperty. The suspect lcks himself in the shed behind yur huse. The plice have the right t enter yur prperty t apprehend the suspect. Yur right t exclude the plice is by the plice s right t enter. 4 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 2: POSSESSION OF PROPERTY A. Lecture Organizatin: Big Picture Key Terms Thery Mechanics (Dctrine) Applicatins (prblems) Feel free t pause and answer questins in the space included n the handut and then listen t the answer. B. First Pssessin Big Picture Rules f first pssessin cncern hw a persn acquires prperty ther than by purchase such as, capture, and. Key Terms 1. Unwned Prperty Prperty withut an r recgnized wner such as wild animals. 2. Fugitive Resurce A resurce that is and mves frm place t place until smene captures it such as wild animals and liquid resurces like r. 3. Trespasser Smene wh enters anther s prperty withut. A squatter is a trespasser. 4. Cpyright Legal regime fr prtecting r wrks. Think f it as a legal mnply ver the rights f a creatr s wrk prduct. 5. Patent Scientific versin f cpyright; a legal regime fr prtecting advancement. 5 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Thery f First Pssessin Pssessin is a. First pssessin and pssessin as a legal matter is heavily influenced by. The basic rule gverning first pssessin is first in, first in ; the persn wh gets there first has pssessin f the prperty. Mechanics Discvery the persn wh discvers prperty (real r persnal) has the t that prperty. Best title is the clsest thing a persn can have t abslute. Thery is that discverer has the best title because she was. Exam Tip: The persn defined as discverer is ften pen t manipulatin. Example 2.1: When the Eurpean settlers arrived in New Wrld, native tribes were living n much f the land. Althugh the tribes were clearly first in time, curts ultimately cncluded that the tribes were nt f the land, but. An imprtant distinctin in prperty law is ccupancy and pssessin. An apartment renter is an ccupant with an interest subject t the landlrd s greater interest. Themes f first year prperty: - Title is. Rights are interpreted in terms f cmpeting claims. - Pssessin is a. Questin f wh has first pssessin is as much abut plicy as a legal psitin. Capture Rule f capture specifically applies t fugitive resurces. 6 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Wild animals tw characteristics: wned at large; n specific wner they are mbile. A persn becmes an wner f a wild animal r fugitive resurce by the animal and reducing it pssessin. Mrtally wunding the animal the animal in a cage r trap the animal and securing it with hands Exam Tip: A prspect f capture, n matter hw reasnable r likely t succeed, is nt enugh t cnstitute pssessin. Example 2.2: Pst is hunting a fx, and just as he crners the fx in a hllw, Piersn kills the fx and takes the hide. Pst wants the hide and argues that he captured the animal. Ruling is that Pst s f capture is insufficient; he didn t reduce it t. Special prblems with wild animals: Dmestic animals The inclinatin t return suggests dmesticatin. Example 2.3: Olga takes care f a herd f deer that ram freely thrughut the day but return t Olga s prperty at night t eat and sleep. One day Hunter kills ne f Olga s deer. Olga brings suit against Hunter claiming that the animal was nt a wild animal and supprts her claim by arguing that the animals had a. Hunter will argue that he didn t knw the deer were dmesticated. If the deer had cllars, Hunter shuldn t be shting them. Cnstructive pssessin and trespass the law discurages trespass; the law will nt reward a pssessr s wrngful taking f prperty by trespass. Example 2.4: Oliver and Terrance are neighbrs. Terrance sees a deer grazing n Oliver s prperty, illegally enters Oliver s land, shts the deer, and brings it hme. Terrance is nt in pssessin f the deer; a curt will his trespass nt Oliver s prperty. Even thugh Oliver was nt in pssessin f the prperty, the law will deem him in pssessin because we want t deter trespassers. 7 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Creatin A persn wh creates prperty is a first pssessr. Mst cmmn way t create prperty is thrugh cpyright r patent because it gives yu prtectin as t the whle wrld. Bdy parts - Mst curts have deemed that peple have n rights t their bdy parts. Example 2.5: Penny is being treated fr a rare disease and agrees t dnate cells fr scientific research. Researchers use the cells t create a new cell line that has been effective in treating a number f serius diseases. The researchers patented the cell line and have made millins f dllars; Penny hasn t seen a dime. Penny sues claiming the researchers have cnverted her prperty. Des Penny have a claim? Applicatin Example 2.6: Frank and Isaac are neighbrs and fish the river alng side their prperty t supprt themselves. Frank has been steadily catching mre fish than Isaac enraging Isaac. Just as fish are abut t swim int Frank s net, Isaac shts a gun scaring the fish. Frank argues that he is in pssessin f the fish, what result? Critical difference frm the fx example: Example 2.7: Oliver acquired a rare fx, which he keeps secured n his prperty. One day the fx chews thrugh the rpe securing it and wnders ff having n inclinatin t return t Oliver s prperty. Tw days later, Hunter, with a permit t hunt in the area, kills the fx. Oliver sues t recver the hide, wh wins? Oliver s argument will be: Hunter will argue: I had a right t hunt there and was nt vilating the law; it was reasnable. What facts will reslve this? 8 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 3: SUBSEQUENT POSSESSORS A. Pssessin Big Picture Subsequent pssessin ccurs when a persn cmes int pssessin f prperty that is already by smene else. This includes prperty that is and by smene else. Key Terms 1. True Owner wner f the prperty in questin; persn with best title. 2. Finder persn wh finds the piece f missing prperty. Finder s rights depend n hw the prperty is, relating t hw the prperty was lst. Example: Persn has a watch, which he drps. It is fund and used by first finder, wh then lses it. A secnd persn finds it. It is pssible t have mre than ne finder. 3. Imprver a finder wh t missing prperty. Example: True wner drps watch, finder finds it, realizes that it fell ff the true wner s wrist because clasp was brken. T becme an imprver, the finder has t fix the clasp and add value t the watch. 4. Bailment when a persn relinquishes prperty t smene else. Example: Prfessr Kramer picked up his cat at the dry cleaner; they are in a bailment relatinship. Prfessr Kramer still wns the cat, the dry cleaner is just hlding the cat fr him t clean it. 5. Bailr Owner wh delivers prperty t anther fr a limited time; n transfer f. 6. Bailee persn wh the prperty frm the bailr. Nte: the law f finders invlves bailment (cntrast with the vluntary dry cleaner relatinship). 9 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Thery f Subsequent Pssessin Title is relative. A persn s rights as t prperty are understd in relatin t anther s rights in the same piece f prperty. Example 3.1: Oliver is the wner f a pcket watch. As he s walking thrugh a park, the watch chain breaks and the watch falls ff. Frank finds the watch and is the finder. By finding lst prperty, Frank has acquired sme in the watch. He can exclude smene else frm trying t steal it frm him. Frank s interest is weaker than Oliver s since the true wner has the best. If Teddy wants t steal the watch, his rights are weaker than Frank s because he has n legitimate claim t the prperty. Exam Tip: Think abut cases in terms f a hierarchy f prperty interests. Wh has the best/wrst title and hw des it cmpare t ther s interests? Mechanics Finders Rules Cncerned with situatins in which the true wner accidentally prperty and anther persn finds it. These are invluntary. Plicy: The verall gal is t the prperty t the, because (i) the true wner has best title, and (ii) we want t reward attachment t prperty and want true wner t have prperty. Imprtant: hw the finder discvered the prperty because that determines which rule cntrls. Lst Prperty True wner unintentinally lses r misplaces prperty - Finder acquires gd title, as against the whle, except the true wner r a pssessr Example 3.2: Oliver wns a rare leather mney clip, and accidentally drps it in the park. Frank finds the clip. As the finder f lst prperty, Frank has as against the whle wrld except Oliver. Example 3.3: Shrtly after Frank finds the clip he accidentally drps it while shpping. Sally finds the clip and is nw the finder f lst prperty. As a 10 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
finder, Sally has gd title as against the whle wrld except, Oliver (true wner) and Frank (prir pssessr). Sally s interest is than Frank s. Mislaid Prperty Als called misplaced prperty. Owner intentinally a piece f prperty smewhere, but frgt it. - Finder acquires in the prperty. Example 3.4: Oliver is shpping at the mall fr a new hat. As he is paying fr the hat he lays his wallet n the cunter and leaves it there. This wallet wuld be prperty because he put it dwn but accidentally left it. The shp wner wh finds the wallet has t the prperty because we want prperty t end up in the hands f the true wner, which is mre likely if finder has n rights. Abandned Prperty When the wner intentinally relinquishes his rights t the prperty and has n present desire t retake it. - The finder acquires title and becme the. Example 3.5: When Artie wakes up, he finds a fairly new televisin n his lawn. A large televisin is hard t accidentally misplace, smene must have left it n Artie s lawn and we assume it is prperty. If s, Artie is nw the best title wner because abandned prperty is subject t the rule f. - Special Case: Hme run baseballs, nce they leave the are abandned prperty and the finder (the persn wh the ball) has the best title. Example 3.6: Slugger Jhnsn hits the ball ut f the field. The ball lands in the stands between tw fans, Jack and Diane. Whever gets the ball first, prvided neither engages in t get t the ball, will be the rightful. 11 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Exam Tip: Lst versus mislaid is a fine distinctin and is dependant n having all f the facts. Where was the wner when she lst the prperty? What was she ding? Hw did the finder find it? What did the finder d after finding it? Applicatin Example 3.7: Una is shpping at the mall fr a new suitcase where she leaves her wallet n the shp cunter. As she walks ut f the stre, she kncks the wallet ff the cunter nt the flr. Francine finds the wallet n the grund. Frm Una s perspective, the wallet was. Frm Francine s perspective, it is because it is lying n the grund and lks accidentally drpped. Accessin A situatin in which a subsequent pssessr adds value t the prperty thrugh r adding t the prperty. - The true wner the rights t chattel including the rights t the prperty in its value. - Accessin becmes an issue when an imprver greatly increases the value f the prperty t the pint that it is changed. The imprver will have a claim if he was an trespasser. If the imprver stle the prperty and then imprved it, he has. Example 3.8: Olga purchased a huse with a large backyard and hires Funtain Landscape C. t design a new backyard. Emplyee Fritz discvers a metal bx buried in the grund, he hides the bx in his bag s the freman desn t see it, and takes it hme. The bx is filled with seemingly valuable stamps, which he sells. The stamps fetch a gd price at auctin and Olga learns f the stamps fr the first time. Olga intervenes in the sale f the stamps claiming that she is the rightful wner. Wh has better title as between Olga and Fritz? What will Olga and Fritz argue? 12 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
What is the critical fact? Example 3.9: Same facts as 3.8 except Fritz discvers the bx while trespassing n Olga s prperty t hunt fr buried treasure. Hw des this change the dispute? What is the critical fact? 13 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 4: ADVERSE POSSESSION A. Adverse Pssessin Big Picture Adverse pssessin is a dctrine that makes it pssible fr a pssessr s use f prperty t blssm int wnership. This is a system by which squatters can becme rightful wners. This is a matter f pssessin. Key Terms 1. True Owner Persn with the interest in the prperty in questin. 2. Adverse Pssessr Trespasser: a persn wrngfully the land in questin. If the trespasser the adverse pssessin standard, he will becme the wner. 3. Clr f Title Adverse pssessin based n a, such as a fraudulent cntract r a bad deed. Example 4.1: O is the true wner f Blackacre, thugh he has never visited the prperty. A buys the prperty frm Z. Hwever, Z has n interest in the prperty, thereby making A s deed invalid. When A takes pssessin f Blackacre, A s pssessin is. 4. Statute f Limitatins time perid during which a must be brught. It creates a time within which a cause f actin must be brught. Adverse pssessin ccurs when a statute f limitatin runs ut and the wner has lst the pprtunity t bring an actin. Thery f Adverse Pssessin Thery is best cnsidered in the cntext f an example: Example 4.2: O is the wner f Blackacre, a sybean farm. A trespasses nt Blackacre. At the pint A trespasses nt the farm, O as the true wner has the A. O & A live in a jurisdictin that prvides a 10-year statute f limitatins fr an ejectment actin. Adverse pssessin is cncerned with the situatin when O, the true wner, des nt take any actin t eject the 14 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
within the statutry perid. When the 10 years are up, tw things happen: O is frm ejecting A. Law creates a in A and A is nw the true wner f the prperty. 4 Theries f adverse pssessin: 1. Earning Thery Want t reward the adverse pssessr fr her use f the prperty. 2. Sleeping Thery the true wner fr nt being a better wner and fr nt making beneficial use. 3. Reliance Want t encurage peple t d and with the persn in pssessin f the prperty, s adverse pssessin is recgnized in rder t third party reliance. 4. Quiet Title Adverse pssessin is a mechanism. When title is cntested, the dctrine f adverse pssessin helps t settle disputes as t wh is f the prperty. Mechanics Fur elements f adverse pssessin: (Nte: Fllw yur prfessr s preference as t the elements). 1. Entry Must be entry giving pssessin with respect t the true wner. The purpse is t trigger the statute f limitatins. - Cnstructive adverse pssessin: Adverse pssessin under (faulty writing), the adverse pssessr may gain title t land that is nt in his. 15 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Example 4.3: O is the true wner f Blackacre, a 100-acre farm. A purchases an invalid deed frm Z. Z has n rights t Blackacre, which makes the deed n gd. A mves nt the frnt 50 acres and farms it fr the statutry perid. Because A s pssessin was under clr f title, she has adverse pssessin f the frnt 50 acres, and adverse pssessin f the back 50 acres as described in the deed. Because the deed she received described the back 50, the law deems her in clr f title and in cnstructive pssessin f the. 2. Open & Ntrius In rder fr adverse pssessin t ccur, the must be pen and ntrius. The purpse is t put the wner n f the trespass. - Hidden uses: The adverse pssessr cannt hide r the use. The true wner must be able t reasnably the adverse use. Example 4.4: O is the true wner f a summer hme. A mves int the hme adversely. In the hpe f cncealing his use f the hme, A des nt turn n lights, nr des he g utside during the day. Is this pen and ntrius? 3. Hstile Use must be under a, withut the wner s, and against the true wner s. State f mind: Mst curts lk t f the adverse pssessr. - Gd faith the adverse pssessr must that she wned the land. This is a factual mistake. 16 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
- Bad faith the adverse pssessr must that she is nt the rightful wner; this requires trespass. - Objective majrity rule. The adverse pssessr s mindset is. All that matters is that the claims are in. 4. Cntinuity Must be cntinuus pssessin f the prperty fr the statutry perid. The law desn t require cntinuity; the use must be cnsistent with the f the prperty. Example 4.5: A enters int adverse pssessin f a summer hme. Fr ten years, A vacatins at the summer hme against the interest f the true wner wh hasn t been t the hme in ver fifteen years. Is A s use cntinuus? Tacking: An adverse pssessr may a predecessr s time in rder t satisfy cntinuity. T tack time with a prir adverse pssessr the present adverse pssessr must be in. Example 4.6: A has been in adverse pssessin f Blackacre fr fur years. The statutry perid is five years. B, anther adverse pssessr, frcibly remves A frm adverse pssessin. Hw lng until B can satisfy the adverse pssessin standard? It will mre than likely take years because. B is ging t argue that she shuld get A s fur years. A will prbably say that he was remved, and therefre the tw were nt in privity. There was n deed r frmal exchange. Disability If the true wner is at the time the cause f actin accrued, the statute f limitatins is (r paused). 17 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
The mst cmmn situatins are when an wner is in prisn, mental incapacity, r when a persn is a minr. Example 4.7: O, the wner f Blackacre is in prisn. A enters Blackacre while O is incarcerated. The statute f limitatins will nt start running against O until. Applicatin Example 4.8: O is the wner f Blackacre, a 100-acre tract f natural grassland. O hasn t visited Blackacre in ten years because O has been in Eurpe. A, a neighbring cattle farmer leads his cattle t Blackacre, letting them graze and live n O s prperty. When A put the cattle n the prperty riginally he declared, This will shw yu, O, yu dirty lazy ex-pat. A visits Blackacre ccasinally t tend t the cattle, thugh he maintains his primary residence dwn the rad. A makes n imprvements t the land, yet the cattle are n Blackacre in excess f the statutry perid (cntinuity requirement). What are the tw issues? Issue 1: What will O argue? What will A argue? That he has entered Blackacre, but mre imprtantly, that he has put his cattle n the prperty, and they have used it and the cattle represent him. Therefre the use is cnsistent with the grass land. Wh has a better argument? Issue 2: State f mind r hstility requirement. When A mved n the land, he screamed, This will shw yu O, yu dirty, lazy ex-pat. This suggests that A is perating under an aggressive trespass mentality. Why des this matter? 18 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 5: GIFTS A. Gifts Big Picture Gifts are gratuitus transfers and are anther example f pssessin. Definitin f a gift: a transfer f prperty withut payment r cnsideratin. If valid, a gift is. A prmise t make a gift is nt. A gift f real prperty must be in accrdance with the and must be in writing. Key Terms 1. Dnr persn wh makes the gift, the transferr r. 2. Dnee persn wh receives the gift, the recipient, grantee, r transferee. 3. Gift Inter Vivs transfer during. 4. Gift Causa Mrtis transfer at. It is in lieu f a will, and therefre a will. It is a deathbed gift. Thery f Gifts Rted in idea that sciety favrs the free f persnal prperty because we want it t end up in the hands f peple wh are ging t use it mst. We dn t want peple t hard gds. B. Gift Inter Vivs (Requires intent, delivery, acceptance) 1. Intent A dnr must have intent t make an irrevcable gift. Dnr must a clear intent t make a gift. The dnr can d this by it dwn r by making a that crrbrates intent. 19 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Example 5.1: Olive wants t give her antique watch t her daughter, Glenda. As she hands Glenda the watch, Olive says, I lve yu and I want yu t have my watch, my mst prized pssessin. That statement is very strng evidence f Olive s. Cnditinal gift: a situatin in which as persn makes a gift n the. Example 5.2: Olive gives her antique watch t her daughter, Glenda. The watch keeps terrible time. When she hands Glenda the watch she says, I will give yu the watch prvided the hrlgist can fix it. Cnditinal intent is acceptable s lng as there is n evidence f. Engagement rings: Wh gets the engagement ring if the relatinship surs? Mst curts are split. Sme curts say the ring must be returned if the marriage desn t take place; ther curts say the wedding ring des nt need t be returned. Exam Tip: With a questin invlving engagement rings, argue the facts: (i) the parties expectatins; (ii) the value f the ring; (iii) the circumstances f the falling ut; and (iv) wh is t blame. 2. Delivery The dnr must the prperty t the dnee in rder t make a valid gift. Thery: we want the dnr t feel the f delivery and the law requires manual (actual) delivery when. Example 5.3: Olive wants t give her antique letter pener t her sn, Garrisn. The pener is small, light, and cmes in a carrying case with a handle. It is entirely fr Olive t deliver the letter pener. When manual delivery is nt pssible, 3 types f nn-actual delivery are permitted: Cnstructive delivery The dnr prvides smething that will give the dnee ver the item r will prvide. Example 5.4: Olive wants t give her Jeep t her daughter, Glenda. The Jeep is a large item. Instead f actually physically delivering the car, Olive gives Glenda a key. The key will get Glenda int the car, will start the car, and will give Glenda ver the car. 20 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Symblic delivery ccurs when the dnr gives smething that is symblic f the gift Example 5.5: Olive wants t give her ld Jeep t her daughter, Glenda. The Jeep is a large item. Instead f giving a key, Olive gives Glenda a pht f the Jeep and writes n the pht, Yurs! Cngratulatins! The pht is delivery and symblizes the Jeep. Delivery in writing This is anther type f symblic delivery. The dnr delivers the item in writing prvided that the writing the item that is being gifted. Example 5.6: Olive wants t give her ld Jeep t her daughter, Glenda. The Jeep is a large item. Instead f actual delivery, Olive writes up a nte saying, I give yu my ld red Jeep, the ne in which yu learned t drive. If Olive has mre than ne red Jeep, this will distinguish the tw vehicles. 3. Acceptance The dnee must accept the gift. S lng as the gift is fr we acceptance. In rder t rebut that presumptin, there must be sme evidence by the recipient t the gift. Example 5.7: Olive hands her antique watch t her sn, Garrisn, saying I want yu t have my watch. Garrisn hands it back and says, I dn t want it, give it t Glenda. Is Garrisn s statement enugh? If he desn t physically take it r hands it back and says he desn t want it that is prbably B. Gift Causa Mrtis A gift made in f dnr s death Because it is made in anticipatin f death, a gift causa mrtis is a and a way t pass prperty at death. Still requires inter vivs elements f, delivery, and. 21 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Gift causa mrtis requires additinal elements: Imminent death: because it is a will substitute, it must be made in the face f and the dnr must be n the brink f dying an f death is nt enugh. Example 5.8: Wdy Allen is ntriusly afraid f death. T be n the safe side, he gives his ex-girlfriend, Mia Farrw, all f his pssessins and says, We re all ging t die ne day, Mia, take everything in case tday is my day t g. This is prbably nt ging t be a valid gift causa mrtis. If Wdy wanted t give Mia his things, he shuld have made a will since he had plenty f time. Example 5.9: Olive is suffering frm a terminal disease and desn t think she has much time left s she calls her kids, Glenda and Garrisn, int her bedrm. Olive says, Share my persnal prperty. This is a prperty gift causa mrtis. Olive desn t have much time t live, she desn t have time t make a will, but wants t make sure her children get her prperty. Death r lack f recvery: In rder t be a valid gift causa mrtis, the dnr must actually r. Example 5.10: Same facts as example 5.9. Olive desn t die, but als desn t immediately recver frm the illness, but dies a week later. This is still ging t be a gift causa mrtis. Mdern curts say the. Revcatin A gift causa mrtis can be. Example 5.11: Same facts as example 5.9. Olive makes a full recvery. Shuld she want t, Olive can revke the gift t Glenda and Garrisn. The rule is that yu can revke yur will up until the mment yu die. The gifts in the will are nt executable until death, and gifts causa mrtis perate the same way. Applicatin Example 5.12: Olive s mst prized pssessin is her ruby bracelet. When visiting her daughter Glenda, Olive remves the bracelet and sets it n the bathrm cabinet while she is washing her hands. She accidentally frgets the bracelet. The fllwing day Glenda finds 22 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
the bracelet and calls her mm. Hearing the news Olive says, G ahead and keep the bracelet. I ve always wanted yu t have it anyway. Is there a valid gift? Is there intent?. Was there delivery? This is harder because Olive didn t hand it ver t Glenda; and the bracelet can easily be hand delivered. Is there acceptance? The real issue, then, is delivery. The prblem is that the intent t make the gift develped after the bracelet was left behind and whether leaving it behind and letting smene find it is valid fr delivery. What are the arguments? Invalid gift:. Valid gift: It may be cumbersme t expect a persn t bring the item back t the dnr wh then has t give it back t the dnee. This may be unreasnable and unnecessary. Example 5.13: Brutus has been sick fr weeks and is getting sicker by the hur. He asks his nurse, Amelia, t track dwn his sn, Ppeye. Brutus and Ppeye have never been clse. When Ppeye arrives, Brutus says, We ve never seen eye t eye, sn, s it shuld cme as n surprise that I dn t want yu t have any f my prperty. My trusted nurse, Amelia, gets everything in my huse; yu get nthing. As Brutus says this, he pints t all f the furniture in his rm. In the nightstand there is a life insurance plicy wrth $1 millin. Amelia claims wnership f the furniture and the insurance prceeds. Ppeye challenges the validity f the gift. Did Brutus make a valid gift? Intent and acceptance dn t appear t be issues. Delivery issue 1: Is the symblic gesture enugh? Amelia will argue: Ppeye will argue: Delivery issue 2: Did Brutus intend t deliver just the furniture r what the furniture cntained? Wh was the beneficiary f the insurance plicy? That will be critical t the analysis. 23 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 6: ESTATES IN LAND Exam Tip: Master the material by practicing it and d lts f prblems. The handut cntains multiple prblems s yu can pause the lectures and try the prblems n yur wn first. Big Picture Ownership in American prperty law is built arund a system f interests. The system is feudal in rigin, and des nt map cleanly n t the way mst Americans understand prperty wnership. Key Terms 1. Title Relates t the cncept f ; the persn wh has title has the wnership interest. Title smetimes refers t a that represents wnership. Example 6.1: Oscar buys a new SUV hybrid. Upn paying fr the vehicle, he receives a paper title t the SUV. In terms f wnership, Oscar has title t the car. In additin he has a piece f paper that is the title t the car, which als signifies the wnership rights. 2. Chain f Title A sequence f ver time t a piece f prperty. The chain f title is traced frm the wner back t the wner f the prperty. Example 6.2: Erin is buying Blackacre frm Darren. Erin traces Blackacre s chain f title: Darren purchased the prperty frm Carl, Carl purchased it frm Beverly, Beverly purchased it frm Avery (the riginal wner). 3. Present Interest Interest that gives the hlder the right t pssessin smetimes called estates. Example 6.3: Orville cnveys T Artemis fr life. Artemis is a life tenant, having a life estate, and therefre has the present interest. 24 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
4. Future Interest Interest that gives the hlder the right t pssessin. Example 6.4: Orville cnveys T Artemis fr life. Orville has the future interest. It is a. Artemis gets t be n the prperty nw and when she dies, it will kick back t Orville. 5. Vesting A vested interest gives the hlder an right t title, either as a present interest r as a interest. Present interests vested and future interests vest. Example 6.5: Orsn cnveys T Anders fr life, then t Becky. Becky s interest is a vested because we ve Becky, we knw she will take it, and there is n cnditin precedent in rder fr her t take. When Anders dies, it will g t Becky. Thery f Estates & Future Interests Ownership in American prperty law is based upn a legal. The idea is that peple dn t wn prperty; they wn in prperty. Estates and future interests are alienable. Example 6.6: Laura has an alienable estate in Blackacre. Oliver has a reversin. Laura cnveys her life estate t Leslie. Oliver cnveys his reversin t Olivia. Nw Leslie has a life estate fr the, and Olivia has a. Bth the present and future interests are alienable. Estates and future interests are all abut time. 1. Duratin Estates in land are measured by hw lng they are capable f. The lnger they last, the they are. Example 6.7: Oliver has a fee simple abslute in Blackacre. Because it is, Oliver s fee simple is capable f lasting frever. Example 6.8: Owen has a fee simple abslute in Blackacre. He cnveys it t Tara fr ne year. Tara nw has a term f years in Blackacre. Owen has a reversin. A term f years is a estate than a fee simple abslute because it has a duratin. 25 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
2. Pssessin We divide pssessry rights int interests and interests. Example 6.9: Orland cnveys Blackacre T Lawrence fr life, then t Reginald. Lawrence (nt Orland) has the right t pssessin (a life estate) and Reginald has a future interest. When Lawrence dies, Reginald. Mechanics Fee Simple Abslute The Big Cheese. The fee simple abslute is the estate in land because it is capable f lasting. It is inheritable, devisable, and fully alienable. Even if yu die withut a will, it will pass by. Example 6.10: Owen dies wning a fee simple abslute in a sybean farm, Blackacre. O died intestate (withut a will) and is survived by three children, Arnld, Betty, and Candice. The children will take in Blackacre; they have cncurrent wnership. Example 6.11: Olive dies wning a fee simple abslute in Whiteacre, a rural estate. O died testate (with a will) leaving everything t best friend, Hank. Hank will take the fee simple abslute in Whiteacre under Olive s will. Example 6.12: Otis wns a fee simple abslute in Greenacre, a natural grassland. Otis sells Greenacre t Tawny. Tawny nw has a fee simple abslute in Greenacre. Nte: There is n with a fee simple abslute. Defeasible Fees a fee simple 1. Fee Simple Determinable: Capable f lasting, but will terminate after perid ends. Example 6.13: Orsn cnveys Blackacre, T Freddy s lng as the land is farmed. S lng as are wrds f and tell us this is a duratinal perid. Freddy has a fee simple determinable s lng as the land is farmed. This estate will last frever, s lng as the land is farmed; if farming stps, the perid and the fee simple determinable ends. 26 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
2. Fee Simple Subject t Cnditin Subsequent: capable f lasting frever, but will terminate n the Example 6.14: Opie cnveys Whiteacre, T Francis, but if the land is n lnger farmed, then Opie and heirs can re-enter and re-take Whiteacre. Francis has a fee simple. If Francis r her heirs ever stp farming the land, Opie r his heirs can t eject Francis. The future interest Opie and his heirs have is a which must be elected. 3. Fee Simple Subject t Executry Limitatin: Capable f lasting frever, but terminates n vilatin f a cnditin and title will pass t a. Example 6.15: Ovitz cnveys Purpleacre T Arnld and his heirs, but if Arnld stps farming the land, then t Bernard. Bernard is a. Arnld has a fee simple subject t executry limitatin and Bernard has an. If Arnld stps farming the land, it will vest in Bernard. Future Interests If a grantr cnveys a defeasible fee, then there must be a interest, because the grantr has cnveyed less than a fee simple abslute. Fee simple determinable can nly be fllwed by a, which is held by the grantr. Example 6.16: Opie cnveys Whiteacre T Francis s lng as the land is farmed. Here we presume that Opie has retained the future interest: a pssibility f reverter. Fee simple subject t cnditin subsequent can nly be fllwed by a, smetimes called a pwer f terminatin, which is held by the grantr. Example 6.17: Olivia cnveys Greenacre T Fergie, but if the land is nt farmed, Olivia and her heirs can reenter and retake. Olivia has retained a right f entry, but she has t 27 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
that right and essentially Fergie if Fergie stps farming the land. Fee simple subject t executry limitatin can nly be fllwed by an interest which is held by a third party transferee. Example 6.18: Olivia cnveys Greenacre T Fergie, but if Fergie stps farming the land, t Ellit. Fergie receives a fee simple subject t an executry limitatin, Ellit receives an executry interest. Applicatin Example 6.19: O cnveys Blackacre T A fr life, then t B. Wh has the present interest? Wh has the future interest? Example 6.20: O cnveys Blackacre T A and her heirs. What interest des A have? Des O have an interest? Example 6.21: O cnveys Whiteacre T A s lng as the land is used fr residential purpses. What interest des A have? Des O have an interest? Example 6.22: O cnveys Whiteacre T A and her heirs, but if land is used fr ther than residential purpses, O can reenter and retake. What interest des A have? Des O have an interest? Example 6.23: O cnveys Yellwacre T A and her heirs, but if A ever sells liqur n the premises, t B and her heirs. What interest des A have? What interest des B have? Des O have an interest? 28 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 7: ESTATES IN LAND & FUTURE INTERESTS Big Picture Digging deeper int estates in land Key Terms 1. Life Estate Present estate that lasts fr the life and ends at that persn s death. Example 7.1: O cnveys T A fr life. A has a life estate that ends. Example 7.2: O cnveys T A fr the perid f B s life. A has a life estate, but it is nt measured against A s life. It is measured against. When B dies, A lses pssessin. 2. Reversin Future interest held by a grantr and fllws a r term f years Example 7.3: O cnveys T A fr life. A has the life estate, the present interest. O has a reversin. 3. Remainder Future interest that is created in a and capable f becming pssessry at the f a prir estate. There are three types f remainders. Vested Remainder created in a grantee wh is an persn wh is nt subject t a cnditin. Example 7.4: O cnveys T A fr life, then t B. A has a. The future interest is being held by B wh is an ascertained persn and there is n cnditin fr B t take. Cntingent Remainder created in a grantee and is in an unascertained persn, r is subject t a cnditin precedent. Example 7.5: O cnveys T A fr life, then t A s first brn child. At the time f the cnveyance, A has n children. It is a cntingent remainder because there is n taker. 29 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Example 7.6: O cnveys T A fr life, then t B if B graduates frm law schl. B is in her first year f law schl. This is a cntingent remainder because B must satisfy a cnditin precedent in rder t (graduatin frm law schl). Vested Remainder Subject t Open smetimes called a class gift. It is a remainder t a f peple and at least ne member f that class has already. The rest f the members f the class have yet t vest. Example 7.7: O cnveys T A fr life, then t A s children wh reach the age f 18. A s ldest child, B, is 20 years ld. Therefre, B is vested as an ascertained taker wh has satisfied the cnditin precedent. Any latter-brn children, B s siblings, have yet t reach 18, and as they d, they will partially B s interest. 4. Executry Interest future interest created in a, which cuts shrt r divests a prir interest. Springing Executry Interest interest that divests the t becme pssessry. Example 7.8: O cnveys T A when she graduates frm law schl. At the time f the cnveyance, A has a springing executry interest because if and when A graduates frm law schl, she will divest O, the grantr. O had a fee simple. Shifting Executry Interest interest that divests the (anther third-party). Example 7.9: O cnveys T A and her heirs, but if A ever sells liqur n the premises, t B. B has an executry interest. If and when A sells liqur n the premises, B s interest will divest A and cut shrt A s fee simple. Exam Tip: Be able t distinguish a remainder and an executry interest. Remainders wait t vest, and executry interests d nt. A remainder is nly pssessry at the natural terminatin f the prir estate; an executry interest divests smene and fllws an unnatural event. Example 7.10: O cnveys T A and fr life, then t B, if B gives A a prper funeral. Des B have a remainder r an executry interest?. After A s death, it s nt pssible fr B t immediately give A a prper funeral because it takes time, s if B des carry ut the funeral, B will have t 30 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
divest O after the end f A s life estate. This gives B a executry interest because B is divesting the. Applicatin Example 7.11: O cnveys T A fr life, then t B if B reaches the age f 18. What des A have?. What des B have?. What des O have?. Example 7.12: O cnveys T A fr life, then t B. What des A have?. What des B have?. What des O have?. Example 7.13: O cnveys T A fr life, then t B and her heirs, but if B is nt admitted t the bar, then t C and her heirs. At the time, B is a first-year law student. What des A have?. What des B have?. What des C have?. What des O have?. Example 7.14: O cnveys T A and her heirs, but if A never travels thrugh Eurpe, t B and her heirs. What des A have?. What des B have?. What des O have?. Example 7.15: O cnveys T A after she finishes her first year f law schl. A is in the middle f her first year f law schl. What des A have?. What des O have?. Example 7.16: O cnveys T A fr life, then t B fr life, then t C and her heirs. What des A have?. What des B have?. What des C have?. What des O have?. Example 7.17: O cnveys T A fr life, then t A s children. A currently has ne child, B. What des A have?. What des B have?. What des O have?. 31 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Example 7.18: O cnveys T A fr life, then t A s heirs What des A have?. What d A s heirs have?. What des O have?. Example 7.19: O cnveys T A fr life, then t B if B attends A s funeral. What des A have?. What des B have?. What des O have?. Example 7.20: O cnveys T A and her heirs s lng as the land is farmed. What des A have?. What des O have?. 32 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 8: THE RULE AGAINST PERPETUITIES Big Picture The Rule Against Perpetuities ( RAP ) limits an wner s ability t tie up future interests fr mre than tw. This is based n the idea that the alienability f prperty is fr sciety. RAP sets a perpetuities perid that is a plus 21 years. Under RAP, t be valid, a future interest must be certain t r within that time perid. RAP is a frm f lgic and isn t cncerned with whether the interest will vest. RAP is a gatekeeper. If an interest is invalid under RAP it is frm the cnveyance which affects the ther interests. Mechanics Rule: N interest is gd unless it must vest, if at all, nt later than 21 years after sme life in being at the creatin f the interest. 1. Interest RAP nly applies t 3 kinds f. Executry interests, cntingent remainders, and vested remainders subject t pen. Exam Tip: If yu see ne f these three interests n an exam, put a star ver it t remind yu t d a RAP analysis with regard t that interest. 2. Must Vest, if at all Rule wants t knw if the interest will within the perpetuities perid and isn t cncerned with whether the interest actually vests. Remember, vesting is the right t. 3. Life in Being Refers t search fr the validating life wh is the persn wh shws us whether the interest will vest r fail within the persn s, 33 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
at the persn s, r after the persn s death. 4. Creatin f the Interest Validating life must be alive when the interest is created. Lk fr tw creatin pints: (i) at the time f the cnveyance, the interest is created at the time f the gift; (ii) with a (gift by will), the interest is created at the testatr s death, which means the validating life be the testatr. Analysis fr RAP has 3 steps: 1. Des RAP apply? Is there an interest created in this cnveyance that is? 2. Search fr validating life Exam Tip: When is the last mment in time when yu will knw whether this interest will vest r fail? Lk fr the utside pint f the perpetuities perid. Example 8.1: O cnveys T A fr life, then t B if B graduates frm law schl. When is the last mment in time we will knw if this interest vests? Earliest we will knw is in a cuple f years, the last mment in time is. B can be the measuring life; B was alive at the creatin and B will validate the interest. Example 8.2: O cnveys T A and her heirs, but if liqur is ever sld n the premises, then t B and her heirs. When is the last mment in time we will ever knw if liqur is sld n the premises? We can t use A t measure because A culd die the next day, and because A has the fee simple subject t executry limitatin, A s heirs are subject t the. We can t use B r B s heirs either. We dn t knw. It can g n and there s n life, s this RAP. Example 8.3: O cnveys T A fr life, then t A s first child wh reaches the age f 21. A s nly child, B, is 15. When is the last mment in time we will knw whether this interest vests r fails? The first mment in time is when B reaches 21 in 6 years. B culd die tmrrw and A culd have mre children. S the last mment in time is. A is the validating life. 3. Assess the interest fr changes. 34 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
If an interest is valid, we d because RAP is satisfied. If the interest is invalid, we as if it was never valid at all. Example 8.4: O cnveys T A and her heirs, but if liqur is ever sld n the premises, then t B and her heirs. See Example 8.2: we knw there is n validating life. This vilates RAP, s we have t crss ut everything that mdifies the future interest. T A and her heirs, but if liqur is ever sld n the premises, then t B and her heirs. The new cnveyance is T A and her heirs. A has a. Analysis Example 8.5: O cnveys T A fr life, then t A s first child wh reaches the age f 21. What des A have?. What des child have?. What des O have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw if A has a child wh reaches the age f 21?. Step 3: Assess:. New cnveyance?. Example 8.6: O cnveys T A fr life, then t A s first child t reach 25. What des A have?. What des child have?. What des O have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw if A has a child wh reaches the age f 25?. Step 3: Assess:. New cnveyance?. Example 8.7: T devises T my grandchildren wh reach the age f 21. T dies leaving tw children, A and B, and three grandchildren under the age f 21. What d grandchildren have?. What des T s estate have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw whether this interest vests fr fails?. Step 3: Assess:. New cnveyance?. 35 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
Example 8.8: O cnveys T my grandchildren wh reach the age f 21. O has tw children, A and B, and three grandchildren under the age f 21. Hw is this different frm 8.7?. What d grandchildren have?. What des O have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw whether this interest vests r fails?. Step 3: Assess:. New cnveyance?. Example 8.9: O cnveys T A and her heirs, but if liqur is ever sld n the premises, t B and her heirs. What des A have? [Hint: see Example 6.23]. What des B have?. What des O have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw whether this interest vests r fails?. New cnveyance?. Example 8.10: O cnveys T A fr life, then t B if she reaches the age f 26. What des A have?. What des B have?. What des O have?. Step 1: Is there an interest subject t RAP?. Step 2: Is there a validating life? When is the last mment in time we will knw whether this interest vests r fails?. New cnveyance?. 36 2014 Themis Bar Review, LLC Law Schl Essentials Prperty
CHAPTER 9: ESTATES IN LAND CONCURRENT INTERESTS Big Picture Cncurrent wnership exists when tw r mre peple wn the prperty at the same time. Key Terms 1. C-Tenants peple wh have interests. Being a tenant des nt make this a landlrd-tenant situatin. Example 9.1: Jack and Diane have equal interests in Whiteacre, a sybean farm. Because they have cncurrent interests, Jack and Diane are n Whiteacre. 2. Right f Survivrship pwer f successin fllwing the death f a. It nly exists in tw f the three cncurrent estates (jint tenancy and tenancy by the entirety). Example 9.2: A and B have jint tenancy, a type f cncurrent estate with a right f survivrship. On A s death, B utright under the right f survivrship. 3. Prbate judicial prcess fr a decedent s estate. The prbate prcess applies t bth testate (with a will) and (withut a will) successin. Example 9.3: Tny died testate leaving all f his prperty t his children, Mitch and Mabel. Befre the children take an interest, Tny s estate must g thrugh the prbate prcess: settle debts, pay taxes, itemize and accunt prperty, and distribute t children. Jint tenancy and tenancy by the entirety are prbate- mechanisms. 4. Ouster when ne c-tenant anther c-tenant t the cncurrently held prperty. 37 2014 Themis Bar Review, LLC Law Schl Essentials Prperty