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Property I
Elon University School of Law
Rivers James, Faith

Property Law I Outline

Elon School of Law – Fall 2013

Professor Rivers-James

Estates in the Bundle of Rights

· When you inherit land, you get all of the sticks in the bundle

1. Possess

· Control occupancy on land?

2. Use

· Control activities on land?

· Ex: I give you land under the condition that you don’t cut down apple trees.

3. Exclude

· Control occupancy or activities on land

· Ex: I give you land on the condition that your daughter cannot enter it.

3. Transfer

· Alienability (transfer/sell)

· Inherit

· Devise (Will)

· Dead Hand Control: Dead people have limited control for limited amount of time.

Definition of Estate

· A form of interest in property

· A set of rights (not just dirt or land)

· Property is relationship between people about things

Tenant Status in Freehold Estates

· Unlimited tenure

o Tenant of the fee (land)

· Limited tenure

o Tenant for life

o Tenant for a term

Rights to Transfer Land

· Heritable

o Future

o Passed from one generation to the next

· Devisable

o Future

o Owner gives property through will

· Alienable

o Present (owner has right to transfer estate during life)

o Property is capable of sale/transfer

Inheritance Vocabulary:

· Decedent

o Person who died

· Convey

o To transfer land to someone else by sale OR gift

· Escheat

o If a decedent has no heirs or devisees, the interest escheats (passes) to the state

· Testate

o Decedent who dies with a will

· Testator

o Person who creates a will

· Executor

o Person named by testator to carry out provisions in will

· Devise

o To pass real property by will

· Devisee

o Person who receives property under a will

· Interest

o Right, claim, or privilege that person has toward estate

o A will does not create any interest in property until the testator dies because testator can always change mind about what he wants to do with land

· Intestate

o Decedent who dies without a will

· Quitclaim deed

o Formal release of one’s claim or right

· Seisin

o Possession of a freehold estate in land; ownership

· x

o People who survive the decedent and are entitled to inherit property of a decedent through the intestacy statute

· Issue:

o Lineal descendants (down)

o Children, grandchildren, etc.

· Ancestors

o Biological forbearers (up)

o Parents, grandparents, great grandparents, etc.

· Collaterals

o All other blood relatives of the deceased (out)

o Siblings, aunts/uncles, cousins, etc.

o Spouses are not heirs in common law because they aren’t blood relatives, but may take a portion by dower/courtesy or “forced share” statutes

· Primogeniture

o First born son inherits estate

· Adopted Children

o Adopted children can be heirs

o Began in US in late 1800s

· Children Born out of Wedlock

o Can be heirs

o Began in US in late 1970s

· Contingent remainder

o If there’s one contingent remainder, the rest are contingent remainders

· ”Down, up, and out” for determining who gets land

I. Freehold Estates Overview

= Possessory Estates

· 1. Fee simple

o “To A and her heirs”

· 2. Life estate

o “To A for life”

· 3. Fee tail

o “To A and the heirs of her body”

· Estates are characterized by

o Identifying words

o Nature

o Duration

o Rights

· Fee simple > fee tail > life estate

1. Fee Simple

· Identifying words:

o Common Law: “and her heirs”

§ Owner isn’t required to give land to heirs. Owner can just devise land or pass it onto the heirs.

§ “And her heirs” is not the heirs’ RIGHT of inheritanc

d isn’t “inherited” by intestacy, is not received by devise

o For a fee tail, there doesn’t have to be a will. You can’t will away a fee tail or let it go by intestacy

· Duration:

o Inherently limited estate that ended when bloodline expires

When it does eventually run out, it goes back to grantor

· Future Interests:

o Always a reversion or remainder

o Land is never available for sale

· Rights:

o Possessor cannot sell, give away, or devise the right to possess the land after his death

· State Approaches

o Fee tail still exists in: Maine, Delaware, Mass., Rhode Island

§ “Straw man” transaction to disentail

§ Flipping conveyance to get rid of condition

§ Majority: statute disentails (extinguish the tail)

o SC and Iowa

§ Fee Simple Conditional

§ If A dies without issue, estate reverts to the grantor

Doctrine of Waste

· Affirmative Waste:

o Voluntary acts that substantially reduce property value

o Decreases value of what remaindermen can get out of land

o Remaindermen have some say in what current tenant is doing

o Ex: Opening mine for extraction of minerals

§ Allowed if already open

o Ex: Over-timbering

§ Normal timbering = good husbandry

· Permissive Waste

o Failure to take reasonable care of property which falls into disrepair

o Arises from negligence

· Ameliorative Waste

o Common law:

§ Any change = waste

o Modern law:

§ Life tenant may be permitted to make changes if action increases value of the property