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Property I
Rutgers University, Newark School of Law
Simmons, Peter

Fall 2010- Peter Simmons- Property I – Rutgers School of Law -Newark

A. Feudal Background

1. Land Tenure

a. Basic principal of feudal system was that every landowner (besides the king), had a lord above him

b. Subinfeudation – tenant-in-chief granting a parcel of his land to a subtenant in exchange for a service

c. Created a feudal ladder: King à Tenant-in-chief à Mesne Lord à Tenant in Demense

i. Tenant in demesne had possessory use of the land (seisin); the lords above him had the right to services

i. Knight who received his land from a baron by subinfeudation held both of his baron and of the king (he held immediately of his baron and mediately of the king)

2. Feudal Services

a. Free Tenures

i. Knight service – military tenure; required the tenant to provide a specific number of men to fight for the king for 40 days each year

ii. Scoage – economic tenure; intended to provide subsistence and maintenance for overlords

iii. Nominal services – established lords rights to incidents

b. Unfree Tenures

i. Held by peasants (villeins) at the will of the lord; denied protection by the king’s courts

3. Feudal Incidents – due at tenant’s death; form of inheritance tax

a. Types:

i. Relief – payment by the heir to relieve the land from the lord’s grasp

ii. Wardship – the lord was entitled to possession of the land, including rent and profits, while the heir was a minor (under 21)

iii. Marriage – the lord could sell the marriage of a minor (under 21) heir

iv. Escheat – the land reverted to the lord if the tenant died without heirs (or if tenant was convicted of a felony)

b. Avoidance

i. Substitution – tenant in demesne substituted for himself some new tenant who would hold the land from his lord; required the lord’s consent and homage to the lord from the new tenant

ii. Subinfeudation – tenant added a new rung to the bottom of the feudal ladder, becoming a mense lord himself and having a tenant who rendered him services; did not require the lord’s consent; did not diminish the feudal services but could be used to avoid feudal incidents

4. Decline of Feudalism

a. Quia Emptores (1290) – gave all freehold tenants the rights to transfer their lands without the lord’s consent; established that land should be alienable

5. Freehold and Non-Freehold Estates

a. Freehold Estate – owning land (fee simple, fee tail, life estate); has seisin

b. Non-freehold Estate – leasing land (term of years, periodic tenancy, and tenancy at will)

B. System of Estates

1. Estate- an interest in land that is or may become possessory and is measured by some period of time.

2. Types of Estates

a. Fee Simple- This estate has the potential of forever; absolute ownership

i. O to A and his heirs

b. Fee Tail- also the potential to last forever; but ends if and when the first fee tail tenant has no lineal descendants to succeed him in possession

i. O to A and the heirs of his body

c. Life Estate- will end at the death of a person

i. O to A for life

d. Leasehold Estate- lasts for a fixed time or by other agreement between a landlord and a tenant

i. Term of years- for any period of time computable by calendar

ii. Periodic Tenancy- period to period until the landlord or tenant gives notice to terminate at the end of a period

iii. Tenancy at Will- so long as both the landlord and tenant desire

3. Freehold Estates- Owning land: fee simple, fee tail, and life estate (has seisin)

4. Non-freehold estates- leasehold estates (no seisin only possession)

a. Seisin- one who seised the land in feudal times was responsible for feudal services; incidents were due on the death of a person holding seisin ( a freehold tenant in possession). There could never be abeyance of seisin- someone always has to hold seisin.

5. Estates in personal property- possessory and future estates can be created in both real property (land) and personal property.

C. Language of Inheritance

1. A deed or will is presumed to pass the largest estate the grantor or testator owned

2. White v. Brown – A fee simple absolute was presumed even in the absence of words of inheritance, if there was no language that could be construed to create a remainder. Thus, the restraint on the sale of the house was insufficient to overcome the presumption that a fee simple had been devised, and testamentary restraint on alienation was void.

3. No new estates may be created- any language that seems to be creating a new estate will mean either: fee simple, fee tail, a life estate, or a leasehold

4. Words of Purchase- identify the person in whom the estate is created

a. “to A”

5. Words of Limitation- describe the type of estate created

a. “And her heirs”

6. Inter vivos Transfer- a form of transfer between living persons; one living person transfers to another living person (conveyance describes an inter vivos transfer)

D. Present Possessory Estates

1. Fee Simple

2. Fee Tail

3. Life Estate

4. Leasehold Estate

E. The Fee Simple

1. Fee Simple Absolute- Absolute Ownership; potentially indefinite duration; no limitations on inheritability; cannot be divested or end in the happening of any event

a. Creation

i. Common Law: created by deed only by using the words “and his heirs”. If these words were omitted, the grantee took only a life estate

i. Heirs has no present interest

ii. Modern Law: the requirement of “and his heirs” has been abolished by most states. Either a deed or will is presumed to pass the largest estate the grantor or testator owns

b. Transferability

i. The Statute Quia Emptores (1290) gave all freehold tenants the right to transfer their land without the lord’s consent. Established the basic idea that land is freely alienable.

ii. The Statute of Wills (1540) granted a fee simple owners the right to devise their land or have it descend to their heirs where the owner had no will

c. Definitions

i. Heirs- persons who inherit an intestate decedent’s real property (not limited to children)

ii. Spouse

i. At common law- couldn’t be an heir; given only curtesy or dower in real property.

ii. Modern law- disqualification of spouse as an heir abolished in most states- given a fractional share as heir

iii. Next of Kin; Successors- persons who inherit decedent’s personal property of an intestate decedent under the statute of succession.

i. English law

i. land passed under the law of Primogeniture to the eldest son (“the heir”)

ii. Personal property was divided equally among all children

ii. American Law

i. Primogeniture was abolished after Revolution

ii. Today all children (male and female) share equally

iii. In most states the same persons succeed to a decedent’s personal property and land. (next of kin and heirs are usually synonymous)

iv. Devisees- Persons who receive a decedent’s real property under a will

v. Legatees- persons who receive a decedent’s property under a will

vi. In a will real property is devised while personal property is bequeathed

2. Defeasible Fees- a fee simple that is defeasible upon the happening of some event; have the potential (n

f the life estate

a. O to A for the life of B

b. A conveys her life estate to B. (A is the measuring life)

c. In a class

i. “To the children of A”

d. Defeasible Life estates

3. Alienability of Life estates: Life tenant is free to transfer, lease, encumber, or alienate her estate inter vivos. The transferee gets no more than the life tenant had.

4. Waste- conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate in land.

a. Types of waste

i. Affirmative (voluntary) Waste- occurs when the life tenant actively causes permanent injury (Ex: destroying buildings or ornamental trees)

ii. Permissive (involuntary) Waste- occurs when the land is allowed to fall into disrepair or the tenant fails to take reasonable measures to protect the land from the elements. Failing to pay taxes and allowing property to be sold at a tax sale is permissible waste.

b. Remedies for Waste- the owners of the remainder may enjoin threatened waste by the life tenant or recover damages. If the ultimate future owner of the land is not now ascertained, damages may be impounded by the court pending determination of the ultimate takers.

H. The Rule Against Restraints on Alienation

1. Three Types of direct restraints

a. Forfeiture Restraint- provides that if the grantee attempts to transfer his interest, it is forfeited to another person.

b. Disabling Restraint- withholds from the grantee the power of transferring her interest.

c. Promissory Restraint- provides that the grantee promises not to transfer his interest

I. Future Interests

1. How to analyze future interests:

a. Classify the present estate

b. Look at who has the future interest (grantor or other person)

c. Think about how the future interest will become possessory (remainder waits patiently, executory interest either divests the prior estate or springs out of the grantor’s interest. Reversion follows the natural termination of the prior estate, possibility of reverter does not cut short the preceding determinable estate, the right of reentry divests the preceding estate.)

d. Identify the Possessory Estate in which the future interest will be held

e. Determine whether the interest is vested or contingent

f. Apply the following rules to contingent interests:

· Destructibility of Contingent remainders (C/R only)

· The Rule in Shelley’s Case

· The Doctrine of Worthier Title

· The Rule Against Perpetuities

2. Definition: non-possessory interest capable of becoming possessory in the future. A future interest is a present interest in the sense that it presently exists. But is NOT presently possessory.

3. Categories: (5)

a. Reversion

b. Possibility of reverter

c. Right of entry

d. Remainder

e. Executory interest