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Property I
Rutgers University, Newark School of Law
Sclar, Diana

Professor Sclar

Property Law

Fall 2014

Dukeminier Textbook

Property Attack Outline – Relevant Law and Shells

ADVERSE POSSESSION (Look for squatters, mistaken boundary fact scenarios)

Major Themes: [COAH requirements, Quiet Title Action, Tacking – Privity]

Shell: For possession to ripen into title, it must be continuous, open and notorious, actual, and hostile for the statutory period. The possessor must then file a quiet title action against the former owner to acquire title.

Possession must be COAH:

C-continuous: uninterrupted occupation for S/L (10-30 yrs); if land normally used only in summer then seasonal possession is satisfactory)

O-open & notorious: visible AND similar use to size, condition puts owner on actual or constructive notice (inquiry notice, a form of constructive notice, is sufficient – Mannillo v. Gorski)

A-actual: physical entry to start S/L; ousted others; gives notice to true owners; cultivate and enclosures; may claim constructive possession of entire property if actual entry on part of land described in color of title (claim to title appears valid, but may be legally defective)

H-hostile or under a claim of right; Majority Rule is that Intention is irrelevant (CT doctrine, Obj. Standard); Good faith claim, I thought I owned it; Bad faith claim, Intention is to take land knowing it is not yours.

Quiet Title Action: Once elements are met, possessor must file a quiet title action against the former owner to acquire title.

Tacking: must be privity (any non-hostile nexus b/w the possessors; K, deed, will)

Shell: To constitute adverse possession, there must be actual possession that is continuous, open and notorious, actual, and hostile for the statutory period. Tacking of adverse possession is permitted if the successive occupants are in privity, if there is a non-hostile nexus between the predecessors and the successive occupants (i.e. transfer by K, deed, will).

Ouster: defeats privity, preventing tacking.

Boundary Disputes: Solutions are Oral agreements; long acquiescence of a boundary line; one may be estopped from denying what he agreed to in the past; Minor intrusions may require true owner to sell occupied piece of land for fair value.

No AP against the Gov’t

No AP if owner doesn’t know of property underground (Marengo Cave) not open/notorious.

Policy: 1. Punishes owners for sleeping on rights; 2. Rewards productivity; 3. Sense of right after productive use and attachment; 4. Eliminates issues with old deeds; 5. Bars stale claims b/c S/L.

Defenses to AP: 1. Permissive use (Owner granted permission – fails hostility req.)

2. Public lands (Gov’t exemption) 3. Nonexclusive use (Others also used property) 4. Did not last full statutory period or was interrupted.

ESTATES IN LAND

Major Themes: [FSA, Fee Tail, Life Estate, Duties of Life Tenant – Waste, 3 Defeasible Fees]

Defeasible: Terminated, defeated; Indefeasible: Cannot be defeated.

Subinfeudation: w/o lord’s consent; T renders mesne lord services; think subleasing.

Substitution: w/ lord’s consent; subs a new T for himself; T must show homage; think assignment.

Shell: An estate in land is an interest that is or may become possessory, and is measured by some period.

The transfer of an estate must state what is being transferred to whom, and for how long. There are four present possessory estates: FSA, Fee Tail, Life Estate, Defeasible Fees.

Always answer: 1. What language will create the estate?

2. Is the estate a. devisable? (pass by will); b. descendible? (pass to heirs if its holder dies intestate (without a will); c. alienable? (transferable inter vivos)

Shell: Restraints make property inalienable and thus unmarketable; they perpetuate concentration of wealth; they discourage improvements on land b/c why improve when you have no future interest; they prevent owner’s creditors from reaching the property.

3. What future interest is created?

Inheritance: Heirs: ascertained at moment of person’s death; Issue: descendants; i.e. children; Collaterals: all blood relatives who are neither descendants nor ancestors; Escheats: If “A” dies intestate w/o heirs, the property escheats to the state.

Four Types of Present Possessory Estates:

1. FSA; 2. Fee Tail; 3. Life Estate; 4. Defeasible Fees

FSA (absolute ownership, no future interest); FSD (on event, may revert to grantor; “until” “during”)

FSSCS (cond. met grantor may enter; “but if, provided”) FSSEL (3rd party cuts short when cond. met)

Granting Text

Rights of Grantee

Rights of Grantor

Rights of 3rd Party

O to A and her heirs

A: Fee simple absolute

None

None

O to A for life, remainder to her heirs

A: Life estate

Reversion

H: Remainder

O to A for life so long as used for residential purposes

A: Fee simple determinable

Reverter

H: Fee simple determinable

O to A so long as used for school purposes

A: Fee simple determinable

Reverter

H: Fee simple determinable

O to A, but if not used as school, O has right to retake

A: Fee simple subject to condition subsequent

Right of Re-entry

H: Fee simple subject to condition subsequent

O to A, but if not used as a school, to B

A: Fee simple subject to executory interest

None

B: Executory interest

1. FSA: Absolute ownership. “To A and his heirs”; No future interest. Devisable (pass by will); Descendible (pass to heirs if die intestate); Alienable (transferable inter vivos).

Shell: “A” will claim that he holds “Blackacre” in FSA b/c the language to create this interest is “To A and his heirs” indicating that “A” has a FSA; the heirs apparent have nothing. A’s interest is Devisable, Freely Descendible, and Alienable. A’s interest creates no accompanying future interest b/c a living person has no heirs as they are ascertainable only at A’s death. Courts favor FSA b/c they promote easy transferability of property rights.

2. Fee Tail: Abolished in majority US. “To A and the heirs of his body”; Attempted creation of a Fee Tail creates instead a FSA. Future interest is either a Reversion in O or Remainder.

Shell: “A” will claim that he holds “Blackacre” in Fee Tail b/c the language to create this interest is “To A and the heirs of his body” and the intent is to limit inheritance to lineal descendants of the grantee. àAlthough “A” will claim he owns a Fee Tail, the majority of US state has abolished this interest. If A is in a majority state, the courts will interpret the attempt to create a Fee Tail instead as the creation of a FSA. Courts will favor FSA b/c they promote easy transferability of property rights; Also, Fee Tails defraud creditors b/c debts only attach to the life estate of A and do not attach after A dies.

àIf A is in a minority state where fee tail is recognized, then “A” will own a life estate in “Blackacre” and can transfer only up to a life estate, which will end when A dies. “A’s” heirs will inherit a life estate in “Blackacre.” A will argue this is more favorable b/c children could not be disinherited and the intent is to keep the land in the family.

3. Life Estate: Endures for the life of A or pur autre vie (the life of another); “To A for life” or “To A for the life of B”; Future interest is either a Reversion in O or Remainder; Must be explicit in lifetime terms, NOT in terms of years. Restricts alienability (requires consent of future interest holders), difficult to lease b/c dependent on death of life Tenant; banks will not mortgage on a life estate property; Minority of states recognize dower: Husband conveys to bona fide purchaser does not defe

0% fair market value of the unrestricted fee in the land.

3. Fee Simple Subject to Executory Limitation (FSSEL)

Third party stands to take, NOT the grantor. “To A, but if X event occurs, then to B.”

“To Orville Redenbacher, but if popcorn is eaten on the premise, then to Y”; future interest is in Y and not the grantor. If condition is breached, auto forfeiture to third party. Future interest is a Shifting Executory Interest.

FUTURE INTERESTS

Major Themes: [Interests Retained by Transferor, Created in Transferee: Remainder (VR, CR), Executory Interests (Shifting/Springing), RAP, Trusts]

Future Interests Capable of Creation in O, the Grantor – 3 categories (Not Subject to RAP)

1. Possibility of Reverter (follows FSD) Orville has FSD; Sinatra has Possibility of Reverter

2. Right of Entry (follows FSSCS)

3. Reversion (follows anything other than FSD or FSSCS) O’s leftover is a Reversion in O.

The Rule Against Perpetuities (RAP) does not apply.

Future Interests Held by Someone Other than O – 3 categories

Granting Text

Result

O to A for life then to B if B gives A a proper funeral

Executory interest in B divesting O’s heirs

O to A for life, then to B and her heirs

Life estate in A, vested remainder in B

O to A for life, then to A’s children and their heirs. A has one child: B

Life estate in A, vested subject to open in B

O to A for life, then to the heirs of B. B is alive

Life estate in A, contingent remainder in B’s heirs à Heirs are those that are alive at B’s death

O to A for life, then to B and her heirs if B survives A, and if not, to C and his heirs

Life estate in A, contingent remainder in B, contingent remainder in C à NOTE C cannot divest B’s interest

O to A for life, then to B and her heirs, but if B doesn’t survive A, to C and his heirs

Life estate in A, vested remainder subject to executory interest in B, executory interest in C

O to A and B for their lives, then to the survivor in fee simple

Contingent remainder in A and B

O to A for life, then to A’s children who reach 21. A has B who is 17.

Contingent remainder in B which is vested subject to open when he turns 21 à NOTE Rule of Convenience

1. Vested Remainder – 3 species

a. Indefeasibly VR

b. VR Subject to Complete Defeasance

c. VR Subject to Open

2. Contingent Remainder

3. Executory Interest – 2 species

a. Shifting (divests from someone other than grantor)

b. Springing (divests from grantor)

Remainder – Never follows a Defeasible Fee (Follows Life Estate or Term of Years)

Follows a preceding estate of Known, Fixed Duration, Never divests prior estates.

“To A for life, then to B” or “To A for ten years, then to B” – B has a remainder.