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

Read Carefully – Follow punctuation carefully – a comma can change the entire meaning of a document.

Holmes – It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. [Rules should not rely on the] blind limitations of the past.

Traynor – We are given to justifying our tolerance for anachronistic precedents by rationalizing that they have engendered so much reliance as to preclude their liquidation.

What dictates/makes the law? (from Dyett)
§ Natural Law
§ Morality
§ Legislature
§ Judges

Policy Arguments in Property Law:
1. Alienability/Marketability: Courts favored.
2. Intent of grantor: Favored if it doesn’t restrict alienation.
3. Perpetuate concentration of wealth: Not favored.
4. Dead hand control: Not favored.
5. Improvements on property: Favored.
6. Efficient and actual use of land: Favored.
7. Prevent creditors from reaching property: Not favored.

I. POSSESSORY ESTATES:
KingàTenant in chiefàMesne lord (intermediate landlord)àtenant in demesne.
A. Feudal Tenures and Services:
Free Tenure:
1. Military tenures: Knight service.
2. Economic tenures (Socage): Any kind of services. Later became symbolic.
3. Religious tenures-service by prayers.
B. Feudal Incidents:
a. Homage and fealty: Grantor received protection and loyalty by tenant.
b. Aids: Demanded by lord when there is financial emergency.
c. Forfeiture: If tenants breach duty and service to the lord, then their land is forfeited to the lord.
d. Liabilities at death of tenant:
· Wardship and marriage: If heir under 21, Lord is entitled to possession of land, including rents & profits. Can also sell heir in marriage.
· Relief: heir had to pay the lord an appropriate sum to come into his inheritance (“relieve” the land from the lord’s grasp).
· Escheat: If tenant died w/o heirs, land returns to Lord.
C. Avoidance of Tax:
Two ways to transfer possession of land:
· Substitute himself with new tenant, which requires approval from landlord.
· Subinfeudation-tenant could add chain at the bottom of the feudal ladder so that he can become a mesne lord himself. The agreement between the tenant and the subtenant could be anything ranging from a prayer to a rose to money, etc. This way, feudal incidents are devalued significantly. Could be used to avoid feudal incidents but not feudal services.
D. Statute Quia Emptores or Statute of Mortmain (1290)
· Prohibited subinfeudation in fee simple & allowed substitution without consent. Two results:
1) Increased alienability and
2) Allowed more land to be directly owned by king.

II. FUTURE INTERESTS
General
a) Primogeniture – the eldest male child inherits all of the land
b) Coparceny – if there was no eldest male, then all the daughters inherited the land; as each daughter married, she lost control of the land and it became her husband’s
c) Children = children from grantor’s marriages (all) but no stepchildren (other spouse’s children), grandchildren, nor non-marital children.
d) Heirs – adopted yes, step children no; parents
e) Issue or Descendants = lineal offspring of the designated person (children, grandchildren, great grandchildren, etc.)
f) Ancestors = parents
g) Collaterals:] = cousins, nieces, nephews, aunts, uncles
h) Quiet title = Makes title free from dispute and litigation.
i) Transferable = transfer by sale
j) Divisible = transfer by will
k) Inheritable = transfer by state’s inheritance law.
l) Stirpes: A line of descent in the order of issues, ancestors and collaterals.

1. Fee Simple Absolute
a) Not associated future interest (no conditions on possession, inheritance or survivorship)
b) Owner can transfer interest by will or through the state’s intestacy statute
c) No future interest in this type of estate
d) FSA is fully transferable; divisible (transf

reated as “A gets a life estate, A’s heirs get a remainder”
c) Abolition
1. “common recovery” = An expensive suit to bar fee tail in the 19th Century.
2. Fee tail no longer exists in most states except MA, ME, DE, and RI (these jurisdictions convert fee tail into fee simple by deed executed during life, but not by will.
3. Policy for abolition of fee tail:
a. Fee tail makes land less alienability
b. Inefficient use of land
c. Concentration of wealth
4. Policy against abolition of fee:
a. Intent of grantor
3. Defeasible Fees
a) Life Estate
1) A to B “for life” (unstated reversion). B gets land until B dies.
2) A to B for life, then upon B’s death to A (express reversion)
3) Can’t commit waste – using the land in such a way as decrease its value – else go back to grantor A or whoever A designates to receive it.
b. Affirmative: Actively changing the land that reduces the value of the property. Taking out resources is considered waste except:
a. Grantor gives right to exploit for natural resources on/in land (timber, minerals, oil)
b. Open mines Doctrine – If mining was done before life estate began, can continue to mine. Otherwise, no opening of mines. Trend is changing to minerals instead.
c. If in state where suitable only for such exploitation.
d. NOTE: There is a reasonableness limit on amount allowed.
c. Permissive: Neglect of normal upkeep of the property.
a. Life estate has duty for ordinary repairs (such as repairing furnace), but need not do extraordinary maintenance like replacing furnace).